Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 162230 April 28, 2010
ISABELITA C. VINUYA, VICTORIA C. DELA PEA, HERMINIHILDA MANIMBO, LEONOR H. SUMAWANG,
CANDELARIA L. SOLIMAN, MARIA L. QUILANTANG, MARIA L. MAGISA, NATALIA M. ALONZO, LOURDES M.
NAVARO, FRANCISCA M. ATENCIO, ERLINDA MANALASTAS, TARCILA M. SAMPANG, ESTER M. PALACIO,
MAXIMA R. DELA CRUZ, BELEN A. SAGUM, FELICIDAD TURLA, FLORENCIA M. DELA PEA, EUGENIA M. LALU,
JULIANA G. MAGAT, CECILIA SANGUYO, ANA ALONZO, RUFINA P. MALLARI, ROSARIO M. ALARCON, RUFINA C.
GULAPA, ZOILA B. MANALUS, CORAZON C. CALMA, MARTA A. GULAPA, TEODORA M. HERNANDEZ, FERMIN B.
DELA PEA, MARIA DELA PAZ B. CULALA, ESPERANZA MANAPOL, JUANITA M. BRIONES, VERGINIA M.
GUEVARRA, MAXIMA ANGULO, EMILIA SANGIL, TEOFILA R. PUNZALAN, JANUARIA G. GARCIA, PERLA B.
BALINGIT, BELEN A. CULALA, PILAR Q. GALANG, ROSARIO C. BUCO, GAUDENCIA C. DELA PEA, RUFINA Q.
CATACUTAN, FRANCIA A. BUCO, PASTORA C. GUEVARRA, VICTORIA M. DELA CRUZ, PETRONILA O. DELA CRUZ,
ZENAIDA P. DELA CRUZ, CORAZON M. SUBA, EMERINCIANA A. VINUYA, LYDIA A. SANCHEZ, ROSALINA M. BUCO,
PATRICIA A. BERNARDO, LUCILA H. PAYAWAL, MAGDALENA LIWAG, ESTER C. BALINGIT, JOVITA A. DAVID,
EMILIA C. MANGILIT, VERGINIA M. BANGIT, GUILLERMA S. BALINGIT, TERECITA PANGILINAN, MAMERTA C.
PUNO, CRISENCIANA C. GULAPA, SEFERINA S. TURLA, MAXIMA B. TURLA, LEONICIA G. GUEVARRA, ROSALINA
M. CULALA, CATALINA Y. MANIO, MAMERTA T. SAGUM, CARIDAD L. TURLA, et al. In their capacity and as members of
the "Malaya Lolas Organization", Petitioners,
vs.
THE HONORABLE EXECUTIVE SECRETARY ALBERTO G. ROMULO, THE HONORABLE SECRETARY OF FOREIGN
AFFAIRS DELIA DOMINGO-ALBERT, THE HONORABLE SECRETARY OF JUSTICE MERCEDITAS N. GUTIERREZ, and
THE HONORABLE SOLICITOR GENERAL ALFREDO L. BENIPAYO, Respondents.
D E C I S I O N
DEL CASTILLO, J.:
The Treaty of Peace with Japan, insofar as it barred future claims such as those asserted by plaintiffs in these actions, exchanged full
compensation of plaintiffs for a future peace. History has vindicated the wisdom of that bargain. And while full compensation for
plaintiffs' hardships, in the purely economic sense, has been denied these former prisoners and countless other survivors of the war,
the immeasurable bounty of life for themselves and their posterity in a free society and in a more peaceful world services the debt.
1

There is a broad range of vitally important areas that must be regularly decided by the Executive Department without either challenge
or interference by the Judiciary. One such area involves the delicate arena of foreign relations. It would be strange indeed if the courts
and the executive spoke with different voices in the realm of foreign policy. Precisely because of the nature of the questions presented,
and the lapse of more than 60 years since the conduct complained of, we make no attempt to lay down general guidelines covering
other situations not involved here, and confine the opinion only to the very questions necessary to reach a decision on this matter.
Factual Antecedents
This is an original Petition for Certiorari under Rule 65 of the Rules of Court with an application for the issuance of a writ of
preliminary mandatory injunction against the Office of the Executive Secretary, the Secretary of the Department of Foreign Affairs
(DFA), the Secretary of the Department of Justice (DOJ), and the Office of the Solicitor General (OSG).
Petitioners are all members of the MALAYA LOLAS, a non-stock, non-profit organization registered with the Securities and
Exchange Commission, established for the purpose of providing aid to the victims of rape by Japanese military forces in the
Philippines during the Second World War.ten.lihpwal
Petitioners narrate that during the Second World War, the Japanese army attacked villages and systematically raped the women as part
of the destruction of the village. Their communities were bombed, houses were looted and burned, and civilians were publicly
tortured, mutilated, and slaughtered. Japanese soldiers forcibly seized the women and held them in houses or cells, where they were
repeatedly raped, beaten, and abused by Japanese soldiers. As a result of the actions of their Japanese tormentors, the petitioners have
spent their lives in misery, having endured physical injuries, pain and disability, and mental and emotional suffering.
2

Petitioners claim that since 1998, they have approached the Executive Department through the DOJ, DFA, and OSG, requesting
assistance in filing a claim against the Japanese officials and military officers who ordered the establishment of the "comfort women"
stations in the Philippines. However, officials of the Executive Department declined to assist the petitioners, and took the position that
the individual claims of the comfort women for compensation had already been fully satisfied by Japans compliance with the Peace
Treaty between the Philippines and Japan.
Issues
Hence, this petition where petitioners pray for this court to (a) declare that respondents committed grave abuse of discretion
amounting to lack or excess of discretion in refusing to espouse their claims for the crimes against humanity and war crimes
committed against them; and (b) compel the respondents to espouse their claims for official apology and other forms of reparations
against Japan before the International Court of Justice (ICJ) and other international tribunals.
Petitioners arguments
Petitioners argue that the general waiver of claims made by the Philippine government in the Treaty of Peace with Japan is void. They
claim that the comfort women system established by Japan, and the brutal rape and enslavement of petitioners constituted a crime
against humanity,
3
sexual slavery,
4
and torture.
5
They allege that the prohibition against these international crimes is jus cogens norms
from which no derogation is possible; as such, in waiving the claims of Filipina comfort women and failing to espouse their
complaints against Japan, the Philippine government is in breach of its legal obligation not to afford impunity for crimes against
humanity. Finally, petitioners assert that the Philippine governments acceptance of the "apologies" made by Japan as well as funds
from the Asian Womens Fund (AWF) were contrary to international law.
Respondents Arguments
Respondents maintain that all claims of the Philippines and its nationals relative to the war were dealt with in the San Francisco Peace
Treaty of 1951 and the bilateral Reparations Agreement of 1956.
6

Article 14 of the Treaty of Peace
7
provides:
Article 14. Claims and Property
a) It is recognized that Japan should pay reparations to the Allied Powers for the damage and suffering caused by it during the
war. Nevertheless it is also recognized that the resources of Japan are not presently sufficient, if it is to maintain a viable
economy, to make complete reparation for all such damage and suffering and at the present time meet its other obligations.
b) Except as otherwise provided in the present Treaty, the Allied Powers waive all reparations claims of the Allied Powers,
other claims of the Allied Powers and their nationals arising out of any actions taken by Japan and its nationals in the course
of the prosecution of the war, and claims of the Allied Powers for direct military costs of occupation.
In addition, respondents argue that the apologies made by Japan
8
have been satisfactory, and that Japan had addressed the individual
claims of the women through the atonement money paid by the Asian Womens Fund.1avvphi1
Historical Background
The comfort women system was the tragic legacy of the Rape of Nanking. In December 1937, Japanese military forces captured the
city of Nanking in China and began a "barbaric campaign of terror" known as the Rape of Nanking, which included the rapes and
murders of an estimated 20,000 to 80,000 Chinese women, including young girls, pregnant mothers, and elderly women.
9

Document1zzF24331552898
In reaction to international outcry over the incident, the Japanese government sought ways to end international condemnation
10
by
establishing the "comfort women" system. Under this system, the military could simultaneously appease soldiers' sexual appetites and
contain soldiers' activities within a regulated environment.
11
Comfort stations would also prevent the spread of venereal disease among
soldiers and discourage soldiers from raping inhabitants of occupied territories.
12

Daily life as a comfort woman was "unmitigated misery."
13
The military forced victims into barracks-style stations divided into tiny
cubicles where they were forced to live, sleep, and have sex with as many 30 soldiers per day.
14
The 30 minutes allotted for sexual
relations with each soldier were 30-minute increments of unimaginable horror for the women.
15
Disease was rampant.
16
Military
doctors regularly examined the women, but these checks were carried out to prevent the spread of venereal diseases; little notice was
taken of the frequent cigarette burns, bruises, bayonet stabs and even broken bones inflicted on the women by soldiers.
Document1zzF48331552898
Fewer than 30% of the women survived the war.
17
Their agony continued in having to suffer with the residual physical, psychological,
and emotional scars from their former lives. Some returned home and were ostracized by their families. Some committed suicide.
Others, out of shame, never returned home.
18

Efforts to Secure Reparation
The most prominent attempts to compel the Japanese government to accept legal responsibility and pay compensatory damages for the
comfort women system were through a series of lawsuits, discussion at the United Nations (UN), resolutions by various nations, and
the Womens International Criminal Tribunal. The Japanese government, in turn, responded through a series of public apologies and
the creation of the AWF.
19

Lawsuits
In December 1991, Kim Hak-Sun and two other survivors filed the first lawsuit in Japan by former comfort women against the
Japanese government. The Tokyo District Court however dismissed their case.
20
Other suits followed,
21
but the Japanese government
has, thus far, successfully caused the dismissal of every case.
22

Undoubtedly frustrated by the failure of litigation before Japanese courts, victims of the comfort women system brought their claims
before the United States (US). On September 18, 2000, 15 comfort women filed a class action lawsuit in the US District Court for the
District of Columbia
23
"seeking money damages for [allegedly] having been subjected to sexual slavery and torture before and during
World War II," in violation of "both positive and customary international law." The case was filed pursuant to the Alien Tort Claims
Act ("ATCA"),
24
which allowed the plaintiffs to sue the Japanese government in a US federal district court.
25
On October 4, 2001, the
district court dismissed the lawsuit due to lack of jurisdiction over Japan, stating that "[t]here is no question that this court is not the
appropriate forum in which plaintiffs may seek to reopen x x x discussions nearly half a century later x x x [E]ven if Japan did not
enjoy sovereign immunity, plaintiffs' claims are non-justiciable and must be dismissed."
The District of Columbia Court of Appeals affirmed the lower court's dismissal of the case.
26
On appeal, the US Supreme Court
granted the womens petition for writ of certiorari, vacated the judgment of the District of Columbia Court of Appeals, and remanded
the case.
27
On remand, the Court of Appeals affirmed its prior decision, noting that "much as we may feel for the plight of the
appellants, the courts of the US simply are not authorized to hear their case."
28
The women again brought their case to the US
Supreme Court which denied their petition for writ of certiorari on February 21, 2006.
Efforts at the United Nations
In 1992, the Korean Council for the Women Drafted for Military Sexual Slavery by Japan (KCWS), submitted a petition to the UN
Human Rights Commission (UNHRC), asking for assistance in investigating crimes committed by Japan against Korean women and
seeking reparations for former comfort women.
29
The UNHRC placed the issue on its agenda and appointed Radhika Coomaraswamy
as the issue's special investigator. In 1996, Coomaraswamy issued a Report reaffirming Japan's responsibility in forcing Korean
women to act as sex slaves for the imperial army, and made the following recommendations:
A. At the national level
137. The Government of Japan should:
(a) Acknowledge that the system of comfort stations set up by the Japanese Imperial Army during the Second World War
was a violation of its obligations under international law and accept legal responsibility for that violation;
(b) Pay compensation to individual victims of Japanese military sexual slavery according to principles outlined by the Special
Rapporteur of the Sub-Commission on Prevention of Discrimination and Protection of Minorities on the right to restitution,
compensation and rehabilitation for victims of grave violations of human rights and fundamental freedoms. A special
administrative tribunal for this purpose should be set up with a limited time-frame since many of the victims are of a very
advanced age;
(c) Make a full disclosure of documents and materials in its possession with regard to comfort stations and other related
activities of the Japanese Imperial Army during the Second World War;
(d) Make a public apology in writing to individual women who have come forward and can be substantiated as women
victims of Japanese military sexual slavery;
(e) Raise awareness of these issues by amending educational curricula to reflect historical realities;
(f) Identify and punish, as far as possible, perpetrators involved in the recruitment and institutionalization of comfort stations
during the Second World War.
Gay J. McDougal, the Special Rapporteur for the UN Sub-Commission on Prevention of Discrimination and Protection of Minorities,
also presented a report to the Sub-Committee on June 22, 1998 entitled Contemporary Forms of Slavery: Systematic Rape, Sexual
Slavery and Slavery-like Practices During Armed Conflict. The report included an appendix entitled An Analysis of the Legal
Liability of the Government of Japan for 'Comfort Women Stations' established during the Second World War,
30
which contained the
following findings:
68. The present report concludes that the Japanese Government remains liable for grave violations of human rights and humanitarian
law, violations that amount in their totality to crimes against humanity. The Japanese Governments arguments to the contrary,
including arguments that seek to attack the underlying humanitarian law prohibition of enslavement and rape, remain as unpersuasive
today as they were when they were first raised before the Nuremberg war crimes tribunal more than 50 years ago. In addition, the
Japanese Governments argument that Japan has already settled all claims from the Second World War through peace treaties and
reparations agreements following the war remains equally unpersuasive. This is due, in large part, to the failure until very recently of
the Japanese Government to admit the extent of the Japanese militarys direct involvement in the establishment and maintenance of
these rape centres. The Japanese Governments silence on this point during the period in which peace and reparations agreements
between Japan and other Asian Governments were being negotiated following the end of the war must, as a matter of law and justice,
preclude Japan from relying today on these peace treaties to extinguish liability in these cases.
69. The failure to settle these claims more than half a century after the cessation of hostilities is a testament to the degree to which the
lives of women continue to be undervalued. Sadly, this failure to address crimes of a sexual nature committed on a massive scale
during the Second World War has added to the level of impunity with which similar crimes are committed today. The Government of
Japan has taken some steps to apologize and atone for the rape and enslavement of over 200,000 women and girls who were brutalized
in "comfort stations" during the Second World War. However, anything less than full and unqualified acceptance by the Government
of Japan of legal liability and the consequences that flow from such liability is wholly inadequate. It must now fall to the Government
of Japan to take the necessary final steps to provide adequate redress.
The UN, since then, has not taken any official action directing Japan to provide the reparations sought.
Women's International War Crimes
Tribunal
The Women's International War Crimes Tribunal (WIWCT) was a "people's tribunal" established by a number of Asian women and
human rights organizations, supported by an international coalition of non-governmental organizations.
31
First proposed in 1998, the
WIWCT convened in Tokyo in 2000 in order to "adjudicate Japan's military sexual violence, in particular the enslavement of comfort
women, to bring those responsible for it to justice, and to end the ongoing cycle of impunity for wartime sexual violence against
women."
After examining the evidence for more than a year, the "tribunal" issued its verdict on December 4, 2001, finding the former Emperor
Hirohito and the State of Japan guilty of crimes against humanity for the rape and sexual slavery of women.
32
It bears stressing,
however, that although the tribunal included prosecutors, witnesses, and judges, its judgment was not legally binding since the tribunal
itself was organized by private citizens.
Action by Individual Governments
On January 31, 2007, US Representative Michael Honda of California, along with six co-sponsor representatives, introduced House
Resolution 121 which called for Japanese action in light of the ongoing struggle for closure by former comfort women. The
Resolution was formally passed on July 30, 2007,
33
and made four distinct demands:
[I]t is the sense of the House of Representatives that the Government of Japan (1) should formally acknowledge, apologize, and accept
historical responsibility in a clear and unequivocal manner for its Imperial Armed Forces' coercion of young women into sexual
slavery, known to the world as "comfort women", during its colonial and wartime occupation of Asia and the Pacific Islands from the
1930s through the duration of World War II; (2) would help to resolve recurring questions about the sincerity and status of prior
statements if the Prime Minister of Japan were to make such an apology as a public statement in his official capacity; (3) should
clearly and publicly refute any claims that the sexual enslavement and trafficking of the "comfort women" for the Japanese Imperial
Army never occurred; and (4) should educate current and future generations about this horrible crime while following the
recommendations of the international community with respect to the "comfort women."
34

In December 2007, the European Parliament, the governing body of the European Union, drafted a resolution similar to House
Resolution 121.
35
Entitled, "Justice for Comfort Women," the resolution demanded: (1) a formal acknowledgment of responsibility by
the Japanese government; (2) a removal of the legal obstacles preventing compensation; and (3) unabridged education of the past. The
resolution also stressed the urgency with which Japan should act on these issues, stating: "the right of individuals to claim reparations
against the government should be expressly recognized in national law, and cases for reparations for the survivors of sexual slavery, as
a crime under international law, should be prioritized, taking into account the age of the survivors."
The Canadian and Dutch parliaments have each followed suit in drafting resolutions against Japan. Canada's resolution demands the
Japanese government to issue a formal apology, to admit that its Imperial Military coerced or forced hundreds of thousands of women
into sexual slavery, and to restore references in Japanese textbooks to its war crimes.
36
The Dutch parliament's resolution calls for the
Japanese government to uphold the 1993 declaration of remorse made by Chief Cabinet Secretary Yohei Kono.
The Foreign Affairs Committee of the United Kingdoms Parliament also produced a report in November, 2008 entitled, "Global
Security: Japan and Korea" which concluded that Japan should acknowledge the pain caused by the issue of comfort women in order
to ensure cooperation between Japan and Korea.
Statements of Remorse made by representatives of the Japanese government
Various officials of the Government of Japan have issued the following public statements concerning the comfort system:
a) Statement by the Chief Cabinet Secretary Yohei Kono in 1993:
The Government of Japan has been conducting a study on the issue of wartime "comfort women" since December 1991. I wish to
announce the findings as a result of that study.
As a result of the study which indicates that comfort stations were operated in extensive areas for long periods, it is apparent that there
existed a great number of comfort women. Comfort stations were operated in response to the request of the military authorities of the
day. The then Japanese military was, directly or indirectly, involved in the establishment and management of the comfort stations and
the transfer of comfort women. The recruitment of the comfort women was conducted mainly by private recruiters who acted in
response to the request of the military. The Government study has revealed that in many cases they were recruited against their own
will, through coaxing coercion, etc., and that, at times, administrative/military personnel directly took part in the recruitments. They
lived in misery at comfort stations under a coercive atmosphere.
As to the origin of those comfort women who were transferred to the war areas, excluding those from Japan, those from the Korean
Peninsula accounted for a large part. The Korean Peninsula was under Japanese rule in those days, and their recruitment, transfer,
control, etc., were conducted generally against their will, through coaxing, coercion, etc.
Undeniably, this was an act, with the involvement of the military authorities of the day, that severely injured the honor and dignity of
many women. The Government of Japan would like to take this opportunity once again to extend its sincere apologies and remorse to
all those, irrespective of place of origin, who suffered immeasurable pain and incurable physical and psychological wounds as comfort
women.
It is incumbent upon us, the Government of Japan, to continue to consider seriously, while listening to the views of learned circles,
how best we can express this sentiment.
We shall face squarely the historical facts as described above instead of evading them, and take them to heart as lessons of history. We
hereby reiterated our firm determination never to repeat the same mistake by forever engraving such issues in our memories through
the study and teaching of history.
As actions have been brought to court in Japan and interests have been shown in this issue outside Japan, the Government of Japan
shall continue to pay full attention to this matter, including private researched related thereto.
b) Prime Minister Tomiichi Murayamas Statement in 1994
On the issue of wartime "comfort women", which seriously stained the honor and dignity of many women, I would like to take this
opportunity once again to express my profound and sincere remorse and apologies"
c) Letters from the Prime Minister of Japan to Individual Comfort Women
The issue of comfort women, with the involvement of the Japanese military authorities at that time, was a grave affront to the honor
and dignity of a large number of women.
As Prime Minister of Japan, I thus extend anew my most sincere apologies and remorse to all the women who endured immeasurable
and painful experiences and suffered incurable physical and psychological wounds as comfort women.
I believe that our country, painfully aware of its moral responsibilities, with feelings of apology and remorse, should face up squarely
to its past history and accurately convey it to future generations.
d) The Diet (Japanese Parliament) passed resolutions in 1995 and 2005
Solemnly reflecting upon the many instances of colonial rule and acts of aggression that occurred in modern world history, and
recognizing that Japan carried out such acts in the past and inflicted suffering on the people of other countries, especially in Asia, the
Members of this House hereby express deep remorse. (Resolution of the House of Representatives adopted on June 9, 1995)
e) Various Public Statements by Japanese Prime Minister Shinzo Abe
I have talked about this matter in the Diet sessions last year, and recently as well, and to the press. I have been consistent. I will stand
by the Kono Statement. This is our consistent position. Further, we have been apologizing sincerely to those who suffered
immeasurable pain and incurable psychological wounds as comfort women. Former Prime Ministers, including Prime Ministers
Koizumi and Hashimoto, have issued letters to the comfort women. I would like to be clear that I carry the same feeling. This has not
changed even slightly. (Excerpt from Remarks by Prime Minister Abe at an Interview by NHK, March 11, 2007).
I am apologizing here and now. I am apologizing as the Prime Minister and it is as stated in the statement by the Chief Cabinet
Secretary Kono. (Excerpt from Remarks by Prime Minister Abe at the Budget Committee, the House of Councilors, the Diet of Japan,
March 26, 2007).
I am deeply sympathetic to the former comfort women who suffered hardships, and I have expressed my apologies for the extremely
agonizing circumstances into which they were placed. (Excerpt from Telephone Conference by Prime Minister Abe to President
George W. Bush, April 3, 2007).
I have to express sympathy from the bottom of my heart to those people who were taken as wartime comfort women. As a human
being, I would like to express my sympathies, and also as prime minister of Japan I need to apologize to them. My administration has
been saying all along that we continue to stand by the Kono Statement. We feel responsible for having forced these women to go
through that hardship and pain as comfort women under the circumstances at the time. (Excerpt from an interview article "A
Conversation with Shinzo Abe" by the Washington Post, April 22, 2007).
x x x both personally and as Prime Minister of Japan, my heart goes out in sympathy to all those who suffered extreme hardships as
comfort women; and I expressed my apologies for the fact that they were forced to endure such extreme and harsh conditions. Human
rights are violated in many parts of the world during the 20th Century; therefore we must work to make the 21st Century a wonderful
century in which no human rights are violated. And the Government of Japan and I wish to make significant contributions to that end.
(Excerpt from Prime Minister Abe's remarks at the Joint Press Availability after the summit meeting at Camp David between Prime
Minister Abe and President Bush, April 27, 2007).
The Asian Women's Fund
Established by the Japanese government in 1995, the AWF represented the government's concrete attempt to address its moral
responsibility by offering monetary compensation to victims of the comfort women system.
37
The purpose of the AWF was to show
atonement of the Japanese people through expressions of apology and remorse to the former wartime comfort women, to restore their
honor, and to demonstrate Japans strong respect for women.
38

The AWF announced three programs for former comfort women who applied for assistance: (1) an atonement fund paying 2 million
(approximately $20,000) to each woman; (2) medical and welfare support programs, paying 2.5-3 million ($25,000-$30,000) for
each woman; and (3) a letter of apology from the Japanese Prime Minister to each woman. Funding for the program came from the
Japanese government and private donations from the Japanese people. As of March 2006, the AWF provided 700 million
(approximately $7 million) for these programs in South Korea, Taiwan, and the Philippines; 380 million (approximately $3.8
million) in Indonesia; and 242 million (approximately $2.4 million) in the Netherlands.
On January 15, 1997, the AWF and the Philippine government signed a Memorandum of Understanding for medical and welfare
support programs for former comfort women. Over the next five years, these were implemented by the Department of Social Welfare
and Development.
Our Ruling
Stripped down to its essentials, the issue in this case is whether the Executive Department committed grave abuse of discretion in not
espousing petitioners claims for official apology and other forms of reparations against Japan.
The petition lacks merit.
From a Domestic Law Perspective, the Executive Department has the exclusive prerogative to determine whether to espouse
petitioners claims against Japan.
Baker v. Carr
39
remains the starting point for analysis under the political question doctrine. There the US Supreme Court explained
that:
x x x Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional
commitment of the issue to a coordinate political department or a lack of judicially discoverable and manageable standards for
resolving it, or the impossibility of deciding without an initial policy determination of a kind clearly for non-judicial discretion; or the
impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of
government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment
from multifarious pronouncements by various departments on question.
In Taada v. Cuenco,
40
we held that political questions refer "to those questions which, under the Constitution, are to be decided by
the people in their sovereign capacity, or in regard to which full discretionary authority has been delegated to the legislative or
executive branch of the government. It is concerned with issues dependent upon the wisdom, not legality of a particular measure."
Certain types of cases often have been found to present political questions.
41
One such category involves questions of foreign
relations. It is well-established that "[t]he conduct of the foreign relations of our government is committed by the Constitution to the
executive and legislative--'the political'--departments of the government, and the propriety of what may be done in the exercise of this
political power is not subject to judicial inquiry or decision."
42
The US Supreme Court has further cautioned that decisions relating to
foreign policy
are delicate, complex, and involve large elements of prophecy. They are and should be undertaken only by those directly responsible
to the people whose welfare they advance or imperil. They are decisions of a kind for which the Judiciary has neither aptitude,
facilities nor responsibility.
43

To be sure, not all cases implicating foreign relations present political questions, and courts certainly possess the authority to construe
or invalidate treaties and executive agreements.
44
However, the question whether the Philippine government should espouse claims of
its nationals against a foreign government is a foreign relations matter, the authority for which is demonstrably committed by our
Constitution not to the courts but to the political branches. In this case, the Executive Department has already decided that it is to the
best interest of the country to waive all claims of its nationals for reparations against Japan in the Treaty of Peace of 1951. The
wisdom of such decision is not for the courts to question. Neither could petitioners herein assail the said determination by the
Executive Department via the instant petition for certiorari.
In the seminal case of US v. Curtiss-Wright Export Corp.,
45
the US Supreme Court held that "[t]he President is the sole organ of the
nation in its external relations, and its sole representative with foreign relations."
It is quite apparent that if, in the maintenance of our international relations, embarrassment -- perhaps serious embarrassment -- is to
be avoided and success for our aims achieved, congressional legislation which is to be made effective through negotiation and inquiry
within the international field must often accord to the President a degree of discretion and freedom from statutory restriction which
would not be admissible where domestic affairs alone involved. Moreover, he, not Congress, has the better opportunity of knowing the
conditions which prevail in foreign countries, and especially is this true in time of war. He has his confidential sources of information.
He has his agents in the form of diplomatic, consular and other officials. x x x
This ruling has been incorporated in our jurisprudence through Bayan v. Executive Secretary
46
and Pimentel v. Executive Secretary;
47

its overreaching principle was, perhaps, best articulated in (now Chief) Justice Punos dissent in Secretary of Justice v. Lantion:
48

x x x The conduct of foreign relations is full of complexities and consequences, sometimes with life and death significance to the
nation especially in times of war. It can only be entrusted to that department of government which can act on the basis of the best
available information and can decide with decisiveness. x x x It is also the President who possesses the most comprehensive and the
most confidential information about foreign countries for our diplomatic and consular officials regularly brief him on meaningful
events all over the world. He has also unlimited access to ultra-sensitive military intelligence data. In fine, the presidential role in
foreign affairs is dominant and the President is traditionally accorded a wider degree of discretion in the conduct of foreign affairs.
The regularity, nay, validity of his actions are adjudged under less stringent standards, lest their judicial repudiation lead to breach of
an international obligation, rupture of state relations, forfeiture of confidence, national embarrassment and a plethora of other
problems with equally undesirable consequences.
The Executive Department has determined that taking up petitioners cause would be inimical to our countrys foreign policy interests,
and could disrupt our relations with Japan, thereby creating serious implications for stability in this region. For us to overturn the
Executive Departments determination would mean an assessment of the foreign policy judgments by a coordinate political branch to
which authority to make that judgment has been constitutionally committed.
In any event, it cannot reasonably be maintained that the Philippine government was without authority to negotiate the Treaty of Peace
with Japan. And it is equally true that, since time immemorial, when negotiating peace accords and settling international claims:
x x x [g]overnments have dealt with x x x private claims as their own, treating them as national assets, and as counters, `chips', in
international bargaining. Settlement agreements have lumped, or linked, claims deriving from private debts with others that were
intergovernmental in origin, and concessions in regard to one category of claims might be set off against concessions in the other, or
against larger political considerations unrelated to debts.
49

Indeed, except as an agreement might otherwise provide, international settlements generally wipe out the underlying private claims,
thereby terminating any recourse under domestic law. In Ware v. Hylton,
50
a case brought by a British subject to recover a debt
confiscated by the Commonwealth of Virginia during the war, Justice Chase wrote:
I apprehend that the treaty of peace abolishes the subject of the war, and that after peace is concluded, neither the matter in dispute,
nor the conduct of either party, during the war, can ever be revived, or brought into contest again. All violences, injuries, or damages
sustained by the government, or people of either, during the war, are buried in oblivion; and all those things are implied by the very
treaty of peace; and therefore not necessary to be expressed. Hence it follows, that the restitution of, or compensation for, British
property confiscated, or extinguished, during the war, by any of the United States, could only be provided for by the treaty of peace;
and if there had been no provision, respecting these subjects, in the treaty, they could not be agitated after the treaty, by the British
government, much less by her subjects in courts of justice. (Emphasis supplied).
This practice of settling claims by means of a peace treaty is certainly nothing new. For instance, in Dames & Moore v. Regan,
51
the
US Supreme Court held:
Not infrequently in affairs between nations, outstanding claims by nationals of one country against the government of another country
are "sources of friction" between the two sovereigns. United States v. Pink, 315 U.S. 203, 225, 62 S.Ct. 552, 563, 86 L.Ed. 796 (1942).
To resolve these difficulties, nations have often entered into agreements settling the claims of their respective nationals. As one
treatise writer puts it, international agreements settling claims by nationals of one state against the government of another "are
established international practice reflecting traditional international theory." L. Henkin, Foreign Affairs and the Constitution 262
(1972). Consistent with that principle, the United States has repeatedly exercised its sovereign authority to settle the claims of its
nationals against foreign countries. x x x Under such agreements, the President has agreed to renounce or extinguish claims of United
States nationals against foreign governments in return for lump-sum payments or the establishment of arbitration procedures. To be
sure, many of these settlements were encouraged by the United States claimants themselves, since a claimant's only hope of obtaining
any payment at all might lie in having his Government negotiate a diplomatic settlement on his behalf. But it is also undisputed that
the "United States has sometimes disposed of the claims of its citizens without their consent, or even without consultation with them,
usually without exclusive regard for their interests, as distinguished from those of the nation as a whole." Henkin, supra, at 262-263.
Accord, Restatement (Second) of Foreign Relations Law of the United States 213 (1965) (President "may waive or settle a claim
against a foreign state x x x [even] without the consent of the [injured] national"). It is clear that the practice of settling claims
continues today.
Respondents explain that the Allied Powers concluded the Peace Treaty with Japan not necessarily for the complete atonement of the
suffering caused by Japanese aggression during the war, not for the payment of adequate reparations, but for security purposes. The
treaty sought to prevent the spread of communism in Japan, which occupied a strategic position in the Far East. Thus, the Peace Treaty
compromised individual claims in the collective interest of the free world.
This was also the finding in a similar case involving American victims of Japanese slave labor during the war.
52
In a consolidated case
in the Northern District of California,
53
the court dismissed the lawsuits filed, relying on the 1951 peace treaty with Japan,
54
because
of the following policy considerations:
The official record of treaty negotiations establishes that a fundamental goal of the agreement was to settle the reparations issue once
and for all. As the statement of the chief United States negotiator, John Foster Dulles, makes clear, it was well understood that leaving
open the possibility of future claims would be an unacceptable impediment to a lasting peace:
Reparation is usually the most controversial aspect of peacemaking. The present peace is no exception.
On the one hand, there are claims both vast and just. Japan's aggression caused tremendous cost, losses and suffering.
On the other hand, to meet these claims, there stands a Japan presently reduced to four home islands which are unable to produce the
food its people need to live, or the raw materials they need to work. x x x
The policy of the United States that Japanese liability for reparations should be sharply limited was informed by the experience of six
years of United States-led occupation of Japan. During the occupation the Supreme Commander of the Allied Powers (SCAP) for the
region, General Douglas MacArthur, confiscated Japanese assets in conjunction with the task of managing the economic affairs of the
vanquished nation and with a view to reparations payments. It soon became clear that Japan's financial condition would render any
aggressive reparations plan an exercise in futility. Meanwhile, the importance of a stable, democratic Japan as a bulwark to
communism in the region increased. At the end of 1948, MacArthur expressed the view that "[t]he use of reparations as a weapon to
retard the reconstruction of a viable economy in Japan should be combated with all possible means" and "recommended that the
reparations issue be settled finally and without delay."
That this policy was embodied in the treaty is clear not only from the negotiations history but also from the Senate Foreign Relations
Committee report recommending approval of the treaty by the Senate. The committee noted, for example:
Obviously insistence upon the payment of reparations in any proportion commensurate with the claims of the injured countries and
their nationals would wreck Japan's economy, dissipate any credit that it may possess at present, destroy the initiative of its people,
and create misery and chaos in which the seeds of discontent and communism would flourish. In short, [it] would be contrary to the
basic purposes and policy of x x x the United States x x x.
We thus hold that, from a municipal law perspective, that certiorari will not lie. As a general principle and particularly here, where
such an extraordinary length of time has lapsed between the treatys conclusion and our consideration the Executive must be given
ample discretion to assess the foreign policy considerations of espousing a claim against Japan, from the standpoint of both the
interests of the petitioners and those of the Republic, and decide on that basis if apologies are sufficient, and whether further steps are
appropriate or necessary.
The Philippines is not under any international obligation to espouse petitioners claims.
In the international sphere, traditionally, the only means available for individuals to bring a claim within the international legal system
has been when the individual is able to persuade a government to bring a claim on the individuals behalf.
55
Even then, it is not the
individuals rights that are being asserted, but rather, the states own rights. Nowhere is this position more clearly reflected than in the
dictum of the Permanent Court of International Justice (PCIJ) in the 1924 Mavrommatis Palestine Concessions Case:
By taking up the case of one of its subjects and by resorting to diplomatic action or international judicial proceedings on his behalf, a
State is in reality asserting its own right to ensure, in the person of its subjects, respect for the rules of international law. The question,
therefore, whether the present dispute originates in an injury to a private interest, which in point of fact is the case in many
international disputes, is irrelevant from this standpoint. Once a State has taken up a case on behalf of one of its subjects before an
international tribunal, in the eyes of the latter the State is sole claimant.
56

Since the exercise of diplomatic protection is the right of the State, reliance on the right is within the absolute discretion of states, and
the decision whether to exercise the discretion may invariably be influenced by political considerations other than the legal merits of
the particular claim.
57
As clearly stated by the ICJ in
Barcelona Traction:
The Court would here observe that, within the limits prescribed by international law, a State may exercise diplomatic protection by
whatever means and to whatever extent it thinks fit, for it is its own right that the State is asserting. Should the natural or legal person
on whose behalf it is acting consider that their rights are not adequately protected, they have no remedy in international law. All they
can do is resort to national law, if means are available, with a view to furthering their cause or obtaining redress. The municipal
legislator may lay upon the State an obligation to protect its citizens abroad, and may also confer upon the national a right to demand
the performance of that obligation, and clothe the right with corresponding sanctions.1awwphi1 However, all these questions remain
within the province of municipal law and do not affect the position internationally.
58
(Emphasis supplied)
The State, therefore, is the sole judge to decide whether its protection will be granted, to what extent it is granted, and when will it
cease. It retains, in this respect, a discretionary power the exercise of which may be determined by considerations of a political or
other nature, unrelated to the particular case.
The International Law Commissions (ILCs) Draft Articles on Diplomatic Protection fully support this traditional view. They (i) state
that "the right of diplomatic protection belongs to or vests in the State,"
59
(ii) affirm its discretionary nature by clarifying that
diplomatic protection is a "sovereign prerogative" of the State;
60
and (iii) stress that the state "has the right to exercise diplomatic
protection
on behalf of a national. It is under no duty or obligation to do so."
61

It has been argued, as petitioners argue now, that the State has a duty to protect its nationals and act on his/her behalf when rights are
injured.
62
However, at present, there is no sufficient evidence to establish a general international obligation for States to exercise
diplomatic protection of their own nationals abroad.
63
Though, perhaps desirable, neither state practice nor opinio juris has evolved in
such a direction. If it is a duty internationally, it is only a moral and not a legal duty, and there is no means of enforcing its
fulfillment.
64
1avvphi1
We fully agree that rape, sexual slavery, torture, and sexual violence are morally reprehensible as well as legally prohibited under
contemporary international law.
65
However, petitioners take quite a theoretical leap in claiming that these proscriptions automatically
imply that that the Philippines is under a non-derogable obligation to prosecute international crimes, particularly since petitioners do
not demand the imputation of individual criminal liability, but seek to recover monetary reparations from the state of Japan. Absent
the consent of states, an applicable treaty regime, or a directive by the Security Council, there is no non-derogable duty to institute
proceedings against Japan. Indeed, precisely because of states reluctance to directly prosecute claims against another state, recent
developments support the modern trend to empower individuals to directly participate in suits against perpetrators of international
crimes.
66
Nonetheless, notwithstanding an array of General Assembly resolutions calling for the prosecution of crimes against
humanity and the strong policy arguments warranting such a rule, the practice of states does not yet support the present existence of an
obligation to prosecute international crimes.
67
Of course a customary duty of prosecution is ideal, but we cannot find enough evidence
to reasonably assert its existence. To the extent that any state practice in this area is widespread, it is in the practice of granting
amnesties, immunity, selective prosecution, or de facto impunity to those who commit crimes against humanity."
68

Even the invocation of jus cogens norms and erga omnes obligations will not alter this analysis. Even if we sidestep the question of
whether jus cogens norms existed in 1951, petitioners have not deigned to show that the crimes committed by the Japanese army
violated jus cogens prohibitions at the time the Treaty of Peace was signed, or that the duty to prosecute perpetrators of international
crimes is an erga omnes obligation or has attained the status of jus cogens.
The term erga omnes (Latin: in relation to everyone) in international law has been used as a legal term describing obligations owed by
States towards the community of states as a whole. The concept was recognized by the ICJ in Barcelona Traction:
x x x an essential distinction should be drawn between the obligations of a State towards the international community as a whole, and
those arising vis--vis another State in the field of diplomatic protection. By their very nature, the former are the concern of all States.
In view of the importance of the rights involved, all States can be held to have a legal interest in their protection; they are obligations
erga omnes.http://www.search.com/reference/Erga_omnes - _note-0#_note-0
Such obligations derive, for example, in contemporary international law, from the outlawing of acts of aggression, and of genocide, as
also from the principles and rules concerning the basic rights of the human person, including protection from slavery and racial
discrimination. Some of the corresponding rights of protection have entered into the body of general international law others are
conferred by international instruments of a universal or quasi-universal character.
The Latin phrase, erga omnes, has since become one of the rallying cries of those sharing a belief in the emergence of a value-based
international public order. However, as is so often the case, the reality is neither so clear nor so bright. Whatever the relevance of
obligations erga omnes as a legal concept, its full potential remains to be realized in practice.
69

The term is closely connected with the international law concept of jus cogens. In international law, the term "jus cogens" (literally,
"compelling law") refers to norms that command peremptory authority, superseding conflicting treaties and custom. Jus cogens norms
are considered peremptory in the sense that they are mandatory, do not admit derogation, and can be modified only by general
international norms of equivalent authority.
70

Early strains of the jus cogens doctrine have existed since the 1700s,
71
but peremptory norms began to attract greater scholarly
attention with the publication of Alfred von Verdross's influential 1937 article, Forbidden Treaties in International Law.
72
The
recognition of jus cogens gained even more force in the 1950s and 1960s with the ILCs preparation of the Vienna Convention on the
Law of Treaties (VCLT).
73
Though there was a consensus that certain international norms had attained the status of jus cogens,
74
the
ILC was unable to reach a consensus on the proper criteria for identifying peremptory norms.
After an extended debate over these and other theories of jus cogens, the ILC concluded ruefully in 1963 that "there is not as yet any
generally accepted criterion by which to identify a general rule of international law as having the character of jus cogens."
75
In a
commentary accompanying the draft convention, the ILC indicated that "the prudent course seems to be to x x x leave the full content
of this rule to be worked out in State practice and in the jurisprudence of international tribunals."
76
Thus, while the existence of jus
cogens in international law is undisputed, no consensus exists on its substance,
77
beyond a tiny core of principles and rules.
78

Of course, we greatly sympathize with the cause of petitioners, and we cannot begin to comprehend the unimaginable horror they
underwent at the hands of the Japanese soldiers. We are also deeply concerned that, in apparent contravention of fundamental
principles of law, the petitioners appear to be without a remedy to challenge those that have offended them before appropriate fora.
Needless to say, our government should take the lead in protecting its citizens against violation of their fundamental human rights.
Regrettably, it is not within our power to order the Executive Department to take up the petitioners cause. Ours is only the power to
urge and exhort the Executive Department to take up petitioners cause.
WHEREFORE, the Petition is hereby DISMISSED.
SO ORDERED.


Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 173034 October 9, 2007
PHARMACEUTICAL AND HEALTH CARE ASSOCIATION OF THE PHILIPPINES, petitioner,
vs.
HEALTH SECRETARY FRANCISCO T. DUQUE III; HEALTH UNDER SECRETARIES DR. ETHELYN P. NIETO, DR.
MARGARITA M. GALON, ATTY. ALEXANDER A. PADILLA, & DR. JADE F. DEL MUNDO; and ASSISTANT
SECRETARIES DR. MARIO C. VILLAVERDE, DR. DAVID J. LOZADA, AND DR. NEMESIO T. GAKO, respondents.
D E C I S I O N
AUSTRIA-MARTINEZ, J.:
The Court and all parties involved are in agreement that the best nourishment for an infant is mother's milk. There is nothing greater
than for a mother to nurture her beloved child straight from her bosom. The ideal is, of course, for each and every Filipino child to
enjoy the unequaled benefits of breastmilk. But how should this end be attained?
Before the Court is a petition for certiorari under Rule 65 of the Rules of Court, seeking to nullify Administrative Order (A.O.) No.
2006-0012 entitled, Revised Implementing Rules and Regulations of Executive Order No. 51, Otherwise Known as The "Milk Code,"
Relevant International Agreements, Penalizing Violations Thereof, and for Other Purposes (RIRR). Petitioner posits that the RIRR is
not valid as it contains provisions that are not constitutional and go beyond the law it is supposed to implement.
Named as respondents are the Health Secretary, Undersecretaries, and Assistant Secretaries of the Department of Health (DOH). For
purposes of herein petition, the DOH is deemed impleaded as a co-respondent since respondents issued the questioned RIRR in their
capacity as officials of said executive agency.
1

Executive Order No. 51 (Milk Code) was issued by President Corazon Aquino on October 28, 1986 by virtue of the legislative powers
granted to the president under the Freedom Constitution. One of the preambular clauses of the Milk Code states that the law seeks to
give effect to Article 11
2
of the International Code of Marketing of Breastmilk Substitutes (ICMBS), a code adopted by the World
Health Assembly (WHA) in 1981. From 1982 to 2006, the WHA adopted several Resolutions to the effect that breastfeeding should
be supported, promoted and protected, hence, it should be ensured that nutrition and health claims are not permitted for breastmilk
substitutes.
In 1990, the Philippines ratified the International Convention on the Rights of the Child. Article 24 of said instrument provides that
State Parties should take appropriate measures to diminish infant and child mortality, and ensure that all segments of society, specially
parents and children, are informed of the advantages of breastfeeding.
On May 15, 2006, the DOH issued herein assailed RIRR which was to take effect on July 7, 2006.
However, on June 28, 2006, petitioner, representing its members that are manufacturers of breastmilk substitutes, filed the present
Petition for Certiorari and Prohibition with Prayer for the Issuance of a Temporary Restraining Order (TRO) or Writ of Preliminary
Injunction.
The main issue raised in the petition is whether respondents officers of the DOH acted without or in excess of jurisdiction, or with
grave abuse of discretion amounting to lack or excess of jurisdiction, and in violation of the provisions of the Constitution in
promulgating the RIRR.
3

On August 15, 2006, the Court issued a Resolution granting a TRO enjoining respondents from implementing the questioned RIRR.
After the Comment and Reply had been filed, the Court set the case for oral arguments on June 19, 2007. The Court issued an
Advisory (Guidance for Oral Arguments) dated June 5, 2007, to wit:
The Court hereby sets the following issues:
1. Whether or not petitioner is a real party-in-interest;
2. Whether Administrative Order No. 2006-0012 or the Revised Implementing Rules and Regulations (RIRR) issued by the
Department of Health (DOH) is not constitutional;
2.1 Whether the RIRR is in accord with the provisions of Executive Order No. 51 (Milk Code);
2.2 Whether pertinent international agreements
1
entered into by the Philippines are part of the law of the land and may be
implemented by the DOH through the RIRR; If in the affirmative, whether the RIRR is in accord with the international
agreements;
2.3 Whether Sections 4, 5(w), 22, 32, 47, and 52 of the RIRR violate the due process clause and are in restraint of trade; and
2.4 Whether Section 13 of the RIRR on Total Effect provides sufficient standards.
_____________
1 (1) United Nations Convention on the Rights of the Child; (2) the WHO and Unicef "2002 Global Strategy on Infant and
Young Child Feeding;" and (3) various World Health Assembly (WHA) Resolutions.
The parties filed their respective memoranda.
The petition is partly imbued with merit.
On the issue of petitioner's standing
With regard to the issue of whether petitioner may prosecute this case as the real party-in-interest, the Court adopts the view
enunciated in Executive Secretary v. Court of Appeals,
4
to wit:
The modern view is that an association has standing to complain of injuries to its members. This view fuses the legal identity
of an association with that of its members. An association has standing to file suit for its workers despite its lack of direct
interest if its members are affected by the action. An organization has standing to assert the concerns of its constituents.
x x x x
x x x We note that, under its Articles of Incorporation, the respondent was organized x x x to act as the representative of any
individual, company, entity or association on matters related to the manpower recruitment industry, and to perform other acts
and activities necessary to accomplish the purposes embodied therein. The respondent is, thus, the appropriate party to assert
the rights of its members, because it and its members are in every practical sense identical. x x x The respondent [association]
is but the medium through which its individual members seek to make more effective the expression of their voices and the
redress of their grievances.
5
(Emphasis supplied)
which was reasserted in Purok Bagong Silang Association, Inc. v. Yuipco,
6
where the Court ruled that an association has the legal
personality to represent its members because the results of the case will affect their vital interests.
7

Herein petitioner's Amended Articles of Incorporation contains a similar provision just like in Executive Secretary, that the association
is formed "to represent directly or through approved representatives the pharmaceutical and health care industry before the Philippine
Government and any of its agencies, the medical professions and the general public."
8
Thus, as an organization, petitioner definitely
has an interest in fulfilling its avowed purpose of representing members who are part of the pharmaceutical and health care industry.
Petitioner is duly authorized
9
to take the appropriate course of action to bring to the attention of government agencies and the courts
any grievance suffered by its members which are directly affected by the RIRR. Petitioner, which is mandated by its Amended
Articles of Incorporation to represent the entire industry, would be remiss in its duties if it fails to act on governmental action that
would affect any of its industry members, no matter how few or numerous they are. Hence, petitioner, whose legal identity is deemed
fused with its members, should be considered as a real party-in-interest which stands to be benefited or injured by any judgment in the
present action.
On the constitutionality of the provisions of the RIRR
First, the Court will determine if pertinent international instruments adverted to by respondents are part of the law of the land.
Petitioner assails the RIRR for allegedly going beyond the provisions of the Milk Code, thereby amending and expanding the coverage
of said law. The defense of the DOH is that the RIRR implements not only the Milk Code but also various international instruments
10

regarding infant and young child nutrition. It is respondents' position that said international instruments are deemed part of the law of
the land and therefore the DOH may implement them through the RIRR.
The Court notes that the following international instruments invoked by respondents, namely: (1) The United Nations Convention on
the Rights of the Child; (2) The International Covenant on Economic, Social and Cultural Rights; and (3) the Convention on the
Elimination of All Forms of Discrimination Against Women, only provide in general terms that steps must be taken by State Parties to
diminish infant and child mortality and inform society of the advantages of breastfeeding, ensure the health and well-being of families,
and ensure that women are provided with services and nutrition in connection with pregnancy and lactation. Said instruments do not
contain specific provisions regarding the use or marketing of breastmilk substitutes.
The international instruments that do have specific provisions regarding breastmilk substitutes are the ICMBS and various WHA
Resolutions.
Under the 1987 Constitution, international law can become part of the sphere of domestic law either by transformation or
incorporation.
11
The transformation method requires that an international law be transformed into a domestic law through a
constitutional mechanism such as local legislation. The incorporation method applies when, by mere constitutional declaration,
international law is deemed to have the force of domestic law.
12

Treaties become part of the law of the land through transformation pursuant to Article VII, Section 21 of the Constitution which
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." Thus, treaties or conventional international law must go through a process prescribed by the Constitution for
it to be transformed into municipal law that can be applied to domestic conflicts.
13

The ICMBS and WHA Resolutions are not treaties as they have not been concurred in by at least two-thirds of all members of the
Senate as required under Section 21, Article VII of the 1987 Constitution.
However, the ICMBS which was adopted by the WHA in 1981 had been transformed into domestic law through local legislation, the
Milk Code. Consequently, it is the Milk Code that has the force and effect of law in this jurisdiction and not the ICMBS per se.
The Milk Code is almost a verbatim reproduction of the ICMBS, but it is well to emphasize at this point that the Code did not adopt
the provision in the ICMBS absolutely prohibiting advertising or other forms of promotion to the general public of products within the
scope of the ICMBS. Instead, the Milk Code expressly provides that advertising, promotion, or other marketing materials may be
allowed if such materials are duly authorized and approved by the Inter-Agency Committee (IAC).
On the other hand, Section 2, Article II of the 1987 Constitution, to wit:
SECTION 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. (Emphasis supplied)
embodies the incorporation method.
14

In Mijares v. Ranada,
15
the Court held thus:
[G]enerally accepted principles of international law, by virtue of the incorporation clause of the Constitution, form part of the
laws of the land even if they do not derive from treaty obligations. The classical formulation in international law sees those
customary rules accepted as binding result from the combination [of] two elements: the established, widespread, and
consistent practice on the part of States; and a psychological element known as the opinion juris sive necessitates (opinion as
to law or necessity). Implicit in the latter element is a belief that the practice in question is rendered obligatory by the
existence of a rule of law requiring it.
16
(Emphasis supplied)
"Generally accepted principles of international law" refers to norms of general or customary international law which are binding on all
states,
17
i.e., renunciation of war as an instrument of national policy, the principle of sovereign immunity,
18
a person's right to life,
liberty and due process,
19
and pacta sunt servanda,
20
among others. The concept of "generally accepted principles of law" has also
been depicted in this wise:
Some legal scholars and judges look upon certain "general principles of law" as a primary source of international law because they
have the "character of jus rationale" and are "valid through all kinds of human societies." (Judge Tanaka in his dissenting opinion in
the 1966 South West Africa Case, 1966 I.C.J. 296). O'Connell holds that certain priniciples are part of international law because they
are "basic to legal systems generally" and hence part of the jus gentium. These principles, he believes, are established by a process of
reasoning based on the common identity of all legal systems. If there should be doubt or disagreement, one must look to state practice
and determine whether the municipal law principle provides a just and acceptable solution. x x x
21
(Emphasis supplied)
Fr. Joaquin G. Bernas defines customary international law as follows:
Custom or customary international law means "a general and consistent practice of states followed by them from a sense of
legal obligation [opinio juris]." (Restatement) This statement contains the two basic elements of custom: the material factor,
that is, how states behave, and the psychological 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
x x x x
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.
22
(Underscoring and Emphasis supplied)
Clearly, customary international law is deemed incorporated into our domestic system.
23

WHA Resolutions have not been embodied in any local legislation. Have they attained the status of customary law and should they
then be deemed incorporated as part of the law of the land?
The World Health Organization (WHO) is one of the international specialized agencies allied with the United Nations (UN) by virtue
of Article 57,
24
in relation to Article 63
25
of the UN Charter. Under the 1946 WHO Constitution, it is the WHA which determines the
policies of the WHO,
26
and has the power to adopt regulations concerning "advertising and labeling of biological, pharmaceutical and
similar products moving in international commerce,"
27
and to "make recommendations to members with respect to any matter within
the competence of the Organization."
28
The legal effect of its regulations, as opposed to recommendations, is quite different.
Regulations, along with conventions and agreements, duly adopted by the WHA bind member states thus:
Article 19. The Health Assembly shall have authority to adopt conventions or agreements with respect to any matter within
the competence of the Organization. A two-thirds vote of the Health Assembly shall be required for the adoption of such
conventions or agreements, which shall come into force for each Member when accepted by it in accordance with its
constitutional processes.
Article 20. Each Member undertakes that it will, within eighteen months after the adoption by the Health Assembly of a
convention or agreement, take action relative to the acceptance of such convention or agreement. Each Member shall notify
the Director-General of the action taken, and if it does not accept such convention or agreement within the time limit, it will
furnish a statement of the reasons for non-acceptance. In case of acceptance, each Member agrees to make an annual report to
the Director-General in accordance with Chapter XIV.
Article 21. The Health Assembly shall have authority to adopt regulations concerning: (a) sanitary and quarantine
requirements and other procedures designed to prevent the international spread of disease; (b) nomenclatures with respect to
diseases, causes of death and public health practices; (c) standards with respect to diagnostic procedures for international use;
(d) standards with respect to the safety, purity and potency of biological, pharmaceutical and similar products moving in
international commerce; (e) advertising and labeling of biological, pharmaceutical and similar products moving in
international commerce.
Article 22. Regulations adopted pursuant to Article 21 shall come into force for all Members after due notice has been given
of their adoption by the Health Assembly except for such Members as may notify the Director-General of rejection or
reservations within the period stated in the notice. (Emphasis supplied)
On the other hand, under Article 23, recommendations of the WHA do not come into force for members, in the same way that
conventions or agreements under Article 19 and regulations under Article 21 come into force. Article 23 of the WHO Constitution
reads:
Article 23. The Health Assembly shall have authority to make recommendations to Members with respect to any matter
within the competence of the Organization. (Emphasis supplied)
The absence of a provision in Article 23 of any mechanism by which the recommendation would come into force for member states is
conspicuous.
The former Senior Legal Officer of WHO, Sami Shubber, stated that WHA recommendations are generally not binding, but they
"carry moral and political weight, as they constitute the judgment on a health issue of the collective membership of the highest
international body in the field of health."
29
Even the ICMBS itself was adopted as a mere recommendation, as WHA Resolution No.
34.22 states:
"The Thirty-Fourth World Health Assembly x x x adopts, in the sense of Article 23 of the Constitution, the International
Code of Marketing of Breastmilk Substitutes annexed to the present resolution." (Emphasis supplied)
The Introduction to the ICMBS also reads as follows:
In January 1981, the Executive Board of the World Health Organization at its sixty-seventh session, considered the fourth
draft of the code, endorsed it, and unanimously recommended to the Thirty-fourth World Health Assembly the text of a
resolution by which it would adopt the code in the form of a recommendation rather than a regulation. x x x (Emphasis
supplied)
The legal value of WHA Resolutions as recommendations is summarized in Article 62 of the WHO Constitution, to wit:
Art. 62. Each member shall report annually on the action taken with respect to recommendations made to it by the
Organization, and with respect to conventions, agreements and regulations.
Apparently, the WHA Resolution adopting the ICMBS and subsequent WHA Resolutions urging member states to implement the
ICMBS are merely recommendatory and legally non-binding. Thus, unlike what has been done with the ICMBS whereby the
legislature enacted most of the provisions into law which is the Milk Code, the subsequent WHA Resolutions,
30
specifically providing
for exclusive breastfeeding from 0-6 months, continued breastfeeding up to 24 months, and absolutely prohibiting advertisements and
promotions of breastmilk substitutes, have not been adopted as a domestic law.
It is propounded that WHA Resolutions may constitute "soft law" or non-binding norms, principles and practices that influence state
behavior.
31

"Soft law" does not fall into any of the categories of international law set forth in Article 38, Chapter III of the 1946 Statute of the
International Court of Justice.
32
It is, however, an expression of non-binding norms, principles, and practices that influence state
behavior.
33
Certain declarations and resolutions of the UN General Assembly fall under this category.
34
The most notable is the UN
Declaration of Human Rights, which this Court has enforced in various cases, specifically, Government of Hongkong Special
Administrative Region v. Olalia,
35
Mejoff v. Director of Prisons,
36
Mijares v. Raada
37
and Shangri-la International Hotel
Management, Ltd. v. Developers Group of Companies, Inc..
38

The World Intellectual Property Organization (WIPO), a specialized agency attached to the UN with the mandate to promote and
protect intellectual property worldwide, has resorted to soft law as a rapid means of norm creation, in order "to reflect and respond to
the changing needs and demands of its constituents."
39
Other international organizations which have resorted to soft law include the
International Labor Organization and the Food and Agriculture Organization (in the form of the Codex Alimentarius).
40

WHO has resorted to soft law. This was most evident at the time of the Severe Acute Respiratory Syndrome (SARS) and Avian flu
outbreaks.
Although the IHR Resolution does not create new international law binding on WHO member states, it provides an excellent
example of the power of "soft law" in international relations. International lawyers typically distinguish binding rules of
international law-"hard law"-from non-binding norms, principles, and practices that influence state behavior-"soft law."
WHO has during its existence generated many soft law norms, creating a "soft law regime" in international governance for
public health.
The "soft law" SARS and IHR Resolutions represent significant steps in laying the political groundwork for improved
international cooperation on infectious diseases. These resolutions clearly define WHO member states' normative duty to
cooperate fully with other countries and with WHO in connection with infectious disease surveillance and response to
outbreaks.
This duty is neither binding nor enforceable, but, in the wake of the SARS epidemic, the duty is powerful politically for two
reasons. First, the SARS outbreak has taught the lesson that participating in, and enhancing, international cooperation on
infectious disease controls is in a country's self-interest x x x if this warning is heeded, the "soft law" in the SARS and IHR
Resolution could inform the development of general and consistent state practice on infectious disease surveillance and
outbreak response, perhaps crystallizing eventually into customary international law on infectious disease prevention and
control.
41

In the Philippines, the executive department implemented certain measures recommended by WHO to address the outbreaks of SARS
and Avian flu by issuing Executive Order (E.O.) No. 201 on April 26, 2003 and E.O. No. 280 on February 2, 2004, delegating to
various departments broad powers to close down schools/establishments, conduct health surveillance and monitoring, and ban
importation of poultry and agricultural products.
It must be emphasized that even under such an international emergency, the duty of a state to implement the IHR Resolution was still
considered not binding or enforceable, although said resolutions had great political influence.
As previously discussed, for an international rule to be considered as customary law, it must be established that such rule is being
followed by states because they consider it obligatory to comply with such rules (opinio juris). Respondents have not presented any
evidence to prove that the WHA Resolutions, although signed by most of the member states, were in fact enforced or practiced by at
least a majority of the member states; neither have respondents proven that any compliance by member states with said WHA
Resolutions was obligatory in nature.
Respondents failed to establish that the provisions of pertinent WHA Resolutions are customary international law that may be deemed
part of the law of the land.
Consequently, legislation is necessary to transform the provisions of the WHA Resolutions into domestic law. The provisions of the
WHA Resolutions cannot be considered as part of the law of the land that can be implemented by executive agencies without the need
of a law enacted by the legislature.
Second, the Court will determine whether the DOH may implement the provisions of the WHA Resolutions by virtue of its powers
and functions under the Revised Administrative Code even in the absence of a domestic law.
Section 3, Chapter 1, Title IX of the Revised Administrative Code of 1987 provides that the DOH shall define the national health
policy and implement a national health plan within the framework of the government's general policies and plans, and issue orders and
regulations concerning the implementation of established health policies.
It is crucial to ascertain whether the absolute prohibition on advertising and other forms of promotion of breastmilk substitutes
provided in some WHA Resolutions has been adopted as part of the national health policy.
Respondents submit that the national policy on infant and young child feeding is embodied in A.O. No. 2005-0014, dated May 23,
2005. Basically, the Administrative Order declared the following policy guidelines: (1) ideal breastfeeding practices, such as early
initiation of breastfeeding, exclusive breastfeeding for the first six months, extended breastfeeding up to two years and beyond; (2)
appropriate complementary feeding, which is to start at age six months; (3) micronutrient supplementation; (4) universal salt
iodization; (5) the exercise of other feeding options; and (6) feeding in exceptionally difficult circumstances. Indeed, the primacy of
breastfeeding for children is emphasized as a national health policy. However, nowhere in A.O. No. 2005-0014 is it declared that as
part of such health policy, the advertisement or promotion of breastmilk substitutes should be absolutely prohibited.
The national policy of protection, promotion and support of breastfeeding cannot automatically be equated with a total ban on
advertising for breastmilk substitutes.
In view of the enactment of the Milk Code which does not contain a total ban on the advertising and promotion of breastmilk
substitutes, but instead, specifically creates an IAC which will regulate said advertising and promotion, it follows that a total ban
policy could be implemented only pursuant to a law amending the Milk Code passed by the constitutionally authorized branch of
government, the legislature.
Thus, only the provisions of the Milk Code, but not those of subsequent WHA Resolutions, can be validly implemented by the DOH
through the subject RIRR.
Third, the Court will now determine whether the provisions of the RIRR are in accordance with those of the Milk Code.
In support of its claim that the RIRR is inconsistent with the Milk Code, petitioner alleges the following:
1. The Milk Code limits its coverage to children 0-12 months old, but the RIRR extended its coverage to "young children" or
those from ages two years old and beyond:
MILK CODE RIRR
WHEREAS, in order to ensure that safe and adequate
nutrition for infants is provided, there is a need to
protect and promote breastfeeding and to inform the
public about the proper use of breastmilk substitutes
and supplements and related products through
adequate, consistent and objective information and
appropriate regulation of the marketing and
distribution of the said substitutes, supplements and
related products;
SECTION 4(e). "Infant" means a person falling within
the age bracket of 0-12 months.
Section 2. Purpose These Revised Rules and
Regulations are hereby promulgated to ensure the
provision of safe and adequate nutrition for infants
and young children by the promotion, protection and
support of breastfeeding and by ensuring the proper
use of breastmilk substitutes, breastmilk supplements
and related products when these are medically
indicated and only when necessary, on the basis of
adequate information and through appropriate
marketing and distribution.
Section 5(ff). "Young Child" means a person from the
age of more than twelve (12) months up to the age of
three (3) years (36 months).
2. The Milk Code recognizes that infant formula may be a proper and possible substitute for breastmilk in certain instances;
but the RIRR provides "exclusive breastfeeding for infants from 0-6 months" and declares that "there is no substitute nor
replacement for breastmilk":
MILK CODE RIRR
WHEREAS, in order to ensure that safe and adequate
nutrition for infants is provided, there is a need to
protect and promote breastfeeding and to inform the
public about the proper use of breastmilk substitutes
and supplements and related products through
adequate, consistent and objective information and
appropriate regulation of the marketing and
distribution of the said substitutes, supplements and
related products;
Section 4. Declaration of Principles The following
are the underlying principles from which the revised
rules and regulations are premised upon:
a. Exclusive breastfeeding is for infants from 0 to six
(6) months.
b. There is no substitute or replacement for breastmilk.
3. The Milk Code only regulates and does not impose unreasonable requirements for advertising and promotion; RIRR
imposes an absolute ban on such activities for breastmilk substitutes intended for infants from 0-24 months old or beyond,
and forbids the use of health and nutritional claims. Section 13 of the RIRR, which provides for a "total effect" in the
promotion of products within the scope of the Code, is vague:
MILK CODE RIRR
SECTION 6. The General Public and Mothers. Section 4. Declaration of Principles The following
(a) No advertising, promotion or other marketing
materials, whether written, audio or visual, for
products within the scope of this Code shall be
printed, published, distributed, exhibited and
broadcast unless such materials are duly authorized
and approved by an inter-agency committee created
herein pursuant to the applicable standards provided
for in this Code.
are the underlying principles from which the revised
rules and regulations are premised upon:
x x x x
f. Advertising, promotions, or sponsor-ships of infant
formula, breastmilk substitutes and other related
products are prohibited.
Section 11. Prohibition No advertising, promotions,
sponsorships, or marketing materials and activities for
breastmilk substitutes intended for infants and young
children up to twenty-four (24) months, shall be
allowed, because they tend to convey or give
subliminal messages or impressions that undermine
breastmilk and breastfeeding or otherwise exaggerate
breastmilk substitutes and/or replacements, as well as
related products covered within the scope of this
Code.
Section 13. "Total Effect" - Promotion of products
within the scope of this Code must be objective and
should not equate or make the product appear to be as
good or equal to breastmilk or breastfeeding in the
advertising concept. It must not in any case undermine
breastmilk or breastfeeding. The "total effect" should
not directly or indirectly suggest that buying their
product would produce better individuals, or resulting
in greater love, intelligence, ability, harmony or in any
manner bring better health to the baby or other such
exaggerated and unsubstantiated claim.
Section 15. Content of Materials. - The following shall
not be included in advertising, promotional and
marketing materials:
a. Texts, pictures, illustrations or information which
discourage or tend to undermine the benefits or
superiority of breastfeeding or which idealize the use
of breastmilk substitutes and milk supplements. In this
connection, no pictures of babies and children together
with their mothers, fathers, siblings, grandparents,
other relatives or caregivers (or yayas) shall be used in
any advertisements for infant formula and breastmilk
supplements;
b. The term "humanized," "maternalized," "close to
mother's milk" or similar words in describing
breastmilk substitutes or milk supplements;
c. Pictures or texts that idealize the use of infant and
milk formula.
Section 16. All health and nutrition claims for
products within the scope of the Code are absolutely
prohibited. For this purpose, any phrase or words that
connotes to increase emotional, intellectual abilities of
the infant and young child and other like phrases shall
not be allowed.
4. The RIRR imposes additional labeling requirements not found in the Milk Code:
MILK CODE RIRR
SECTION 10. Containers/Label.
(a) Containers and/or labels shall be designed to
provide the necessary information about the
appropriate use of the products, and in such a way as
not to discourage breastfeeding.
(b) Each container shall have a clear, conspicuous and
easily readable and understandable message in
Pilipino or English printed on it, or on a label, which
message can not readily become separated from it, and
which shall include the following points:
(i) the words "Important Notice" or their equivalent;
(ii) a statement of the superiority of breastfeeding;
(iii) a statement that the product shall be used only on
the advice of a health worker as to the need for its use
and the proper methods of use; and
(iv) instructions for appropriate preparation, and a
warning against the health hazards of inappropriate
preparation.
Section 26. Content Each container/label shall
contain such message, in both Filipino and English
languages, and which message cannot be readily
separated therefrom, relative the following points:
(a) The words or phrase "Important Notice" or
"Government Warning" or their equivalent;
(b) A statement of the superiority of breastfeeding;
(c) A statement that there is no substitute for
breastmilk;
(d) A statement that the product shall be used only on
the advice of a health worker as to the need for its use
and the proper methods of use;
(e) Instructions for appropriate prepara-tion, and a
warning against the health hazards of inappropriate
preparation; and
(f) The health hazards of unnecessary or improper use
of infant formula and other related products including
information that powdered infant formula may contain
pathogenic microorganisms and must be prepared and
used appropriately.
5. The Milk Code allows dissemination of information on infant formula to health professionals; the RIRR totally prohibits
such activity:
MILK CODE RIRR
SECTION 7. Health Care System.
(b) No facility of the health care system shall be used
for the purpose of promoting infant formula or other
products within the scope of this Code. This Code
does not, however, preclude the dissemination of
information to health professionals as provided in
Section 8(b).
SECTION 8. Health Workers. -
(b) Information provided by manufacturers and
distributors to health professionals regarding products
within the scope of this Code shall be restricted to
scientific and factual matters and such information
shall not imply or create a belief that bottle-feeding is
equivalent or superior to breastfeeding. It shall also
include the information specified in Section 5(b).
Section 22. No manufacturer, distributor, or
representatives of products covered by the Code shall
be allowed to conduct or be involved in any activity
on breastfeeding promotion, education and production
of Information, Education and Communication (IEC)
materials on breastfeeding, holding of or participating
as speakers in classes or seminars for women and
children activities and to avoid the use of these venues
to market their brands or company names.
SECTION 16. All health and nutrition claims for
products within the scope of the Code are absolutely
prohibited. For this purpose, any phrase or words that
connotes to increase emotional, intellectual abilities of
the infant and young child and other like phrases shall
not be allowed.
6. The Milk Code permits milk manufacturers and distributors to extend assistance in research and continuing education of
health professionals; RIRR absolutely forbids the same.
MILK CODE RIRR
SECTION 8. Health Workers
(e) Manufacturers and distributors of products within
the scope of this Code may assist in the research,
scholarships and continuing education, of health
professionals, in accordance with the rules and
regulations promulgated by the Ministry of Health.
Section 4. Declaration of Principles
The following are the underlying principles from
which the revised rules and regulations are premised
upon:
i. Milk companies, and their representatives, should
not form part of any policymaking body or entity in
relation to the advancement of breasfeeding.
SECTION 22. No manufacturer, distributor, or
representatives of products covered by the Code shall
be allowed to conduct or be involved in any activity
on breastfeeding promotion, education and production
of Information, Education and Communication (IEC)
materials on breastfeeding, holding of or participating
as speakers in classes or seminars for women and
children activities and to avoid the use of these venues
to market their brands or company names.
SECTION 32. Primary Responsibility of Health
Workers - It is the primary responsibility of the health
workers to promote, protect and support breastfeeding
and appropriate infant and young child feeding. Part
of this responsibility is to continuously update their
knowledge and skills on breastfeeding. No assistance,
support, logistics or training from milk companies
shall be permitted.
7. The Milk Code regulates the giving of donations; RIRR absolutely prohibits it.
MILK CODE RIRR
SECTION 6. The General Public and Mothers.
(f) Nothing herein contained shall prevent donations
from manufacturers and distributors of products
within the scope of this Code upon request by or with
the approval of the Ministry of Health.
Section 51. Donations Within the Scope of This Code
- Donations of products, materials, defined and
covered under the Milk Code and these implementing
rules and regulations, shall be strictly prohibited.
Section 52. Other Donations By Milk Companies Not
Covered by this Code. - Donations of products,
equipments, and the like, not otherwise falling within
the scope of this Code or these Rules, given by milk
companies and their agents, representatives, whether
in kind or in cash, may only be coursed through the
Inter Agency Committee (IAC), which shall determine
whether such donation be accepted or otherwise.
8. The RIRR provides for administrative sanctions not imposed by the Milk Code.
MILK CODE RIRR
Section 46. Administrative Sanctions. The following
administrative sanctions shall be imposed upon any
person, juridical or natural, found to have violated the
provisions of the Code and its implementing Rules
and Regulations:
a) 1
st
violation Warning;
b) 2
nd
violation Administrative fine of a minimum of
Ten Thousand (P10,000.00) to Fifty Thousand
(P50,000.00) Pesos, depending on the gravity and
extent of the violation, including the recall of the
offending product;
c) 3
rd
violation Administrative Fine of a minimum of
Sixty Thousand (P60,000.00) to One Hundred Fifty
Thousand (P150,000.00) Pesos, depending on the
gravity and extent of the violation, and in addition
thereto, the recall of the offending product, and
suspension of the Certificate of Product Registration
(CPR);
d) 4
th
violation Administrative Fine of a minimum of
Two Hundred Thousand (P200,000.00) to Five
Hundred (P500,000.00) Thousand Pesos, depending
on the gravity and extent of the violation; and in
addition thereto, the recall of the product, revocation
of the CPR, suspension of the License to Operate
(LTO) for one year;
e) 5
th
and succeeding repeated violations
Administrative Fine of One Million (P1,000,000.00)
Pesos, the recall of the offending product, cancellation
of the CPR, revocation of the License to Operate
(LTO) of the company concerned, including the
blacklisting of the company to be furnished the
Department of Budget and Management (DBM) and
the Department of Trade and Industry (DTI);
f) An additional penalty of Two Thou-sand Five
Hundred (P2,500.00) Pesos per day shall be made for
every day the violation continues after having
received the order from the IAC or other such
appropriate body, notifying and penalizing the
company for the infraction.
For purposes of determining whether or not there is
"repeated" violation, each product violation belonging
or owned by a company, including those of their
subsidiaries, are deemed to be violations of the
concerned milk company and shall not be based on the
specific violating product alone.
9. The RIRR provides for repeal of existing laws to the contrary.
The Court shall resolve the merits of the allegations of petitioner seriatim.
1. Petitioner is mistaken in its claim that the Milk Code's coverage is limited only to children 0-12 months old. Section 3 of the Milk
Code states:
SECTION 3. Scope of the Code The Code applies to the marketing, and practices related thereto, of the following products:
breastmilk substitutes, including infant formula; other milk products, foods and beverages, including bottle-fed
complementary foods, when marketed or otherwise represented to be suitable, with or without modification, for use as a
partial or total replacement of breastmilk; feeding bottles and teats. It also applies to their quality and availability, and to
information concerning their use.
Clearly, the coverage of the Milk Code is not dependent on the age of the child but on the kind of product being marketed to the
public. The law treats infant formula, bottle-fed complementary food, and breastmilk substitute as separate and distinct product
categories.
Section 4(h) of the Milk Code defines infant formula as "a breastmilk substitute x x x to satisfy the normal nutritional requirements of
infants up to between four to six months of age, and adapted to their physiological characteristics"; while under Section 4(b), bottle-
fed complementary food refers to "any food, whether manufactured or locally prepared, suitable as a complement to breastmilk or
infant formula, when either becomes insufficient to satisfy the nutritional requirements of the infant." An infant under Section 4(e) is a
person falling within the age bracket 0-12 months. It is the nourishment of this group of infants or children aged 0-12 months that is
sought to be promoted and protected by the Milk Code.
But there is another target group. Breastmilk substitute is defined under Section 4(a) as "any food being marketed or otherwise
presented as a partial or total replacement for breastmilk, whether or not suitable for that purpose." This section conspicuously lacks
reference to any particular age-group of children. Hence, the provision of the Milk Code cannot be considered exclusive for children
aged 0-12 months. In other words, breastmilk substitutes may also be intended for young children more than 12 months of age.
Therefore, by regulating breastmilk substitutes, the Milk Code also intends to protect and promote the nourishment of children more
than 12 months old.
Evidently, as long as what is being marketed falls within the scope of the Milk Code as provided in Section 3, then it can be subject to
regulation pursuant to said law, even if the product is to be used by children aged over 12 months.
There is, therefore, nothing objectionable with Sections 2
42
and 5(ff)
43
of the RIRR.
2. It is also incorrect for petitioner to say that the RIRR, unlike the Milk Code, does not recognize that breastmilk substitutes may be a
proper and possible substitute for breastmilk.
The entirety of the RIRR, not merely truncated portions thereof, must be considered and construed together. As held in De Luna v.
Pascual,
44
"[t]he particular words, clauses and phrases in the Rule should not be studied as detached and isolated expressions, but the
whole and every part thereof must be considered in fixing the meaning of any of its parts and in order to produce a harmonious
whole."
Section 7 of the RIRR provides that "when medically indicated and only when necessary, the use of breastmilk substitutes is proper if
based on complete and updated information." Section 8 of the RIRR also states that information and educational materials should
include information on the proper use of infant formula when the use thereof is needed.
Hence, the RIRR, just like the Milk Code, also recognizes that in certain cases, the use of breastmilk substitutes may be proper.
3. The Court shall ascertain the merits of allegations 3
45
and 4
46
together as they are interlinked with each other.
To resolve the question of whether the labeling requirements and advertising regulations under the RIRR are valid, it is important to
deal first with the nature, purpose, and depth of the regulatory powers of the DOH, as defined in general under the 1987
Administrative Code,
47
and as delegated in particular under the Milk Code.
Health is a legitimate subject matter for regulation by the DOH (and certain other administrative agencies) in exercise of police
powers delegated to it. The sheer span of jurisprudence on that matter precludes the need to further discuss it.
.48
However, health
information, particularly advertising materials on apparently non-toxic products like breastmilk substitutes and supplements, is a
relatively new area for regulation by the DOH.
49

As early as the 1917 Revised Administrative Code of the Philippine Islands,
50
health information was already within the ambit of the
regulatory powers of the predecessor of DOH.
51
Section 938 thereof charged it with the duty to protect the health of the people, and
vested it with such powers as "(g) the dissemination of hygienic information among the people and especially the inculcation of
knowledge as to the proper care of infants and the methods of preventing and combating dangerous communicable diseases."
Seventy years later, the 1987 Administrative Code tasked respondent DOH to carry out the state policy pronounced under Section 15,
Article II of the 1987 Constitution, which is "to protect and promote the right to health of the people and instill health consciousness
among them."
52
To that end, it was granted under Section 3 of the Administrative Code the power to "(6) propagate health information
and educate the population on important health, medical and environmental matters which have health implications."
53

When it comes to information regarding nutrition of infants and young children, however, the Milk Code specifically delegated to the
Ministry of Health (hereinafter referred to as DOH) the power to ensure that there is adequate, consistent and objective information on
breastfeeding and use of breastmilk substitutes, supplements and related products; and the power to control such information. These
are expressly provided for in Sections 12 and 5(a), to wit:
SECTION 12. Implementation and Monitoring
x x x x
(b) The Ministry of Health shall be principally responsible for the implementation and enforcement of the provisions of this
Code. For this purpose, the Ministry of Health shall have the following powers and functions:
(1) To promulgate such rules and regulations as are necessary or proper for the implementation of this Code and the
accomplishment of its purposes and objectives.
x x x x
(4) To exercise such other powers and functions as may be necessary for or incidental to the attainment of the
purposes and objectives of this Code.
SECTION 5. Information and Education
(a) The government shall ensure that objective and consistent information is provided on infant feeding, for use by families
and those involved in the field of infant nutrition. This responsibility shall cover the planning, provision, design and
dissemination of information, and the control thereof, on infant nutrition. (Emphasis supplied)
Further, DOH is authorized by the Milk Code to control the content of any information on breastmilk vis--vis breastmilk substitutes,
supplement and related products, in the following manner:
SECTION 5. x x x
(b) Informational and educational materials, whether written, audio, or visual, dealing with the feeding of infants and
intended to reach pregnant women and mothers of infants, shall include clear information on all the following points: (1) the
benefits and superiority of breastfeeding; (2) maternal nutrition, and the preparation for and maintenance of breastfeeding; (3)
the negative effect on breastfeeding of introducing partial bottlefeeding; (4) the difficulty of reversing the decision not to
breastfeed; and (5) where needed, the proper use of infant formula, whether manufactured industrially or home-prepared.
When such materials contain information about the use of infant formula, they shall include the social and financial
implications of its use; the health hazards of inappropriate foods or feeding methods; and, in particular, the health hazards
of unnecessary or improper use of infant formula and other breastmilk substitutes. Such materials shall not use any picture
or text which may idealize the use of breastmilk substitutes.
SECTION 8. Health Workers
x x x x
(b) Information provided by manufacturers and distributors to health professionals regarding products within the scope of this
Code shall be restricted to scientific and factual matters, and such information shall not imply or create a belief that
bottlefeeding is equivalent or superior to breastfeeding. It shall also include the information specified in Section 5(b).
SECTION 10. Containers/Label
(a) Containers and/or labels shall be designed to provide the necessary information about the appropriate use of the products,
and in such a way as not to discourage breastfeeding.
x x x x
(d) The term "humanized," "maternalized" or similar terms shall not be used. (Emphasis supplied)
The DOH is also authorized to control the purpose of the information and to whom such information may be disseminated under
Sections 6 through 9 of the Milk Code
54
to ensure that the information that would reach pregnant women, mothers of infants, and
health professionals and workers in the health care system is restricted to scientific and factual matters and shall not imply or create a
belief that bottlefeeding is equivalent or superior to breastfeeding.
It bears emphasis, however, that the DOH's power under the Milk Code to control information regarding breastmilk vis-a-vis
breastmilk substitutes is not absolute as the power to control does not encompass the power to absolutely prohibit the advertising,
marketing, and promotion of breastmilk substitutes.
The following are the provisions of the Milk Code that unequivocally indicate that the control over information given to the DOH is
not absolute and that absolute prohibition is not contemplated by the Code:
a) Section 2 which requires adequate information and appropriate marketing and distribution of breastmilk substitutes, to wit:
SECTION 2. Aim of the Code The aim of the Code is to contribute to the provision of safe and adequate nutrition
for infants by the protection and promotion of breastfeeding and by ensuring the proper use of breastmilk substitutes
and breastmilk supplements when these are necessary, on the basis of adequate information and through appropriate
marketing and distribution.
b) Section 3 which specifically states that the Code applies to the marketing of and practices related to breastmilk substitutes,
including infant formula, and to information concerning their use;
c) Section 5(a) which provides that the government shall ensure that objective and consistent information is provided on
infant feeding;
d) Section 5(b) which provides that written, audio or visual informational and educational materials shall not use any picture
or text which may idealize the use of breastmilk substitutes and should include information on the health hazards of
unnecessary or improper use of said product;
e) Section 6(a) in relation to Section 12(a) which creates and empowers the IAC to review and examine advertising,
promotion, and other marketing materials;
f) Section 8(b) which states that milk companies may provide information to health professionals but such information should
be restricted to factual and scientific matters and shall not imply or create a belief that bottlefeeding is equivalent or superior
to breastfeeding; and
g) Section 10 which provides that containers or labels should not contain information that would discourage breastfeeding
and idealize the use of infant formula.
It is in this context that the Court now examines the assailed provisions of the RIRR regarding labeling and advertising.
Sections 13
55
on "total effect" and 26
56
of Rule VII of the RIRR contain some labeling requirements, specifically: a) that there be a
statement that there is no substitute to breastmilk; and b) that there be a statement that powdered infant formula may contain
pathogenic microorganisms and must be prepared and used appropriately. Section 16
57
of the RIRR prohibits all health and nutrition
claims for products within the scope of the Milk Code, such as claims of increased emotional and intellectual abilities of the infant and
young child.
These requirements and limitations are consistent with the provisions of Section 8 of the Milk Code, to wit:
SECTION 8. Health workers -
x x x x
(b) Information provided by manufacturers and distributors to health professionals regarding products within the scope of this
Code shall be restricted to scientific and factual matters, and such information shall not imply or create a belief that
bottlefeeding is equivalent or superior to breastfeeding. It shall also include the information specified in Section 5.
58

(Emphasis supplied)
and Section 10(d)
59
which bars the use on containers and labels of the terms "humanized," "maternalized," or similar terms.
These provisions of the Milk Code expressly forbid information that would imply or create a belief that there is any milk product
equivalent to breastmilk or which is humanized or maternalized, as such information would be inconsistent with the superiority of
breastfeeding.
It may be argued that Section 8 of the Milk Code refers only to information given to health workers regarding breastmilk substitutes,
not to containers and labels thereof. However, such restrictive application of Section 8(b) will result in the absurd situation in which
milk companies and distributors are forbidden to claim to health workers that their products are substitutes or equivalents of
breastmilk, and yet be allowed to display on the containers and labels of their products the exact opposite message. That askewed
interpretation of the Milk Code is precisely what Section 5(a) thereof seeks to avoid by mandating that all information regarding
breastmilk vis-a-vis breastmilk substitutes be consistent, at the same time giving the government control over planning, provision,
design, and dissemination of information on infant feeding.
Thus, Section 26(c) of the RIRR which requires containers and labels to state that the product offered is not a substitute for breastmilk,
is a reasonable means of enforcing Section 8(b) of the Milk Code and deterring circumvention of the protection and promotion of
breastfeeding as embodied in Section 2
60
of the Milk Code.
Section 26(f)
61
of the RIRR is an equally reasonable labeling requirement. It implements Section 5(b) of the Milk Code which reads:
SECTION 5. x x x
x x x x
(b) Informational and educational materials, whether written, audio, or visual, dealing with the feeding of infants and
intended to reach pregnant women and mothers of infants, shall include clear information on all the following points: x x x
(5) where needed, the proper use of infant formula, whether manufactured industrially or home-prepared. When such
materials contain information about the use of infant formula, they shall include the social and financial implications of its
use; the health hazards of inappropriate foods or feeding methods; and, in particular, the health hazards of unnecessary or
improper use of infant formula and other breastmilk substitutes. Such materials shall not use any picture or text which may
idealize the use of breastmilk substitutes. (Emphasis supplied)
The label of a product contains information about said product intended for the buyers thereof. The buyers of breastmilk substitutes
are mothers of infants, and Section 26 of the RIRR merely adds a fair warning about the likelihood of pathogenic microorganisms
being present in infant formula and other related products when these are prepared and used inappropriately.
Petitioners counsel has admitted during the hearing on June 19, 2007 that formula milk is prone to contaminations and there is as yet
no technology that allows production of powdered infant formula that eliminates all forms of contamination.
62

Ineluctably, the requirement under Section 26(f) of the RIRR for the label to contain the message regarding health hazards including
the possibility of contamination with pathogenic microorganisms is in accordance with Section 5(b) of the Milk Code.
The authority of DOH to control information regarding breastmilk vis-a-vis breastmilk substitutes and supplements and related
products cannot be questioned. It is its intervention into the area of advertising, promotion, and marketing that is being assailed by
petitioner.
In furtherance of Section 6(a) of the Milk Code, to wit:
SECTION 6. The General Public and Mothers.
(a) No advertising, promotion or other marketing materials, whether written, audio or visual, for products within the scope of
this Code shall be printed, published, distributed, exhibited and broadcast unless such materials are duly authorized and
approved by an inter-agency committee created herein pursuant to the applicable standards provided for in this Code.
the Milk Code invested regulatory authority over advertising, promotional and marketing materials to an IAC, thus:
SECTION 12. Implementation and Monitoring -
(a) For purposes of Section 6(a) of this Code, an inter-agency committee composed of the following members is hereby
created:
Minister of Health ------------------- Chairman
Minister of Trade and Industry ------------------- Member
Minister of Justice ------------------- Member
Minister of Social Services and Development ------------------- Member
The members may designate their duly authorized representative to every meeting of the Committee.
The Committee shall have the following powers and functions:
(1) To review and examine all advertising. promotion or other marketing materials, whether written, audio or visual,
on products within the scope of this Code;
(2) To approve or disapprove, delete objectionable portions from and prohibit the printing, publication, distribution,
exhibition and broadcast of, all advertising promotion or other marketing materials, whether written, audio or visual,
on products within the scope of this Code;
(3) To prescribe the internal and operational procedure for the exercise of its powers and functions as well as the
performance of its duties and responsibilities; and
(4) To promulgate such rules and regulations as are necessary or proper for the implementation of Section 6(a) of
this Code. x x x (Emphasis supplied)
However, Section 11 of the RIRR, to wit:
SECTION 11. Prohibition No advertising, promotions, sponsorships, or marketing materials and activities for breastmilk
substitutes intended for infants and young children up to twenty-four (24) months, shall be allowed, because they tend to
convey or give subliminal messages or impressions that undermine breastmilk and breastfeeding or otherwise exaggerate
breastmilk substitutes and/or replacements, as well as related products covered within the scope of this Code.
prohibits advertising, promotions, sponsorships or marketing materials and activities for breastmilk substitutes in line with the RIRRs
declaration of principle under Section 4(f), to wit:
SECTION 4. Declaration of Principles
x x x x
(f) Advertising, promotions, or sponsorships of infant formula, breastmilk substitutes and other related products are
prohibited.
The DOH, through its co-respondents, evidently arrogated to itself not only the regulatory authority given to the IAC but also imposed
absolute prohibition on advertising, promotion, and marketing.
Yet, oddly enough, Section 12 of the RIRR reiterated the requirement of the Milk Code in Section 6 thereof for prior approval by IAC
of all advertising, marketing and promotional materials prior to dissemination.
Even respondents, through the OSG, acknowledged the authority of IAC, and repeatedly insisted, during the oral arguments on June
19, 2007, that the prohibition under Section 11 is not actually operational, viz:
SOLICITOR GENERAL DEVANADERA:
x x x x
x x x Now, the crux of the matter that is being questioned by Petitioner is whether or not there is an absolute prohibition on
advertising making AO 2006-12 unconstitutional. We maintained that what AO 2006-12 provides is not an absolute
prohibition because Section 11 while it states and it is entitled prohibition it states that no advertising, promotion, sponsorship
or marketing materials and activities for breast milk substitutes intended for infants and young children up to 24 months shall
be allowed because this is the standard they tend to convey or give subliminal messages or impression undermine that
breastmilk or breastfeeding x x x.
We have to read Section 11 together with the other Sections because the other Section, Section 12, provides for the inter
agency committee that is empowered to process and evaluate all the advertising and promotion materials.
x x x x
What AO 2006-12, what it does, it does not prohibit the sale and manufacture, it simply regulates the advertisement and the
promotions of breastfeeding milk substitutes.
x x x x
Now, the prohibition on advertising, Your Honor, must be taken together with the provision on the Inter-Agency Committee
that processes and evaluates because there may be some information dissemination that are straight forward information
dissemination. What the AO 2006 is trying to prevent is any material that will undermine the practice of breastfeeding, Your
Honor.
x x x x
ASSOCIATE JUSTICE SANTIAGO:
Madam Solicitor General, under the Milk Code, which body has authority or power to promulgate Rules and Regulations
regarding the Advertising, Promotion and Marketing of Breastmilk Substitutes?
SOLICITOR GENERAL DEVANADERA:
Your Honor, please, it is provided that the Inter-Agency Committee, Your Honor.
x x x x
ASSOCIATE JUSTICE SANTIAGO:
x x x Don't you think that the Department of Health overstepped its rule making authority when it totally banned advertising
and promotion under Section 11 prescribed the total effect rule as well as the content of materials under Section 13 and 15 of
the rules and regulations?
SOLICITOR GENERAL DEVANADERA:
Your Honor, please, first we would like to stress that there is no total absolute ban. Second, the Inter-Agency Committee is
under the Department of Health, Your Honor.
x x x x
ASSOCIATE JUSTICE NAZARIO:
x x x Did I hear you correctly, Madam Solicitor, that there is no absolute ban on advertising of breastmilk substitutes in the
Revised Rules?
SOLICITOR GENERAL DEVANADERA:
Yes, your Honor.
ASSOCIATE JUSTICE NAZARIO:
But, would you nevertheless agree that there is an absolute ban on advertising of breastmilk substitutes intended for children
two (2) years old and younger?
SOLICITOR GENERAL DEVANADERA:
It's not an absolute ban, Your Honor, because we have the Inter-Agency Committee that can evaluate some advertising and
promotional materials, subject to the standards that we have stated earlier, which are- they should not undermine
breastfeeding, Your Honor.
x x x x
x x x Section 11, while it is titled Prohibition, it must be taken in relation with the other Sections, particularly 12 and 13 and
15, Your Honor, because it is recognized that the Inter-Agency Committee has that power to evaluate promotional materials,
Your Honor.
ASSOCIATE JUSTICE NAZARIO:
So in short, will you please clarify there's no absolute ban on advertisement regarding milk substitute regarding infants two
(2) years below?
SOLICITOR GENERAL DEVANADERA:
We can proudly say that the general rule is that there is a prohibition, however, we take exceptions and standards have been
set. One of which is that, the Inter-Agency Committee can allow if the advertising and promotions will not undermine
breastmilk and breastfeeding, Your Honor.
63

Sections 11 and 4(f) of the RIRR are clearly violative of the Milk Code.
However, although it is the IAC which is authorized to promulgate rules and regulations for the approval or rejection of advertising,
promotional, or other marketing materials under Section 12(a) of the Milk Code, said provision must be related to Section 6 thereof
which in turn provides that the rules and regulations must be "pursuant to the applicable standards provided for in this Code." Said
standards are set forth in Sections 5(b), 8(b), and 10 of the Code, which, at the risk of being repetitious, and for easy reference, are
quoted hereunder:
SECTION 5. Information and Education
x x x x
(b) Informational and educational materials, whether written, audio, or visual, dealing with the feeding of infants and
intended to reach pregnant women and mothers of infants, shall include clear information on all the following points: (1) the
benefits and superiority of breastfeeding; (2) maternal nutrition, and the preparation for and maintenance of breastfeeding; (3)
the negative effect on breastfeeding of introducing partial bottlefeeding; (4) the difficulty of reversing the decision not to
breastfeed; and (5) where needed, the proper use of infant formula, whether manufactured industrially or home-prepared.
When such materials contain information about the use of infant formula, they shall include the social and financial
implications of its use; the health hazards of inappropriate foods of feeding methods; and, in particular, the health hazards of
unnecessary or improper use of infant formula and other breastmilk substitutes. Such materials shall not use any picture or
text which may idealize the use of breastmilk substitutes.
x x x x
SECTION 8. Health Workers.
x x x x
(b) Information provided by manufacturers and distributors to health professionals regarding products within the scope of this
Code shall be restricted to scientific and factual matters and such information shall not imply or create a belief that bottle
feeding is equivalent or superior to breastfeeding. It shall also include the information specified in Section 5(b).
x x x x
SECTION 10. Containers/Label
(a) Containers and/or labels shall be designed to provide the necessary information about the appropriate use of the products,
and in such a way as not to discourage breastfeeding.
(b) Each container shall have a clear, conspicuous and easily readable and understandable message in Pilipino or English
printed on it, or on a label, which message can not readily become separated from it, and which shall include the following
points:
(i) the words "Important Notice" or their equivalent;
(ii) a statement of the superiority of breastfeeding;
(iii) a statement that the product shall be used only on the advice of a health worker as to the need for its use and the
proper methods of use; and
(iv) instructions for appropriate preparation, and a warning against the health hazards of inappropriate preparation.
Section 12(b) of the Milk Code designates the DOH as the principal implementing agency for the enforcement of the provisions of the
Code. In relation to such responsibility of the DOH, Section 5(a) of the Milk Code states that:
SECTION 5. Information and Education
(a) The government shall ensure that objective and consistent information is provided on infant feeding, for use by families
and those involved in the field of infant nutrition. This responsibility shall cover the planning, provision, design and
dissemination of information, and the control thereof, on infant nutrition. (Emphasis supplied)
Thus, the DOH has the significant responsibility to translate into operational terms the standards set forth in Sections 5, 8, and 10 of
the Milk Code, by which the IAC shall screen advertising, promotional, or other marketing materials.
It is pursuant to such responsibility that the DOH correctly provided for Section 13 in the RIRR which reads as follows:
SECTION 13. "Total Effect" - Promotion of products within the scope of this Code must be objective and should not equate
or make the product appear to be as good or equal to breastmilk or breastfeeding in the advertising concept. It must not in any
case undermine breastmilk or breastfeeding. The "total effect" should not directly or indirectly suggest that buying their
product would produce better individuals, or resulting in greater love, intelligence, ability, harmony or in any manner bring
better health to the baby or other such exaggerated and unsubstantiated claim.
Such standards bind the IAC in formulating its rules and regulations on advertising, promotion, and marketing. Through that single
provision, the DOH exercises control over the information content of advertising, promotional and marketing materials on breastmilk
vis-a-vis breastmilk substitutes, supplements and other related products. It also sets a viable standard against which the IAC may
screen such materials before they are made public.
In Equi-Asia Placement, Inc. vs. Department of Foreign Affairs,
64
the Court held:
x x x [T]his Court had, in the past, accepted as sufficient standards the following: "public interest," "justice and equity,"
"public convenience and welfare," and "simplicity, economy and welfare."
65

In this case, correct information as to infant feeding and nutrition is infused with public interest and welfare.
4. With regard to activities for dissemination of information to health professionals, the Court also finds that there is no inconsistency
between the provisions of the Milk Code and the RIRR. Section 7(b)
66
of the Milk Code, in relation to Section 8(b)
67
of the same
Code, allows dissemination of information to health professionals but such information is restricted to scientific and factual matters.
Contrary to petitioner's claim, Section 22 of the RIRR does not prohibit the giving of information to health professionals on scientific
and factual matters. What it prohibits is the involvement of the manufacturer and distributor of the products covered by the Code in
activities for the promotion, education and production of Information, Education and Communication (IEC) materials regarding
breastfeeding that are intended for women and children. Said provision cannot be construed to encompass even the dissemination of
information to health professionals, as restricted by the Milk Code.
5. Next, petitioner alleges that Section 8(e)
68
of the Milk Code permits milk manufacturers and distributors to extend assistance in
research and in the continuing education of health professionals, while Sections 22 and 32 of the RIRR absolutely forbid the same.
Petitioner also assails Section 4(i)
69
of the RIRR prohibiting milk manufacturers' and distributors' participation in any policymaking
body in relation to the advancement of breastfeeding.
Section 4(i) of the RIRR provides that milk companies and their representatives should not form part of any policymaking body or
entity in relation to the advancement of breastfeeding. The Court finds nothing in said provisions which contravenes the Milk Code.
Note that under Section 12(b) of the Milk Code, it is the DOH which shall be principally responsible for the implementation and
enforcement of the provisions of said Code. It is entirely up to the DOH to decide which entities to call upon or allow to be part of
policymaking bodies on breastfeeding. Therefore, the RIRR's prohibition on milk companies participation in any policymaking body
in relation to the advancement of breastfeeding is in accord with the Milk Code.
Petitioner is also mistaken in arguing that Section 22 of the RIRR prohibits milk companies from giving reasearch assistance and
continuing education to health professionals. Section 22
70
of the RIRR does not pertain to research assistance to or the continuing
education of health professionals; rather, it deals with breastfeeding promotion and education for women and children. Nothing in
Section 22 of the RIRR prohibits milk companies from giving assistance for research or continuing education to health professionals;
hence, petitioner's argument against this particular provision must be struck down.
It is Sections 9
71
and 10
72
of the RIRR which govern research assistance. Said sections of the RIRR provide that research assistance
for health workers and researchers may be allowed upon approval of an ethics committee, and with certain disclosure requirements
imposed on the milk company and on the recipient of the research award.
The Milk Code endows the DOH with the power to determine how such research or educational assistance may be given by milk
companies or under what conditions health workers may accept the assistance. Thus, Sections 9 and 10 of the RIRR imposing
limitations on the kind of research done or extent of assistance given by milk companies are completely in accord with the Milk Code.
Petitioner complains that Section 32
73
of the RIRR prohibits milk companies from giving assistance, support, logistics or training to
health workers. This provision is within the prerogative given to the DOH under Section 8(e)
74
of the Milk Code, which provides that
manufacturers and distributors of breastmilk substitutes may assist in researches, scholarships and the continuing education, of health
professionals in accordance with the rules and regulations promulgated by the Ministry of Health, now DOH.
6. As to the RIRR's prohibition on donations, said provisions are also consistent with the Milk Code. Section 6(f) of the Milk Code
provides that donations may be made by manufacturers and distributors of breastmilk substitutes upon the request or with the approval
of the DOH. The law does not proscribe the refusal of donations. The Milk Code leaves it purely to the discretion of the DOH whether
to request or accept such donations. The DOH then appropriately exercised its discretion through Section 51
75
of the RIRR which sets
forth its policy not to request or approve donations from manufacturers and distributors of breastmilk substitutes.
It was within the discretion of the DOH when it provided in Section 52 of the RIRR that any donation from milk companies not
covered by the Code should be coursed through the IAC which shall determine whether such donation should be accepted or refused.
As reasoned out by respondents, the DOH is not mandated by the Milk Code to accept donations. For that matter, no person or entity
can be forced to accept a donation. There is, therefore, no real inconsistency between the RIRR and the law because the Milk Code
does not prohibit the DOH from refusing donations.
7. With regard to Section 46 of the RIRR providing for administrative sanctions that are not found in the Milk Code, the Court
upholds petitioner's objection thereto.
Respondent's reliance on Civil Aeronautics Board v. Philippine Air Lines, Inc.
76
is misplaced. The glaring difference in said case and
the present case before the Court is that, in the Civil Aeronautics Board, the Civil Aeronautics Administration (CAA) was expressly
granted by the law (R.A. No. 776) the power to impose fines and civil penalties, while the Civil Aeronautics Board (CAB) was
granted by the same law the power to review on appeal the order or decision of the CAA and to determine whether to impose, remit,
mitigate, increase or compromise such fine and civil penalties. Thus, the Court upheld the CAB's Resolution imposing administrative
fines.
In a more recent case, Perez v. LPG Refillers Association of the Philippines, Inc.,
77
the Court upheld the Department of Energy (DOE)
Circular No. 2000-06-10 implementing Batas Pambansa (B.P.) Blg. 33. The circular provided for fines for the commission of
prohibited acts. The Court found that nothing in the circular contravened the law because the DOE was expressly authorized by B.P.
Blg. 33 and R.A. No. 7638 to impose fines or penalties.
In the present case, neither the Milk Code nor the Revised Administrative Code grants the DOH the authority to fix or impose
administrative fines. Thus, without any express grant of power to fix or impose such fines, the DOH cannot provide for those fines in
the RIRR. In this regard, the DOH again exceeded its authority by providing for such fines or sanctions in Section 46 of the RIRR.
Said provision is, therefore, null and void.
The DOH is not left without any means to enforce its rules and regulations. Section 12(b) (3) of the Milk Code authorizes the DOH to
"cause the prosecution of the violators of this Code and other pertinent laws on products covered by this Code." Section 13 of the Milk
Code provides for the penalties to be imposed on violators of the provision of the Milk Code or the rules and regulations issued
pursuant to it, to wit:
SECTION 13. Sanctions
(a) Any person who violates the provisions of this Code or the rules and regulations issued pursuant to this Code shall, upon
conviction, be punished by a penalty of two (2) months to one (1) year imprisonment or a fine of not less than One Thousand
Pesos (P1,000.00) nor more than Thirty Thousand Pesos (P30,000.00) or both. Should the offense be committed by a
juridical person, the chairman of the Board of Directors, the president, general manager, or the partners and/or the persons
directly responsible therefor, shall be penalized.
(b) Any license, permit or authority issued by any government agency to any health worker, distributor, manufacturer, or
marketing firm or personnel for the practice of their profession or occupation, or for the pursuit of their business, may, upon
recommendation of the Ministry of Health, be suspended or revoked in the event of repeated violations of this Code, or of the
rules and regulations issued pursuant to this Code. (Emphasis supplied)
8. Petitioners claim that Section 57 of the RIRR repeals existing laws that are contrary to the RIRR is frivolous.
Section 57 reads:
SECTION 57. Repealing Clause - All orders, issuances, and rules and regulations or parts thereof inconsistent with these
revised rules and implementing regulations are hereby repealed or modified accordingly.
Section 57 of the RIRR does not provide for the repeal of laws but only orders, issuances and rules and regulations. Thus, said
provision is valid as it is within the DOH's rule-making power.
An administrative agency like respondent possesses quasi-legislative or rule-making power or the power to make rules and regulations
which results in delegated legislation that is within the confines of the granting statute and the Constitution, and subject to the doctrine
of non-delegability and separability of powers.
78
Such express grant of rule-making power necessarily includes the power to amend,
revise, alter, or repeal the same.
79
This is to allow administrative agencies flexibility in formulating and adjusting the details and
manner by which they are to implement the provisions of a law,
80
in order to make it more responsive to the times. Hence, it is a
standard provision in administrative rules that prior issuances of administrative agencies that are inconsistent therewith are declared
repealed or modified.
In fine, only Sections 4(f), 11 and 46 are ultra vires, beyond the authority of the DOH to promulgate and in contravention of the Milk
Code and, therefore, null and void. The rest of the provisions of the RIRR are in consonance with the Milk Code.
Lastly, petitioner makes a "catch-all" allegation that:
x x x [T]he questioned RIRR sought to be implemented by the Respondents is unnecessary and oppressive, and is offensive
to the due process clause of the Constitution, insofar as the same is in restraint of trade and because a provision therein is
inadequate to provide the public with a comprehensible basis to determine whether or not they have committed a violation.
81

(Emphasis supplied)
Petitioner refers to Sections 4(f),
82
4(i),
83
5(w),
84
11,
85
22,
86
32,
87
46,
88
and 52
89
as the provisions that suppress the trade of milk and,
thus, violate the due process clause of the Constitution.
The framers of the constitution were well aware that trade must be subjected to some form of regulation for the public good. Public
interest must be upheld over business interests.
90
In Pest Management Association of the Philippines v. Fertilizer and Pesticide
Authority,
91
it was held thus:
x x x Furthermore, as held in Association of Philippine Coconut Desiccators v. Philippine Coconut Authority, despite the fact
that "our present Constitution enshrines free enterprise as a policy, it nonetheless reserves to the government the power to
intervene whenever necessary to promote the general welfare." There can be no question that the unregulated use or
proliferation of pesticides would be hazardous to our environment. Thus, in the aforecited case, the Court declared that "free
enterprise does not call for removal of protective regulations." x x x It must be clearly explained and proven by competent
evidence just exactly how such protective regulation would result in the restraint of trade. [Emphasis and underscoring
supplied]
In this case, petitioner failed to show that the proscription of milk manufacturers participation in any policymaking body (Section
4(i)), classes and seminars for women and children (Section 22); the giving of assistance, support and logistics or training (Section
32); and the giving of donations (Section 52) would unreasonably hamper the trade of breastmilk substitutes. Petitioner has not
established that the proscribed activities are indispensable to the trade of breastmilk substitutes. Petitioner failed to demonstrate that
the aforementioned provisions of the RIRR are unreasonable and oppressive for being in restraint of trade.
Petitioner also failed to convince the Court that Section 5(w) of the RIRR is unreasonable and oppressive. Said section provides for
the definition of the term "milk company," to wit:
SECTION 5 x x x. (w) "Milk Company" shall refer to the owner, manufacturer, distributor of infant formula, follow-up milk,
milk formula, milk supplement, breastmilk substitute or replacement, or by any other description of such nature, including
their representatives who promote or otherwise advance their commercial interests in marketing those products;
On the other hand, Section 4 of the Milk Code provides:
(d) "Distributor" means a person, corporation or any other entity in the public or private sector engaged in the business
(whether directly or indirectly) of marketing at the wholesale or retail level a product within the scope of this Code. A
"primary distributor" is a manufacturer's sales agent, representative, national distributor or broker.
x x x x
(j) "Manufacturer" means a corporation or other entity in the public or private sector engaged in the business or function
(whether directly or indirectly or through an agent or and entity controlled by or under contract with it) of manufacturing a
products within the scope of this Code.
Notably, the definition in the RIRR merely merged together under the term "milk company" the entities defined separately under the
Milk Code as "distributor" and "manufacturer." The RIRR also enumerated in Section 5(w) the products manufactured or distributed
by an entity that would qualify it as a "milk company," whereas in the Milk Code, what is used is the phrase "products within the
scope of this Code." Those are the only differences between the definitions given in the Milk Code and the definition as re-stated in
the RIRR.
Since all the regulatory provisions under the Milk Code apply equally to both manufacturers and distributors, the Court sees no harm
in the RIRR providing for just one term to encompass both entities. The definition of "milk company" in the RIRR and the definitions
of "distributor" and "manufacturer" provided for under the Milk Code are practically the same.
The Court is not convinced that the definition of "milk company" provided in the RIRR would bring about any change in the treatment
or regulation of "distributors" and "manufacturers" of breastmilk substitutes, as defined under the Milk Code.
Except Sections 4(f), 11 and 46, the rest of the provisions of the RIRR are in consonance with the objective, purpose and intent of the
Milk Code, constituting reasonable regulation of an industry which affects public health and welfare and, as such, the rest of the RIRR
do not constitute illegal restraint of trade nor are they violative of the due process clause of the Constitution.
WHEREFORE, the petition is PARTIALLY GRANTED. Sections 4(f), 11 and 46 of Administrative Order No. 2006-0012 dated May
12, 2006 are declared NULL and VOID for being ultra vires. The Department of Health and respondents are PROHIBITED from
implementing said provisions.
The Temporary Restraining Order issued on August 15, 2006 is LIFTED insofar as the rest of the provisions of Administrative Order
No. 2006-0012 is concerned.
SO ORDERED.


Republic of the Philippines
SUPREME COURT
EN BANC
G.R. No. 158088 July 6, 2005
SENATOR AQUILINO PIMENTEL, JR., REP. ETTA ROSALES, PHILIPPINE COALITION FOR THE ESTABLISHMENT OF
THE INTERNATIONAL CRIMINAL COURT, TASK FORCE DETAINEES OF THE PHILIPPINES, FAMILIES OF VICTIMS OF
INVOLUNTARY DISAPPEARANCES, BIANCA HACINTHA R. ROQUE, HARRISON JACOB R. ROQUE, AHMED
PAGLINAWAN, RON P. SALO,
*
LEAVIDES G. DOMINGO, EDGARDO CARLO VISTAN, NOEL VILLAROMAN, CELESTE
CEMBRANO, LIZA ABIERA, JAIME ARROYO, MARWIL LLASOS, CRISTINA ATENDIDO, ISRAFEL FAGELA, and ROMEL
BAGARES, Petitioners,
vs.
OFFICE OF THE EXECUTIVE SECRETARY, HON. ALBERTO ROMULO, and the DEPARTMENT OF FOREIGN AFFAIRS,
represented by HON. BLAS OPLE, Respondents.
D E C I S I O N
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.
x x x
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.


Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 138570 October 10, 2000
BAYAN (Bagong Alyansang Makabayan), a JUNK VFA MOVEMENT, BISHOP TOMAS MILLAMENA (Iglesia Filipina
Independiente), BISHOP ELMER BOLOCAN (United Church of Christ of the Phil.), DR. REYNALDO LEGASCA, MD,
KILUSANG MAMBUBUKID NG PILIPINAS, KILUSANG MAYO UNO, GABRIELA, PROLABOR, and the PUBLIC INTEREST
LAW CENTER, petitioners,
vs.
EXECUTIVE SECRETARY RONALDO ZAMORA, FOREIGN AFFAIRS SECRETARY DOMINGO SIAZON, DEFENSE
SECRETARY ORLANDO MERCADO, BRIG. GEN. ALEXANDER AGUIRRE, SENATE PRESIDENT MARCELO FERNAN,
SENATOR FRANKLIN DRILON, SENATOR BLAS OPLE, SENATOR RODOLFO BIAZON, and SENATOR FRANCISCO
TATAD, respondents.
x - - - - - - - - - - - - - - - - - - - - - - - x
G.R. No. 138572 October 10, 2000
PHILIPPINE CONSTITUTION ASSOCIATION, INC.(PHILCONSA), EXEQUIEL B. GARCIA, AMADOGAT INCIONG,
CAMILO L. SABIO, AND RAMON A. GONZALES, petitioners,
vs.
HON. RONALDO B. ZAMORA, as Executive Secretary, HON. ORLANDO MERCADO, as Secretary of National Defense, and
HON. DOMINGO L. SIAZON, JR., as Secretary of Foreign Affairs, respondents.
x - - - - - - - - - - - - - - - - - - - - - - - x
G.R. No. 138587 October 10, 2000
TEOFISTO T. GUINGONA, JR., RAUL S. ROCO, and SERGIO R. 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.
x - - - - - - - - - - - - - - - - - - - - - - - x
G.R. No. 138680 October 10, 2000
INTEGRATED BAR OF THE PHILIPPINES, Represented by its National President, Jose Aguila Grapilon, petitioners,
vs.
JOSEPH EJERCITO ESTRADA, in his capacity as President, Republic of the Philippines, and HON. DOMINGO SIAZON, in his
capacity as Secretary of Foreign Affairs, respondents.
x - - - - - - - - - - - - - - - - - - - - - - - x
G.R. No. 138698 October 10, 2000
JOVITO R. SALONGA, WIGBERTO 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.
D E C I S I O N
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:
I
Do petitioners have legal standing as concerned citizens, taxpayers, or legislators to question the constitutionality of the VFA?
II
Is the VFA governed by the provisions of Section 21, Article VII or of Section 25, Article XVIII of the Constitution?
III
Does the VFA constitute an abdication of Philippine sovereignty?
a. Are Philippine courts deprived of their jurisdiction to hear and try offenses committed by US military personnel?
b. Is the Supreme Court deprived of its jurisdiction over offenses punishable by reclusion perpetua or higher?
IV
Does the VFA violate:
a. the equal protection clause under Section 1, Article III of the Constitution?
b. the Prohibition against nuclear weapons under Article II, Section 8?
c. Section 28 (4), Article VI of the Constitution granting the exemption from taxes and duties for the equipment, materials
supplies and other properties imported into or acquired in the Philippines by, or on behalf, of the US Armed Forces?
LOCUS STANDI
At the outset, respondents challenge 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 requires foreign troops or facilities
to be stationed or placed permanently in the Philippines.
It is a rudiment in legal hermenuetics that when no distinction is made by law, the Court should not distinguish- Ubi lex non distinguit
nec nos distinguire debemos.
In like manner, we do not subscribe to the argument that Section 25, Article XVIII is not controlling since no foreign military bases,
but merely foreign troops and facilities, are involved in the VFA. Notably, a perusal of said constitutional provision reveals that the
proscription covers "foreign military bases, troops, or facilities." Stated differently, this prohibition is not limited to the entry of troops
and facilities without any foreign bases being established. The clause does not refer to "foreign military bases, troops, or facilities"
collectively but treats them as separate and independent subjects. The use of comma and the disjunctive word "or" clearly signifies
disassociation and independence of one thing from the others included in the enumeration,
28
such that, the provision contemplates
three different situations - a military treaty the subject of which could be either (a) foreign bases, (b) foreign troops, or (c) foreign
facilities - any of the three standing alone places it under the coverage of Section 25, Article XVIII.
To this end, the intention of the framers of the Charter, as manifested during the deliberations of the 1986 Constitutional Commission,
is consistent with this interpretation:
"MR. MAAMBONG. I just want to address a question or two to Commissioner Bernas.
This formulation speaks of three things: foreign military bases, troops or facilities. My first question is: If the country does enter into
such kind of a treaty, must it cover the three-bases, troops or facilities-or could the treaty entered into cover only one or two?
FR. BERNAS. Definitely, it can cover only one. Whether it covers only one or it covers three, the requirement will be the same.
MR. MAAMBONG. In other words, the Philippine government can enter into a treaty covering not bases but merely troops?
FR. BERNAS. Yes.
MR. MAAMBONG. I cannot find any reason why the government can enter into a treaty covering only troops.
FR. BERNAS. Why not? Probably if we stretch our imagination a little bit more, we will find some. We just want to cover
everything."
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.1wphi1 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.


Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 167919 February 14, 2007
PLARIDEL M. ABAYA, COMMODORE PLARIDEL C. GARCIA (retired) and PMA 59 FOUNDATION, INC., rep. by its
President, COMMODORE CARLOS L. AGUSTIN (retired), Petitioners,
vs.
HON. SECRETARY HERMOGENES E. EBDANE, JR., in his capacity as Secretary of the DEPARTMENT OF PUBLIC WORKS
and HIGHWAYS, HON. SECRETARY EMILIA T. BONCODIN, in her capacity as Secretary of the DEPARTMENT OF BUDGET
and MANAGEMENT, HON. SECRETARY CESAR V. PURISIMA, in his capacity as Secretary of the DEPARTMENT OF
FINANCE, HON. TREASURER NORMA L. LASALA, in her capacity as Treasurer of the Bureau of Treasury, and CHINA ROAD
and BRIDGE CORPORATION, Respondents.
D E C I S I O N
CALLEJO, SR., J.:
Before the Court is the petition for certiorari and prohibition under Rule 65 of the Rules of Court seeking to set aside and nullify
Resolution No. PJHL-A-04-012 dated May 7, 2004 issued by the Bids and Awards Committee (BAC) of the Department of Public
Works and Highways (DPWH) and approved by then DPWH Acting Secretary Florante Soriquez. The assailed resolution
recommended the award to private respondent China Road & Bridge Corporation of the contract for the implementation of civil works
for Contract Package No. I (CP I), which consists of the improvement/rehabilitation of the San Andres (Codon)-Virac-Jct. Bago-Viga
road, with the length of 79.818 kilometers, in the island province of Catanduanes.
The CP I project is one of the four packages comprising the project for the improvement/rehabilitation of the Catanduanes
Circumferential Road, covering a total length of about 204.515 kilometers, which is the main highway in Catanduanes Province. The
road section (Catanduanes Circumferential Road) is part of the Arterial Road Links Development Project (Phase IV) funded under
Loan Agreement No. PH-P204 dated December 28, 1999 between the Japan Bank for International Cooperation (JBIC) and the
Government of the Republic of the Philippines.
Background
Based on the Exchange of Notes dated December 27, 1999,
1
the Government of Japan and the Government of the Philippines, through
their respective representatives, namely, Mr. Yoshihisa Ara, Ambassador Extraordinary and Plenipotentiary of Japan to the Republic
of the Philippines, and then Secretary of Foreign Affairs Domingo L. Siazon, have reached an understanding concerning Japanese
loans to be extended to the Philippines. These loans were aimed at promoting our countrys economic stabilization and development
efforts.
The Exchange of Notes consisted of two documents: (1) a Letter from the Government of Japan, signed by Ambassador Ara,
addressed to then Secretary of Foreign Affairs Siazon, confirming the understanding reached between the two governments
concerning the loans to be extended by the Government of Japan to the Philippines; and (2) a document denominated as Records of
Discussion where the salient terms of the loans as set forth by the Government of Japan, through the Japanese delegation, were
reiterated and the said terms were accepted by the Philippine delegation. Both Ambassador Ara and then Secretary Siazon signed the
Records of Discussion as representatives of the Government of Japan and Philippine Government, respectively.
The Exchange of Notes provided that the loans to be extended by the Government of Japan to the Philippines consisted of two loans:
Loan I and Loan II. The Exchange of Notes stated in part:
I
1. A loan in Japanese yen up to the amount of seventy-nine billion eight hundred and sixty-one million yen
(Y79,861,000,000) (hereinafter referred to as "the Loan I") will be extended, in accordance with the relevant laws and
regulations of Japan, to the Government of the Republic of the Philippines (hereinafter referred to as "the Borrower I") by the
Japan Bank for International Cooperation (hereinafter referred to as "the Bank") to implement the projects enumerated in the
List A attached hereto (hereinafter referred to as "the List A") according to the allocation for each project as specified in the
List A.
2. (1) The Loan I will be made available by loan agreements to be concluded between the Borrower I and the Bank. The
terms and conditions of the Loan I as well as the procedure for its utilization will be governed by said loan agreements which
will contain, inter alia, the following principles:
. . .
(2) Each of the loan agreements mentioned in sub-paragraph (1) above will be concluded after the Bank is satisfied
of the feasibility, including environmental consideration, of the project to which such loan agreement relates.
3. (1) The Loan I will be made available to cover payments to be made by the Philippine executing agencies to suppliers,
contractors and/or consultants of eligible source countries under such contracts as may be entered into between them for
purchases of products and/or services required for the implementation of the projects enumerated in the List A, provided that
such purchases are made in such eligible source countries for products produced in and/or services supplied from those
countries.
(2) The scope of eligible source countries mentioned in sub-paragraph (1) above will be agreed upon between the
authorities concerned of the two Governments.
(3) A part of the Loan I may be used to cover eligible local currency requirements for the implementation of the
projects enumerated in the List A.
4. With regard to the shipping and marine insurance of the products purchased under the Loan I, the Government of the
Republic of the Philippines will refrain from imposing any restrictions that may hinder fair and free competition among the
shipping and marine insurance companies.
x x x x
2
1awphi1.net
Pertinently, List A, which specified the projects to be financed under the Loan I, includes the Arterial Road Links Development
Project (Phase IV), to wit:
LIST A
Maximum amount in million yen)
1. Secondary Education Development and Improvement Project 7,210
2. Rural Water Supply Project (Phase V) 951
3. Bohol Irrigation Project (Phase II) 6,078
4. Agrarian Reform Infrastructure Support Project (Phase II) 16,990
5. Arterial Road Links Development Project (Phase IV) 15,384
6. Cordillera Road Improvement Project 5,852
7. Philippines-Japan Friendship Highway Mindanao Section Rehabilitation Project (Phase II) 7,434
8. Rehabilitation and Maintenance of Bridges Along Arterial Roads Project (Phase IV) 5,068
9. Maritime Safety Improvement Project (Phase C) 4,714
10. Pinatubo Hazard Urgent Mitigation Project (Phase II) 9,013
11. Pasig-Marikina River Channel Improvement Project (Phase I) 1,167
Total 79,861
3

The Exchange of Notes further provided that:
III
x x x x
3. The Government of the Republic of the Philippines will ensure that the products and/or services mentioned in sub-paragraph (1) of
paragraph 3 of Part I and sub-paragraph (1) of paragraph 4 of Part II are procured in accordance with the guidelines for procurement
of the Bank, which set forth, inter alia, the procedures of international tendering to be followed except where such procedures are
inapplicable or inappropriate.
x x x x
4

The Records of Discussion, which formed part of the Exchange of Notes, also stated in part, thus:
x x x x
1. With reference to sub-paragraph (3) of paragraph 3 of Part I of the Exchange of Notes concerning the financing of eligible local
currency requirements for the implementation of the projects mentioned in the said sub-paragraph, the representative of the Japanese
delegation stated that:
(1) such requirement of local currency as general administrative expenses, interest during construction, taxes and duties,
expenses concerning office, remuneration to employees of the executing agencies and housing, not directly related to the
implementation of the said projects, as well as purchase of land properties, compensation and the like, however, will not be
considered as eligible for financing under the Loan I; and
(2) the procurement of products and/or services will be made in accordance with the procedures of international competitive
tendering except where such procedures are inapplicable and inappropriate.
x x x x
5

Thus, in accordance with the agreement reached by the Government of Japan and the Philippine Government, as expressed in the
Exchange of Notes between the representatives of the two governments, the Philippines obtained from and was granted a loan by the
JBIC. Loan Agreement No. PH-P204 dated December 28, 1999, in particular, stated as follows:
Loan Agreement No. PH-P204, dated December 28, 1999, between JAPAN BANK FOR INTERNATIONAL COOPERATION and
the GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES.
In the light of the contents of the Exchange of Notes between the Government of Japan and the Government of the Republic of the
Philippines dated December 27, 1999, concerning Japanese loans to be extended with a view to promoting the economic stabilization
and development efforts of the Republic of the Philippines.
JAPAN BANK FOR INTERNATIONAL COOPERATION (hereinafter referred to as "the BANK") and THE GOVERNMENT OF
THE REPUBLIC OF THE PHILIPPINES (hereinafter referred to as "the Borrower") herewith conclude the following Loan
Agreement (hereinafter referred to as "the Loan Agreement", which includes all agreements supplemental hereto).
x x x x
6

Under the terms and conditions of Loan Agreement No. PH-P204, JBIC agreed to lend the Philippine Government an amount not
exceeding FIFTEEN BILLION THREE HUNDRED EIGHTY-FOUR MILLION Japanese Yen (Y 15,384,000,000) as principal for
the implementation of the Arterial Road Links Development Project (Phase IV) on the terms and conditions set forth in the Loan
Agreement and in accordance with the relevant laws and regulations of Japan.
7
The said amount shall be used for the purchase of
eligible goods and services necessary for the implementation of the above-mentioned project from suppliers, contractors or
consultants.
8

Further, it was provided under the said loan agreement that other terms and conditions generally applicable thereto shall be set forth in
the General Terms and Conditions, dated November 1987, issued by the Overseas Economic Cooperation Fund (OECF) and for the
purpose, reference to "the OECF" and "Fund" therein (General Terms and Conditions) shall be substituted by "the JBIC" and "Bank,"
respectively.
9
Specifically, the guidelines for procurement of all goods and services to be financed out of the proceeds of the said loan
shall be as stipulated in the Guidelines for Procurement under OECF Loans dated December 1997 (herein referred to as JBIC
Procurement Guidelines).
10

As mentioned earlier, the proceeds of Loan Agreement No. PH-P204 was to be used to finance the Arterial Road Links Development
Project (Phase IV), of which the Catanduanes Circumferential Road was a part. This road section, in turn, was divided into four
contract packages (CP):
CP I: San Andres (Codon)-Virac-Jct. Bato- Viga Road - 79.818 kms
CP II: Viga-Bagamanoc Road - 10.40 kms.
CP III: Bagamanoc-Pandan Road - 47.50 kms.
CP IV: Pandan-Caramoran-Codon Road - 66.40 kms.
11

Subsequently, the DPWH, as the government agency tasked to implement the project, caused the publication of the "Invitation to
Prequalify and to Bid" for the implementation of the CP I project in two leading national newspapers, namely, the Manila Times and
Manila Standard on November 22 and 29, and December 5, 2002.
A total of twenty-three (23) foreign and local contractors responded to the invitation by submitting their accomplished prequalification
documents on January 23, 2003. In accordance with the established prequalification criteria, eight contractors were evaluated or
considered eligible to bid as concurred by the JBIC. One of them, however, withdrew; thus, only seven contractors submitted their bid
proposals.
The bid documents submitted by the prequalified contractors/bidders were examined to determine their compliance with the
requirements as
stipulated in Article 6 of the Instruction to Bidders.
12
After the lapse of the deadline for the submission of bid proposals, the opening
of the bids commenced immediately. Prior to the opening of the respective bid proposals, it was announced that the Approved Budget
for the Contract (ABC) was in the amount of P738,710,563.67.
The result of the bidding revealed the following three lowest bidders and their respective bids vis--vis the ABC:
13

Name of Bidder
Original Bid As Read
(Pesos)
As-Corrected Bid Amount
(Pesos)
Variance
1) China Road And Bridge
Corporation
P 993,183,904.98 P952,564,821.71 28.95%
2) Cavite Ideal Intl Const. Devt.
Corp.
P1,099,926,598.11 P1,099,926,598.11 48.90%
3) Italian Thai Devt. Public
Company, Ltd.
P1,125,022,075.34 P1,125,392,475.36 52.35%
The bid of private respondent China Road & Bridge Corporation was corrected from the original P993,183,904.98 (with variance of
34.45% from the ABC) to P952,564,821.71 (with variance of 28.95% from the ABC) based on their letter clarification dated April 21,
2004.
14

After further evaluation of the bids, particularly those of the lowest three bidders, Mr. Hedifume Ezawa, Project Manager of the
Catanduanes Circumferential Road Improvement Project (CCRIP), in his Contractors Bid Evaluation Report dated April 2004,
recommended the award of the contract to private respondent China Road & Bridge Corporation:
In accordance with the Guidelines for the Procurements under ODA [Official Development Assistance] Loans, the Consultant hereby
recommends the award of the contract for the construction of CP I, San Andres (Codon) Virac Jct. Bato Viga Section under the
Arterial Road Links Development Projects, Phase IV, JBIC Loan No. PH-P204 to the Lowest Complying Bidder, China Road and
Bridge Corporation, at its total corrected bid amount of Nine Hundred Fifty-Two Million Five Hundred Sixty-Four Thousand Eight
Hundred Twenty-One & 71/100 Pesos.
15

The BAC of the DPWH, with the approval of then Acting Secretary Soriquez, issued the assailed Resolution No. PJHL-A-04-012
dated May 7, 2004 recommending the award in favor of private respondent China Road & Bridge Corporation of the contract for the
implementation of civil works for CP I, San Andres (Codon) Virac Jct. Bato Viga Road (Catanduanes Circumferential Road
Improvement Project) of the Arterial Roads Links Development Project, Phase IV, located in Catanduanes Province, under JBIC Loan
Agreement No. PH-P204.
16
On September 29, 2004, a Contract of Agreement was entered into by and between the DPWH and private
respondent China Road & Bridge Corporation for the implementation of the CP I project.
The Parties
Petitioner Plaridel M. Abaya claims that he filed the instant petition as a taxpayer, former lawmaker, and a Filipino citizen. Petitioner
Plaridel C. Garcia likewise claims that he filed the suit as a taxpayer, former military officer, and a Filipino citizen. Petitioner PMA
59 Foundation, Inc., on the other hand, is a non-stock, non-profit corporation organized under the existing Philippine laws. It claims
that its members are all taxpayers and alumni of the Philippine Military Academy. It is represented by its President, Carlos L. Agustin.
Named as public respondents are the DPWH, as the government agency tasked with the implementation of government infrastructure
projects; the Department of Budget and Management (DBM) as the government agency that authorizes the release and disbursement
of public funds for the implementation of government infrastructure projects; and the Department of Finance (DOF) as the
government agency that acts as the custodian and manager of all financial resources of the government. Also named as individual
public respondents are Hermogenes E. Ebdane, Jr., Emilia T. Boncodin and Cesar V. Purisima in their capacities as former Secretaries
of the DPWH, DBM and DOF, respectively. On the other hand, public respondent Norma L. Lasala was impleaded in her capacity as
Treasurer of the Bureau of Treasury.
Private respondent China Road & Bridge Corporation is a duly organized corporation engaged in the business of construction.
The Petitioners Case
The petitioners mainly seek to nullify DPWH Resolution No. PJHL-A-04-012 dated May 7, 2004, which recommended the award to
private respondent China Road & Bridge Corporation of the contract for the implementation of the civil works of CP I. They al so seek
to annul the contract of agreement subsequently entered into by and between the DPWH and private respondent China Road & Bridge
Corporation pursuant to the said resolution.
They pose the following issues for the Courts resolution:
I. Whether or not Petitioners have standing to file the instant Petition.
II. Whether or not Petitioners are entitled to the issuance of a Writ of Certiorari reversing and setting aside DPWH Resolution
No. PJHL-A-04-012, recommending the award of the Contract Agreement for the implementation of civil works for CPI, San
Andres (CODON)-VIRAC-JCT BATO-VIGA ROAD (CATANDUANES CIRCUMFERENTIAL ROAD IMPROVEMENT
PROJECT) of the Arterial Road Links Development Project, Phase IV, located in Catanduanes Province, under JBIC L/A
No. PH-P204, to China Road & Bridge Corporation.
III. Whether or not the Contract Agreement executed by and between the Republic of the Philippines, through the
Department of Public Works and Highways, and the China Road & Bridge Corporation, for the implementation of civil
works for CPI, San Andres (CODON)-VIRAC-JCT BATO-VIGA ROAD (CATANDUANES CIRCUMFERENTIAL
ROAD IMPROVEMENT PROJECT) of the Arterial Road Links Development Project, Phase IV, located in Catanduanes
Province, under JBIC L/A No. PH-P204, is void ab initio.
IV. Whether or not Petitioners are entitled to the issuance of a Writ of Prohibition permanently prohibiting the
implementation of DPWH Resolution No. PJHL-A-04-012 and the Contract Agreement executed by and between the
Republic of the Philippines (through the Department of Public Works and Highways) and the China Road & Bridge
Corporation, and the disbursement of public funds by the [D]epartment of [B]udget and [M]anagement for such purpose.
V. Whether or not Petitioners are entitled to a Preliminary Injunction and/or a Temporary Restraining Order immediately
enjoining the implementation of DPWH Resolution No. PJHL-A-04-012 and the Contract Agreement executed by and
between the Republic of the Philippines (through the Department of Public Works and Highways) and the China Road &
Bridge Corporation, and the disbursement of public funds by the Department of Budget and Management for such purpose,
during the pendency of this case.
17

Preliminarily, the petitioners assert that they have standing or locus standi to file the instant petition. They claim that as taxpayers and
concerned citizens, they have the right and duty to question the expenditure of public funds on illegal acts. They point out that the
Philippine Government allocates a peso-counterpart for CP I, which amount is appropriated by Congress in the General
Appropriations Act; hence, funds that are being utilized in the implementation of the questioned project also partake of taxpayers
money. The present action, as a taxpayers suit, is thus allegedly proper.
They likewise characterize the instant petition as one of transcendental importance that warrants the Courts adoption of a liberal
stance on the issue of standing. It cited several cases where the Court brushed aside procedural technicalities in order to resolve issues
involving paramount public interest and transcendental importance.
18
Further, petitioner Abaya asserts that he possesses the requisite
standing as a former member of the House of Representatives and one of the principal authors of Republic Act No. 9184 (RA 9184)
19

known as the Government Procurement Reform Act, the law allegedly violated by the public respondents.
On the substantive issues, the petitioners anchor the instant petition on the contention that the award of the contract to private
respondent China Road & Bridge Corporation violates RA 9184, particularly Section 31 thereof which reads:
SEC. 31. Ceiling for Bid Prices. The ABC shall be the upper limit or ceiling for the Bid prices. Bid prices that exceed this ceiling
shall be disqualified outright from further participating in the bidding. There shall be no lower limit to the amount of the award.
In relation thereto, the petitioners cite the definition of the ABC, thus:
SEC. 5. Definition of Terms.
x x x
(a) Approved Budget for the Contract (ABC). refers to the budget for the contract duly approved by the Head of the Procuring
Entity, as provided for in the General Appropriations Act and/or continuing appropriations, in the case of National Government
Agencies; the Corporate Budget for the contract approved by the governing Boards, pursuant to E.O. No. 518, series of 1979, in the
case of Government-Owned and/or Controlled Corporations, Government Financial Institutions and State Universities and Colleges;
and the Budget for the contract approved by the respective Sanggunian, in the case of Local Government Units.
x x x
The petitioners theorize that the foregoing provisions show the mandatory character of ceilings or upper limits of every bid. Under the
above-quoted provisions of RA 9184, all bids or awards should not exceed the ceilings or upper limits; otherwise, the contract is
deemed void and inexistent.
Resolution No. PJHL-A-04-012 was allegedly issued with grave abuse of discretion because it recommended the award of the contract
to private respondent China Road & Bridge Corporation whose bid was more than P200 million overpriced based on the ABC. As
such, the award is allegedly illegal and unconscionable.
In this connection, the petitioners opine that the contract subsequently entered into by and between the DPWH and private respondent
China Road & Bridge Corporation is void ab initio for being prohibited by RA 9184. They stress that Section 31 thereof expressly
provides that "bid prices that exceed this ceiling shall be disqualified outright from participating in the bidding." The upper limit or
ceiling is called the ABC and since the bid of private respondent China Road & Bridge Corporation exceeded the ABC for the CP I
project, it should have been allegedly disqualified from the bidding process and should not, by law, have been awarded the said
contract. They invoke Article 1409 of the Civil Code:
ART. 1409. The following contracts are inexistent and void from the beginning:
(1) Those whose cause, object or purpose is contrary to law, morals, good customs, public order or public policy;
(2) Those which are absolutely simulated or fictitious;
(3) Those whose cause or object did not exist at the time of the transaction;
(4) Those whose object is outside the commerce of men;
(5) Those which contemplate an impossible service;
(6) Those where the intention of the parties relative to the principal object of the contract cannot be ascertained;
(7) Those expressly prohibited or declared void by law.
For violating the above provision, the contract between the DPWH and private respondent China Road & Bridge Corporation is
allegedly inexistent and void ab initio and can produce no effects whatsoever.
It is the contention of the petitioners that RA 9184 is applicable to both local- and foreign-funded procurement contracts. They cite the
following excerpt of the deliberations of the Bicameral Conference Committee on the Disagreeing Provisions of Senate Bill No. 2248
and House Bill No. 4809:
20

REP. ABAYA. Mr. Chairman, can we just propose additional amendments? Can we go back to Section 4, Mr. Chairman?
THE CHAIRMAN (SEN. ANGARA). Section? Section ano, Del, 4? Definition definition of terms.
REP. ABAYA. Sa House bill, it is sa scope and application.
THE CHAIRMAN (SEN. ANGARA). Okay.
REP. ABAYA. It should read as follows: "This Act shall apply to the procurement of goods, supplies and materials, infrastructure
projects and consulting services regardless of funding source whether local or foreign by the government."
THE CHAIRMAN (SEN. ANGARA). Okay, accepted. We accept. The Senate accepts it.
21

xxx xxx xxx
THE CHAIRMAN (SEN ANGARA). Just take note of that ano. Medyo nga problematic yan eh. Now, just for the record Del, can
you repeat again the justification for including foreign funded contracts within the scope para malinaw because the World Bank daw
might raise some objection to it.
REP. ABAYA. Well, Mr. Chairman, we should include foreign funded projects kasi these are the big projects. To give an example, if
you allow bids above government estimate, lets say take the case of 500 million project, included in that 500 million is the 20 percent
profit. If you allow them to bid above government estimate, they will add another say 28 percent of (sic) 30 percent, 30 percent of 500
million is another 150 million. Ito, this is a rich source of graft money, aregluhan na lang, 150 million, five contractors will gather, "O
eto 20 million, 20 million, 20 million." So, it is rigged. Yun ang practice na nangyayari. If we eliminate that, if we have a ceiling
then, it will not be very tempting kasi walang extra money na pwedeng ibigay sa ibang contractor. So this promote (sic) collusion
among bidders, of course, with the cooperation of irresponsible officials of some agencies. So we should have a ceiling to include
foreign funded projects.
22

The petitioners insist that Loan Agreement No. PH-P204 between the JBIC and the Philippine Government is neither a treaty, an
international nor an executive agreement that would bar the application of RA 9184. They point out that to be considered a treaty, an
international or an executive agreement, the parties must be two sovereigns or States whereas in the case of Loan Agreement No. PH-
P204, the parties are the Philippine Government and the JBIC, a banking agency of Japan, which has a separate juridical personality
from the Japanese Government.
They further insist on the applicability of RA 9184 contending that while it took effect on January 26, 2003
23
and Loan Agreement
No. PH-P204 was executed prior thereto or on December 28, 1999, the actual procurement or award of the contract to private
respondent China Road & Bridge Corporation was done after the effectivity of RA 9184. The said law is allegedly specific as to its
application, which is on the actual procurement of infrastructure and other projects only, and not on the loan agreements attached to
such projects. Thus, the petition only prays for the annulment of Resolution No. PJHL-A-04-012 as well as the contract between the
DPWH and private respondent China Road & Bridge Corporation. The petitioners clarify that they do not pray for the annulment of
Loan Agreement No. PH-P204. Since the subject procurement and award of the contract were done after the effectivity of RA 9184,
necessarily, the procurement rules established by that law allegedly apply, and not Presidential Decree No. 1594 (PD 1594)
24
and
Executive Order No. 40 (EO 40), series of 2001,
25
as contended by the respondents. The latter laws, including their implementing
rules, have allegedly been repealed by RA 9184. Even RA 4860, as amended, known as the Foreign Borrowings Act, the petitioners
posit, may have also been repealed or modified by RA 9184 insofar as its provisions are inconsistent with the latter.
The petitioners also argue that the "Implementing Rules and Regulations (IRR) of RA 9184, Otherwise Known as the Government
Procurement Reform Act, Part A" (IRR-A) cited by the respondents is not applicable as these rules only govern domestically-funded
procurement contracts. They aver that the implementing rules to govern foreign-funded procurement, as in the present case, have yet
to be drafted and in fact, there are concurrent resolutions drafted by both houses of Congress for the Reconvening of the Joint
Congressional Oversight Committee for the formulation of the IRR for foreign-funded procurements under RA 9184.
The petitioners maintain that disbursement of public funds to implement a patently void and illegal contract is itself illegal and must
be enjoined. They bring to the Courts attention the fact that the works on the CP I project have already commenced as early as
October 2004. They thus urge the Court to issue a writ of certiorari to set aside Resolution No. PJHL-A-04-012 as well as to declare
null and void the contract entered into between the DPWH and private respondent China Road & Bridge Corporation. They also pray
for the issuance of a temporary restraining order and, eventually, a writ of prohibition to permanently enjoin the DPWH from
implementing Resolution No. PJHL-A-04-012 and its contract with private respondent China Road & Bridge Corporation as well as
the DBM from disbursing funds for the said purpose.
The Respondents Counter-Arguments
The public respondents, namely the DPWH, DBM and DOF, and their respective named officials, through the Office of the Solicitor
General, urge the Court to dismiss the petition on grounds that the petitioners have no locus standi and, in any case, Resolution No.
PJHL-A-04-012 and the contract between the DPWH and private respondent China Road & Bridge Corporation are valid.
According to the public respondents, a taxpayers locus standi was recognized in the following cases: (a) where a tax measure is
assailed as unconstitutional;
26
(b) where there is a question of validity of election laws;
27
(c) where legislators questioned the validity
of any official action upon the claim that it infringes on their prerogatives as legislators;
28
(d) where there is a claim of illegal
disbursement or wastage of public funds through the enforcement of an invalid or unconstitutional law;
29
(e) where it involves the
right of members of the Senate or House of Representatives to question the validity of a presidential veto or condition imposed on an
item in an appropriation bill;
30
or (f) where it involves an invalid law, which when enforced will put the petitioner in imminent danger
of sustaining some direct injury as a result thereof, or 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.
31
None of the
above considerations allegedly obtains in the present case.
It is also the view of the public respondents that the fact that petitioner Abaya was a former lawmaker would not suffice to confer
locus standi on himself. Members of Congress may properly challenge the validity of an official act of any department of the
government only upon showing that the assailed official act affects or impairs their rights and prerogatives as legislators.
The public respondents further assail the standing of the petitioners to file the instant suit claiming that they failed to allege any
specific injury suffered nor an interest that is direct and personal to them. If at all, the interest or injuries claimed by the petitioners are
allegedly merely of a general interest common to all members of the public. Their interest is allegedly too vague, highly speculative
and uncertain to satisfy the requirements of locus standi.
The public respondents find it noteworthy that the petitioners do not raise issues of constitutionality but only of contract law, which
the petitioners not being privies to the agreement cannot raise. This is following the principle that a stranger to a contract cannot sue
either or both the contracting parties to annul and set aside the same except when he is prejudiced on his rights and can show detriment
which would positively result to him from the implementation of the contract in which he has no intervention. There being no
particularized interest or elemental substantial injury necessary to confer locus standi, the public respondents implore the Court to
dismiss the petition.
On the merits, the public respondents maintain that the imposition of ceilings or upper limits on bid prices in RA 9184 does not apply
because the CP I project and the entire Catanduanes Circumferential Road Improvement Project, financed by Loan Agreement No.
PH-P204 executed between the Philippine Government and the JBIC, is governed by the latters Procurement Guidelines which
precludes the imposition of ceilings on bid prices. Section 5.06 of the JBIC Procurement Guidelines reads:
Section 5.06. Evaluation and Comparison of Bids.
x x x
(e) Any procedure under which bids above or below a predetermined bid value assessment are automatically disqualified is not
permitted.
It was explained that other foreign banks such as the Asian Development Bank (ADB) and the World Bank (WB) similarly prohibit
the bracketing or imposition of a ceiling on bid prices.
The public respondents stress that it was pursuant to Loan Agreement No. PH-P204 that the assailed Resolution No. PJHL-A-04-012
and the subsequent contract between the DPWH and private respondent China Road & Bridge Corporation materialized. They
likewise aver that Loan Agreement No. PH-P204 is governed by RA 4860, as amended, or the Foreign Borrowings Act. Section 4
thereof states:
SEC. 4. In the contracting of any loan, credit or indebtedness under this Act, the President of the Philippines may, when necessary,
agree to waive or modify, the application of any law granting preferences or imposing restrictions on international competitive
bidding, including among others [Act No. 4239, Commonwealth Act No. 138], the provisions of [CA 541], insofar as such provisions
do not pertain to constructions primarily for national defense or security purposes, [RA 5183]; Provided, however, That as far as
practicable, utilization of the services of qualified domestic firms in the prosecution of projects financed under this Act shall be
encouraged: Provided, further, That in case where international competitive bidding shall be conducted preference of at least fifteen
per centum shall be granted in favor of articles, materials or supplies of the growth, production or manufacture of the Philippines:
Provided, finally, That the method and procedure in comparison of bids shall be the subject of agreement between the Philippine
Government and the lending institution.
DOJ Opinion No. 46, Series of 1987, is relied upon by the public respondents as it opined that an agreement for the exclusion of
foreign assisted projects from the coverage of local bidding regulations does not contravene existing legislations because the statutory
basis for foreign loan agreements is RA 4860, as amended, and under Section 4 thereof, the President is empowered to waive the
application of any law imposing restrictions on the procurement of goods and services pursuant to such loans.
Memorandum Circular Nos. 104 and 108, issued by the President, to clarify RA 4860, as amended, and PD 1594, relative to the award
of foreign-assisted projects, are also invoked by the public respondents, to wit:
Memorandum Circular No. 104:
In view of the provisions of Section 4 of Republic Act No. 4860, as amended, otherwise known as the "Foreign Borrowings Act"
x x x
It is hereby clarified that foreign-assisted infrastructure projects may be exempted from the application for the pertinent provisions of
the Implementing Rules and Regulations (IRR) of Presidential Decree (P.D.) No. 1594 relative to the method and procedure in the
comparison of bids, which matter may be the subject of agreement between the infrastructure agency concerned and the lending
institution. It should be made clear however that public bidding is still required and can only be waived pursuant to existing laws.
Memorandum Circular No. 108:
In view of the provisions of Section 4 of Republic Act No. 4860, as amended, otherwise known as the "Foreign Borrowings Act", it is
hereby clarified that, for projects supported in whole or in part by foreign assistance awarded through international or local
competitive bidding, the government agency concerned may award the contract to the lowest evaluated bidder at his bid price
consistent with the provisions of the applicable loan/grant agreement.
Specifically, when the loan/grant agreement so stipulates, the government agency concerned may award the contract to the lowest
bidder even if his/its bid exceeds the approved agency estimate.
It is understood that the concerned government agency shall, as far as practicable, adhere closely to the implementing rules and
regulations of Presidential Decree No. 1594 during loan/grant negotiation and the implementation of the projects.
32

The public respondents characterize foreign loan agreements, including Loan Agreement No. PH-P204, as executive agreements and,
as such, should be observed pursuant to the fundamental principle in international law of pacta sunt servanda.
33
They cite Section 20
of Article VII of the Constitution as giving the President the authority to contract foreign loans:
SEC. 20. The President may contract or guarantee foreign loans on behalf of the Republic of the Philippines with the prior
concurrence of the Monetary Board, and subject to such limitations as may be provided by law. The Monetary Board shall, within
thirty days from the end of every quarter of the calendar year, submit to the Congress a complete report of its decisions on applications
for loans to be contracted or guaranteed by the Government or Government-owned and Controlled Corporations which would have the
effect of increasing the foreign debt, and containing other matters as may be provided by law.
The Constitution, the public respondents emphasize, recognizes the enforceability of executive agreements in the same way that it
recognizes generally accepted principles of international law as forming part of the law of the land.
34
This recognition allegedly
buttresses the binding effect of executive agreements to which the Philippine Government is a signatory. It is pointed out by the public
respondents that executive agreements are essentially contracts governing the rights and obligations of the parties. A contract, being
the law between the parties, must be faithfully adhered to by them. Guided by the fundamental rule of pacta sunt servanda, the
Philippine Government bound itself to perform in good faith its duties and obligations under Loan Agreement No. PH-P204.
The public respondents further argue against the applicability of RA 9184 stating that it was signed into law on January 10, 2003.
35
On
the other hand, Loan Agreement No. PH-P204 was executed on December 28, 1999, where the laws then in force on government
procurements were PD 1594 and EO 40. The latter law (EO 40), in particular, excluded from its application "any existing and future
government commitments with respect to the bidding and award of contracts financed partly or wholly with funds from international
financing institutions as well as from bilateral and other similar foreign sources."
The applicability of EO 40, not RA 9184, is allegedly bolstered by the fact that the "Invitation to Prequalify and to Bid" for the
implementation of the CP I project was published in two leading national newspapers, namely, the Manila Times and Manila Standard
on November 22, 29 and December 5, 2002, or before the signing into law of RA 9184 on January 10, 2003. In this connection, t he
public respondents point to Section 77 of IRR-A, which reads:
SEC. 77. Transitory Clause.
In all procurement activities, if the advertisement or invitation for bids was issued prior to the effectivity of the Act, the provisions of
EO 40 and its IRR, PD 1594 and its IRR, RA 7160 and its IRR, or other applicable laws as the case may be, shall govern.
In cases where the advertisements or invitations for bids were issued after the effectivity of the Act but before the effectivity of this
IRR-A, procuring entities may continue adopting the procurement procedures, rules and regulations provided in EO 40 and its IRR, or
other applicable laws, as the case may be.
Section 4 of RA 9184 is also invoked by the public respondents as it provides:
SEC. 4. Scope and Applications. This Act shall apply to the Procurement of Infrastructure Projects, Goods and Consulting Services,
regardless of source of funds, whether local or foreign, by all branches and instrumentalities of government, its departments, offices
and agencies, including government-owned and/or controlled corporations and local government units, subject to the provisions of
Commonwealth Act No. 138. Any treaty or international or executive agreement affecting the subject matter of this Act to which the
Philippine government is a signatory shall be observed.
It is also the position of the public respondents that even granting arguendo that Loan Agreement No. PH-P204 were an ordinary loan
contract, still, RA 9184 is inapplicable under the non-impairment clause
36
of the Constitution. The said loan agreement expressly
provided that the procurement of goods and services for the project financed by the same shall be governed by the Guidelines for
Procurement under OECF Loans dated December 1997. Further, Section 5.06 of the JBIC Procurement Guidelines categorically
provides that "[a]ny procedure under which bids above or below a predetermined bid value assessment are automatically disqualified
is not permitted."
The public respondents explain that since the contract is the law between the parties and Loan Agreement No. PH-P204 states that the
JBIC Procurement Guidelines shall govern the parties relationship and further dictates that there be no ceiling price for the bidding, it
naturally follows that any subsequent law passed contrary to the letters of the said contract would have no effect with respect to the
parties rights and obligations arising therefrom.
To insist on the application of RA 9184 on the bidding for the CP I project would, notwithstanding the terms and conditions of Loan
Agreement No. PH-P204, allegedly violate the constitutional provision on non-impairment of obligations and contracts, and destroy
vested rights duly acquired under the said loan agreement.
Lastly, the public respondents deny that there was illegal disbursement of public funds by the DBM. They asseverate that all the
releases made by the DBM for the implementation of the entire Arterial Road Links Project Phase IV, which includes the
Catanduanes Circumferential Road Improvement Project, were covered by the necessary appropriations made by law, specifically the
General Appropriations Act (GAA). Further, the requirements and procedures prescribed for the release of the said funds were duly
complied with.
For its part, private respondent China Road & Bridge Corporation similarly assails the standing of the petitioners, either as taxpayers
or, in the case of petitioner Abaya, as a former lawmaker, to file the present suit. In addition, it is also alleged that, by filing the
petition directly to this Court, the petitioners failed to observe the hierarchy of courts.
On the merits, private respondent China Road & Bridge Corporation asserts that the applicable law to govern the bidding of the CP I
project was EO 40, not RA 9184, because the former was the law governing the procurement of government projects at the time that it
was bidded out. EO 40 was issued by the Office of the President on October 8, 2001 and Section 1 thereof states that:
SEC. 1. Scope and Application. This Executive Order shall apply to the procurement of: (a) goods, supplies, materials and related
services; (b) civil works; and (c) consulting services, by all National Government agencies, including State Universities and Colleges
(SUCs), Government-Owned or Controlled Corporations (GOCCs) and Government Financial Institutions (GFIs), hereby referred to
as the Agencies. This Executive Order shall cover the procurement process from the pre-procurement conference up to the award of
contract.
x x x
The Invitation to Prequalify and to Bid was first published on November 22, 2002. On the other hand, RA 9184 was signed into law
only on January 10, 2003. Since the law in effect at the time the procurement process was initiated was EO 40, private respondent
China Road & Bridge Corporation submits that it should be the said law which should govern the entire procurement process relative
to the CP I project.
EO 40 expressly recognizes as an exception from the application of the provisions thereof on approved budget ceilings, those projects
financed by international financing institutions (IFIs) and foreign bilateral sources. Section 1 thereof, quoted in part earlier, further
states:
SEC. 1. Scope and Application. x x x
Nothing in this Order shall negate any existing and future government commitments with respect to the bidding and award of contracts
financed partly or wholly with funds from international financing institutions as well as from bilateral and other similar foreign
sources.
Section 1.2 of the Implementing Rules and Regulations of EO 40 is likewise invoked as it provides:
For procurement financed wholly or partly from Official Development Assistance (ODA) funds from International Financing
Institutions (IFIs), as well as from bilateral and other similar foreign sources, the corresponding loan/grant agreement governing said
funds as negotiated and agreed upon by and between the Government and the concerned IFI shall be observed.
Private respondent China Road & Bridge Corporation thus postulates that following EO 40, the procurement of goods and services for
the CP I project should be governed by the terms and conditions of Loan Agreement No. PH-P204 entered into between the JBIC and
the Philippine Government. Pertinently, Section 5.06 of the JBIC Procurement Guidelines prohibits the setting of ceilings on bid
prices.
Private respondent China Road & Bridge Corporation claims that when it submitted its bid for the CP I project, it relied in good faith
on the provisions of EO 40. It was allegedly on the basis of the said law that the DPWH awarded the project to private respondent
China Road & Bridge Coporation even if its bid was higher than the ABC. Under the circumstances, RA 9184 could not be applied
retroactively for to do so would allegedly impair the vested rights of private respondent China Road & Bridge Corporation arising
from its contract with the DPWH.
It is also contended by private respondent China Road & Bridge Corporation that even assuming arguendo that RA 9184 could be
applied retroactively, it is still the terms of Loan Agreement No. PH-P204 which should govern the procurement of goods and services
for the CP I project. It supports its theory by characterizing the said loan agreement, executed pursuant to the Exchange of Notes
between the Government of Japan and the Philippine Government, as an executive agreement.
Private respondent China Road & Bridge Corporation, like the public respondents, cites RA 4860 as the basis for the Exchange of
Notes and Loan Agreement No. PH-P204. As an international or executive agreement, the Exchange of Notes and Loan Agreement
No. PH-P204 allegedly created a legally binding obligation on the parties.
The following excerpt of the deliberations of the Bicameral Conference Committee on the Disagreeing Provision of Senate Bill No.
2248 and House Bill No. 4809 is cited by private respondent China Road & Bridge Corporation to support its contention that it is the
intent of the lawmakers to exclude from the application of RA 9184 those foreign-funded projects:
x x x
REP. MARCOS. Yes, Mr. Chairman, to respond and to put into the record, a justification for the inclusion of foreign contracts, may
we just state that foreign contracts have, of course, been brought into the ambit of the law because of the Filipino counterpart for this
foreign projects, they are no longer strictly foreign in nature but fall under the laws of the Philippine government.
THE CHAIRMAN (SEN. ANGARA). Okay. I think thats pretty clear. I think the possible concern is that some ODA are with strings
attached especially the Japanese. The Japanese are quite strict about that, that they are (sic) even provide the architect and the design,
etcetera, plus, of course, the goods that will be supplied.
Now, I think weve already provided that this is open to all and we will recognize our international agreements so that this bill will not
also restrict the flow of foreign funding, because some countries now make it a condition that they supply both services and goods
especially the Japanese.
So I think we can put a sentence that we continue to honor our international obligations, di ba Laura?
MR. ENCARNACION. Actually, subject to any treaty.
THE CHAIRMAN (SEN. ANGARA). Yun pala eh. That should allay their anxiety and concern. Okay, buti na lang for the record
para malaman nila na we are conscious sa ODA.
37

Private respondent China Road & Bridge Corporation submits that based on the provisions of the Exchange of Notes and Loan
Agreement No. PH-P204, it was rightfully and legally awarded the CP I project. It urges the Court to dismiss the petition for lack of
merit.
The Courts Rulings
Petitioners, as taxpayers, possess locus standi to file the present suit
Briefly stated, locus standi is "a right of appearance in a court of justice on a given question."
38
More particularly, it is a partys
personal and substantial interest in a case such that he has sustained or will sustain direct injury as a result of the governmental act
being challenged. It calls for more than just a generalized grievance. The term "interest" means a material interest, an interest in issue
affected by the decree, as distinguished from mere interest in the question involved, or a mere incidental interest.
39
Standing or locus
standi is a peculiar concept in constitutional law
40
and the rationale for requiring a party who challenges the constitutionality of a
statute to allege such a personal stake in the outcome of the controversy is "to assure that concrete adverseness which sharpens the
presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions."
41

Locus standi, however, is merely a matter of procedure
42
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.
43
Consequently, the Court, in a catena of cases,
44
has invariably adopted a liberal stance on
locus standi, including those cases involving taxpayers.
The prevailing doctrine in taxpayers suits is to allow taxpayers to question contracts entered into by the national government or
government- owned or controlled corporations allegedly in contravention of law.
45
A taxpayer is allowed to sue where there is a claim
that public funds are illegally disbursed, or that public money is being deflected to any improper purpose, or that there is a wastage of
public funds through the enforcement of an invalid or unconstitutional law.
46
Significantly, a taxpayer need not be a party to the
contract to challenge its validity.
47

In the present case, the petitioners are suing as taxpayers. They have sufficiently demonstrated that, notwithstanding the fact that the
CP I project is primarily financed from loans obtained by the government from the JBIC, nonetheless, taxpayers money would be or
is being spent on the project considering that the Philippine Government is required to allocate a peso-counterpart therefor. The public
respondents themselves admit that appropriations for these foreign-assisted projects in the GAA are composed of the loan proceeds
and the peso-counterpart. The counterpart funds, the Solicitor General explains, refer to the component of the project cost to be
financed from government-appropriated funds, as part of the governments commitment in the implementation of the project.
48
Hence,
the petitioners correctly asserted their standing since a part of the funds being utilized in the implementation of the CP I project
partakes of taxpayers money.
Further, the serious legal questions raised by the petitioners, e.g., whether RA 9184 applies to the CP I project, in particular, and to
foreign-funded government projects, in general, and the fact that public interest is indubitably involved considering the public
expenditure of millions of pesos, warrant the Court to adopt in the present case its liberal policy on locus standi.
In any case, for reasons which will be discussed shortly, the substantive arguments raised by the petitioners fail to persuade the Court
as it holds that Resolution No. PJHL-A-04-012 is valid. As a corollary, the subsequent contract entered into by and between the
DPWH and private respondent China Road & Bridge Corporation is likewise valid.
History of Philippine Procurement Laws
It is necessary, at this point, to give a brief history of Philippine laws pertaining to procurement through public bidding. The United
States Philippine Commission introduced the American practice of public bidding through Act No. 22, enacted on October 15, 1900,
by requiring the Chief Engineer, United States Army for the Division of the Philippine Islands, acting as purchasing agent under the
control of the then Military Governor, to advertise and call for a competitive bidding for the purchase of the necessary materials and
lands to be used for the construction of highways and bridges in the Philippine Islands.
49
Act No. 74, enacted on January 21, 1901 by
the Philippine Commission, required the General Superintendent of Public Instruction to purchase office supplies through competitive
public bidding.
50
Act No. 82, approved on January 31, 1901, and Act No. 83, approved on February 6, 1901, required the municipal
and provincial governments, respectively, to hold competitive public biddings in the making of contracts for public works and the
purchase of office supplies.
51

On June 21, 1901, the Philippine Commission, through Act No. 146, created the Bureau of Supply and with its creation, public
bidding became a popular policy in the purchase of supplies, materials and equipment for the use of the national government, its
subdivisions and instrumentalities.
52
On February 3, 1936, then President Manuel L. Quezon issued Executive Order No. 16 declaring
as a matter of general policy that government contracts for public service or for furnishing supplies, materials and equipment to the
government should be subjected to public bidding.
53
The requirement of public bidding was likewise imposed for public works of
construction or repair pursuant to the Revised Administrative Code of 1917.
Then President Diosdado Macapagal, in Executive Order No. 40 dated June 1, 1963, reiterated the directive that no government
contract for public service or for furnishing supplies, materials and equipment to the government or any of its branches, agencies or
instrumentalities, should be entered into without public bidding except for very extraordinary reasons to be determined by a
Committee constituted thereunder. Then President Ferdinand Marcos issued PD 1594 prescribing guidelines for government
infrastructure projects and Section 4
54
thereof stated that they should generally be undertaken by contract after competitive public
bidding.
Then President Corazon Aquino issued Executive Order No. 301 (1987) prescribing guidelines for government negotiated contracts.
Pertinently, Section 62 of the Administrative Code of 1987 reiterated the requirement of competitive public bidding in government
projects. In 1990, Congress passed RA 6957,
55
which authorized the financing, construction, operation and maintenance of
infrastructure by the private sector. RA 7160 was likewise enacted by Congress in 1991 and it contains provisions governing the
procurement of goods and locally-funded civil works by the local government units.
Then President Fidel Ramos issued Executive Order No. 302 (1996), providing guidelines for the procurement of goods and supplies
by the national government. Then President Joseph Ejercito Estrada issued Executive Order No. 201 (2000), providing additional
guidelines in the procurement of goods and supplies by the national government. Thereafter, he issued Executive Order No. 262
(2000) amending EO 302 (1996) and EO 201 (2000).
On October 8, 2001, President Gloria Macapagal-Arroyo issued EO 40, the law mainly relied upon by the respondents, entitled
Consolidating Procurement Rules and Procedures for All National Government Agencies, Government-Owned or Controlled
Corporations and Government Financial Institutions, and Requiring the Use of the Government Procurement System. It accordingly
repealed, amended or modified all executive issuances, orders, rules and regulations or parts thereof inconsistent therewith.
56

On January 10, 2003, President Arroyo signed into law RA 9184. It took effect on January 26, 2004, or fifteen days after its
publication in two newspapers of general circulation.
57
It expressly repealed, among others, EO 40, EO 262 (2000), EO 302(1996) and
PD 1594, as amended:
SEC. 76. Repealing Clause. This law repeals Executive Order No. 40, series of 2001, entitled "Consolidating Procurement Rules
and Procedures for All National Government Agencies, Government Owned or Controlled Corporations and/or Government Financial
Institutions, and Requiring the Use of the Government Electronic Procurement System"; Executive Order No. 262, series of 1996,
entitled "Amending Executive Order No. 302, series of 1996, entitled Providing Policies, Guidelines, Rules and Regulations for the
Procurement of Goods/Supplies by the National Government" and Section 3 of Executive Order No. 201, series of 2000, entitled
"Providing Additional Policies and Guidelines in the Procurement of Goods/Supplies by the National Government"; Executive Order
No. 302, series of 1996, entitled "Providing Policies, Guidelines, Rules and Regulations for the Procurement of Goods/Supplies by the
National Government" and Presidential Decree No. 1594 dated June 11, 1978, entitled "Prescribing Policies, Guidelines, Rules and
Regulations for Government Infrastructure Contracts." This law amends Title Six, Book Two of Republic Act No. 7160, otherwise
known as the "Local Government Code of 1991"; the relevant provisions of Executive Order No. 164, series of 1987, entitled
"Providing Additional Guidelines in the Processing and Approval of Contracts of the National Government"; and the relevant
provisions of Republic Act No. 7898 dated February 23, 1995, entitled "An Act Providing for the Modernization of the Armed Forces
of the Philippines and for Other Purposes." Any other law, presidential decree or issuance, executive order, letter of instruction,
administrative order, proclamation, charter, rule or regulation and/or parts thereof contrary to or inconsistent with the provisions of
this Act is hereby repealed, modified or amended accordingly.
In addition to these laws, RA 4860, as amended, must be mentioned as Section 4 thereof provides that "[i]n the contracting of any
loan, credit or indebtedness under this Act, the President of the Philippines may, when necessary, agree to waive or modify the
application of any law granting preferences or imposing restrictions on international competitive bidding x x x Provided, finally, That
the method and procedure in the comparison of bids shall be the subject of agreement between the Philippine Government and the
lending institution."
EO 40, not RA 9184, is applicable to the procurement
process undertaken for the CP I project. RA 9184
cannot be given retroactive application.
It is not disputed that with respect to the CP I project, the Invitation to Prequalify and to Bid for its implementation was published in
two leading national newspapers, namely, the Manila Times and Manila Standard on November 22, 29 and December 5, 2002. At the
time, the law in effect was EO 40. On the other hand, RA 9184 took effect two months later or on January 26, 2003. Further, its full
implementation was even delayed as IRR-A was only approved by President Arroyo on September 18, 2003 and subsequently
published on September 23, 2003 in the Manila Times and Malaya newspapers.
58

The provisions of EO 40 apply to the procurement process pertaining to the CP I project as it is explicitly provided in Section 1
thereof that:
SEC. 1. Scope and Application. This Executive Order shall apply to see procurement of (a) goods, supplies, materials and related
service; (b) civil works; and (c) consulting services, by all National Government agencies, including State Universities and Colleges
(SUCs), Government-Owned or Controlled Corporations (GOCCs) and Government Financial Institutions (GFIs), hereby referred to
as "Agencies." This Executive Order shall cover the procurement process from the pre-procurement conference up to the award of the
contract.
Nothing in this Order shall negate any existing and future government commitments with respect to the bidding and award of contracts
financed partly or wholly with funds from international financing institutions as well as from bilateral and similar foreign sources.
The procurement process basically involves the following steps: (1) pre-procurement conference; (2) advertisement of the invitation to
bid; (3) pre-bid conference; (4) eligibility check of prospective bidders; (5) submission and receipt of bids; (6) modification and
withdrawal of bids; (7) bid opening and examination; (8) bid evaluation; (9) post qualification; (10) award of contract and notice to
proceed.
59
Clearly then, when the Invitation to Prequalify and to Bid for the implementation of the CP I project was published on
November 22, 29 and December 5, 2002, the procurement process thereof had already commenced and the application of EO 40 to the
procurement process for the CP I project had already attached.
RA 9184 cannot be applied retroactively to govern the procurement process relative to the CP I project because it is well settled that a
law or regulation has no retroactive application unless it expressly provides for retroactivity.
60
Indeed, Article 4 of the Civil Code is
clear on the matter: "[l]aws shall have no retroactive effect, unless the contrary is provided." In the absence of such categorical
provision, RA 9184 will not be applied retroactively to the CP I project whose procurement process commenced even before the said
law took effect.
That the legislators did not intend RA 9184 to have retroactive effect could be gleaned from the IRR-A formulated by the Joint
Congressional Oversight Committee (composed of the Chairman of the Senate Committee on Constitutional Amendments and
Revision of Laws, and two members thereof appointed by the Senate President and the Chairman of the House Committee on
Appropriations, and two members thereof appointed by the Speaker of the House of Representatives) and the Government
Procurement Policy Board (GPPB). Section 77 of the IRR-A states, thus:
SEC. 77. Transitory Clause
In all procurement activities, if the advertisement or invitation for bids was issued prior to the effectivity of the Act, the provisions of
E.O. 40 and its IRR, P.D. 1594 and its IRR, R.A. 7160 and its IRR, or other applicable laws, as the case may be, shall govern.
In cases where the advertisements or invitations for bids were issued after the effectivity of the Act but before the effectivity of this
IRR-A, procuring entities may continue adopting the procurement procedures, rules and regulations provided in E.O. 40 and its IRR,
P.D. 1594 and its IRR, R.A. 7160 and its IRR, or other applicable laws, as the case may be.
In other words, under IRR-A, if the advertisement of the invitation for bids was issued prior to the effectivity of RA 9184, such as in
the case of the CP I project, the provisions of EO 40 and its IRR, and PD 1594 and its IRR in the case of national government
agencies, and RA 7160 and its IRR in the case of local government units, shall govern.
Admittedly, IRR-A covers only fully domestically-funded procurement activities from procurement planning up to contract
implementation and that it is expressly stated that IRR-B for foreign-funded procurement activities shall be subject of a subsequent
issuance.
61
Nonetheless, there is no reason why the policy behind Section 77 of IRR-A cannot be applied to foreign-funded
procurement projects like the CP I project. Stated differently, the policy on the prospective or non-retroactive application of RA 9184
with respect to domestically-funded procurement projects cannot be any different with respect to foreign-funded procurement projects
like the CP I project. It would be incongruous, even absurd, to provide for the prospective application of RA 9184 with respect to
domestically-funded procurement projects and, on the other hand, as urged by the petitioners, apply RA 9184 retroactively with
respect to foreign- funded procurement projects. To be sure, the lawmakers could not have intended such an absurdity.
Thus, in the light of Section 1 of EO 40, Section 77 of IRR-A, as well as the fundamental rule embodied in Article 4 of the Civil Code
on prospectivity of laws, the Court holds that the procurement process for the implementation of the CP I project is governed by EO
40 and its IRR, not RA 9184.
Under EO 40, the award of the contract to private
respondent China Road & Bridge Corporation is valid
Section 25 of EO 40 provides that "[t]he approved budget of the contract shall be the upper limit or ceiling of the bid price. Bid prices
which exceed this ceiling shall be disqualified outright from further participating in the bidding. There shall be no lower limit to the
amount of the award. x x x" It should be observed that this text is almost similar to the wording of Section 31 of RA 9184, relied upon
by the petitioners in contending that since the bid price of private respondent China Road & Bridge Corporation exceeded the ABC,
then it should not have been awarded the contract for the CP I project.
Nonetheless, EO 40 expressly recognizes as an exception to its scope and application those government commitments with respect to
bidding and award of contracts financed partly or wholly with funds from international financing institutions as well as from bilateral
and other similar foreign sources. The pertinent portion of Section 1 of EO 40 is quoted anew:
SEC. 1. Scope and Application. x x x
Nothing in this Order shall negate any existing and future government commitments with respect to the bidding and award of contracts
financed partly or wholly with funds from international financing institutions as well as from bilateral and similar foreign sources.
In relation thereto, Section 4 of RA 4860, as amended, was correctly cited by the respondents as likewise authorizing the President, in
the contracting of any loan, credit or indebtedness thereunder, "when necessary, agree to waive or modify the application of any law
granting preferences or imposing restrictions on international competitive bidding x x x." The said provision of law further provides
that "the method and procedure in the comparison of bids shall be the subject of agreement between the Philippine Government and
the lending institution."
Consequently, in accordance with these applicable laws, the procurement of goods and services for the CP I project is governed by the
corresponding loan agreement entered into by the government and the JBIC, i.e., Loan Agreement No. PH-P204. The said loan
agreement stipulated that the procurement of goods and services for the Arterial Road Links Development Project (Phase IV), of
which CP I is a component, is to be governed by the JBIC Procurement Guidelines. Section 5.06, Part II (International Competi tive
Bidding) thereof quoted earlier reads:
Section 5.06. Evaluation and Comparison of Bids
x x x
(e) Any procedure under which bids above or below a predetermined bid value assessment are automatically disqualified is not
permitted.
62

It is clear that the JBIC Procurement Guidelines proscribe the imposition of ceilings on bid prices. On the other hand, it enjoins the
award of the contract to the bidder whose bid has been determined to be the lowest evaluated bid. The pertinent provision, quoted
earlier, is reiterated, thus:
Section 5.09. Award of Contract
The contract is to be awarded to the bidder whose bid has been determined to be the lowest evaluated bid and who meets the
appropriate standards of capability and financial resources. A bidder shall not be required as a condition of award to undertake
responsibilities or work not stipulated in the specifications or to modify the bid.
63

Since these terms and conditions are made part of Loan Agreement No. PH-P204, the government is obliged to observe and enforce
the same in the procurement of goods and services for the CP I project. As shown earlier, private respondent China Road & Bridge
Corporations bid was the lowest evaluated bid, albeit 28.95% higher than the ABC. In accordance with the JBIC Procurement
Guidelines, therefore, it was correctly awarded the contract for the CP I project.
Even if RA 9184 were to be applied retroactively, the terms of the Exchange of Notes dated December 27, 1999 and Loan Agreement
No. PH-P204 would still govern the procurement for the CP I project
For clarity, Section 4 of RA 9184 is quoted anew, thus:
SEC. 4. Scope and Applications. This Act shall apply to the Procurement of Infrastructure Projects, Goods and Consulting Services,
regardless of source of funds, whether local or foreign, by all branches and instrumentalities of government, its departments, offices
and agencies, including government-owned and/or controlled corporations and local government units, subject to the provisions of
Commonwealth Act No. 138. Any treaty or international or executive agreement affecting the subject matter of this Act to which the
Philippine government is a signatory shall be observed.
The petitioners, in order to place the procurement process undertaken for the CP I project within the ambit of RA 9184, vigorously
assert that Loan Agreement No. PH-P204 is neither a treaty, an international agreement nor an executive agreement. They cite
Executive Order No. 459 dated November 25, 1997 where the three agreements are defined in this wise:
a) International agreement shall refer to a contract or understanding, regardless of nomenclature, entered into between the
Philippines and another government in written form and governed by international law, whether embodied in a single
instrument or in two or more related instruments.
b) Treaties international agreements entered into by the Philippines which require legislative concurrence after executive
ratification. This term may include compacts like conventions, declarations, covenants and acts.
c) Executive agreements similar to treaties except that they do not require legislative concurrence.
64

The petitioners mainly argue that Loan Agreement No. PH-P204 does not fall under any of the three categories because to be any of
the three, an agreement had to be one where the parties are the Philippines as a State and another State. The JBIC, the petitioners
maintain, is a Japanese banking agency, which presumably has a separate juridical personality from the Japanese Government.
The petitioners arguments fail to persuade. The Court holds that Loan Agreement No. PH-P204 taken in conjunction with the
Exchange of Notes dated December 27, 1999 between the Japanese Government and the Philippine Government is an executive
agreement.
To recall, Loan Agreement No. PH-P204 was executed by and between the JBIC and the Philippine Government pursuant to the
Exchange of Notes executed by and between Mr. Yoshihisa Ara, Ambassador Extraordinary and Plenipotentiary of Japan to the
Philippines, and then Foreign Affairs Secretary Siazon, in behalf of their respective governments. The Exchange of Notes expressed
that the two governments have reached an understanding concerning Japanese loans to be extended to the Philippines and that these
loans were aimed at promoting our countrys economic stabilization and development efforts.
Loan Agreement No. PH-P204 was subsequently executed and it declared that it was so entered by the parties "[i]n the light of the
contents of the Exchange of Notes between the Government of Japan and the Government of the Republic of the Philippines dated
December 27, 1999, concerning Japanese loans to be extended with a view to promoting the economic stabilization and development
efforts of the Republic of the Philippines."
65
Under the circumstances, the JBIC may well be considered an adjunct of the Japanese
Government. Further, Loan Agreement No. PH-P204 is indubitably an integral part of the Exchange of Notes. It forms part of the
Exchange of Notes such that it cannot be properly taken independent thereof.
In this connection, it is well to understand the definition of an "exchange of notes" under international law. The term is defined in the
United Nations Treaty Collection in this wise:
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.
66

It is stated that "treaties, agreements, conventions, charters, protocols, declarations, memoranda of understanding, modus vivendi and
exchange of notes" all refer to "international instruments binding at international law."
67
It is further explained that-
Although these instruments differ from each other by title, they all have common features and international law has applied basically
the same rules to all these instruments. These rules are the result of long practice among the States, which have accepted them as
binding norms in their mutual relations. Therefore, they are regarded as international customary law. Since there was a general desire
to codify these customary rules, two international conventions were negotiated. The 1969 Vienna Convention on the Law of Treaties
("1969 Vienna Convention"), which entered into force on 27 January 1980, contains rules for treaties concluded between States. The
1986 Vienna Convention on the Law of Treaties between States and International Organizations ("1986 Vienna Convention"), which
has still not entered into force, added rules for treaties with international organizations as parties. Both the 1969 Vienna Convention
and the 1986 Vienna Convention do not distinguish between the different designations of these instruments. Instead, their rules apply
to all of those instruments as long as they meet the common requirements.
68

Significantly, an exchange of notes is considered a form of an executive agreement, which becomes binding through executive action
without the need of a vote by the Senate or Congress. The following disquisition by Francis B. Sayre, former United States High
Commissioner to the Philippines, entitled "The Constitutionality of Trade Agreement Acts," quoted in Commissioner of Customs v.
Eastern Sea Trading,
69
is apropos:
Agreements concluded by the President which fall short of treaties are commonly referred to as executive agreements and are no less
common in our scheme of government than are the more formal instruments treaties and conventions. They sometimes take the form
of exchange of notes and at other times that of more formal documents denominated "agreements" or "protocols". 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. 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-agreements act, have been negotiated with foreign governments. x x x
70

The Exchange of Notes dated December 27, 1999, stated, inter alia, that the Government of Japan would extend loans to the
Philippines with a view to promoting its economic stabilization and development efforts; Loan I in the amount of Y79,8651,000,000
would be extended by the JBIC to the Philippine Government to implement the projects in the List A (including the Arterial Road
Links Development Project - Phase IV); and that such loan (Loan I) would be used to cover payments to be made by the Philippine
executing agencies to suppliers, contractors and/or consultants of eligible source countries under such contracts as may be entered into
between them for purchases of products and/or services required for the implementation of the projects enumerated in the List A.
71

With respect to the procurement of the goods and services for the projects, it bears reiterating that as stipulated:
3. The Government of the Republic of the Philippines will ensure that the products and/or services mentioned in sub-paragraph (1) of
paragraph 3 of Part I and sub-paragraph (1) of paragraph 4 of Part II are procured in accordance with the guidelines for procurement
of the Bank, which set forth, inter alia, the procedures of international tendering to be followed except where such procedures are
inapplicable or inappropriate.
72

The JBIC Procurements Guidelines, as quoted earlier, forbids any procedure under which bids above or below a predetermined bid
value assessment are automatically disqualified. Succinctly put, it absolutely prohibits the imposition of ceilings on bids.
Under the fundamental principle of international law of pacta sunt servanda,
73
which is, in fact, embodied in Section 4 of RA 9184 as
it provides that "[a]ny treaty or international or executive agreement affecting the subject matter of this Act to which the Philippine
government is a signatory shall be observed," the DPWH, as the executing agency of the projects financed by Loan Agreement No.
PH-P204, rightfully awarded the contract for the implementation of civil works for the CP I project to private respondent China Road
& Bridge Corporation.
WHEREFORE, premises considered, the petition is DISMISSED.
SO ORDERED.


Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 185572 February 7, 2012
CHINA NATIONAL MACHINERY & EQUIPMENT CORP. (GROUP), Petitioner,
vs.
HON. CESAR D. SANTAMARIA, in his official capacity as Presiding Judge of Branch 145, Regional Trial Court of Makati City,
HERMINIO HARRY L. ROQUE, JR., JOEL R. BUTUYAN, ROGER R. RAYEL, ROMEL R. BAGARES, CHRISTOPHER
FRANCISCO C. BOLASTIG, LEAGUE OF URBAN POOR FOR ACTION (LUPA), KILUSAN NG MARALITA SA
MEYCAUAYAN (KMM-LUPA CHAPTER), DANILO M. CALDERON, VICENTE C. ALBAN, MERLYN M. VAAL, LOLITA S.
QUINONES, RICARDO D. LANOZO, JR., CONCHITA G. GOZO, MA. TERESA D. ZEPEDA, JOSEFINA A. LANOZO, and
SERGIO C. LEGASPI, JR., KALIPUNAN NG DAMAYANG MAHIHIRAP (KADAMAY), EDY CLERIGO, RAMMIL DINGAL,
NELSON B. TERRADO, CARMEN DEUNIDA, and EDUARDO LEGSON, Respondents.
D E C I S I O N
SERENO, J.:
This is a Petition for Review on Certiorari with Prayer for the Issuance of a Temporary Restraining Order (TRO) and/or Preliminary
Injunction assailing the 30 September 2008 Decision and 5 December 2008 Resolution of the Court of Appeals (CA) in CAG.R. SP
No. 103351.
1

On 14 September 2002, petitioner China National Machinery & Equipment Corp. (Group) (CNMEG), represented by its chairperson,
Ren Hongbin, entered into a Memorandum of Understanding with the North Luzon Railways Corporation (Northrail), represented by
its president, Jose L. Cortes, Jr. for the conduct of a feasibility study on a possible railway line from Manila to San Fernando, La
Union (the Northrail Project).
2

On 30 August 2003, the Export Import Bank of China (EXIM Bank) and the Department of Finance of the Philippines (DOF) entered
into a Memorandum of Understanding (Aug 30 MOU), wherein China agreed to extend Preferential Buyers Credit to the Philippine
government to finance the Northrail Project.
3
The Chinese government designated EXIM Bank as the lender, while the Philippine
government named the DOF as the borrower.
4
Under the Aug 30 MOU, EXIM Bank agreed to extend an amount not exceeding USD
400,000,000 in favor of the DOF, payable in 20 years, with a 5-year grace period, and at the rate of 3% per annum.
5

On 1 October 2003, the Chinese Ambassador to the Philippines, Wang Chungui (Amb. Wang), wrote a letter to DOF Secretary Jose
Isidro Camacho (Sec. Camacho) informing him of CNMEGs designation as the Prime Contractor for the Northrail Project.
6

On 30 December 2003, Northrail and CNMEG executed a Contract Agreement for the construction of Section I, Phase I of the North
Luzon Railway System from Caloocan to Malolos on a turnkey basis (the Contract Agreement).
7
The contract price for the Northrail
Project was pegged at USD 421,050,000.
8

On 26 February 2004, the Philippine government and EXIM Bank entered into a counterpart financial agreement Buyer Credit Loan
Agreement No. BLA 04055 (the Loan Agreement).
9
In the Loan Agreement, EXIM Bank agreed to extend Preferential Buyers Credit
in the amount of USD 400,000,000 in favor of the Philippine government in order to finance the construction of Phase I of the
Northrail Project.
10

On 13 February 2006, respondents filed a Complaint for Annulment of Contract and Injunction with Urgent Motion for Summary
Hearing to Determine the Existence of Facts and Circumstances Justifying the Issuance of Writs of Preliminary Prohibitory and
Mandatory Injunction and/or TRO against CNMEG, the Office of the Executive Secretary, the DOF, the Department of Budget and
Management, the National Economic Development Authority and Northrail.
11
The case was docketed as Civil Case No. 06-203 before
the Regional Trial Court, National Capital Judicial Region, Makati City, Branch 145 (RTC Br. 145). In the Complaint, respondents
alleged that the Contract Agreement and the Loan Agreement were void for being contrary to (a) the Constitution; (b) Republic Act
No. 9184 (R.A. No. 9184), otherwise known as the Government Procurement Reform Act; (c) Presidential Decree No. 1445,
otherwise known as the Government Auditing Code; and (d) Executive Order No. 292, otherwise known as the Administrative Code.
12

RTC Br. 145 issued an Order dated 17 March 2006 setting the case for hearing on the issuance of injunctive reliefs.
13
On 29 March
2006, CNMEG filed an Urgent Motion for Reconsideration of this Order.
14
Before RTC Br. 145 could rule thereon, CNMEG filed a
Motion to Dismiss dated 12 April 2006, arguing that the trial court did not have jurisdiction over (a) its person, as it was an agent of
the Chinese government, making it immune from suit, and (b) the subject matter, as the Northrail Project was a product of an
executive agreement.
15

On 15 May 2007, RTC Br. 145 issued an Omnibus Order denying CNMEGs Motion to Dismiss and setting the case for summary
hearing to determine whether the injunctive reliefs prayed for should be issued.
16
CNMEG then filed a Motion for Reconsideration,
17

which was denied by the trial court in an Order dated 10 March 2008.
18
Thus, CNMEG filed before the CA a Petition for Certiorari
with Prayer for the Issuance of TRO and/or Writ of Preliminary Injunction dated 4 April 2008.
19

In the assailed Decision dated 30 September 2008, the appellate court dismissed the Petition for Certiorari.
20
Subsequently, CNMEG
filed a Motion for Reconsideration,
21
which was denied by the CA in a Resolution dated 5 December 2008.
22
Thus, CNMEG filed the
instant Petition for Review on Certiorari dated 21 January 2009, raising the following issues:
23

Whether or not petitioner CNMEG is an agent of the sovereign Peoples Republic of China.
Whether or not the Northrail contracts are products of an executive agreement between two sovereign states.
Whether or not the certification from the Department of Foreign Affairs is necessary under the foregoing circumstances.
Whether or not the act being undertaken by petitioner CNMEG is an act jure imperii.
Whether or not the Court of Appeals failed to avoid a procedural limbo in the lower court.
Whether or not the Northrail Project is subject to competitive public bidding.
Whether or not the Court of Appeals ignored the ruling of this Honorable Court in the Neri case.
CNMEG prays for the dismissal of Civil Case No. 06-203 before RTC Br. 145 for lack of jurisdiction. It likewise requests this Court
for the issuance of a TRO and, later on, a writ of preliminary injunction to restrain public respondent from proceeding with the
disposition of Civil Case No. 06-203.
The crux of this case boils down to two main issues, namely:
1. Whether CNMEG is entitled to immunity, precluding it from being sued before a local court.
2. Whether the Contract Agreement is an executive agreement, such that it cannot be questioned by or before a local court.
First issue: Whether CNMEG is entitled to immunity
This Court explained the doctrine of sovereign immunity in Holy See v. Rosario,
24
to wit:
There are two conflicting concepts of sovereign immunity, each widely held and firmly established. According to the classical or
absolute theory, a sovereign cannot, without its consent, be made a respondent in the courts of another sovereign. According to the
newer or restrictive theory, the immunity of the sovereign is recognized only with regard to public acts or acts jure imperii of a state,
but not with regard to private acts or acts jure gestionis. (Emphasis supplied; citations omitted.)
x x x x x x x x x
The restrictive theory came about because of the entry of sovereign states into purely commercial activities remotely connected with
the discharge of governmental functions. This is particularly true with respect to the Communist states which took control of
nationalized business activities and international trading.
In JUSMAG v. National Labor Relations Commission,
25
this Court affirmed the Philippines adherence to the restrictive theory as
follows:
The doctrine of state immunity from suit has undergone further metamorphosis. The view evolved that the existence of a contract does
not, per se, mean that sovereign states may, at all times, be sued in local courts. The complexity of relationships between sovereign
states, brought about by their increasing commercial activities, mothered a more restrictive application of the doctrine.
x x x x x x x x x
As it stands now, the application of the doctrine of immunity from suit has been restricted to sovereign or governmental activities (jure
imperii). The mantle of state immunity cannot be extended to commercial, private and proprietary acts (jure gestionis).
26
(Emphasis
supplied.)
Since the Philippines adheres to the restrictive theory, it is crucial to ascertain the legal nature of the act involved whether the entity
claiming immunity performs governmental, as opposed to proprietary, functions. As held in United States of America v. Ruiz
27

The restrictive application of State immunity is proper only when the proceedings arise out of commercial transactions of the foreign
sovereign, its commercial activities or economic affairs. Stated differently, a State may be said to have descended to the level of an
individual and can thus be deemed to have tacitly given its consent to be sued only when it enters into business contracts. It does not
apply where the contract relates to the exercise of its sovereign functions.
28

A. CNMEG is engaged in a proprietary activity.
A threshold question that must be answered is whether CNMEG performs governmental or proprietary functions. A thorough
examination of the basic facts of the case would show that CNMEG is engaged in a proprietary activity.
The parties executed the Contract Agreement for the purpose of constructing the Luzon Railways, viz:
29

WHEREAS the Employer (Northrail) desired to construct the railways form Caloocan to Malolos, section I, Phase I of Philippine
North Luzon Railways Project (hereinafter referred to as THE PROJECT);
AND WHEREAS the Contractor has offered to provide the Project on Turnkey basis, including design, manufacturing, supply,
construction, commissioning, and training of the Employers personnel;
AND WHEREAS the Loan Agreement of the Preferential Buyers Credit between Export-Import Bank of China and Department of
Finance of Republic of the Philippines;
NOW, THEREFORE, the parties agree to sign this Contract for the Implementation of the Project.
The above-cited portion of the Contract Agreement, however, does not on its own reveal whether the construction of the Luzon
railways was meant to be a proprietary endeavor. In order to fully understand the intention behind and the purpose of the entire
undertaking, the Contract Agreement must not be read in isolation. Instead, it must be construed in conjunction with three other
documents executed in relation to the Northrail Project, namely: (a) the Memorandum of Understanding dated 14 September 2002
between Northrail and CNMEG;
30
(b) the letter of Amb. Wang dated 1 October 2003 addressed to Sec. Camacho;
31
and (c) the Loan
Agreement.
32

1. Memorandum of Understanding dated 14 September 2002
The Memorandum of Understanding dated 14 September 2002 shows that CNMEG sought the construction of the Luzon Railways as
a proprietary venture. The relevant parts thereof read:
WHEREAS, CNMEG has the financial capability, professional competence and technical expertise to assess the state of the [Main
Line North (MLN)] and recommend implementation plans as well as undertake its rehabilitation and/or modernization;
WHEREAS, CNMEG has expressed interest in the rehabilitation and/or modernization of the MLN from Metro Manila to San
Fernando, La Union passing through the provinces of Bulacan, Pampanga, Tarlac, Pangasinan and La Union (the Project);
WHEREAS, the NORTHRAIL CORP. welcomes CNMEGs proposal to undertake a Feasibility Study (the "Study") at no cost to
NORTHRAIL CORP.;
WHEREAS, the NORTHRAIL CORP. also welcomes CNMEGs interest in undertaking the Project with Suppliers Credit and
intends to employ CNMEG as the Contractor for the Project subject to compliance with Philippine and Chinese laws, rules and
regulations for the selection of a contractor;
WHEREAS, the NORTHRAIL CORP. considers CNMEGs proposal advantageous to the Government of the Republic of the
Philippines and has therefore agreed to assist CNMEG in the conduct of the aforesaid Study;
x x x x x x x x x
II. APPROVAL PROCESS
2.1 As soon as possible after completion and presentation of the Study in accordance with Paragraphs 1.3 and 1.4 above and in
compliance with necessary governmental laws, rules, regulations and procedures required from both parties, the parties shall
commence the preparation and negotiation of the terms and conditions of the Contract (the "Contract") to be entered into between
them on the implementation of the Project. The parties shall use their best endeavors to formulate and finalize a Contract with a view
to signing the Contract within one hundred twenty (120) days from CNMEGs presentation of the Study.
33
(Emphasis supplied)
Clearly, it was CNMEG that initiated the undertaking, and not the Chinese government. The Feasibility Study was conducted not
because of any diplomatic gratuity from or exercise of sovereign functions by the Chinese government, but was plainly a business
strategy employed by CNMEG with a view to securing this commercial enterprise.
2. Letter dated 1 October 2003
That CNMEG, and not the Chinese government, initiated the Northrail Project was confirmed by Amb. Wang in his letter dated 1
October 2003, thus:
1. CNMEG has the proven competence and capability to undertake the Project as evidenced by the ranking of 42 given by the
ENR among 225 global construction companies.
2. CNMEG already signed an MOU with the North Luzon Railways Corporation last September 14, 2000 during the visit of
Chairman Li Peng. Such being the case, they have already established an initial working relationship with your North Luzon
Railways Corporation. This would categorize CNMEG as the state corporation within the Peoples Republic of China which
initiated our Governments involvement in the Project.
3. Among the various state corporations of the Peoples Republic of China, only CNMEG has the advantage of being fully
familiar with the current requirements of the Northrail Project having already accomplished a Feasibility Study which was
used as inputs by the North Luzon Railways Corporation in the approvals (sic) process required by the Republic of the
Philippines.
34
(Emphasis supplied.)
Thus, the desire of CNMEG to secure the Northrail Project was in the ordinary or regular course of its business as a global
construction company. The implementation of the Northrail Project was intended to generate profit for CNMEG, with the Contract
Agreement placing a contract price of USD 421,050,000 for the venture.
35
The use of the term "state corporation" to refer to CNMEG
was only descriptive of its nature as a government-owned and/or -controlled corporation, and its assignment as the Primary Contractor
did not imply that it was acting on behalf of China in the performance of the latters sovereign functions. To imply otherwise would
result in an absurd situation, in which all Chinese corporations owned by the state would be automatically considered as performing
governmental activities, even if they are clearly engaged in commercial or proprietary pursuits.
3. The Loan Agreement
CNMEG claims immunity on the ground that the Aug 30 MOU on the financing of the Northrail Project was signed by the Philippine
and Chinese governments, and its assignment as the Primary Contractor meant that it was bound to perform a governmental function
on behalf of China. However, the Loan Agreement, which originated from the same Aug 30 MOU, belies this reasoning, viz:
Article 11. xxx (j) Commercial Activity The execution and delivery of this Agreement by the Borrower constitute, and the Borrowers
performance of and compliance with its obligations under this Agreement will constitute, private and commercial acts done and
performed for commercial purposes under the laws of the Republic of the Philippines and neither the Borrower nor any of its assets is
entitled to any immunity or privilege (sovereign or otherwise) from suit, execution or any other legal process with respect to its
obligations under this Agreement, as the case may be, in any jurisdiction. Notwithstanding the foregoing, the Borrower does not waive
any immunity with respect of its assets which are (i) used by a diplomatic or consular mission of the Borrower and (ii) assets of a
military character and under control of a military authority or defense agency and (iii) located in the Philippines and dedicated to
public or governmental use (as distinguished from patrimonial assets or assets dedicated to commercial use). (Emphasis supplied.)
(k) Proceedings to Enforce Agreement In any proceeding in the Republic of the Philippines to enforce this Agreement, the choice of
the laws of the Peoples Republic of China as the governing law hereof will be recognized and such law will be applied. The waiver of
immunity by the Borrower, the irrevocable submissions of the Borrower to the non-exclusive jurisdiction of the courts of the Peoples
Republic of China and the appointment of the Borrowers Chinese Process Agent is legal, valid, binding and enforceable and any
judgment obtained in the Peoples Republic of China will be if introduced, evidence for enforcement in any proceedings against the
Borrower and its assets in the Republic of the Philippines provided that (a) the court rendering judgment had jurisdiction over the
subject matter of the action in accordance with its jurisdictional rules, (b) the Republic had notice of the proceedings, (c) the judgment
of the court was not obtained through collusion or fraud, and (d) such judgment was not based on a clear mistake of fact or law.
36

Further, the Loan Agreement likewise contains this express waiver of immunity:
15.5 Waiver of Immunity The Borrower irrevocably and unconditionally waives, any immunity to which it or its property may at any
time be or become entitled, whether characterized as sovereign immunity or otherwise, from any suit, judgment, service of process
upon it or any agent, execution on judgment, set-off, attachment prior to judgment, attachment in aid of execution to which it or its
assets may be entitled in any legal action or proceedings with respect to this Agreement or any of the transactions contemplated
hereby or hereunder. Notwithstanding the foregoing, the Borrower does not waive any immunity in respect of its assets which are (i)
used by a diplomatic or consular mission of the Borrower, (ii) assets of a military character and under control of a military authority or
defense agency and (iii) located in the Philippines and dedicated to a public or governmental use (as distinguished from patrimonial
assets or assets dedicated to commercial use).
37

Thus, despite petitioners claim that the EXIM Bank extended financial assistance to Northrail because the bank was mandated by the
Chinese government, and not because of any motivation to do business in the Philippines,
38
it is clear from the foregoing provisions
that the Northrail Project was a purely commercial transaction.
Admittedly, the Loan Agreement was entered into between EXIM Bank and the Philippine government, while the Contract Agreement
was between Northrail and CNMEG. Although the Contract Agreement is silent on the classification of the legal nature of the
transaction, the foregoing provisions of the Loan Agreement, which is an inextricable part of the entire undertaking, nonetheless
reveal the intention of the parties to the Northrail Project to classify the whole venture as commercial or proprietary in character.
Thus, piecing together the content and tenor of the Contract Agreement, the Memorandum of Understanding dated 14 September
2002, Amb. Wangs letter dated 1 October 2003, and the Loan Agreement would reveal the desire of CNMEG to construct the Luzon
Railways in pursuit of a purely commercial activity performed in the ordinary course of its business.
B. CNMEG failed to adduce evidence that it is immune from suit under Chinese law.
Even assuming arguendo that CNMEG performs governmental functions, such claim does not automatically vest it with immunity.
This view finds support in Malong v. Philippine National Railways, in which this Court held that "(i)mmunity from suit is determined
by the character of the objects for which the entity was organized."
39

In this regard, this Courts ruling in Deutsche Gesellschaft Fr Technische Zusammenarbeit (GTZ) v. CA
40
must be examined. In
Deutsche Gesellschaft, Germany and the Philippines entered into a Technical Cooperation Agreement, pursuant to which both signed
an arrangement promoting the Social Health InsuranceNetworking and Empowerment (SHINE) project. The two governments
named their respective implementing organizations: the Department of Health (DOH) and the Philippine Health Insurance Corporation
(PHIC) for the Philippines, and GTZ for the implementation of Germanys contributions. In ruling that GTZ was not immune from
suit, this Court held:
The arguments raised by GTZ and the [Office of the Solicitor General (OSG)] are rooted in several indisputable facts. The SHINE
project was implemented pursuant to the bilateral agreements between the Philippine and German governments. GTZ was tasked,
under the 1991 agreement, with the implementation of the contributions of the German government. The activities performed by GTZ
pertaining to the SHINE project are governmental in nature, related as they are to the promotion of health insurance in the Philippines.
The fact that GTZ entered into employment contracts with the private respondents did not disqualify it from invoking immunity from
suit, as held in cases such as Holy See v. Rosario, Jr., which set forth what remains valid doctrine:
Certainly, the mere entering into a contract by a foreign state with a private party cannot be the ultimate test. Such an act can only be
the start of the inquiry. The logical question is whether the foreign state is engaged in the activity in the regular course of business. If
the foreign state is not engaged regularly in a business or trade, the particular act or transaction must then be tested by its nature. If the
act is in pursuit of a sovereign activity, or an incident thereof, then it is an act jure imperii, especially when it is not undertaken for
gain or profit.
Beyond dispute is the tenability of the comment points (sic) raised by GTZ and the OSG that GTZ was not performing proprietary
functions notwithstanding its entry into the particular employment contracts. Yet there is an equally fundamental premise which GTZ
and the OSG fail to address, namely: Is GTZ, by conception, able to enjoy the Federal Republics immunity from suit?
The principle of state immunity from suit, whether a local state or a foreign state, is reflected in Section 9, Article XVI of the
Constitution, which states that "the State may not be sued without its consent." Who or what consists of "the State"? For one, the
doctrine is available to foreign States insofar as they are sought to be sued in the courts of the local State, necessary as it is to avoid
"unduly vexing the peace of nations."
If the instant suit had been brought directly against the Federal Republic of Germany, there would be no doubt that it is a suit brought
against a State, and the only necessary inquiry is whether said State had consented to be sued. However, the present suit was brought
against GTZ. It is necessary for us to understand what precisely are the parameters of the legal personality of GTZ.
Counsel for GTZ characterizes GTZ as "the implementing agency of the Government of the Federal Republic of Germany," a
depiction similarly adopted by the OSG. Assuming that the characterization is correct, it does not automatically invest GTZ with the
ability to invoke State immunity from suit. The distinction lies in whether the agency is incorporated or unincorporated.
x x x x x x x x x
State immunity from suit may be waived by general or special law. The special law can take the form of the original charter of the
incorporated government agency. Jurisprudence is replete with examples of incorporated government agencies which were ruled not
entitled to invoke immunity from suit, owing to provisions in their charters manifesting their consent to be sued.
x x x x x x x x x
It is useful to note that on the part of the Philippine government, it had designated two entities, the Department of Health and the
Philippine Health Insurance Corporation (PHIC), as the implementing agencies in behalf of the Philippines. The PHIC was established
under Republic Act No. 7875, Section 16 (g) of which grants the corporation the power "to sue and be sued in court." Applying the
previously cited jurisprudence, PHIC would not enjoy immunity from suit even in the performance of its functions connected with
SHINE, however, (sic) governmental in nature as (sic) they may be.
Is GTZ an incorporated agency of the German government? There is some mystery surrounding that question. Neither GTZ nor the
OSG go beyond the claim that petitioner is "the implementing agency of the Government of the Federal Republic of Germany." On
the other hand, private respondents asserted before the Labor Arbiter that GTZ was "a private corporation engaged in the
implementation of development projects." The Labor Arbiter accepted that claim in his Order denying the Motion to Dismiss, though
he was silent on that point in his Decision. Nevertheless, private respondents argue in their Comment that the finding that GTZ was a
private corporation "was never controverted, and is therefore deemed admitted." In its Reply, GTZ controverts that finding, saying that
it is a matter of public knowledge that the status of petitioner GTZ is that of the "implementing agency," and not that of a private
corporation.
In truth, private respondents were unable to adduce any evidence to substantiate their claim that GTZ was a "private corporation," and
the Labor Arbiter acted rashly in accepting such claim without explanation. But neither has GTZ supplied any evidence defining its
legal nature beyond that of the bare descriptive "implementing agency." There is no doubt that the 1991 Agreement designated GTZ as
the "implementing agency" in behalf of the German government. Yet the catch is that such term has no precise definition that is
responsive to our concerns. Inherently, an agent acts in behalf of a principal, and the GTZ can be said to act in behalf of the German
state. But that is as far as "implementing agency" could take us. The term by itself does not supply whether GTZ is incorporated or
unincorporated, whether it is owned by the German state or by private interests, whether it has juridical personality independent of the
German government or none at all.
x x x x x x x x x
Again, we are uncertain of the corresponding legal implications under German law surrounding "a private company owned by the
Federal Republic of Germany." Yet taking the description on face value, the apparent equivalent under Philippine law is that of a
corporation organized under the Corporation Code but owned by the Philippine government, or a government-owned or controlled
corporation without original charter. And it bears notice that Section 36 of the Corporate Code states that "[e]very corporation
incorporated under this Code has the power and capacity x x x to sue and be sued in its corporate name."
It is entirely possible that under German law, an entity such as GTZ or particularly GTZ itself has not been vested or has been
specifically deprived the power and capacity to sue and/or be sued. Yet in the proceedings below and before this Court, GTZ has
failed to establish that under German law, it has not consented to be sued despite it being owned by the Federal Republic of Germany.
We adhere to the rule that in the absence of evidence to the contrary, foreign laws on a particular subject are presumed to be the same
as those of the Philippines, and following the most intelligent assumption we can gather, GTZ is akin to a governmental owned or
controlled corporation without original charter which, by virtue of the Corporation Code, has expressly consented to be sued. At the
very least, like the Labor Arbiter and the Court of Appeals, this Court has no basis in fact to conclude or presume that GTZ enjoys
immunity from suit.
41
(Emphasis supplied.)
Applying the foregoing ruling to the case at bar, it is readily apparent that CNMEG cannot claim immunity from suit, even if it
contends that it performs governmental functions. Its designation as the Primary Contractor does not automatically grant it immunity,
just as the term "implementing agency" has no precise definition for purposes of ascertaining whether GTZ was immune from suit.
Although CNMEG claims to be a government-owned corporation, it failed to adduce evidence that it has not consented to be sued
under Chinese law. Thus, following this Courts ruling in Deutsche Gesellschaft, in the absence of evidence to the contrary, CNMEG
is to be presumed to be a government-owned and -controlled corporation without an original charter. As a result, it has the capacity to
sue and be sued under Section 36 of the Corporation Code.
C. CNMEG failed to present a certification from the Department of Foreign Affairs.
In Holy See,
42
this Court reiterated the oft-cited doctrine that the determination by the Executive that an entity is entitled to sovereign
or diplomatic immunity is a political question conclusive upon the courts, to wit:
In Public International Law, when a state or international agency wishes to plead sovereign or diplomatic immunity in a foreign court,
it requests the Foreign Office of the state where it is sued to convey to the court that said defendant is entitled to immunity.
x x x x x x x x x
In the Philippines, the practice is for the foreign government or the international organization to first secure an executive endorsement
of its claim of sovereign or diplomatic immunity. But how the Philippine Foreign Office conveys its endorsement to the courts varies.
In International Catholic Migration Commission v. Calleja, 190 SCRA 130 (1990), the Secretary of Foreign Affairs just sent a letter
directly to the Secretary of Labor and Employment, informing the latter that the respondent-employer could not be sued because it
enjoyed diplomatic immunity. In World Health Organization v. Aquino, 48 SCRA 242 (1972), the Secretary of Foreign Affairs sent
the trial court a telegram to that effect. In Baer v. Tizon, 57 SCRA 1 (1974), the U.S. Embassy asked the Secretary of Foreign Affairs
to request the Solicitor General to make, in behalf of the Commander of the United States Naval Base at Olongapo City, Zambales, a
"suggestion" to respondent Judge. The Solicitor General embodied the "suggestion" in a Manifestation and Memorandum as amicus
curiae.
In the case at bench, the Department of Foreign Affairs, through the Office of Legal Affairs moved with this Court to be allowed to
intervene on the side of petitioner. The Court allowed the said Department to file its memorandum in support of petitioners claim of
sovereign immunity.
In some cases, the defense of sovereign immunity was submitted directly to the local courts by the respondents through their private
counsels (Raquiza v. Bradford, 75 Phil. 50 [1945]; Miquiabas v. Philippine-Ryukyus Command, 80 Phil. 262 [1948]; United States of
America v. Guinto, 182 SCRA 644 [1990] and companion cases). In cases where the foreign states bypass the Foreign Office, the
courts can inquire into the facts and make their own determination as to the nature of the acts and transactions involved.
43
(Emphasis
supplied.)
The question now is whether any agency of the Executive Branch can make a determination of immunity from suit, which may be
considered as conclusive upon the courts. This Court, in Department of Foreign Affairs (DFA) v. National Labor Relations
Commission (NLRC),
44
emphasized the DFAs competence and authority to provide such necessary determination, to wit:
The DFAs function includes, among its other mandates, the determination of persons and institutions covered by diplomatic
immunities, a determination which, when challenge, (sic) entitles it to seek relief from the court so as not to seriously impair the
conduct of the country's foreign relations. The DFA must be allowed to plead its case whenever necessary or advisable to enable it to
help keep the credibility of the Philippine government before the international community. When international agreements are
concluded, the parties thereto are deemed to have likewise accepted the responsibility of seeing to it that their agreements are duly
regarded. In our country, this task falls principally of (sic) the DFA as being the highest executive department with the competence
and authority to so act in this aspect of the international arena.
45
(Emphasis supplied.)
Further, the fact that this authority is exclusive to the DFA was also emphasized in this Courts ruling in Deutsche Gesellschaft:
It is to be recalled that the Labor Arbiter, in both of his rulings, noted that it was imperative for petitioners to secure from the
Department of Foreign Affairs "a certification of respondents diplomatic status and entitlement to diplomatic privileges including
immunity from suits." The requirement might not necessarily be imperative. However, had GTZ obtained such certification from the
DFA, it would have provided factual basis for its claim of immunity that would, at the very least, establish a disputable evidentiary
presumption that the foreign party is indeed immune which the opposing party will have to overcome with its own factual evidence.
We do not see why GTZ could not have secured such certification or endorsement from the DFA for purposes of this case. Certainly,
it would have been highly prudential for GTZ to obtain the same after the Labor Arbiter had denied the motion to dismiss. Still, even
at this juncture, we do not see any evidence that the DFA, the office of the executive branch in charge of our diplomatic relations, has
indeed endorsed GTZs claim of immunity. It may be possible that GTZ tried, but failed to secure such certification, due to the same
concerns that we have discussed herein.
Would the fact that the Solicitor General has endorsed GTZs claim of States immunity from suit before this Court sufficiently
substitute for the DFA certification? Note that the rule in public international law quoted in Holy See referred to endorsement by the
Foreign Office of the State where the suit is filed, such foreign office in the Philippines being the Department of Foreign Affairs.
Nowhere in the Comment of the OSG is it manifested that the DFA has endorsed GTZs claim, or that the OSG had solicited the
DFAs views on the issue. The arguments raised by the OSG are virtually the same as the arguments raised by GTZ without any
indication of any special and distinct perspective maintained by the Philippine government on the issue. The Comment filed by the
OSG does not inspire the same degree of confidence as a certification from the DFA would have elicited.
46
(Emphasis supplied.)
In the case at bar, CNMEG offers the Certification executed by the Economic and Commercial Office of the Embassy of the Peoples
Republic of China, stating that the Northrail Project is in pursuit of a sovereign activity.
47
Surely, this is not the kind of certification
that can establish CNMEGs entitlement to immunity from suit, as Holy See unequivocally refers to the determination of the "Foreign
Office of the state where it is sued."
Further, CNMEG also claims that its immunity from suit has the executive endorsement of both the OSG and the Office of the
Government Corporate Counsel (OGCC), which must be respected by the courts. However, as expressly enunciated in Deutsche
Gesellschaft, this determination by the OSG, or by the OGCC for that matter, does not inspire the same degree of confidence as a DFA
certification. Even with a DFA certification, however, it must be remembered that this Court is not precluded from making an inquiry
into the intrinsic correctness of such certification.
D. An agreement to submit any dispute to arbitration may be construed as an implicit waiver of immunity from suit.
In the United States, the Foreign Sovereign Immunities Act of 1976 provides for a waiver by implication of state immunity. In the said
law, the agreement to submit disputes to arbitration in a foreign country is construed as an implicit waiver of immunity from suit.
Although there is no similar law in the Philippines, there is reason to apply the legal reasoning behind the waiver in this case.
The Conditions of Contract,
48
which is an integral part of the Contract Agreement,
49
states:
33. SETTLEMENT OF DISPUTES AND ARBITRATION
33.1. Amicable Settlement
Both parties shall attempt to amicably settle all disputes or controversies arising from this Contract before the commencement of
arbitration.
33.2. Arbitration
All disputes or controversies arising from this Contract which cannot be settled between the Employer and the Contractor shall be
submitted to arbitration in accordance with the UNCITRAL Arbitration Rules at present in force and as may be amended by the rest of
this Clause. The appointing authority shall be Hong Kong International Arbitration Center. The place of arbitration shall be in Hong
Kong at Hong Kong International Arbitration Center (HKIAC).
Under the above provisions, if any dispute arises between Northrail and CNMEG, both parties are bound to submit the matter to the
HKIAC for arbitration. In case the HKIAC makes an arbitral award in favor of Northrail, its enforcement in the Philippines would be
subject to the Special Rules on Alternative Dispute Resolution (Special Rules). Rule 13 thereof provides for the Recognition and
Enforcement of a Foreign Arbitral Award. Under Rules 13.2 and 13.3 of the Special Rules, the party to arbitration wishing to have an
arbitral award recognized and enforced in the Philippines must petition the proper regional trial court (a) where the assets to be
attached or levied upon is located; (b) where the acts to be enjoined are being performed; (c) in the principal place of business in the
Philippines of any of the parties; (d) if any of the parties is an individual, where any of those individuals resides; or (e) in the National
Capital Judicial Region.
From all the foregoing, it is clear that CNMEG has agreed that it will not be afforded immunity from suit. Thus, the courts have the
competence and jurisdiction to ascertain the validity of the Contract Agreement.
Second issue: Whether the Contract Agreement is an executive agreement
Article 2(1) of the Vienna Convention on the Law of Treaties (Vienna Convention) defines a treaty as follows:
[A]n 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.
In Bayan Muna v. Romulo, this Court held that an executive agreement is similar to a treaty, except that the former (a) does not require
legislative concurrence; (b) is usually less formal; and (c) deals with a narrower range of subject matters.
50

Despite these differences, to be considered an executive agreement, the following three requisites provided under the Vienna
Convention must nevertheless concur: (a) the agreement must be between states; (b) it must be written; and (c) it must governed by
international law. The first and the third requisites do not obtain in the case at bar.
A. CNMEG is neither a government nor a government agency.
The Contract Agreement was not concluded between the Philippines and China, but between Northrail and CNMEG.
51
By the terms of
the Contract Agreement, Northrail is a government-owned or -controlled corporation, while CNMEG is a corporation duly organized
and created under the laws of the Peoples Republic of China.
52
Thus, both Northrail and CNMEG entered into the Contract
Agreement as entities with personalities distinct and separate from the Philippine and Chinese governments, respectively.
Neither can it be said that CNMEG acted as agent of the Chinese government. As previously discussed, the fact that Amb. Wang, in
his letter dated 1 October 2003,
53
described CNMEG as a "state corporation" and declared its designation as the Primary Contractor in
the Northrail Project did not mean it was to perform sovereign functions on behalf of China. That label was only descriptive of its
nature as a state-owned corporation, and did not preclude it from engaging in purely commercial or proprietary ventures.
B. The Contract Agreement is to be governed by Philippine law.
Article 2 of the Conditions of Contract,
54
which under Article 1.1 of the Contract Agreement is an integral part of the latter, states:
APPLICABLE LAW AND GOVERNING LANGUAGE
The contract shall in all respects be read and construed in accordance with the laws of the Philippines.
The contract shall be written in English language. All correspondence and other documents pertaining to the Contract which are
exchanged by the parties shall be written in English language.
Since the Contract Agreement explicitly provides that Philippine law shall be applicable, the parties have effectively conceded that
their rights and obligations thereunder are not governed by international law.
It is therefore clear from the foregoing reasons that the Contract Agreement does not partake of the nature of an executive agreement.
It is merely an ordinary commercial contract that can be questioned before the local courts.
WHEREFORE, the instant Petition is DENIED. Petitioner China National Machinery & Equipment Corp. (Group) is not entitled to
immunity from suit, and the Contract Agreement is not an executive agreement. CNMEGs prayer for the issuance of a TRO and/or
Writ of Preliminary Injunction is DENIED for being moot and academic. This case is REMANDED to the Regional Trial Court of
Makati, Branch 145, for further proceedings as regards the validity of the contracts subject of Civil Case No. 06-203.
No pronouncement on costs of suit.
SO ORDERED.


Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 175608 June 8, 2007
DEPARTMENT of BUDGET and MANAGEMENT PROCUREMENT SERVICE (DBM-PS) and the Inter-Agency Bids and Awards
Committee (IABAC), petitioners,
vs.
KOLONWEL TRADING, respondent.
x --------------------------------------------------x
G.R. No. 175616 June 8, 2007
VIBAL PUBLISHING HOUSE, INC., LG & M CORPORATION and SD PUBLICATIONS, INC., petitioners,
vs.
KOLONWEL TRADING, respondent.
x --------------------------------------------------x
G.R. No. 175659 June 8, 2007
DEPARTMENT OF EDUCATION, petitioner,
vs.
KOLONWEL TRADING, respondent.
D E C I S I O N
GARCIA, J.:
Before the Court are these consolidated three (3) petitions for review under Rule 45 of the Rules of Court, with a prayer for a
temporary restraining order, to nullify and set aside the Order
1
dated December 4, 2006 of the Manila Regional Trial Court (RTC),
Branch 18, in SP Civil Case No. 06-116010, a special civil action for certiorari and prohibition thereat commenced by herein
respondent Kolonwel Trading (Kolonwel for short) against the Department of Budget and Management Procurement Service (DBM-
PS), et al.
At the core of the controversy are the bidding and the eventual contract awards for the supply and delivery of some 17.5 million copies
of Makabayan (social studies) textbooks and teachers manuals, a project of the Department of Education (DepEd).
The factual antecedents:
In the middle of 2005, the DepEd requested the services of the DBM-PS to undertake the aforementioned procurement project which
is to be jointly funded by the World Bank (WB), through the Second Social Expenditure Management Program (SEMP2) of the
Philippines (RP) International Bank for Reconstruction and Development (IBRD) Loan Agreement No. 7118-PH
2
(Loan No. 7118-
PH, hereinafter) dated September 12, 2002; and the Asian Development Bank (ADB), through SEDIP Loan No. 1654-PHI. Earlier, the
Executive Director of the Government Procurement Policy Board (GPPB), in reply to a DepEd query, stated that "procurement[s] for
MAKABAYAN textbooks where funds therefore (sic) are sourced from World Bank Loan shall be governed by the applicable
procurement guidelines of the foreign lending institution. The 2005 Call for Submission of Textbooks and Teachers Manuals shall be
viewed vis--vis relevant World Bank guidelines."
3

On October 27, 2005, the DBM-PS Inter-Agency Bids and Awards Committee (IABAC) called for a bidding for the supply of the
Makabayan textbooks and manuals, divided into three (3) lots, to wit: Lot 1 for Sibika Grades 1-3; Lot 2 for HeKaSi Grades 4-6 and
Lot 3 for Araling Panlipunan Years I-IV. Of the entities, foreign and local, which responded and procured the Bidding Documents,
4

only eleven (11) bidders submitted, either as principal or in joint venture arrangement, proposals for the different lots. Among them
were Watana Phanit Printing & Publishing Co., Ltd., of Thailand (Watana, for short), petitioner Vibal Publishing House, Inc., (Vibal,
hereinafter), Daewoo International Corporation of South Korea (Daewoo, for brevity) and respondent Kolonwel. Kolonwels tender
appeared to cover all three (3) lots.
5

Following the bid and the book content/body evaluation process, the IABAC, via Resolution (Res.) No. 001-2006
6
dated March 9,
2006, resolved "to recommend to the [WB] and the [ADB] failure of bids for all lots in view of the abovementioned disqualifications,
non-compliance and reservations of [DepEd]." Issues of "Conflict of interest" with respect to Watana and Vibal, "failure in cover
stock testing" for Kolonwel and DepEds "reservation" were among the disqualifying reasons stated in the resolution.
On March 15, 2006, the IABAC submitted to WB for its review and information Res. No. 001-2006. Appended to the covering letter
was a document entitled "Bid Evaluation Report and Recommendation for Award of Contract."
7

The following events, as recited in the assailed Manila RTC order and as borne out by the records, then transpired:
1. In a letter
8
dated April 24, 2006 to the DepEd and the DBM-PS IABAC Chairman, the WB, through its Regional Senior
Economist, Ms. Rekha Menon, disagreed, for stated reasons, with the IABACs finding of conflict of interest on the part of
Vibal and Watana and the rejection of their bids. Ms. Menon, however, upheld the disqualification of all the other bidders.
She thus asked the IABAC to review its evaluation and to provide the WB with the revised Bid Evaluation Report (BER),
taking into account the December 31, 2006 RP-IBRD Loan closing date.
2. On May 11, 2006, the IABAC informed Kolonwel of its or its bids failure to post qualify and of the grounds for the
failure.
9

In its reply-letter of May 18, 2006,
10
Kolonwel raised several issues and requested that its disqualification be reconsidered
and set aside. In reaction, IABAC apprised WB of Kolonwels concerns stated in its letter-reply.
3) Subsequently, the IABAC, agreeing with WBs position articulated in Ms. Menon, issued Res. No. 001-2006-A effectively
recommending to WB the contract award to Vibal of Sibika 1 & 3 and HekaSi 5; to Watana of Sibika 2 and HeKaSi 4 & 5
and to Daewoo of Sibika 3. Upon review, WB offered "no objection" to the recommended award.
11

4) The issuance of notices of award and the execution on September 12, 2006 of the corresponding Purchaser-Supplier
contracts followed.
12

5. On June 23, 2006, the DBM-PS IABAC chairman informed Kolonwel of the denial of its request for reconsideration and
of the WBs concurrence with the denial.
13
The IABAC denied, on September 8, 2006, a second request for reconsideration
of Kolonwel
14
after WB found the reasons therefor, as detailed in PS IABAC Res. No. 001-2006-B
15
dated July 18, 2006,
unmeritorious, particularly on the aspect of cover stock testing.
Such was the state of things when on, October 12, 2006, Kolonwel filed with the RTC of Manila a special civil action for certiorari
and prohibition with a prayer for a temporary restraining order (TRO) and/or writ of preliminary injunction. Docketed as SP Civil
Case No. 06-116010, and raffled to Branch 18 of the court,
16
the petition sought to nullify IABAC Res. Nos. 001-2006 and 001-2006-
A and to set aside the contract awards in favor of Vibal and Watana. In support of its TRO application, Kolonwel alleged, among other
things, that the supply-awardees were rushing with the implementation of the void supply contracts to beat the loan closing-date
deadline.
A week after, the Manila RTC scheduled - and eventually conducted - a summary hearing on the TRO application. In an order
17
of
October 31, 2006, as amended in another order
18
dated November 20, 2006, the court granted a 20-day TRO enjoining the IABAC, et
al, starting November 6, 2006, from proceeding with the subject September 12, 2006 purchase- supply contracts. In the original order,
the court set the preliminary conference and hearing for the applied preliminary injunction on November 7, and 8, 2006, respectively.
In the meantime, Vibal filed an urgent motion to dismiss
19
Kolonwels petition on several grounds, among them want of jurisdiction
and lack of cause of action, inter alia alleging that the latter had pursued judicial relief without first complying with the protest
procedure prescribed by Republic Act (R.A.) No. 9184, otherwise known as the "Government Procurement Reform Act." The DepEd
later followed with its own motion to dismiss, partly based on the same protest provision. As records show, the trial court did not
conduct a hearing on either dismissal motions, albeit it heard the parties on their opposing claims respecting the propriety of issuing a
writ of preliminary injunction.
On December 4, 2006, the Manila RTC issued its assailed Order
20
finding for Kolonwel, as petitioner a quo, disposing as follows:
WHEREFORE, the court grants the petition for certiorari and prohibition. The IABAC Resolution No. 001-2006-A dated May 30,
2006 is annulled and set aside. IABAC Resolution No. 001-2006 is declared validly and regularly issued in the absence of a showing
of grave abuse of discretion or excess of jurisdiction. All subsequent actions of the respondents resulting from the issuance of IABAC
Resolution No. 001-2006-A are consequently nullified and set aside. This court grants a final injunction pursuant to Sec. 9 of Rule 58
of the Rules of Court as amended, restraining respondents Department of Education and Culture (sic), [DBM-PS], [IABAC], Vibal
Publishing House, Inc., LG & M Corporation and SD Publications from the commission or continuance of acts, contracts or
transactions proceeding from the issuance of IABAC Resolution No. 001-2006-A.
SO ORDERED. (Emphasis and words in brackets supplied)
Hence, these three (3) petitions which the Court, per its Resolution
21
of January 16, 2007, ordered consolidated. Earlier, the Court
issued, in G. R. No. 175616, a TRO
22
enjoining the presiding judge
23
of the RTC of Manila, Branch 18, from proceeding with SP Civil
Case No. 06-116010 or implementing its assailed order.
Petitioners urge the annulment of the assailed RTC Order dated December 4, 2006, on jurisdictional ground, among others. It is their
parallel posture that the Manila RTC erred in assuming jurisdiction over the case despite respondent Kolonwels failure to observe the
protest mechanism provided under Sec. 55 in relation to Secs. 57 and 58 of R.A. No. 9184, respectively reading as follows:
Sec. 55. Protest on Decision of the BAC.- Decisions of the BAC [Bids and Awards Committee] in all stages of procurement may be
protested to the head of the procuring entity. Decisions of the BAC may be protested by filing a verified position paper and paying a
non-refundable protest fee. The amount of the protest fee and the periods during which the protest may be filed and resolved shall be
specific in the IRR.
Sec. 57. Non-interruption of the Bidding Process. In no case shall any process taken from any decision treated in this Article stay or
delay the bidding process. Protests must first be resolved before any award is made.
Sec. 58. Report to Regular Courts; Certiorari.- Court action may be resorted to only after the protests contemplated in this Article shall
have been completed. Cases that are filed in violation of the process specified in this article shall be dismissed for lack of jurisdiction.
The [RTC] shall have jurisdiction over final decisions of the head of the procuring entity. (Emphasis and words in bracket added.)
As a counterpoint, the respondent draws attention to its having twice asked, and having been twice spurned by, the IABAC to
reconsider its disqualification, obviously agreeing with the Manila RTC that the judicial window was already opened under the
exhaustion of available administrative remedies principle. In the same breath, however, the respondent would argue, again following
the RTCs line, that it was prevented from filing a protest inasmuch as the government had not issued the Implementing Rules and
Regulations (IRR) of R.A. No. 9184 to render the protest mechanism of the law operative for foreign-funded projects.
The Court is unable to lend concurrence to the trial courts and respondents positions on the interplay of the protest and jurisdictional
issues. As may be noted, the aforequoted Section 55 of R.A. No. 9184 sets three (3) requirements that must be met by the party
desiring to protest the decision of the Bids and Awards Committee (BAC). These are: 1) the protest must be in writing, in the form of
a verified position paper; 2) the protest must be submitted to the head of the procuring entity; and 3) the payment of a non-refundable
protest fee. The jurisdictional caveat that authorizes courts to assume or, inversely, precludes courts from assuming, jurisdiction over
suits assailing the BACs decisions is in turn found in the succeeding Section 58 which provides that the courts would have
jurisdiction over such suits only if the protest procedure has already been completed.
Respondents letters of May 18, 2006
24
and June 28, 2006
25
in which it requested reconsideration of its disqualification cannot
plausibly be given the status of a protest in the context of the aforequoted provisions of R.A. No. 9184. For one, neither of the letter-
request was addressed to the head of the procuring entity, in this case the DepEd Secretary or the head of the DBM Procurement
Service, as required by law. For another, the same letters were unverified. And not to be overlooked of course is the fact that the third
protest-completing requirement, i.e., payment of protest fee, was not complied with.
Given the above perspective, it cannot really be said that the respondent availed itself of the protest procedure prescribed under
Section 55 of R.A. No. 9184 before going to the RTC of Manila via a petition for certiorari. Stated a bit differently, respondent sought
judicial intervention even before duly completing the protest process. Hence, its filing of SP Civil Case No. 06-116010 was
precipitate. Or, as the law itself would put it, cases that are filed in violation of the protest process "shall be dismissed for lack of
jurisdiction."
Considering that the respondents petition in RTC Manila was actually filed in violation of the protest process set forth in Section 55
of R.A. No. 9184, that court could not have lawfully acquired jurisdiction over the subject matter of this case. In fact, Section 58,
supra, of R.A. No. 9184 emphatically states that cases filed in violation of the protest process therein provided "shall be dismissed for
lack of jurisdiction."
It is to be stressed that the protest mechanism adverted to is a built-in administrative remedy embodied in the law itself. It was not
prescribed by an administrative agency tasked with implementing a statute through the medium of interpretative circulars or bulletins.
Ignoring thus this administrative remedy would be to defy the law itself.
It will not avail the respondent any to argue that the absence of an IRR to make the protest mechanism under R.A. No. 9184 become
operative for foreign-funded projects was what prevented it from complying with the protest procedure. As the last sentence of the
afore-quoted Section 55 of R.A. No. 9184 is couched, the specific office of an IRR for foreign-funded project, vis--vis the matter of
protest, is limited to fixing "the amount of the protest fee and the periods during which the protest may be filed and resolved." Surely,
the absence of provisions on protest fee and reglementary period does not signify the deferment of the implementation of the protest
mechanism as a condition sine qua non to resort to judicial relief. As applied to the present case, the respondent had to file a protest
and pursue it until its completion before going to court. There was hardly any need to wait for the specific filing period to be
prescribed by the IRR because the protest, as a matter of necessity, has to be lodged before court action.
Neither is it necessary that the amount of protest fee be prescribed first. Respondent could very well have proceeded with its protest
without paying the required protest fee, remitting the proper amount once the appropriate IRR fixed the protest fee.
There may perhaps be room for relaxing the prescription on protest if a bona fide attempt to comply with legal requirements had been
made. But the fact alone that the respondent did not even submit a verified position paper by way of protest argues against such
plausibility. Significantly, none of the reconsideration-seeking letters of the respondent advert to the protest procedure under Section
55 of R.A. No. 9184, even by way of noting that it was at a loss as to the inoperativeness of such provision in the light of the absence
of an IRR.
In its petition before the Manila RTC, the respondent veritably admitted to not complying with the protest requirement, albeit with the
lame excuse that it was effectively barred from complying with the required administrative remedies of protest. Neither did the
respondent then argue that it was not able to comply due to the absence of an IRR for foreign- funded projects.
At any rate, there is, in fact a set of implementing rules and regulations, denominated as "IRR-A," issued on July 11, 2003 by the
GPPB and the Joint Congressional Oversight Committee, Section 55.1
26
of which provides that prior to a resort to protest, the
aggrieved party must first file a motion for reconsideration of the decision of the BAC. It is only after the BAC itself denies
reconsideration that the protest, accompanied by a fixed protest fee, shall be filed within the period defined in the IRR.
It may be that IRR-A specifically defines its coverage to "all fully domestically-funded procurement activities," it being also provided
that "foreign-funded procurement activities shall be the subject of a subsequent issuance."
27
However, a similarly drawn argument
involving IRR-A was set aside in Abaya v. Ebdane,
28
a case involving Loan Agreement No. PH-P204 entered into by and between the
RP and the Japan Bank for International Cooperation (JBIC) for the implementation DPWH Contract Package No. I (CP I). Wrote the
Court in Abaya:
Admittedly, IRR-A covers only fully domestically-funded procurement activities from procurement planning up to contract
implementation and that it is expressly stated that IRR-B for foreign-funded procurement activities shall be subject of a subsequent
issuance. Nonetheless, there is no reason why the policy behind Section 77 of IRR-A cannot be applied to foreign-funded procurement
projects like the CP I project. Stated differently, the policy on the prospective or non-retroactive application of RA 9184 with respect
to domestically-funded procurement projects cannot be any different with respect to foreign-funded procurement projects . It would
be incongruous, even absurd, to provide for the prospective application of RA 9184 with respect to domestically-funded procurement
projects and, on the other hand, as urged by the petitioners, apply RA 9184 retroactively with respect to foreign-funded procurement
projects. To be sure, the lawmakers could not have intended such an absurdity.
As in Abaya, there really should be no reason why the policy behind Section 55.l of IRR-A on the procedure for protest cannot be
applied, even analogously, to foreign-funded procurement projects, such as those in this case. Indeed, there is no discernable
justification why a different procedure should obtain with respect to foreign-funded procurement undertakings as opposed to a locally
funded project, and certainly there is no concrete foundation in R.A. 9184 to indicate that Congress intended such a variance in the
protest procedure.
The Manila RTC, in granting the petition for certiorari and prohibition, stated the observation that there was "substantial compliance
of the requirement of protest."
29
Yet, it is not even clear that respondent Kolonwel, in its dealings with the IABAC, particularly in
seeking reconsideration of its decision, was even aware of the protest requirements. What is beyond dispute, however, is that courts
are precluded by express legislative command from entertaining protests from decisions of the BAC. What Congress contextually
intended under the premises was that not only would there be a distinct administrative grievance mechanism to be observed in
assailing decisions of the BAC, but that courts would be without jurisdiction over actions impugning decisions of the BACs, unless, in
the meantime, the protest procedure mandated under Section 55 of R.A. No. 9184 is brought to its logical completion.
It is Congress by law, not the courts by discretion, which defines the courts jurisdiction not otherwise conferred by the Constitution.
Through the same medium, Congress also draws the parameters in the exercise of the functions of administrative agencies. Section 55
of R.A. No. 9184 could not be any clearer when it mandates the manner of protesting the decision of bids and awards committees.
Similarly, there can be no quibbling that, under Section 58 of the same law, courts do not have jurisdiction over decisions of the BACs
unless the appropriate protest has been made and completed. The absence of the IRR does not detract from the reality that R.A. No.
9184 requires a protest to be filed under the form therein prescribed.
Given the above perspective, the Manila RTC had no jurisdiction over respondent Kolonwels petition for certiorari and prohibition.
Accordingly, it ought to have granted herein petitioners motion to dismiss, but it did not. Worse, the court even added another layer to
its grievous error when it granted the respondents basic petition for certiorari and prohibition itself.
Compounding the Manila RTCs error is its having proceeded with SP Civil Case No. 06-116010 even without acquiring jurisdiction
over Watana. As may be recalled, the respondent, in its petition before the RTC, impleaded Watana as one of the defendants, the latter
having been awarded by the IABAC Sibika 2 and HeKaSi 4 &5. The records, however, show that Watana was not served with
summons. The Sheriffs Return dated October 18, 2006, noted that summons was not served on Watana and another defendant at "No.
1281 G. Araneta Avenue cor. Ma. Clara Street, Quezon City, on the ground that said companies were not holding office thereat
according to Mr. Marvin V. Catacutan."
There can be no dispute that Watana is an indispensable party to the respondents petition in SP Civil Case No. 06-116010, Kolonwel
having therein assailed and sought to nullify the contract-award made in its and Vibals favor. Indispensable parties are those with
such interest in the controversy that a final decree would necessarily affect their rights so that courts cannot proceed without their
presence.
30
All of them must be included in a suit for an action to prosper or for a final determination to be had.
31
Watana, to repeat,
was never served with summons; neither did it participate in the proceedings below. Plainly, then, the Manila RTC did not acquire
jurisdiction over one of the indispensable parties, the joinder of whom is compulsory.
32

With the foregoing disquisitions, the Court finds it unnecessary to even dwell on the other points raised in this consolidated cases. In
the light, however, of the Manila RTCs holding that the WB Guidelines on Procurement under IBRD Loans do not in any way
provided superiority over local laws on the matter,
33
the Court wishes to state the following observation:
As may be recalled, all interested bidders were put on notice that the DepEds procurement project was to be funded from the
proceeds of the RP-IBRD Loan No. 7118-PH,
34
Section 1, Schedule 4 of which stipulates that "Goods shall be procured in
accordance with the provisions of Section 1
35
of the Guidelines for Procurement under IBRD Loans." Accordingly, the IABAC
conducted the bidding for the supply of textbooks and manuals based on the WB Guidelines, particularly the provisions on
International Competitive Bidding (ICB). Section 4 of R.A. No. 9184 expressly recognized this particular process, thus:
Sec. 4. Scope and application. - This Act shall apply to the Procurement of Goods and Consulting Services, regardless of source of
funds, whether local or foreign by all branches and instrumentalities of government . Any treaty or international or executive
agreement affecting the subject matter of this Act to which the Philippine government is a signatory shall be observed. (Emphasis
added.)
The question as to whether or not foreign loan agreements with international financial institutions, such as Loan No. 7118-PH, partake
of an executive or international agreement within the purview of the Section 4 of R.A. No. 9184, has been answered by the Court in
the affirmative in Abaya, supra. Significantly, Abaya declared that the RP-JBIC loan agreement was to be of governing application
over the CP I project and that the JBIC Procurement Guidelines, as stipulated in the loan agreement, shall primarily govern the
procurement of goods necessary to implement the main project.
Under the fundamental international law principle of pacta sunt servanda,
36
which is in fact embodied in the afore-quoted Section 4 of
R.A. No. 9184, the RP, as borrower, bound itself to perform in good faith its duties and obligation under Loan No. 7118- PH.
Applying this postulate in the concrete to this case, the IABAC was legally obliged to comply with, or accord primacy to, the WB
Guidelines on the conduct and implementation of the bidding/procurement process in question.
WHEREFORE, the instant consolidated petitions are GRANTED and the assailed Order dated December 4, 2006 of the Regional
Trial Court of Manila in its SP Case No. 06-116010 is NULLIFIED and SET ASIDE.
No cost. SO ORDERED.


Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 170516 July 16, 2008
AKBAYAN CITIZENS ACTION PARTY ("AKBAYAN"), PAMBANSANG KATIPUNAN NG MGA SAMAHAN SA
KANAYUNAN ("PKSK"), ALLIANCE OF PROGRESSIVE LABOR ("APL"), VICENTE A. FABE, ANGELITO R.
MENDOZA, MANUEL P. QUIAMBAO, ROSE BEATRIX CRUZ-ANGELES, CONG. LORENZO R. TANADA III, CONG.
MARIO JOYO AGUJA, CONG. LORETA ANN P. ROSALES, CONG. ANA THERESIA HONTIVEROS-BARAQUEL,
AND CONG. EMMANUEL JOEL J. VILLANUEVA, Petitioners,
vs.
THOMAS G. AQUINO, in his capacity as Undersecretary of the Department of Trade and Industry (DTI) and Chairman and
Chief Delegate of the Philippine Coordinating Committee (PCC) for the Japan-Philippines Economic Partnership Agreement,
EDSEL T. CUSTODIO, in his capacity as Undersecretary of the Department of Foreign Affairs (DFA) and Co-Chair of the
PCC for the JPEPA, EDGARDO ABON, in his capacity as Chairman of the Tariff Commission and lead negotiator for
Competition Policy and Emergency Measures of the JPEPA, MARGARITA SONGCO, in her capacity as Assistant Director-
General of the National Economic Development Authority (NEDA) and lead negotiator for Trade in Services and Cooperation
of the JPEPA, MALOU MONTERO, in her capacity as Foreign Service Officer I, Office of the Undersecretary for
International Economic Relations of the DFA and lead negotiator for the General and Final Provisions of the JPEPA,
ERLINDA ARCELLANA, in her capacity as Director of the Board of Investments and lead negotiator for Trade in Goods
(General Rules) of the JPEPA, RAQUEL ECHAGUE, in her capacity as lead negotiator for Rules of Origin of the JPEPA,
GALLANT SORIANO, in his official capacity as Deputy Commissioner of the Bureau of Customs and lead negotiator for
Customs Procedures and Paperless Trading of the JPEPA, MA. LUISA GIGETTE IMPERIAL, in her capacity as Director of
the Bureau of Local Employment of the Department of Labor and Employment (DOLE) and lead negotiator for Movement of
Natural Persons of the JPEPA, PASCUAL DE GUZMAN, in his capacity as Director of the Board of Investments and lead
negotiator for Investment of the JPEPA, JESUS MOTOOMULL, in his capacity as Director for the Bureau of Product
Standards of the DTI and lead negotiator for Mutual Recognition of the JPEPA, LOUIE CALVARIO, in his capacity as lead
negotiator for Intellectual Property of the JPEPA, ELMER H. DORADO, in his capacity as Officer-in-Charge of the
Government Procurement Policy Board Technical Support Office, the government agency that is leading the negotiations on
Government Procurement of the JPEPA, RICARDO V. PARAS, in his capacity as Chief State Counsel of the Department of
Justice (DOJ) and lead negotiator for Dispute Avoidance and Settlement of the JPEPA, ADONIS SULIT, in his capacity as
lead negotiator for the General and Final Provisions of the JPEPA, EDUARDO R. ERMITA, in his capacity as Executive
Secretary, and ALBERTO ROMULO, in his capacity as Secretary of the DFA,
*
Respondents.
D E C I S I O N
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 Congressman Teves 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 that Usec. 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 public concern
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, 4th 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 makes treaties 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-making of 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 in NLRB 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
decisionshttp://web2.westlaw.com/find/default.wl?rs=WLW7.07&serialnum=1975129772&fn=_top&sv=Split&tc=-
1&findtype=Y&tf=-1&db=708&utid=%7b532A6DBF-9B4C-4A5A-8F16-
C20D9BAA36C4%7d&vr=2.0&rp=%2ffind%2fdefault.wl&mt=WLIGeneralSubscription.
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 tax treaty 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 both pre-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 CI EL] 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 of Fulbright.
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 constitute definite 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 a strong 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 priorly stated, 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. Ermita that 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 nations but 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 after the 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 the United 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 where Congress 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 particular instance 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. Manglapus did 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 since September 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.


Republic of the Philippines
SUPREME COURT
Manila
EN BANC

G.R. No. 101538 June 23, 1992
AUGUSTO BENEDICTO SANTOS III, represented by his father and legal guardian, Augusto Benedicto Santos, petitioner,
vs.
NORTHWEST ORIENT AIRLINES and COURT OF APPEALS, respondents.

CRUZ, J .:
This case involves the Proper interpretation of Article 28(1) of the Warsaw Convention, reading as follows:
Art. 28. (1) An action for damage must be brought at the option of the plaintiff, in the territory of one of the High
Contracting Parties, either before the court of the domicile of the carrier or of his principal place of business, or
where he has a place of business through which the contract has been made, or before the court at the place of
destination.
The petitioner is a minor and a resident of the Philippines. Private respondent Northwest Orient Airlines (NOA) is a foreign
corporation with principal office in Minnesota, U.S.A. and licensed to do business and maintain a branch office in the Philippines.
On October 21, 1986, the petitioner purchased from NOA a round-trip ticket in San Francisco. U.S.A., for his flight from San
Francisco to Manila via Tokyo and back. The scheduled departure date from Tokyo was December 20, 1986. No date was specified
for his return to San Francisco.
1

On December 19, 1986, the petitioner checked in at the NOA counter in the San Francisco airport for his scheduled departure to
Manila. Despite a previous confirmation and re-confirmation, he was informed that he had no reservation for his flight from Tokyo to
Manila. He therefore had to be wait-listed.
On March 12, 1987, the petitioner sued NOA for damages in the Regional Trial Court of Makati. On April 13, 1987, NOA moved to
dismiss the complaint on the ground of lack of jurisdiction. Citing the above-quoted article, it contended that the complaint could be
instituted only in the territory of one of the High Contracting Parties, before:
1. the court of the domicile of the carrier;
2. the court of its principal place of business;
3. the court where it has a place of business through which the contract had been made;
4. the court of the place of destination.
The private respondent contended that the Philippines was not its domicile nor was this its principal place of business. Neither was the
petitioner's ticket issued in this country nor was his destination Manila but San Francisco in the United States.
On February 1, 1988, the lower court granted the motion and dismissed the case.
2
The petitioner appealed to the Court of Appeals,
which affirmed the decision of the lower court.
3
On June 26, 1991, the petitioner filed a motion for reconsideration, but the same was
denied.
4
The petitioner then came to this Court, raising substantially the same issues it submitted in the Court of Appeals.
The assignment of errors may be grouped into two major issues, viz:
(1) the constitutionality of Article 28(1) of the Warsaw Convention; and
(2) the jurisdiction of Philippine courts over the case.
The petitioner also invokes Article 24 of the Civil Code on the protection of minors.
I
THE ISSUE OF CONSTITUTIONALITY
A. The petitioner claims that the lower court erred in not ruling that Article 28(1) of the Warsaw Convention
violates the constitutional guarantees of due process and equal protection.
The Republic of the Philippines is a party to the Convention for the Unification of Certain Rules Relating to International
Transportation by Air, otherwise known as the Warsaw Convention. It took effect on February 13, 1933. The Convention was
concurred in by the Senate, through its Resolution No. 19, on May 16, 1950. The Philippine instrument of accession was signed by
President Elpidio Quirino on October 13, 1950, and was deposited with the Polish government on November 9, 1950. The Convention
became applicable to the Philippines on February 9, 1951. On September 23, 1955, President Ramon Magsaysay issued Proclamation
No. 201, declaring our formal adherence thereto. "to the end that the same and every article and clause thereof may be observed and
fulfilled in good faith by the Republic of the Philippines and the citizens thereof."
5

The Convention is thus a treaty commitment voluntarily assumed by the Philippine government and, as such, has the force and effect
of law in this country.
The petitioner contends that Article 28(1) cannot be applied in the present case because it is unconstitutional. He argues that there is
no substantial distinction between a person who purchases a ticket in Manila and a person who purchases his ticket in San Francisco.
The classification of the places in which actions for damages may be brought is arbitrary and irrational and thus violates the due
process and equal protection clauses.
It is well-settled that courts will assume jurisdiction over a constitutional question only if it is shown that the essential requisites of a
judicial inquiry into such a question are first satisfied. Thus, there must be an actual case or controversy involving a conflict of legal
rights susceptible of judicial determination; the constitutional question must have been opportunely raised by the proper party; and the
resolution of the question is unavoidably necessary to the decision of the case itself.
6

Courts generally avoid having to decide a constitutional question. This attitude is based on the doctrine of separation of powers, which
enjoins upon the departments of the government a becoming respect for each other's acts.
The treaty which is the subject matter of this petition was a joint legislative-executive act. The presumption is that it was first carefully
studied and determined to be constitutional before it was adopted and given the force of law in this country.
The petitioner's allegations are not convincing enough to overcome this presumption. Apparently, the Convention considered the four
places designated in Article 28 the most convenient forums for the litigation of any claim that may arise between the airline and its
passenger, as distinguished from all other places. At any rate, we agree with the respondent court that this case can be decided on other
grounds without the necessity of resolving the constitutional issue.
B. The petitioner claims that the lower court erred in not ruling that Art. 28(1) of the Warsaw Convention is
inapplicable because of a fundamental change in the circumstances that served as its basis.
The petitioner goes at great lengths to show that the provisions in the Convention were intended to protect airline companies under
"the conditions prevailing then and which have long ceased to exist." He argues that in view of the significant developments in the
airline industry through the years, the treaty has become irrelevant. Hence, to the extent that it has lost its basis for approval, it has
become unconstitutional.
The petitioner is invoking the doctrine of rebus sic stantibus. According to Jessup, "this doctrine constitutes an attempt to formulate a
legal principle which would justify non-performance of a treaty obligation if the conditions with relation to which the parties
contracted have changed so materially and so unexpectedly as to create a situation in which the exaction of performance would be
unreasonable."
7
The key element of this doctrine is the vital change in the condition of the contracting parties that they could not have
foreseen at the time the treaty was concluded.
The Court notes in this connection the following observation made in Day v. Trans World Airlines, Inc.: 8
The Warsaw drafters wished to create a system of liability rules that would cover all the hazards of air travel . . . The
Warsaw delegates knew that, in the years to come, civil aviation would change in ways that they could not foresee.
They wished to design a system of air law that would be both durable and flexible enough to keep pace with these
changes . . . The ever-changing needs of the system of civil aviation can be served within the framework they
created.
It is true that at the time the Warsaw Convention was drafted, the airline industry was still in its infancy. However, that circumstance
alone is not sufficient justification for the rejection of the treaty at this time. The changes recited by the petitioner were, realistically,
not entirely unforeseen although they were expected in a general sense only. In fact, the Convention itself, anticipating such
developments, contains the following significant provision:
Article 41. Any High Contracting Party shall be entitled not earlier than two years after the coming into force of this
convention to call for the assembling of a new international conference in order to consider any improvements
which may be made in this convention. To this end, it will communicate with the Government of the French
Republic which will take the necessary measures to make preparations for such conference.
But the more important consideration is that the treaty has not been rejected by the Philippine government. The doctrine of rebus sic
stantibus does not operate automatically to render the treaty inoperative. There is a necessity for a formal act of rejection, usually
made by the head of State, with a statement of the reasons why compliance with the treaty is no longer required.
In lieu thereof, the treaty may be denounced even without an expressed justification for this action. Such denunciation is authorized
under its Article 39, viz:
Article 39. (1) Any one of the High Contracting Parties may denounce this convention by a notification addressed to
the Government of the Republic of Poland, which shall at once inform the Government of each of the High
Contracting Parties.
(2) Denunciation shall take effect six months after the notification of denunciation, and shall operate only as regards
the party which shall have proceeded to denunciation.
Obviously. rejection of the treaty, whether on the ground of rebus sic stantibus or pursuant to Article 39, is not a function of the courts
but of the other branches of government. This is a political act. The conclusion and renunciation of treaties is the prerogative of the
political departments and may not be usurped by the judiciary. The courts are concerned only with the interpretation and application of
laws and treaties in force and not with their wisdom or efficacy.
C. The petitioner claims that the lower court erred in ruling that the plaintiff must sue in the United States, because
this would deny him the right to access to our courts.
The petitioner alleges that the expenses and difficulties he will incur in filing a suit in the United States would constitute a constructive
denial of his right to access to our courts for the protection of his rights. He would consequently be deprived of this vital guaranty as
embodied in the Bill of Rights.
Obviously, the constitutional guaranty of access to courts refers only to courts with appropriate jurisdiction as defined by law. It does
not mean that a person can go to any court for redress of his grievances regardless of the nature or value of his claim. If the petitioner
is barred from filing his complaint before our courts, it is because they are not vested with the appropriate jurisdiction under the
Warsaw Convention, which is part of the law of our land.
II
THE ISSUE OF JURISDICTION.
A. The petitioner claims that the lower court erred in not ruling that Article 28(1) of the Warsaw Convention is a
rule merely of venue and was waived by defendant when it did not move to dismiss on the ground of improper venue.
By its own terms, the Convention applies to all international transportation of persons performed by aircraft for hire.
International transportation is defined in paragraph (2) of Article 1 as follows:
(2) For the purposes of this convention, the expression "international transportation" shall mean any transportation
in which, according to the contract made by the parties, the place of departure and the place of destination, whether
or not there be a break in the transportation or a transshipment, are situated [either] within the territories of two High
Contracting Parties . . .
Whether the transportation is "international" is determined by the contract of the parties, which in the case of passengers is the ticket.
When the contract of carriage provides for the transportation of the passenger between certain designated terminals "within the
territories of two High Contracting Parties," the provisions of the Convention automatically apply and exclusively govern the rights
and liabilities of the airline and its passenger.
Since the flight involved in the case at bar is international, the same being from the United States to the Philippines and back to the
United States, it is subject to the provisions of the Warsaw Convention, including Article 28(1), which enumerates the four places
where an action for damages may be brought.
Whether Article 28(1) refers to jurisdiction or only to venue is a question over which authorities are sharply divided. While the
petitioner cites several cases holding that Article 28(1) refers to venue rather than jurisdiction,
9
there are later cases cited by the
private respondent supporting the conclusion that the provision is jurisdictional.
10

Venue and jurisdiction are entirely distinct matters. Jurisdiction may not be conferred by consent or waiver upon d court which
otherwise would have no jurisdiction over the subject-matter of an action; but the venue of an action as fixed by statute may be
changed by the consent of the parties and an objection that the plaintiff brought his suit in the wrong county may be waived by the
failure of the defendant to make a timely objection. In either case, the court may render a valid judgment. Rules as to jurisdiction can
never be left to the consent or agreement of the parties, whether or not a prohibition exists against their alteration.
11

A number of reasons tends to support the characterization of Article 28(1) as a jurisdiction and not a venue provision. First, the
wording of Article 32, which indicates the places where the action for damages "must" be brought, underscores the mandatory nature
of Article 28(1). Second, this characterization is consistent with one of the objectives of the Convention, which is to "regulate in a
uniform manner the conditions of international transportation by air." Third, the Convention does not contain any provision
prescribing rules of jurisdiction other than Article 28(1), which means that the phrase "rules as to jurisdiction" used in Article 32 must
refer only to Article 28(1). In fact, the last sentence of Article 32 specifically deals with the exclusive enumeration in Article 28(1) as
"jurisdictions," which, as such, cannot be left to the will of the parties regardless of the time when the damage occurred.
This issue was analyzed in the leading case of Smith v. Canadian Pacific Airways, Ltd.,
12
where it was held:
. . . Of more, but still incomplete, assistance is the wording of Article 28(2), especially when considered in the light
of Article 32. Article 28(2) provides that "questions of procedure shall be governed by the law of the court to which
the case is submitted" (Emphasis supplied). Section (2) thus may be read to leave for domestic decision questions
regarding the suitability and location of a particular Warsaw Convention case.
In other words, where the matter is governed by the Warsaw Convention, jurisdiction takes on a dual concept. Jurisdiction in the
international sense must be established in accordance with Article 28(1) of the Warsaw Convention, following which the jurisdiction
of a particular court must be established pursuant to the applicable domestic law. Only after the question of which court has
jurisdiction is determined will the issue of venue be taken up. This second question shall be governed by the law of the court to which
the case is submitted.
The petitioner submits that since Article 32 states that the parties are precluded "before the damages occurred" from amending the
rules of Article 28(1) as to the place where the action may be brought, it would follow that the Warsaw Convention was not intended
to preclude them from doing so "after the damages occurred."
Article 32 provides:
Art. 32. Any clause contained in the contract and all special agreements entered into before the damage occurred by
which the parties purport to infringe the rules laid down by this convention, whether by deciding the law to be
applied, or by altering the rules as to jurisdiction, shall be null and void. Nevertheless for the transportation of
goods, arbitration clauses shall be allowed, subject to this convention, if the arbitration is to take place within one of
the jurisdictions referred to in the first paragraph of Article 28.
His point is that since the requirements of Article 28(1) can be waived "after the damages (shall have) occurred," the article should be
regarded as possessing the character of a "venue" and not of a "jurisdiction" provision. Hence, in moving to dismiss on the ground of
lack of jurisdiction, the private respondent has waived improper venue as a ground to dismiss.
The foregoing examination of Article 28(1) in relation to Article 32 does not support this conclusion. In any event, we agree that even
granting arguendo that Article 28(1) is a venue and not a jurisdictional provision, dismissal of the case was still in order. The
respondent court was correct in affirming the ruling of the trial court on this matter, thus:
Santos' claim that NOA waived venue as a ground of its motion to dismiss is not correct. True it is that NOA averred
in its MOTION TO DISMISS that the ground thereof is "the Court has no subject matter jurisdiction to entertain the
Complaint" which SANTOS considers as equivalent to "lack of jurisdiction over the subject matter . . ." However,
the gist of NOA's argument in its motion is that the Philippines is not the proper place where SANTOS could file the
action meaning that the venue of the action is improperly laid. Even assuming then that the specified ground of
the motion is erroneous, the fact is the proper ground of the motion improper venue has been discussed
therein.
Waiver cannot be lightly inferred. In case of doubt, it must be resolved in favor of non-waiver if there are special circumstances
justifying this conclusion, as in the petition at bar. As we observed in Javier vs. Intermediate Court of Appeals:
13

Legally, of course, the lack of proper venue was deemed waived by the petitioners when they failed to invoke it in
their original motion to dismiss. Even so, the motivation of the private respondent should have been taken into
account by both the trial judge and the respondent court in arriving at their decisions.
The petitioner also invokes KLM Royal Dutch Airlines v. RTC,
14
a decision of our Court of Appeals, where it was held that Article
28(1) is a venue provision. However, the private respondent avers that this was in effect reversed by the case of Aranas v. United
Airlines,
15
where the same court held that Article 28(1) is a jurisdictional provision. Neither of these cases is binding on this Court, of
course, nor was either of them appealed to us. Nevertheless, we here express our own preference for the later case of Aranas insofar as
its pronouncements on jurisdiction conform to the judgment we now make in this petition.
B. The petitioner claims that the lower court erred in not ruling that under Article 28(1) of the Warsaw Convention,
this case was properly filed in the Philippines, because Manila was the destination of the plaintiff.
The Petitioner contends that the facts of this case are analogous to those in Aanestad v. Air Canada.
16
In that case, Mrs. Silverberg
purchased a round-trip ticket from Montreal to Los Angeles and back to Montreal. The date and time of departure were specified but
not of the return flight. The plane crashed while on route from Montreal to Los Angeles, killing Mrs. Silverberg. Her administratrix
filed an action for damages against Air Canada in the U.S. District Court of California. The defendant moved to dismiss for lack of
jurisdiction but the motion was denied thus:
. . . It is evident that the contract entered into between Air Canada and Mrs. Silverberg as evidenced by the ticket
booklets and the Flight Coupon No. 1, was a contract for Air Canada to carry Mrs. Silverberg to Los Angeles on a
certain flight, a certain time and a certain class, but that the time for her to return remained completely in her power.
Coupon No. 2 was only a continuing offer by Air Canada to give her a ticket to return to Montreal between certain
dates. . . .
The only conclusion that can be reached then, is that "the place of destination" as used in the Warsaw Convention is
considered by both the Canadian C.T.C. and the United States C.A.B. to describe at least two "places of
destination," viz., the "place of destination" of a particular flight either an "outward destination" from the "point of
origin" or from the "outward point of destination" to any place in Canada.
Thus the place of destination under Art. 28 and Art. 1 of the Warsaw Convention of the flight on which Mrs.
Silverberg was killed, was Los Angeles according to the ticket, which was the contract between the parties and the
suit is properly filed in this Court which has jurisdiction.
The Petitioner avers that the present case falls squarely under the above ruling because the date and time of his return flight to San
Francisco were, as in the Aanestad case, also left open. Consequently, Manila and not San Francisco should be considered the
petitioner's destination.
The private respondent for its part invokes the ruling in Butz v. British Airways,
17
where the United States District Court (Eastern
District of Pennsylvania) said:
. . . Although the authorities which addressed this precise issue are not extensive, both the cases and the
commentators are almost unanimous in concluding that the "place of destination" referred to in the Warsaw
Convention "in a trip consisting of several parts . . . is the ultimate destination that is accorded treaty jurisdiction." . .
.
But apart from that distinguishing feature, I cannot agree with the Court's analysis in Aanestad; whether the return
portion of the ticket is characterized as an option or a contract, the carrier was legally bound to transport the
passenger back to the place of origin within the prescribed time and. the passenger for her part agreed to pay the fare
and, in fact, did pay the fare. Thus there was mutuality of obligation and a binding contract of carriage, The fact that
the passenger could forego her rights under the contract does not make it any less a binding contract. Certainly, if
the parties did not contemplate the return leg of the journey, the passenger would not have paid for it and the carrier
would not have issued a round trip ticket.
We agree with the latter case. The place of destination, within the meaning of the Warsaw Convention, is determined by the terms of
the contract of carriage or, specifically in this case, the ticket between the passenger and the carrier. Examination of the petitioner's
ticket shows that his ultimate destination is San Francisco. Although the date of the return flight was left open, the contract of carriage
between the parties indicates that NOA was bound to transport the petitioner to San Francisco from Manila. Manila should therefore
be considered merely an agreed stopping place and not the destination.
The petitioner submits that the Butz case could not have overruled the Aanestad case because these decisions are from different
jurisdictions. But that is neither here nor there. In fact, neither of these cases is controlling on this Court. If we have preferred the Butz
case, it is because, exercising our own freedom of choice, we have decided that it represents the better, and correct, interpretation of
Article 28(1).
Article 1(2) also draws a distinction between a "destination" and an "agreed stopping place." It is the "destination" and not an "agreed
stopping place" that controls for purposes of ascertaining jurisdiction under the Convention.
The contract is a single undivided operation, beginning with the place of departure and ending with the ultimate destination. The use
of the singular in this expression indicates the understanding of the parties to the Convention that every contract of carriage has one
place of departure and one place of destination. An intermediate place where the carriage may be broken is not regarded as a "place of
destination."
C. The petitioner claims that the lower court erred in not ruling that under Art. 28(1) of the Warsaw Convention,
this case was properly filed in the Philippines because the defendant has its domicile in the Philippines.
The petitioner argues that the Warsaw Convention was originally written in French and that in interpreting its provisions, American
courts have taken the broad view that the French legal meaning must govern.
18
In French, he says, the "domicile" of the carrier means
every place where it has a branch office.
The private respondent notes, however, that in Compagnie Nationale Air France vs. Giliberto,
19
it was held:
The plaintiffs' first contention is that Air France is domiciled in the United States. They say that the domicile of a
corporation includes any country where the airline carries on its business on "a regular and substantial basis," and
that the United States qualifies under such definition. The meaning of domicile cannot, however, be so extended.
The domicile of a corporation is customarily regarded as the place where it is incorporated, and the courts have
given the meaning to the term as it is used in article 28(1) of the Convention. (See Smith v. Canadian Pacific
Airways, Ltd. (2d Cir. 1971), 452 F2d 798, 802; Nudo v. Societe Anonyme Belge d' Exploitation de la Navigation
Aerienne Sabena Belgian World Airlines (E.D. pa. 1962). 207 F. Supp, 191; Karfunkel v. Compagnie Nationale Air
France (S.D.N.Y. 1977), 427 F. Suppl. 971, 974). Moreover, the structure of article 28(1), viewed as a whole, is also
incompatible with the plaintiffs' claim. The article, in stating that places of business are among the bases of the
jurisdiction, sets out two places where an action for damages may be brought; the country where the carrier's
principal place of business is located, and the country in which it has a place of business through which the
particular contract in question was made, that is, where the ticket was bought, Adopting the plaintiffs' theory would
at a minimum blur these carefully drawn distinctions by creating a third intermediate category. It would obviously
introduce uncertainty into litigation under the article because of the necessity of having to determine, and without
standards or criteria, whether the amount of business done by a carrier in a particular country was "regular" and
"substantial." The plaintiff's request to adopt this basis of jurisdiction is in effect a request to create a new
jurisdictional standard for the Convention.
Furthermore, it was argued in another case
20
that:
. . . In arriving at an interpretation of a treaty whose sole official language is French, are we bound to apply French
law? . . . We think this question and the underlying choice of law issue warrant some discussion
. . . We do not think this statement can be regarded as a conclusion that internal French law is to be "applied" in the
choice of law sense, to determine the meaning and scope of the Convention's terms. Of course, French legal usage
must be considered in arriving at an accurate English translation of the French. But when an accurate English
translation is made and agreed upon, as here, the inquiry into meaning does not then revert to a quest for a past or
present French law to be "applied" for revelation of the proper scope of the terms. It does not follow from the fact
that the treaty is written in French that in interpreting it, we are forever chained to French law, either as it existed
when the treaty was written or in its present state of development. There is no suggestion in the treaty that French
law was intended to govern the meaning of Warsaw's terms, nor have we found any indication to this effect in its
legislative history or from our study of its application and interpretation by other courts. Indeed, analysis of the
cases indicates that the courts, in interpreting and applying the Warsaw Convention, have, not considered
themselves bound to apply French law simply because the Convention is written in French. . . .
We agree with these rulings.
Notably, the domicile of the carrier is only one of the places where the complaint is allowed to be filed under Article 28(1). By
specifying the three other places, to wit, the principal place of business of the carrier, its place of business where the contract was
made, and the place of destination, the article clearly meant that these three other places were not comprehended in the term
"domicile."
D. The petitioner claims that the lower court erred in not ruling that Art. 28(1) of the Warsaw Convention does not
apply to actions based on tort.
The petitioner alleges that the gravamen of the complaint is that private respondent acted arbitrarily and in bad faith, discriminated
against the petitioner, and committed a willful misconduct because it canceled his confirmed reservation and gave his reserved seat to
someone who had no better right to it. In short. the private respondent committed a tort.
Such allegation, he submits, removes the present case from the coverage of the Warsaw Convention. He argues that in at least two
American cases,
21
it was held that Article 28(1) of the Warsaw Convention does not apply if the action is based on tort.
This position is negated by Husserl v. Swiss Air Transport Company,
22
where the article in question was interpreted thus:
. . . Assuming for the present that plaintiff's claim is "covered" by Article 17, Article 24 clearly excludes any relief
not provided for in the Convention as modified by the Montreal Agreement. It does not, however, limit the kind of
cause of action on which the relief may be founded; rather it provides that any action based on the injuries specified
in Article 17 "however founded," i.e., regardless of the type of action on which relief is founded, can only be
brought subject to the conditions and limitations established by the Warsaw System. Presumably, the reason for the
use of the phrase "however founded," in two-fold: to accommodate all of the multifarious bases on which a claim
might be founded in different countries, whether under code law or common law, whether under contract or tort,
etc.; and to include all bases on which a claim seeking relief for an injury might be founded in any one country. In
other words, if the injury occurs as described in Article 17, any relief available is subject to the conditions and
limitations established by the Warsaw System, regardless of the particular cause of action which forms the basis on
which a plaintiff could seek
relief . . .
The private respondent correctly contends that the allegation of willful misconduct resulting in a tort is insufficient to exclude the case
from the comprehension of the Warsaw Convention. The petitioner has apparently misconstrued the import of Article 25(l) of the
Convention, which reads as follows:
Art. 25 (1). The carrier shall not be entitled to avail himself of the provisions of this Convention which exclude or
limit his liability. if the damage is caused by his willful misconduct or by such default on his part as, in accordance
with the law of the court to which the case is submitted, is considered to be equivalent to willful misconduct.
It is understood under this article that the court called upon to determine the applicability of the limitation provision must first be
vested with the appropriate jurisdiction. Article 28(1) is the provision in the Convention which defines that jurisdiction. Article 22
23

merely fixes the monetary ceiling for the liability of the carrier in cases covered by the Convention. If the carrier is indeed guilty of
willful misconduct, it can avail itself of the limitations set forth in this article. But this can be done only if the action has first been
commenced properly under the rules on jurisdiction set forth in Article 28(1).
III
THE ISSUE OF PROTECTION TO MINORS
The petitioner calls our attention to Article 24 of the Civil Code, which states:
Art. 24. In all contractual property or other relations, when one of the parties is at a disadvantage on account of his
moral dependence, ignorance, indigence, mental weakness, tender age or other handicap, the courts must be vigilant
for his protection.
Application of this article to the present case is misplaced. The above provision assumes that the court is vested with jurisdiction to
rule in favor of the disadvantaged minor, As already explained, such jurisdiction is absent in the case at bar.
CONCLUSION
A number of countries have signified their concern over the problem of citizens being denied access to their own courts because of the
restrictive provision of Article 28(1) of the Warsaw Convention. Among these is the United States, which has proposed an amendment
that would enable the passenger to sue in his own domicile if the carrier does business in that jurisdiction. The reason for this proposal
is explained thus:
In the event a US citizen temporarily residing abroad purchases a Rome to New York to Rome ticket on a foreign air
carrier which is generally subject to the jurisdiction of the US, Article 28 would prevent that person from suing the
carrier in the US in a "Warsaw Case" even though such a suit could be brought in the absence of the Convention.
The proposal was incorporated in the Guatemala Protocol amending the Warsaw Convention, which was adopted at Guatemala City
on March 8,
1971.
24
But it is still ineffective because it has not yet been ratified by the required minimum number of contracting parties. Pending
such ratification, the petitioner will still have to file his complaint only in any of the four places designated by Article 28(1) of the
Warsaw Convention.
The proposed amendment bolsters the ruling of this Court that a citizen does not necessarily have the right to sue in his own courts
simply because the defendant airline has a place of business in his country.
The Court can only sympathize with the petitioner, who must prosecute his claims in the United States rather than in his own country
at least inconvenience. But we are unable to grant him the relief he seeks because we are limited by the provisions of the Warsaw
Convention which continues to bind us. It may not be amiss to observe at this point that the mere fact that he will have to litigate in the
American courts does not necessarily mean he will litigate in vain. The judicial system of that country in known for its sense of
fairness and, generally, its strict adherence to the rule of law.
WHEREFORE, the petition is DENIED, with costs against the petitioner. It is so ordered.


Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 151445 April 11, 2002

ARTHUR D. LIM and PAULINO R. ERSANDO, petitioners,
vs.
HONORABLE EXECUTIVE SECRETARY as alter ego of HER EXCELLENCEY 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 MACAPAGA-ARROYO, ALBERTO ROMULO, ANGELO REYES, respondents.
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 (V FA) 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-Iist 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 71 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 AFP 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 AFP 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 VF A. 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:
I
THE PHILIPPINES AND THE UNITED STATES SIGNED THE MUTUAL DEFENSE TREATY (MDT) in 1951 TO
PROVIDE MUTUAL MILITARY ASSIST ANCE IN ACCORDANCE WITH THE 'CONSTITUTIONAL PROCESSE-S'
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 IMAGINA TION 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 Ersando's 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 I ntegrated 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 V FA. The Solicitor General asks that we accord due deference
to the executive determination that "Balikatan 02-1" is covered by the VFA, considering the President's 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 Court's duty, under the
1987 Constitution, to determine whether or not the other branches of the government have kept themselves within
the limits of the Constitution and the laws 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 department of the government a becoming respect for each other's act, this Court nevertheless
resolves to take cognizance of the instant petition.
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 MDT's objectives. It is this treaty to which the V FA 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 V FA 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 V FA 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 ill accordance with the ordinary meaning to be given to the tenus 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 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 Commission's 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 travauxpreparatoires 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 preparatoires 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 nation's 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 V FA 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 I" 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 V FA 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-a-vis municipal law was expressed in Philip Morris, I nc. 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 I 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 I chong 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 -( I) 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
I 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.

EN BANC
G.R. No. 151445 April 11, 2002

ARTHUR D. LIM and PAULINO R. ERSANDO, petitioners,
vs.
HONORABLE EXECUTIVE SECRETARY as alter ego of HER EXCELLENCY PRESIDENT GLORIA MACAPAGAL-
ARROYO and HONORABLE ANGELO REYES in his official capacity as Secretary of National Defense, respondents.
SANLAKAS and PARTIDO NG MANGGAGAWA, intervenors.

DISSENTING OPINION
KAPUNAN, J .:
On September 11, 2001, terrorists, with the use of hijacked commercial airplanes, attacked the World Trade Center Building in New
York City and the Pentagon Building in Washington D.C., U.S.A., killing thousands of people.
Following the attacks, the United States declared a "global war" against terrorism and started to bomb and attack Afghanistan to topple
the Taliban regime and capture Osama bin Laden, the suspected mastermind of the September 11, 2001 attacks. With the Northern
Alliance mainly providing the ground forces, the Taliban regime fell in a few months, without Osama bin Laden having been
captured. He is believed either to be still in Afghanistan or has crossed the border into Pakistan.
In line with President Gloria Macapagal-Arroyo's pledge to render all-out aid to the US in its campaign against "global terrorism," an
arrangement for a. joint military exercises known as "RP-US Balikatan 02-1 Exercises" was entered into between the US and
Philippine authorities, allegedly within the ambit of the Visiting Forces Agreement (V FA) with the main objective of enhancing the
operational capabilities of the countries in combating terrorism. The US government has identified the Abu Sayyaf Group (ASG) in
the Philippines as a terrorist group forming part of a "terrorist underground" linked to the al-Qaeda network of Osama bin Laden.
Beginning January 21, 2002, American troops started arriving in Mindanao as part of the total contingent force of 660 soldiers, 160 to
be stationed in Basilan, 200 to 250 in Zamboanga, and 250 in the Air Force base in Mactan, Cebu.
The salient features of the joint military exercises as embodied in the Terms of Reference (TOR) are summarized as follows:
(a) The exercise shall be consistent with the Constitution and other Philippine laws, particularly the RP-US Visiting Forces
Agreement;
(b) No permanent US bases and support facilities will be established;
(c) The exercise shall be implemented jointly by RP and US Exercise Co-Directors under the direction of the Chief of Staff
of the AFP and in no instance will US Forces operate independently during field training exercises;
(d) It 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, and the Chief of Staff of the AFP shall direct the Exercise Co-Directors to wind up the
Exercise and other activities and the withdrawal of US forces within the six-month period;
(e) The exercise "is a mutual counter-terrorism advising, assisting and training exercise" relative to Philippine efforts against
the Abu Sayyaf Group 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 also be conducted in support of the
Exercise;
(f) Only 160 US troops organized in 12-man Special Forces Teams shall be deployed in Basilan, with the US Team
remaining at the Company Tactical Headquarters where they can observe and assess the performance of the troops; and
(g) US exercise participants shall not engage in combat, without prejudice to their right to self-defense.
Petitioners now seek the issuance of a writ of prohibition/injunction to prevent US troops from participating in areas of armed conflict
on the ground that such is in gross violation of the Constitution. They argue that:
I
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 SUBJECTED THE PHILIPPINES TO AN ARMED
EXTERNAL ATTACK TO WARRANT US MILITARY ASSISTANCE UNDER THE MDT OF 1951.
II
NEITHER DOES THE VFA OF 1999 AUTHORIZED AMERICAN SOLDIERS TO ENGAGE IN COMBAT
OPERATIONS IN PHILIPPINE TERRITORY, NOT EVEN TO FIRE BACK "IF FIRED UPON."
Sanlakas and Partido ng Manggagawa as intervenors seek the same relief as petitioners, stressing that the Constitution prohibits the
presence of foreign military troops or facilities in the country, except under a treaty duly concurred in by the Senate and recognized as
a treaty by the other state.
The petition is impressed with merit.
There is no treaty allowing
US troops to engage in combat.
The Constitution prohibits foreign military bases, troops or facilities unless a treaty permits the same. Section 25, Article XVIII of the
Constitution 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.
There is no treaty allowing foreign military troops to engage in combat with internal elements.
The Mutual Defense Treaty (MDT) between the Republic of the Philippines and the United States of America does not authorize US
military troops to engage the ASG in combat. The MDT contemplates only an "external armed attack." Article III of the treaty cannot
be more explicit:
The Parties, through their Foreign Ministers or their deputies, will consult together from time to time regarding the
implementation of this treaty and whenever in the opinion of either of them the territorial integrity, political independence or
security of either of the Parties is threatened by external armed attack in the Pacific. [Emphasis supplied.]
Supporting this conclusion is the third paragraph of the MDT preamble where the parties express their desire
to declare publicly and formally their sense of unity and their common determination to defend themselves against external
armed attack, so that no potential aggressor could be under the illusion that either of them stands alone in the Pacific area.
[Emphasis supplied.]
There is no evidence that
the ASG is connected with
"global terrorism."
There is no empirical basis for the allegation that the "terrorism" which the ASG is accused of constitutes an "external armed attack."
The ASG has committed mostly crimes of kidnapping for ransom and murder - common crimes that are punishable under the penal
code but which, by themselves, hardly constitute "terrorism."
Parenthetically, there is lack of agreement as to the precise definition of terrorism. Indeed, one man's terrorist may be another man's
freedom fighter. The divergent interests of States have caused contradicting definitions and conflicting perceptions of what constitutes
"terrorist acts" that make it difficult for the United Nations to reach a decision on the definition of terrorism. Because of this
"definitional predicament," the power of definition is easily exercised by a superpower which, by reason of its unchallenged
hegemony, could draw lists of what it considers terrorist organizations or states sponsoring terrorism based on criteria determined by
the hegemon's own strategic interests.
1

In any case, ties between the ASG and so-called international "terrorist" organizations have not been established.
2
Even assuming that
such ties do exist, it does not necessarily make the "attacks" by the ASG "external" as to fall within the ambit of the MDT.
Balikatan exercises are
not covered by VFA as
US troops are not
allowed to engage in combat.
Neither is the present situation covered by the so-called Visiting Forces Agreement (VFA). The V FA was concluded after the
removal of the US military bases, troops and facilities in the aftermath of the termination of the treaty allowing the presence of
American military bases in the Philippines. The VF A is nothing more than what its formal name suggests: an "Agreement between
the Government of the Republic of the Philippines and the Government of the United States of America regarding the Treatment of
United States Armed Forces Visiting the Philippines. "The last paragraph of the V FA preamble also "recogniz[es] the desirability of
defining the treatment of United States personnel visiting the Republic of the Philippines."
The VFA was entered into to enable American troops to enter the country again after the removal of the American military bases so
they can participate in military exercises under the auspices of the Mutual Defense Treaty. It provided the legal framework under
which American soldiers will be treated while they remain in the country.
The military exercises contemplated in the VFA are those in accordance with the National Defense Plan (NDP) of the Philippines. The
NDP was previously approved and adopted by the Mutual Defense Board, jointly chaired by the Chief of Staff of the Armed Forces of
the Philippines and the Commander in the Pacific of the United States Armed Forces.
The NDP is directed against potential foreign aggressors, not designed to deal with internal disorders. This was what the Senate
understood when it ratified the VFA in Senate Resolution No. 18, which reads:
The VFA shall serve as the legal mechanism to promote defense cooperation between the two countries, enhancing the
preparedness of the Armed Forces of the Philippines against external threats; and enabling the Philippines to bolster the
stability of the Pacific Area in a shared effort with its neighbor states.
The VFA's ambiguous reference to "activities"
3
is not a loophole that legitimizes the presence of US troops in Basilan. In the treaty's
preamble, the parties "reaffirm their obligations under the Mutual Defense Treaty of August 30, 1951." As the preamble comprises
part of a treaty's context for the purpose of interpretation, the VFA must be read in light of the provisions of the MDT. As stated
earlier, the MDT contemplates only an external armed attack; consequently, the "activities" referred to in the V FA cannot thus be
interpreted to include armed confrontation with or suppression of the ASG members who appear to be mere local bandits, mainly
engaged in kidnapping for ransom and murder -even arson, extortion and illegal possession of firearms, all of which are common
offenses under our criminal laws. These activities involve purely police matters and domestic law and order problems; they are hardly
"external" attacks within the contemplation of the MDT and the V FA. To construe the vagueness of the term "activities" in the V FA
as authorizing American troops to confront the ASG in armed conflict would, therefore, contravene both spirit and letter of the MDT.
Respondents maintain that the American troops are not here to fight the ASG but merely to engage in "training exercises." To allay
fears that the American troops are here to engage the ASG in combat, the TOR professes that the present 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." The TOR further provides that 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."
These avowals of assistance, advice, and training, however, fly in the face of the presence of US troops in the heart of the ASG's
stronghold. Such presence is an act of provocation that makes an armed confrontation between US soldiers and ASG members
inevitable.
The US troops in Basilan have been described as being "on a slippery slope between training and fighting." Their very presence
makes them a target for terrorist and for the local Moslem populace, which has been bitterly anti-American since colonial times.
Though they are called advisers, the Americans win be going on risky missions deep into the jungle. A former Green Beret who is an
analyst of Washington's Center for Strategies and Budgetary Assessments notes that "when troops go out on patrol, they come as close
as they can to direct combat."
4

"Advising" or "training" Filipino soldiers hardly describes the involvement of US troops (unaccompanied by Filipino counterparts) on
board combat helicopters which land on the battlegrounds to evacuate Filipino soldiers wounded while fighting the ASG. For
example, on April 5,2002, US troops on board a Pave Hawk helicopter flew to the scene of a night battle on Basilan Island to evacuate
a wounded Filipino soldier. This was reportedly the third time in recent weeks that chopper-borne US forces had evacuated Filipino
soldiers fighting the ASG.
5

Whatever euphemisms may be conjured to characterize American involvement, the RP-US Balikatan 02-1 Exercises are aimed
at seeking out the ASG and exterminating it.
The prohibition contained in the TOR against US exercise participants from engaging in combat but "without prejudice to their right
to self- defense" provides little consolation. Combat muddles the distinction between aggression and self-defense. US troops can
always say they did not fire first and no one would dare say otherwise. The ASG has been so demonized that no one cares how it is
exorcised. Significantly, the TOR does not define the parameters of "self-defense." Militarily, a pre-emptive strike could be interpreted
as an act of self -defense.
What I fear most is that the country would be dragged into a more devastating and protracted conflict as a result of the continued
presence of US military troops in Basilan. A single ASG sniper's bullet felling an American soldier could be used as an excuse for
massive retaliation by US ground and air forces to attack and bomb out every suspected ASG lair, all in the name of "self -defense.
Apprehensions over possible catastrophic consequence of US military involvement in our country are not without historical basis.
The US experience in Vietnam, for example, began as an expression of support for the establishment of South Vietnam under Bao
Dai's leadership in 1949 to. counteract the support given by communist China and the Soviet Union to North Vietnam. In 1950, the US
began providing military assistance in fighting North Vietnam by sending military advisors as well as US tanks, planes, artillery and
other supplies. The US became more involved in the Vietnam conflict when in 1961, it sent the first 400 Green Beret "Special
Advisors" to South Vietnam to train the latter's soldiers in methods of counter-insurgency against the Viet Cong guerillas. It clarified
that the American soldiers were not in Vietnam to engage in combat.
6

However, due to the increased success of the Viet Cong guerillas, assisted by the Northern Vietnamese Army, the US eventually
began to run covert operations using South Vietnamese commandos in speed boats to harass radar sites along the coastline of North
Vietnam. In 1964, after an alleged torpedo attack by North Vietnam of the American destroyers USS. Maddox and USS. C. Turner Joy
in the Gulf of Tonkin, the US decided to retaliate by conducting bombing raids in North Vietnam.
7

The Vietnam War resulted in the death of two million Vietnamese and injuries to three million others. Twelve million Vietnamese
became refugees and thousands of children became orphaned.
8
Millions of acres of Vietnam's forests were defoliated by a herbicide
called Agent Orange, dropped from the air. Millions of mines and unexploded bombs and artillery shells are still scattered in the
countryside, posing constant danger to life and limb.
US militarv presence is
essentially indefinite
and open-ended.
Already, there are indications that the US intends to reestablish a more enduring presence in the country. Defense Secretary
Angelo Reyes was quoted to have declared on March 20, 2002 that 2,665 US soldiers will take part in the RP-US Balikatan 02-2
starting next month in Central Luzon and that 10 more military exercises will be held this year.
9
How many more war exercises are
needed for "training and advising" Filipino soldiers? What conditions must be satisfied for the United States to consider the "war
against terrorism" in Mindanao terminated? The endless frequency and successive repetition of the war exercises covering the two
largest islands of the country amount, in a real sense, to the permanent presence of foreign military troops here sans a treaty in blatant
violation of the constitutional proscription.
US President George w. Bush in his January 30, 2002 speech declared:
The men and women of our armed-forces have delivered a message to every enemy of the United States. You shall not
escape the justice of this nation. x x x.
Should any country be timid in the face of terror, if they do not act, America will.
President Arroyo, in a speech at the Regis Hotel in New York City on February 1, 2002, pledged her "full support" to US President
George W. Bush in the fight against international terrorism. She declared that "the Philippines will continue to be a partner of the
United States in the war to end terrorism" and that "(t)he anti-terrorism partnership will continue after the whole world is secure
against the terrorist."
10

In his speech on the White House Laws on March 11, 2002, President Bush exhorted:
America encourages and expects governments everywhere to help remove the terrorist parasites that threaten their own
countries and the peace of the world. x x x. We are helping right now in the Philippines, where terrorist with links to Al
Qaeda are trying to seize the southern part of the country to establish a military regime.
They are oppressing local peoples, and have kidnapped both American and Filipino citizens."
11

The Philippine Daily Inquirer in its March 17, 2002 issue carried the following report:
The United States wants to bring in more troops for the controversial Balikatan 02-1 training exercise aimed at wiping out the
Abu Sayyaf bandits in Basilan.
The US military last week began calling the war-games "Operation Enduring Freedom-Philippines," giving credence to
claims that the country has become, after Afghanistan, the second front of the US-led global war on terrorism.
Today's issue of April 1, 2002 reporting as its source New York News Service, quoted a senior Bush administration official as saying:
We are looking at prolonged training. x x x. It takes more to build up capabilities than saying here are some night vision
goggles.
The declarations of the two Presidents on the war against terrorism and their avowal to secure the world against the terrorists would
ineluctably suggest a long-drawn conflict without a foreseeable end. Worse, it is not unlikely that this war could expand and
escalate to include as protagonists the Moro Islamic Liberation Front and the Moro National Liberation Front and -not
improbably -the National People's Army, all lumped-up as "terrorists" in a unilateral characterization.
No less than US Deputy Defense Secretary Paul Wolfowitz declared that the proposed $48-billion increase to the US defense budget
for 2003 is intended to sustain the war on terrorism,12 including that fought in this country, thus: .
Deputy Defense Secretary Paul Wolfowitz on Wednesday said the Pentagon needs a big budget increase next year on
terrorism, which has expanded from Afghanistan to the Philippines and now appears to be moving to Georgia.
13

The Court can take judicial notice of the foregoing pronouncements as they are of public knowledge,
14
having been widely circulated
in all channels of the media. Neither have they been denied.
US military intervention
is not the solution to the
Mindanao problem.
Assuming that the ASG is a terrorist organization, U.S. military intervention is not the solution to achieve peace. The annihilation of
the rebel bandits would be a futile quest so long at the root causes of their criminality are not addressed. A study15 by the United
Nations Secretariat, however, acknowledges that international terrorism springs from "misery, frustration, grievance and 'despair,"
elements which, many believe, are present in Basilan. Two veteran Philippine journalists have described the province as Mindanao's
"war laboratory," where lawlessness, government neglect, religious strife, poverty, and power struggle are rampant.
16

If indeed acts of terrorism are cries of desperation, if terrorism is but a symptom of the greater maladies of "misery, frustration,
grievance and despair," then it cannot be remedied alone by ASG's physical extermination, which appears to be the object of President
Bush and President Macapagal- Arroyo's joint campaign against global terrorism." Admittedly, the State has the right to use force as a
means of self-preservation. But perhaps we should all consider that a military solution is but a first-aid measure, not the prescription
to these diseases. It has been opined that:
The issue of terrorism in the Philippines should be dealt with not from the perspective of Manila-Washington ties but from a
serious study of how terrorism figures in the minds of leaders and armed men belonging to the large but deeply factionalized
guerrilla movements in the country. Terrorism can never be dissociated from guerrilla warfare and the separatist movement in
Mindanao. From these movements would arise religious extremists or millennarian groups. With the right resources and the
right agenda, these movements will continue to attract men-skilled, intelligent, and experienced-who will come to grasp the
practical realities of waging a war with the minimum of resources but maximum public impact.
The government does not have to look for foreign connections-and be motivated by the desire to help foreign friends to
address a problem that has been and will be the making of its own home grown armies.
17

The presence of US troops in Basilan, whether from the legal, philosophical-or even from the practical perspective cannot be justified,
On the contrary, it is counterproductive. It serves to fuel an already volatile situation. US troops are likely less able, if not less willing,
to distinguish between the innocent and the enemy. The inevitable "collateral damage," the killing of women and children, Muslims
and Christians, the destruction of homes, schools and hospitals would fan the flames of fanaticism and transform mere rogues into
martyrs.
The Filipino soldier has proven himself brave, courageous, fearless and tenacious in the field of battle as shown in Bataan and
Corregidor, in the four long years of guerilla warfare thereafter against the Japanese, and in the struggle for independence against
Spain and the United States at the turn of the last century. The local army and police have successfully battled in the past against
Communist and other insurgents which were more organized and numerous, operating in larger parts of the country and fighting for
their political beliefs. If our troops need training by us advisers or have to conduct joint exercises with US troops to improve their
fighting capability, these could be more effectively achieved if done outside Basilan or away from the danger zones. Instead of
bringing troops to the combat zones, the US can do more by supplying our soldiers with modern and high tech weaponry.
Prescinding from the foregoing disquisitions, it is totally erroneous to argue that petitioners do not have legal standing or that the
issues raised by them are premature and not based on sufficient facts. The issues raised are of transcendental importance.18 The
Balikatan exercises pose direct injury to some of the petitioners (intervenors) who live in the affected areas. The presence of us troops
in the combat zones "assisting" and "advising" our troops in combat against the ASG is a blatant violation of the Constitutional
proscription against the stationing of foreign troops to fight a local insurgency and puts the country in peril of becoming a veritable
killing field. If the time is not ripe to challenge the continuing affront against the Constitution and the safety of the people, when is the
right time? When the countryside has been devastated and numerous lives lost?
I therefore vote to give due course to the petition.


Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 183591 October 14, 2008
THE PROVINCE OF NORTH COTABATO, duly represented by GOVERNOR JESUS SACDALAN and/or VICE-
GOVERNOR EMMANUEL PIOL, for and in his own behalf, petitioners,
vs.
THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP),
represented by SEC. RODOLFO GARCIA, ATTY. LEAH ARMAMENTO, ATTY. SEDFREY CANDELARIA, MARK
RYAN SULLIVAN and/or GEN. HERMOGENES ESPERON, JR., the latter in his capacity as the present and duly-
appointed Presidential Adviser on the Peace Process (OPAPP) or the so-called Office of the Presidential Adviser on the Peace
Process, respondents.
x--------------------------------------------x
G.R. No. 183752 October 14, 2008
CITY GOVERNMENT OF ZAMBOANGA, as represented by HON. CELSO L. LOBREGAT, City Mayor of Zamboanga,
and in his personal capacity as resident of the City of Zamboanga, Rep. MA. ISABELLE G. CLIMACO, District 1, and Rep.
ERICO BASILIO A. FABIAN, District 2, City of Zamboanga, petitioners,
vs.
THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE NEGOTIATING PANEL (GRP), as
represented by RODOLFO C. GARCIA, LEAH ARMAMENTO, SEDFREY CANDELARIA, MARK RYAN SULLIVAN and
HERMOGENES ESPERON, in his capacity as the Presidential Adviser on Peace Process, respondents.
x--------------------------------------------x
G.R. No. 183893 October 14, 2008
THE CITY OF ILIGAN, duly represented by CITY MAYOR LAWRENCE LLUCH CRUZ, petitioner,
vs.
THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP),
represented by SEC. RODOLFO GARCIA, ATTY. LEAH ARMAMENTO, ATTY. SEDFREY CANDELARIA, MARK
RYAN SULLIVAN; GEN. HERMOGENES ESPERON, JR., in his capacity as the present and duly appointed Presidential
Adviser on the Peace Process; and/or SEC. EDUARDO ERMITA, in his capacity as Executive Secretary. respondents.
x--------------------------------------------x
G.R. No. 183951 October 14, 2008
THE PROVINCIAL GOVERNMENT OF ZAMBOANGA DEL NORTE, as represented by HON. ROLANDO E. YEBES, in
his capacity as Provincial Governor, HON. FRANCIS H. OLVIS, in his capacity as Vice-Governor and Presiding Officer of
the Sangguniang Panlalawigan, HON. CECILIA JALOSJOS CARREON, Congresswoman, 1
st
Congressional District, HON.
CESAR G. JALOSJOS, Congressman, 3
rd
Congressional District, and Members of the Sangguniang Panlalawigan of the
Province of Zamboanga del Norte, namely, HON. SETH FREDERICK P. JALOSJOS, HON. FERNANDO R. CABIGON,
JR., HON. ULDARICO M. MEJORADA II, HON. EDIONAR M. ZAMORAS, HON. EDGAR J. BAGUIO, HON. CEDRIC
L. ADRIATICO, HON. FELIXBERTO C. BOLANDO, HON. JOSEPH BRENDO C. AJERO, HON. NORBIDEIRI B.
EDDING, HON. ANECITO S. DARUNDAY, HON. ANGELICA J. CARREON and HON. LUZVIMINDA E. TORRINO,
petitioners,
vs.
THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE NEGOTIATING PANEL [GRP], as
represented by HON. RODOLFO C. GARCIA and HON. HERMOGENES ESPERON, in his capacity as the Presidential
Adviser of Peace Process, respondents.
x--------------------------------------------x
G.R. No. 183962 October 14, 2008
ERNESTO M. MACEDA, JEJOMAR C. BINAY, and AQUILINO L. PIMENTEL III, petitioners,
vs.
THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE NEGOTIATING PANEL, represented by its
Chairman RODOLFO C. GARCIA, and the MORO ISLAMIC LIBERATION FRONT PEACE NEGOTIATING PANEL,
represented by its Chairman MOHAGHER IQBAL, respondents.
x--------------------------------------------x
FRANKLIN M. DRILON and ADEL ABBAS TAMANO, petitioners-in-intervention.
x--------------------------------------------x
SEN. MANUEL A. ROXAS, petitioners-in-intervention.
x--------------------------------------------x
MUNICIPALITY OF LINAMON duly represented by its Municipal Mayor NOEL N. DEANO, petitioners-in-intervention,
x--------------------------------------------x
THE CITY OF ISABELA, BASILAN PROVINCE, represented by MAYOR CHERRYLYN P. SANTOS-AKBAR, petitioners-
in-intervention.
x--------------------------------------------x
THE PROVINCE OF SULTAN KUDARAT, rep. by HON. SUHARTO T. MANGUDADATU, in his capacity as Provincial
Governor and a resident of the Province of Sultan Kudarat, petitioner-in-intervention.
x-------------------------------------------x
RUY ELIAS LOPEZ, for and in his own behalf and on behalf of Indigenous Peoples in Mindanao Not Belonging to the MILF,
petitioner-in-intervention.
x--------------------------------------------x
CARLO B. GOMEZ, GERARDO S. DILIG, NESARIO G. AWAT, JOSELITO C. ALISUAG and RICHALEX G. JAGMIS,
as citizens and residents of Palawan, petitioners-in-intervention.
x--------------------------------------------x
MARINO RIDAO and KISIN BUXANI, petitioners-in-intervention.
x--------------------------------------------x
MUSLIM LEGAL ASSISTANCE FOUNDATION, INC (MUSLAF), respondent-in-intervention.
x--------------------------------------------x
MUSLIM MULTI-SECTORAL MOVEMENT FOR PEACE & DEVELOPMENT (MMMPD), respondent-in-intervention.
x--------------------------------------------x
D E C I S I O N
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 Piol 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 Prohibition
11
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,
20
docketed as G.R.
No. 183962, praying for a judgment prohibiting and permanently enjoining respondents from formally signing and executing the
MOA-AD and or any other agreement derived therefrom or similar thereto, and nullifying the MOA-AD for being unconstitutional
and illegal. Petitioners herein additionally implead as respondent the MILF Peace Negotiating Panel represented by its Chairman
Mohagher Iqbal.
Various parties moved to intervene and were granted leave of court to file their petitions-/comments-in-intervention. Petitioners-in-
Intervention include Senator Manuel A. Roxas, former Senate President Franklin Drilon and Atty. Adel Tamano, the City of Isabela
21

and Mayor Cherrylyn Santos-Akbar, the Province of Sultan Kudarat
22
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--vis ISSUES Nos. 4 and 5;
4. Whether there is a violation of the people's right to information on matters of public concern (1987 Constitution, Article
III, Sec. 7) under a state policy of full disclosure of all its transactions involving public interest (1987 Constitution, Article II,
Sec. 28) including public consultation under Republic Act No. 7160 (LOCAL GOVERNMENT CODE OF 1991)[;]
If it is in the affirmative, whether prohibition under Rule 65 of the 1997 Rules of Civil Procedure is an appropriate remedy;
5. Whether by signing the MOA, the Government of the Republic of the Philippines would be BINDING itself
a) to create and recognize the Bangsamoro Juridical Entity (BJE) as a separate state, or a juridical, territorial or
political subdivision not recognized by law;
b) to revise or amend the Constitution and existing laws to conform to the MOA;
c) to concede to or recognize the claim of the Moro Islamic Liberation Front for ancestral domain in violation of
Republic Act No. 8371 (THE INDIGENOUS PEOPLES RIGHTS ACT OF 1997), particularly Section 3(g) &
Chapter VII (DELINEATION, RECOGNITION OF ANCESTRAL DOMAINS)[;]
If in the affirmative, whether the Executive Branch has the authority to so bind the Government of the Republic of the
Philippines;
6. Whether the inclusion/exclusion of the Province of North Cotabato, Cities of Zamboanga, Iligan and Isabela, and the
Municipality of Linamon, Lanao del Norte in/from the areas covered by the projected Bangsamoro Homeland is a justiciable
question; and
7. Whether desistance from signing the MOA derogates any prior valid commitments of the Government of the Republic of
the Philippines.
24

The Court, thereafter, ordered the parties to submit their respective Memoranda. Most of the parties submitted their memoranda on
time.
III. OVERVIEW OF THE MOA-AD
As a necessary backdrop to the consideration of the objections raised in the subject five petitions and six petitions-in-intervention
against the MOA-AD, as well as the two comments-in-intervention in favor of the MOA-AD, the Court takes an overview of the
MOA.
The MOA-AD identifies the Parties to it as the GRP and the MILF.
Under the heading "Terms of Reference" (TOR), the MOA-AD includes not only four earlier agreements between the GRP and MILF,
but also two agreements between the GRP and the MNLF: the 1976 Tripoli Agreement, and the Final Peace Agreement on the
Implementation of the 1976 Tripoli Agreement, signed on September 2, 1996 during the administration of President Fidel Ramos.
The MOA-AD also identifies as TOR two local statutes - the organic act for the Autonomous Region in Muslim Mindanao (ARMM)
25

and the Indigenous Peoples Rights Act (IPRA),
26
and several international law instruments - the ILO Convention No. 169 Concerning
Indigenous and Tribal Peoples in Independent Countries in relation to the UN Declaration on the Rights of the Indigenous Peoples,
and the UN Charter, among others.
The MOA-AD includes as a final TOR the generic category of "compact rights entrenchment emanating from the regime of dar-ul-
mua'hada (or territory under compact) and dar-ul-sulh (or territory under peace agreement) that partakes the nature of a treaty device."
During the height of the Muslim Empire, early Muslim jurists tended to see the world through a simple dichotomy: there was the dar-
ul-Islam (the Abode of Islam) and dar-ul-harb (the Abode of War). The first referred to those lands where Islamic laws held sway,
while the second denoted those lands where Muslims were persecuted or where Muslim laws were outlawed or ineffective.
27
This way
of viewing the world, however, became more complex through the centuries as the Islamic world became part of the international
community of nations.
As Muslim States entered into treaties with their neighbors, even with distant States and inter-governmental organizations, the
classical division of the world into dar-ul-Islam and dar-ul-harb eventually lost its meaning. New terms were drawn up to describe
novel ways of perceiving non-Muslim territories. For instance, areas like dar-ul-mua'hada (land of compact) and dar-ul-sulh (land of
treaty) referred to countries which, though under a secular regime, maintained peaceful and cooperative relations with Muslim States,
having been bound to each other by treaty or agreement. Dar-ul-aman (land of order), on the other hand, referred to countries which,
though not bound by treaty with Muslim States, maintained freedom of religion for Muslims.
28

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

The MOA-AD states that the Parties "HAVE AGREED AND ACKNOWLEDGED AS FOLLOWS," and starts with its main body.
The main body of the MOA-AD is divided into four strands, namely, Concepts and Principles, Territory, Resources, and
Governance.
A. CONCEPTS AND PRINCIPLES
This strand begins with the statement that it is "the birthright of all Moros and all Indigenous peoples of Mindanao to identify
themselves and be accepted as Bangsamoros.'" It defines "Bangsamoro people" as the natives or original inhabitants of Mindanao
and its adjacent islands including Palawan and the Sulu archipelago at the time of conquest or colonization, and their descendants
whether mixed or of full blood, including their spouses.
30

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

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

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

The MOA-AD goes on to describe the Bangsamoro people as "the First Nation' with defined territory and with a system of
government having entered into treaties of amity and commerce with foreign nations."
The term "First Nation" is of Canadian origin referring to the indigenous peoples of that territory, particularly those known as
Indians. In Canada, each of these indigenous peoples is equally entitled to be called "First Nation," hence, all of them are usually
described collectively by the plural "First Nations."
36
To that extent, the MOA-AD, by identifying the Bangsamoro people as "the
First Nation" - suggesting its exclusive entitlement to that designation - departs from the Canadian usage of the term.
The MOA-AD then mentions for the first time the "Bangsamoro Juridical Entity" (BJE) to which it grants the authority and
jurisdiction over the Ancestral Domain and Ancestral Lands of the Bangsamoro.
37

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

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

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

The Parties to the MOA-AD stipulate that the BJE shall have jurisdiction over all natural resources within its "internal waters,"
defined as extending fifteen (15) kilometers from the coastline of the BJE area;
42
that the BJE shall also have "territorial waters,"
which shall stretch beyond the BJE internal waters up to the baselines of the Republic of the Philippines (RP) south east and south
west of mainland Mindanao; and that within these territorial waters, the BJE and the "Central Government" (used interchangeably
with RP) shall exercise joint jurisdiction, authority and management over all natural resources.
43
Notably, the jurisdiction over the
internal waters is not similarly described as "joint."
The MOA-AD further provides for the sharing of minerals on the territorial waters between the Central Government and the BJE, in
favor of the latter, through production sharing and economic cooperation agreement.
44
The activities which the Parties are allowed to
conduct on the territorial waters are enumerated, among which are the exploration and utilization of natural resources, regulation of
shipping and fishing activities, and the enforcement of police and safety measures.
45
There is no similar provision on the sharing of
minerals and allowed activities with respect to the internal waters of the BJE.
C. RESOURCES
The MOA-AD states that the BJE is free to enter into any economic cooperation and trade relations with foreign countries and shall
have the option to establish trade missions in those countries. Such relationships and understandings, however, are not to include
aggression against the GRP. The BJE may also enter into environmental cooperation agreements.
46

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

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

The sharing between the Central Government and the BJE of total production pertaining to natural resources is to be 75:25 in favor of
the BJE.
49

The MOA-AD provides that legitimate grievances of the Bangsamoro people arising from any unjust dispossession of their territorial
and proprietary rights, customary land tenures, or their marginalization shall be acknowledged. Whenever restoration is no longer
possible, reparation is to be in such form as mutually determined by the Parties.
50

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

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

The "associative" relationship
between the Central Government
and the BJE
The MOA-AD describes the relationship of the Central Government and the BJE as "associative," characterized by shared authority
and responsibility. And it states that the structure of governance is to be based on executive, legislative, judicial, and administrative
institutions with defined powers and functions in the Comprehensive Compact.
The MOA-AD provides that its provisions requiring "amendments to the existing legal framework" shall take effect upon signing of
the Comprehensive Compact and upon effecting the aforesaid amendments, with due regard to the non-derogation of prior
agreements and within the stipulated timeframe to be contained in the Comprehensive Compact. As will be discussed later, much of
the present controversy hangs on the legality of this provision.
The BJE is granted the power to build, develop and maintain its own institutions inclusive of civil service, electoral, financial and
banking, education, legislation, legal, economic, police and internal security force, judicial system and correctional institutions, the
details of which shall be discussed in the negotiation of the comprehensive compact.
As stated early on, the MOA-AD was set to be signed on August 5, 2008 by Rodolfo Garcia and Mohagher Iqbal, Chairpersons of the
Peace Negotiating Panels of the GRP and the MILF, respectively. Notably, the penultimate paragraph of the MOA-AD identifies the
signatories as "the representatives of the Parties," meaning the GRP and MILF themselves, and not merely of the negotiating panels.
53

In addition, the signature page of the MOA-AD states that it is "WITNESSED BY" Datuk Othman Bin Abd Razak, Special Adviser to
the Prime Minister of Malaysia, "ENDORSED BY" Ambassador Sayed Elmasry, Adviser to Organization of the Islamic Conference
(OIC) Secretary General and Special Envoy for Peace Process in Southern Philippines, and SIGNED "IN THE PRESENCE OF" Dr.
Albert G. Romulo, Secretary of Foreign Affairs of RP and Dato' Seri Utama Dr. Rais Bin Yatim, Minister of Foreign Affairs,
Malaysia, all of whom were scheduled to sign the Agreement last August 5, 2008.
Annexed to the MOA-AD are two documents containing the respective lists cum maps of the provinces, municipalities, and barangays
under Categories A and B earlier mentioned in the discussion on the strand on TERRITORY.
IV. PROCEDURAL ISSUES
A. RIPENESS
The power of judicial review is limited to actual cases or controversies.
54
Courts decline to issue advisory opinions or to resolve
hypothetical or feigned problems, or mere academic questions.
55
The limitation of the power of judicial review to actual cases and
controversies defines the role assigned to the judiciary in a tripartite allocation of power, to assure that the courts will not intrude into
areas committed to the other branches of government.
56

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

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

The Solicitor General argues that there is no justiciable controversy that is ripe for judicial review in the present petitions, reasoning
that
The unsigned MOA-AD is simply a list of consensus points subject to further negotiations and legislative enactments as well
as constitutional processes aimed at attaining a final peaceful agreement. Simply put, the MOA-AD remains to be a proposal
that does not automatically create legally demandable rights and obligations until the list of operative acts required have been
duly complied with. x x x
x x x x
In the cases at bar, it is respectfully submitted that this Honorable Court has no authority to pass upon issues based on
hypothetical or feigned constitutional problems or interests with no concrete bases. Considering the preliminary character of
the MOA-AD, there are no concrete acts that could possibly violate petitioners' and intervenors' rights since the acts
complained of are mere contemplated steps toward the formulation of a final peace agreement. Plainly, petitioners and
intervenors' perceived injury, if at all, is merely imaginary and illusory apart from being unfounded and based on mere
conjectures. (Underscoring supplied)
The Solicitor General cites
63
the following provisions of the MOA-AD:
TERRITORY
x x x x
2. Toward this end, the Parties enter into the following stipulations:
x x x x
d. Without derogating from the requirements of prior agreements, the Government stipulates to conduct and deliver, using all
possible legal measures, within twelve (12) months following the signing of the MOA-AD, a plebiscite covering the areas as
enumerated in the list and depicted in the map as Category A attached herein (the "Annex"). The Annex constitutes an
integral part of this framework agreement. Toward this end, the Parties shall endeavor to complete the negotiations and
resolve all outstanding issues on the Comprehensive Compact within fifteen (15) months from the signing of the MOA-AD.
x x x x
GOVERNANCE
x x x x
7. The Parties agree that mechanisms and modalities for the actual implementation of this MOA-AD shall be spelt out in the
Comprehensive Compact to mutually take such steps to enable it to occur effectively.
Any provisions of the MOA-AD requiring amendments to the existing legal framework shall come into force upon the
signing of a Comprehensive Compact and upon effecting the necessary changes to the legal framework with due regard to
non-derogation of prior agreements and within the stipulated timeframe to be contained in the Comprehensive Compact.
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.
x x x x
By the same token, when an act of the President, who in our constitutional scheme is a coequal of Congress, is seriously
alleged to have infringed the Constitution and the laws x x x settling the dispute becomes the duty and the responsibility of
the courts.
66

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

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

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

The authority of the GRP Negotiating Panel is defined by Executive Order No. 3 (E.O. No. 3), issued on February 28, 2001.
75
The said
executive order requires that "[t]he government's policy framework for peace, including the systematic approach and the
administrative structure for carrying out the comprehensive peace process x x x be governed by this Executive Order."
76

The present petitions allege that respondents GRP Panel and PAPP Esperon drafted the terms of the MOA-AD without consulting the
local government units or communities affected, nor informing them of the proceedings. As will be discussed in greater detail later,
such omission, by itself, constitutes a departure by respondents from their mandate under E.O. No. 3.
Furthermore, the petitions allege that the provisions of the MOA-AD violate the Constitution. The MOA-AD provides that "any
provisions of the MOA-AD requiring amendments to the existing legal framework shall come into force upon the signing of a
Comprehensive Compact and upon effecting the necessary changes to the legal framework," implying an amendment of the
Constitution to accommodate the MOA-AD. This stipulation, in effect, guaranteed to the MILF the amendment of the Constitution.
Such act constitutes another violation of its authority. Again, these points will be discussed in more detail later.
As the petitions allege acts or omissions on the part of respondent that exceed their authority, by violating their duties under E.O.
No. 3 and the provisions of the Constitution and statutes, the petitions make a prima facie case for Certiorari, Prohibition, and
Mandamus, and an actual case or controversy ripe for adjudication exists. When an act of a branch of government is seriously
alleged to have infringed the Constitution, it becomes not only the right but in fact the duty of the judiciary to settle the
dispute.
77

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

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

When suing as a citizen, the person complaining must allege that he has been or is about to be denied some right or privilege to which
he is lawfully entitled or that he is about to be subjected to some burdens or penalties by reason of the statute or act complained of.
80

When the issue concerns a public right, it is sufficient that the petitioner is a citizen and has an interest in the execution of the laws.
81

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

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

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

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

Intervenors, meanwhile, may be given legal standing upon showing of facts that satisfy the requirements of the law authorizing
intervention,
88
such as a legal interest in the matter in litigation, or in the success of either of the parties.
In any case, the Court has discretion to relax the procedural technicality on locus standi, given the liberal attitude it has exercised,
highlighted in the case of David v. Macapagal-Arroyo,
89
where technicalities of procedure were brushed aside, the constitutional
issues raised being of paramount public interest or of transcendental importance deserving the attention of the Court in view of their
seriousness, novelty and weight as precedents.
90
The Court's forbearing stance on locus standi on issues involving constitutional issues
has for its purpose the protection of fundamental rights.
In not a few cases, the Court, in keeping with its duty under the Constitution to determine whether the other branches of government
have kept themselves within the limits of the Constitution and the laws and have not abused the discretion given them, has brushed
aside technical rules of procedure.
91

In the petitions at bar, petitioners Province of North Cotabato (G.R. No. 183591) Province of Zamboanga del Norte (G.R. No.
183951), City of Iligan (G.R. No. 183893) and City of Zamboanga (G.R. No. 183752) and petitioners-in-intervention Province of
Sultan Kudarat, City of Isabela and Municipality of Linamon have locus standi in view of the direct and substantial injury that
they, as LGUs, would suffer as their territories, whether in whole or in part, are to be included in the intended domain of the BJE.
These petitioners allege that they did not vote for their inclusion in the ARMM which would be expanded to form the BJE territory.
Petitioners' legal standing is thus beyond doubt.
In G.R. No. 183962, petitioners Ernesto Maceda, Jejomar Binay and Aquilino Pimentel III would have no standing as citizens and
taxpayers for their failure to specify that they would be denied some right or privilege or there would be wastage of public funds. The
fact that they are a former Senator, an incumbent mayor of Makati City, and a resident of Cagayan de Oro, respectively, is of no
consequence. Considering their invocation of the transcendental importance of the issues at hand, however, the Court grants them
standing.
Intervenors Franklin Drilon and Adel Tamano, in alleging their standing as taxpayers, assert that government funds would be
expended for the conduct of an illegal and unconstitutional plebiscite to delineate the BJE territory. On that score alone, they can be
given legal standing. Their allegation that the issues involved in these petitions are of "undeniable transcendental importance" clothes
them with added basis for their personality to intervene in these petitions.
With regard to Senator Manuel Roxas, his standing is premised on his being a member of the Senate and a citizen to enforce
compliance by respondents of the public's constitutional right to be informed of the MOA-AD, as well as on a genuine legal interest in
the matter in litigation, or in the success or failure of either of the parties. He thus possesses the requisite standing as an intervenor.
With respect to Intervenors Ruy Elias Lopez, as a former congressman of the 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.
Romulo
100
and Manalo v. Calderon
101
where the Court similarly decided them on the merits, supervening events that would ordinarily
have rendered the same moot notwithstanding.
Petitions not mooted
Contrary then to the asseverations of respondents, the non-signing of the MOA-AD and the eventual dissolution of the GRP Peace
Panel did not moot the present petitions. It bears emphasis that the signing of the MOA-AD did not push through due to the Court's
issuance of a Temporary Restraining Order.
Contrary too to respondents' position, the MOA-AD cannot be considered a mere "list of consensus points," especially given its
nomenclature, the need to have it signed or initialed by all the parties concerned on August 5, 2008, and the far-reaching
Constitutional implications of these "consensus points," foremost of which is the creation of the BJE.
In fact, as what will, in the main, be discussed, there is a commitment on the part of respondents to amend and effect necessary
changes to the existing legal framework for certain provisions of the MOA-AD to take effect. Consequently, the present petitions
are not confined to the terms and provisions of the MOA-AD, but to other on-going and future negotiations and agreements necessary
for its realization. The petitions have not, therefore, been rendered moot and academic simply by the public disclosure of the MOA-
AD,
102
the manifestation that it will not be signed as well as the disbanding of the GRP Panel not withstanding.
Petitions are imbued with paramount public interest
There is no gainsaying that the petitions are imbued with paramount public interest, involving a significant part of the country's
territory and the wide-ranging political modifications of affected LGUs. The assertion that the MOA-AD is subject to further legal
enactments including possible Constitutional amendments more than ever provides impetus for the Court to formulate
controlling principles to guide the bench, the bar, the public and, in this case, the government and its negotiating entity.
Respondents cite Suplico v. NEDA, et al.
103
where the Court did not "pontificat[e] on issues which no longer legitimately constitute an
actual case or controversy [as this] will do more harm than good to the nation as a whole."
The present petitions must be differentiated from Suplico. Primarily, in Suplico, what was assailed and eventually cancelled was a
stand-alone government procurement contract for a national broadband network involving a one-time contractual relation between two
parties-the government and a private foreign corporation. As the issues therein involved specific government procurement policies and
standard principles on contracts, the majority opinion in Suplico found nothing exceptional therein, the factual circumstances being
peculiar only to the transactions and parties involved in the controversy.
The MOA-AD is part of a series of agreements
In the present controversy, the MOA-AD is a significant part of a series of agreements necessary to carry out the Tripoli Agreement
2001. The MOA-AD which dwells on the Ancestral Domain Aspect of said Tripoli Agreement is the third such component to be
undertaken following the implementation of the Security Aspect in August 2001 and the Humanitarian, Rehabilitation and
Development Aspect in May 2002.
Accordingly, even if the Executive Secretary, in his Memorandum of August 28, 2008 to the Solicitor General, has stated that "no
matter what the Supreme Court ultimately decides[,] the government will not sign the MOA[-AD]," mootness will not set in in light of
the terms of the Tripoli Agreement 2001.
Need to formulate principles-guidelines
Surely, the present MOA-AD can be renegotiated or another one will be drawn up to carry out the Ancestral Domain Aspect of the
Tripoli Agreement 2001, in another or in any form, which could contain similar or significantly drastic provisions. While the Court
notes the word of the Executive Secretary that the government "is committed to securing an agreement that is both constitutional and
equitable because that is the only way that long-lasting peace can be assured," it is minded to render a decision on the merits in the
present petitions to formulate controlling principles to guide the bench, the bar, the public and, most especially, the government
in negotiating with the MILF regarding Ancestral Domain.
Respondents invite the Court's attention to the separate opinion of then Chief Justice Artemio Panganiban in Sanlakas v. Reyes
104
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 the sovereignty and
territorial integrity of the State, which directly affects the lives of the public at large.
Matters of public concern covered by the right to information include steps and negotiations leading to the consummation of the
contract. In not distinguishing as to the executory nature or commercial character of agreements, the Court has categorically ruled:
x x x [T]he right to information "contemplates inclusion of negotiations leading to the consummation of the transaction."
Certainly, a consummated contract is not a requirement for the exercise of the right to information. Otherwise, the people can
never exercise the right if no contract is consummated, and if one is consummated, it may be too late for the public to expose
its defects.
Requiring a consummated contract will keep the public in the dark until the contract, which may be grossly disadvantageous
to the government or even illegal, becomes fait accompli. This negates the State policy of full transparency on matters of
public concern, a situation which the framers of the Constitution could not have intended. Such a requirement will prevent
the citizenry from participating in the public discussion of any proposed contract, effectively truncating a basic right
enshrined in the Bill of Rights. We can allow neither an emasculation of a constitutional right, nor a retreat by the State of its
avowed "policy of full disclosure of all its transactions involving public interest."
122
(Emphasis and italics in the original)
Intended as a "splendid symmetry"
123
to the right to information under the Bill of Rights is the policy of public disclosure under
Section 28, Article II of the Constitution reading:
Sec. 28. Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public
disclosure of all its transactions involving public interest.
124

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

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

Whether Section 28 is self-executory, the records of the deliberations of the Constitutional Commission so disclose:
MR. SUAREZ. And since this is not self-executory, this policy will not be enunciated or will not be in force and effect until
after Congress shall have provided it.
MR. OPLE. I expect it to influence the climate of public ethics immediately but, of course, the implementing law will have to
be enacted by Congress, Mr. Presiding Officer.
128

The following discourse, after Commissioner Hilario Davide, Jr., sought clarification on the issue, is enlightening.
MR. DAVIDE. I would like to get some clarifications on this. Mr. Presiding Officer, did I get the Gentleman correctly as
having said that this is not a self-executing provision? It would require a legislation by Congress to implement?
MR. OPLE. Yes. Originally, it was going to be self-executing, but I accepted an amendment from Commissioner Regalado,
so that the safeguards on national interest are modified by the clause "as may be provided by law"
MR. DAVIDE. But as worded, does it not mean that this will immediately take effect and Congress may provide for
reasonable safeguards on the sole ground national interest?
MR. OPLE. Yes. I think so, Mr. Presiding Officer, I said earlier that it should immediately influence the climate of the
conduct of public affairs but, of course, Congress here may no longer pass a law revoking it, or if this is approved, revoking
this principle, which is inconsistent with this policy.
129
(Emphasis supplied)
Indubitably, the effectivity of the policy of public disclosure need not await the passing of a statute. As Congress cannot revoke
this principle, it is merely directed to provide for "reasonable safeguards." The complete and effective exercise of the right to
information necessitates that its complementary provision on public disclosure derive the same self-executory nature. Since both
provisions go hand-in-hand, it is absurd to say that the 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.
131
Envisioned to be corollary to the twin rights to information and
disclosure is the design for feedback mechanisms.
MS. ROSARIO BRAID. Yes. And lastly, Mr. Presiding Officer, will the people be able to participate? Will the
government provide feedback mechanisms so that the people can participate and can react where the existing media
facilities are not able to provide full feedback mechanisms to the government? I suppose this will be part of the
government implementing operational mechanisms.
MR. OPLE. Yes. I think through their elected representatives and that is how these courses take place. There is a message
and a feedback, both ways.
x x x x
MS. ROSARIO BRAID. Mr. Presiding Officer, may I just make one last sentence?
I think when we talk about the feedback network, we are not talking about public officials but also network of private
business o[r] community-based organizations that will be reacting. As a matter of fact, we will put more credence or
credibility on the private network of volunteers and voluntary community-based organizations. So I do not think we are
afraid that there will be another OMA in the making.
132
(Emphasis supplied)
The imperative of a public consultation, as a species of the right to information, is evident in the "marching orders" to respondents.
The mechanics for the duty to disclose information and to conduct public consultation regarding the peace agenda and process is
manifestly provided by E.O. No. 3.
133
The preambulatory clause of E.O. No. 3 declares that there is a need to further enhance the
contribution of civil society to the comprehensive peace process by institutionalizing the people's participation.
One of the three underlying principles of the comprehensive peace process is that it "should be community-based, reflecting the
sentiments, values and principles important to all Filipinos" and "shall be defined not by the government alone, nor by the different
contending groups only, but by all Filipinos as one community."
134
Included as a component of the comprehensive peace process is
consensus-building and empowerment for peace, which includes "continuing consultations on both national and local levels to build
consensus for a peace agenda and process, and the mobilization and facilitation of people's participation in the peace process."
135

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

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

In fine, E.O. No. 3 establishes petitioners' right to be consulted on the peace agenda, as a corollary to the constitutional right to
information and disclosure.
PAPP Esperon committed grave abuse of discretion
The PAPP committed grave abuse of discretion when he failed to carry out the pertinent consultation. The furtive process by which
the MOA-AD was designed and crafted runs contrary to and in excess of the legal authority, and amounts to a whimsical,
capricious, oppressive, arbitrary and despotic exercise thereof.
The Court may not, of course, require the PAPP to conduct the consultation in a particular way or manner. It may, however, require
him to comply with the law and discharge the functions within the authority granted by the President.
139

Petitioners are not claiming a seat at the negotiating table, contrary to respondents' retort in justifying the denial of petitioners' right to
be consulted. Respondents' stance manifests the manner by which they treat the salient provisions of E.O. No. 3 on people's
participation. Such disregard of the express mandate of the President is not much different from superficial conduct toward token
provisos that border on classic lip service.
140
It illustrates a gross evasion of positive duty and a virtual refusal to perform the duty
enjoined.
As for respondents' invocation of the doctrine of executive privilege, it is not tenable under the premises. The argument defies sound
reason when contrasted with E.O. No. 3's explicit provisions on continuing consultation and dialogue on both national and local levels.
The executive order even recognizes the exercise of the public's right even before the GRP makes its official recommendations or
before the government proffers its definite propositions.
141
It bear emphasis that E.O. No. 3 seeks to elicit relevant advice, information,
comments and recommendations from the people through dialogue.
AT ALL EVENTS, respondents effectively waived the defense of executive privilege in view of their unqualified disclosure of the
official copies of the final draft of the MOA-AD. By unconditionally complying with the Court's August 4, 2008 Resolution, without a
prayer for the document's disclosure in camera, or without a manifestation that it was complying therewith ex abundante ad cautelam.
Petitioners' assertion that the Local Government Code (LGC) of 1991 declares it a State policy to "require all national agencies and
offices to conduct periodic consultations with appropriate local government units, non-governmental and people's organizations, and
other concerned sectors of the community before any project or program is implemented in their respective jurisdictions"
142
is well-
taken. The LGC chapter on intergovernmental relations puts flesh into this avowed policy:
Prior Consultations Required. - No project or program shall be implemented by government authorities unless the
consultations mentioned in Sections 2 (c) and 26 hereof are complied with, and prior approval of the sanggunian concerned is
obtained: Provided, That occupants in areas where such projects are to be implemented shall not be evicted unless appropriate
relocation sites have been provided, in accordance with the provisions of the Constitution.
143
(Italics and underscoring
supplied)
In Lina, Jr. v. Hon. Pao,
144
the Court held that the above-stated policy and above-quoted provision of the LGU apply only to national
programs or projects which are to be implemented in a particular local community. Among the programs and projects covered are
those that are critical to the environment and human ecology including those that may call for the eviction of a particular group of
people residing in the locality where these will be implemented.
145
The MOA-AD is one peculiar program that unequivocally and
unilaterally vests ownership of a vast territory to the Bangsamoro people,
146
which could pervasively and drastically result to
the diaspora or displacement of a great number of inhabitants from their total environment.
With respect to the indigenous cultural communities/indigenous peoples (ICCs/IPs), whose interests are represented herein by
petitioner Lopez and are adversely affected by the MOA-AD, the ICCs/IPs have, under the IPRA, the right to participate fully at all
levels of decision-making in matters which may affect their rights, lives and destinies.
147
The MOA-AD, an instrument recognizing
ancestral domain, failed to justify its non-compliance with the clear-cut mechanisms ordained in said Act,
148
which entails, among
other things, the observance of the free and prior informed consent of the ICCs/IPs.
Notably, the IPRA does not grant the Executive Department or any government agency the power to delineate and recognize an
ancestral domain claim by mere agreement or compromise. The recognition of the ancestral domain is the raison d'etre of the MOA-
AD, without which all other stipulations or "consensus points" necessarily must fail. In proceeding to make a sweeping declaration on
ancestral domain, without complying with the IPRA, which is cited as one of the TOR of the MOA-AD, respondents clearly
transcended the boundaries of their authority. As it seems, even the heart of the MOA-AD is still subject to necessary changes to
the legal framework. While paragraph 7 on Governance suspends the effectivity of all provisions requiring changes to the legal
framework, such clause is itself invalid, as will be discussed in the following section.
Indeed, ours is an open society, with all the acts of the government subject to public scrutiny and available always to public
cognizance. This has to be so if the country is to remain democratic, with sovereignty residing in the people and all government
authority emanating from them.
149

ON THE SECOND SUBSTANTIVE ISSUE
With regard to the provisions of the MOA-AD, there can be no question that they cannot all be accommodated under the present
Constitution and laws. Respondents have admitted as much in the oral arguments before this Court, and the MOA-AD itself
recognizes the need to amend the existing legal framework to render effective at least some of its provisions. Respondents,
nonetheless, counter that the MOA-AD is free of any legal infirmity because any provisions therein which are inconsistent with the
present legal framework will not be effective until the necessary changes to that framework are made. The validity of this argument
will be considered later. For now, the Court shall pass upon how
The MOA-AD is inconsistent with the Constitution and laws as presently worded.
In general, the objections against the MOA-AD center on the extent of the powers conceded therein to the BJE. Petitioners assert that
the powers granted to the BJE exceed those granted to any local government under present laws, and even go beyond those of the
present ARMM. Before assessing some of the specific powers that would have been vested in the BJE, however, it would be useful to
turn first to a general idea that serves as a unifying link to the different provisions of the MOA-AD, namely, the international law
concept of association. Significantly, the MOA-AD explicitly alludes to this concept, indicating that the Parties actually framed its
provisions with it in mind.
Association is referred to in paragraph 3 on TERRITORY, paragraph 11 on RESOURCES, and paragraph 4 on GOVERNANCE. It is
in the last mentioned provision, however, that the MOA-AD most clearly uses it to describe the envisioned relationship between the
BJE and the Central Government.
4. The relationship between the Central Government and the Bangsamoro juridical entity shall be associative
characterized by shared authority and responsibility with a structure of governance based on executive, legislative,
judicial and administrative institutions with defined powers and functions in the comprehensive compact. A period of
transition shall be established in a comprehensive peace compact specifying the relationship between the Central Government
and the BJE. (Emphasis and underscoring supplied)
The nature of the "associative" relationship may have been intended to be defined more precisely in the still to be forged
Comprehensive Compact. Nonetheless, given that there is a concept of "association" in international law, and the MOA-AD - by its
inclusion of international law instruments in its TOR- placed itself in an international legal context, that concept of association may be
brought to bear in understanding the use of the term "associative" in the MOA-AD.
Keitner and Reisman state that
[a]n association is formed when two states of unequal power voluntarily establish durable links. In the basic model, one
state, the associate, delegates certain responsibilities to the other, the principal, while maintaining its international
status as a state. Free associations represent a middle ground between integration and independence. x x x
150

(Emphasis and underscoring supplied)
For purposes of illustration, the Republic of the Marshall Islands and the Federated States of Micronesia (FSM), formerly part of the
U.S.-administered Trust Territory of the Pacific Islands,
151
are associated states of the U.S. pursuant to a Compact of Free Association.
The currency in these countries is the U.S. dollar, indicating their very close ties with the U.S., yet they issue their own travel
documents, which is a mark of their statehood. Their international legal status as states was confirmed by the UN Security Council and
by their admission to UN membership.
According to their compacts of free association, the Marshall Islands and the FSM generally have the capacity to conduct foreign
affairs in their own name and right, such capacity extending to matters such as the law of the sea, marine resources, trade, banking,
postal, civil aviation, and cultural relations. The U.S. government, when conducting its foreign affairs, is obligated to consult with the
governments of the Marshall Islands or the FSM on matters which it (U.S. government) regards as relating to or affecting either
government.
In the event of attacks or threats against the Marshall Islands or the FSM, the U.S. government has the authority and obligation to
defend them as if they were part of U.S. territory. The U.S. government, moreover, has the option of establishing and using military
areas and facilities within these associated states and has the right to bar the military personnel of any third country from having
access to these territories for military purposes.
It bears noting that in U.S. constitutional and international practice, free association is understood as an international association
between sovereigns. The Compact of Free Association is a treaty which is subordinate to the associated nation's national constitution,
and each party may terminate the association consistent with the right of independence. It has been said that, with the admission of the
U.S.-associated states to the UN in 1990, the UN recognized that the American model of free association is actually based on an
underlying status of independence.
152

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

Back to the MOA-AD, it contains many provisions which are consistent with the international legal concept of association,
specifically the following: the BJE's capacity to enter into economic and trade relations with foreign countries, the commitment of the
Central Government to ensure the BJE's participation in meetings and events in the ASEAN and the specialized UN agencies, and the
continuing responsibility of the Central Government over external defense. Moreover, the BJE's right to participate in Philippine
official missions bearing on negotiation of border agreements, environmental protection, and sharing of revenues pertaining to the
bodies of water adjacent to or between the islands forming part of the ancestral domain, resembles the right of the governments of
FSM and the Marshall Islands to be consulted by the U.S. government on any foreign affairs matter affecting them.
These provisions of the MOA indicate, among other things, that the Parties aimed to vest in the BJE the status of an associated state
or, at any rate, a status closely approximating it.
The concept of association is not recognized under the present Constitution
No province, city, or municipality, not even the ARMM, is recognized under our laws as having an "associative" relationship with the
national government. Indeed, the concept implies powers that go beyond anything ever granted by the Constitution to any local or
regional government. It also implies the recognition of the associated entity as a state. The Constitution, however, does not
contemplate any state in this jurisdiction other than the Philippine State, much less does it provide for a transitory status that aims to
prepare any part of Philippine territory for independence.
Even the mere concept animating many of the MOA-AD's provisions, therefore, already requires for its validity the amendment of
constitutional provisions, specifically the following provisions of Article X:
SECTION 1. The territorial and political subdivisions of the Republic of the Philippines are the provinces, cities,
municipalities, and barangays. There shall be autonomous regions in Muslim Mindanao and the Cordilleras as hereinafter
provided.
SECTION 15. There shall be created autonomous regions in Muslim Mindanao and in the Cordilleras consisting of
provinces, cities, municipalities, and geographical areas sharing common and distinctive historical and cultural heritage,
economic and social structures, and other relevant characteristics within the framework of this Constitution and the
national sovereignty as well as territorial integrity of the Republic of the Philippines.
The BJE is a far more powerful
entity than the autonomous region
recognized in the Constitution
It is not merely an expanded version of the ARMM, the status of its relationship with the national government being fundamentally
different from that of the ARMM. Indeed, BJE is a state in all but name as it meets the criteria of a state laid down in the
Montevideo Convention,
154
namely, a permanent population, a defined territory, a government, and a capacity to enter into relations
with other states.
Even assuming arguendo that the MOA-AD would not necessarily sever any portion of Philippine territory, the spirit animating it -
which has betrayed itself by its use of the concept of association - runs counter to the national sovereignty and territorial integrity
of the Republic.
The defining concept underlying the relationship between the national government and the BJE being itself contrary to the
present Constitution, it is not surprising that many of the specific provisions of the MOA-AD on the formation and powers of
the BJE are in conflict with the Constitution and the laws.
Article X, Section 18 of the Constitution provides that "[t]he creation of the autonomous region shall be effective when approved by a
majority of the votes cast by the constituent units in a plebiscite called for the purpose, provided that only provinces, cities, and
geographic areas voting favorably in such plebiscite shall be included in the autonomous region." (Emphasis supplied)
As reflected above, the BJE is more of a state than an autonomous region. But even assuming that it is covered by the term
"autonomous region" in the constitutional provision just quoted, the MOA-AD would still be in conflict with it. Under paragraph 2(c)
on TERRITORY in relation to 2(d) and 2(e), the present geographic area of the ARMM and, in addition, the municipalities of Lanao
del Norte which voted for inclusion in the ARMM during the 2001 plebiscite - Baloi, Munai, Nunungan, Pantar, Tagoloan and
Tangkal - are automatically part of the BJE without need of another plebiscite, in contrast to the areas under Categories A and B
mentioned earlier in the overview. That the present components of the ARMM and the above-mentioned municipalities voted for
inclusion therein in 2001, however, does not render another plebiscite unnecessary under the Constitution, precisely because what
these areas voted for then was their inclusion in the ARMM, not the BJE.
The MOA-AD, moreover, would not
comply with Article X, Section 20 of
the Constitution
since that provision defines the powers of autonomous regions as follows:
SECTION 20. Within its territorial jurisdiction and subject to the provisions of this Constitution and national laws, the
organic act of autonomous regions shall provide for legislative powers over:
(1) Administrative organization;
(2) Creation of sources of revenues;
(3) Ancestral domain and natural resources;
(4) Personal, family, and property relations;
(5) Regional urban and rural planning development;
(6) Economic, social, and tourism development;
(7) Educational policies;
(8) Preservation and development of the cultural heritage; and
(9) Such other matters as may be authorized by law for the promotion of the general welfare of the people of the region.
(Underscoring supplied)
Again on the premise that the BJE may be regarded as an autonomous region, the MOA-AD would require an amendment that would
expand the above-quoted provision. The mere passage of new legislation pursuant to sub-paragraph No. 9 of said constitutional
provision would not suffice, since any new law that might vest in the BJE the powers found in the MOA-AD must, itself, comply with
other provisions of the Constitution. It would not do, for instance, to merely pass legislation vesting the BJE with treaty-making power
in order to accommodate paragraph 4 of the strand on RESOURCES which states: "The BJE is free to enter into any economic
cooperation and trade relations with foreign countries: provided, however, that such relationships and understandings do not include
aggression against the Government of the Republic of the Philippines x x x." Under our constitutional system, it is only the President
who has that power. Pimentel v. Executive Secretary
155
instructs:
In our system of government, the President, being the head of state, is regarded as the sole organ and authority in external
relations and is the country's sole representative with foreign nations. As the chief architect of foreign policy, the
President acts as the country's mouthpiece with respect to international affairs. Hence, the President is vested with the
authority to deal with foreign states and governments, extend or withhold recognition, maintain diplomatic relations,
enter into treaties, and otherwise transact the business of foreign relations. In the realm of treaty-making, the
President has the sole authority to negotiate with other states. (Emphasis and underscoring supplied)
Article II, Section 22 of the Constitution must also be amended if the scheme envisioned in the MOA-AD is to be effected. That
constitutional provision states: "The State recognizes and promotes the rights of indigenous cultural communities within the
framework of national unity and development." (Underscoring supplied) An associative arrangement does not uphold national unity.
While there may be a semblance of unity because of the associative ties between the BJE and the national government, the act of
placing a portion of Philippine territory in a status which, in international practice, has generally been a preparation for independence,
is certainly not conducive to national unity.
Besides being irreconcilable with the Constitution, the MOA-AD is also inconsistent with prevailing statutory law, among which
are R.A. No. 9054
156
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:
x x x x
b) Petition for Delineation. - The process of delineating a specific perimeter may be initiated by the NCIP with the consent of
the ICC/IP concerned, or through a Petition for Delineation filed with the NCIP, by a majority of the members of the
ICCs/IPs;
c) Delineation Proper. - The official delineation of ancestral domain boundaries including census of all community members
therein, shall be immediately undertaken by the Ancestral Domains Office upon filing of the application by the ICCs/IPs
concerned. Delineation will be done in coordination with the community concerned and shall at all times include genuine
involvement and participation by the members of the communities concerned;
d) Proof Required. - Proof of Ancestral Domain Claims shall include the testimony of elders or community under oath, and
other documents directly or indirectly attesting to the possession or occupation of the area since time immemorial by such
ICCs/IPs in the concept of owners which shall be any one (1) of the following authentic documents:
1) Written accounts of the ICCs/IPs customs 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.
x x x x
To remove all doubts about the irreconcilability of the MOA-AD with the present legal system, a discussion of not only the
Constitution and domestic statutes, but also of international law is in order, for
Article II, Section 2 of the Constitution states that the Philippines "adopts the generally accepted principles of international
law as part of the law of the land."
Applying this provision of the Constitution, the Court, in Mejoff v. Director of Prisons,
158
held that the Universal Declaration of
Human Rights is part of the law of the land on account of which it ordered the release on bail of a detained alien of Russian descent
whose deportation order had not been executed even after two years. Similarly, the Court in Agustin v. Edu
159
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 or construed as authorizing or encouraging
any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign
and independent States.
Even if the UN DRIP were considered as part of the law of the land pursuant to Article II, Section 2 of the Constitution, it would not
suffice to uphold the validity of the MOA-AD so as to render its compliance with other laws unnecessary.
It is, therefore, clear that the MOA-AD contains numerous provisions that cannot be reconciled with the Constitution and the
laws as presently worded. Respondents proffer, however, that the signing of the MOA-AD alone would not have entailed any
violation of law or grave abuse of discretion on their part, precisely because it stipulates that the provisions thereof inconsistent with
the laws shall not take effect until these laws are amended. They cite paragraph 7 of the MOA-AD strand on GOVERNANCE quoted
earlier, but which is reproduced below for convenience:
7. The Parties agree that the mechanisms and modalities for the actual implementation of this MOA-AD shall be spelt out in
the Comprehensive Compact to mutually take such steps to enable it to occur effectively.
Any provisions of the MOA-AD requiring amendments to the existing legal framework shall come into force upon signing of
a Comprehensive Compact and upon effecting the necessary changes to the legal framework with due regard to non
derogation of prior agreements and within the stipulated timeframe to be contained in the Comprehensive Compact.
Indeed, the foregoing stipulation keeps many controversial provisions of the MOA-AD from coming into force until the necessary
changes to the legal framework are effected. While the word "Constitution" is not mentioned in the provision now under
consideration or anywhere else in the MOA-AD, the term "legal framework" is certainly broad enough to include the
Constitution.
Notwithstanding the suspensive clause, however, respondents, by their mere act of incorporating in the MOA-AD the provisions
thereof regarding the associative relationship between the BJE and the Central Government, have already violated the Memorandum
of Instructions From The President dated March 1, 2001, which states that the "negotiations shall be conducted in accordance with x x
x the principles of the sovereignty and territorial integrity of the Republic of the Philippines." (Emphasis supplied) Establishing an
associative relationship between the BJE and the Central Government is, for the reasons already discussed, a preparation for
independence, or worse, an implicit acknowledgment of an independent status already prevailing.
Even apart from the above-mentioned Memorandum, however, the MOA-AD is defective because the suspensive clause is invalid, as
discussed below.
The authority of the GRP Peace Negotiating Panel to negotiate with the MILF is founded on E.O. No. 3, Section 5(c), which states
that there shall be established Government Peace Negotiating Panels for negotiations with different rebel groups to be "appointed by
the President as her official emissaries to conduct negotiations, dialogues, and face-to-face discussions with rebel groups." These
negotiating panels are to report to the President, through the PAPP on the conduct and progress of the negotiations.
It bears noting that the GRP Peace Panel, in exploring lasting solutions to the Moro Problem through its negotiations with the MILF,
was not restricted by E.O. No. 3 only to those options available under the laws as they presently stand. One of the components of a
comprehensive peace process, which E.O. No. 3 collectively refers to as the "Paths to Peace," is the pursuit of social, economic, and
political reforms which may require new legislation or even constitutional amendments. Sec. 4(a) of E.O. No. 3, which reiterates
Section 3(a), of E.O. No. 125,
167
states:
SECTION 4. The Six Paths to Peace. - The components of the comprehensive peace process comprise the processes known
as the "Paths to Peace". These component processes are interrelated and not mutually exclusive, and must therefore be
pursued simultaneously in a coordinated and integrated fashion. They shall include, but may not be limited to, the following:
a. PURSUIT OF SOCIAL, ECONOMIC AND POLITICAL REFORMS. This component involves the vigorous
implementation of various policies, reforms, programs and projects aimed at addressing the root causes of internal
armed conflicts and social unrest. This may require administrative action, new legislation or even constitutional
amendments.
x x x x (Emphasis supplied)
The MOA-AD, therefore, may reasonably be perceived as an attempt of respondents to address, pursuant to this provision of E.O. No.
3, the root causes of the armed conflict in Mindanao. The E.O. authorized them to "think outside the box," so to speak. Hence, they
negotiated and were set on signing the MOA-AD that included various social, economic, and political reforms which cannot, however,
all be accommodated within the present legal framework, and which thus would require new legislation and constitutional
amendments.
The inquiry on the legality of the "suspensive clause," however, cannot stop here, because it must be asked whether the President
herself may exercise the power delegated to the GRP Peace Panel under E.O. No. 3, Sec. 4(a).
The President cannot delegate a power that she herself does not possess. May the President, in the course of peace negotiations, agree
to pursue reforms that would require new legislation and constitutional amendments, or should the reforms be restricted only to those
solutions which the present laws allow? The answer to this question requires a discussion of the extent of the President's power to
conduct peace negotiations.
That the authority of the President to conduct peace negotiations with rebel groups is not explicitly mentioned in the Constitution does
not mean that she has no such authority. In Sanlakas v. Executive Secretary,
168
in issue was the authority of the President to declare a
state of rebellion - an authority which is not expressly provided for in the Constitution. The Court held thus:
"In her ponencia in Marcos v. Manglapus, Justice Cortes put her thesis into jurisprudence. There, the Court, by a slim 8-7
margin, upheld the President's power to forbid the return of her exiled predecessor. The rationale for the majority's ruling
rested on the President's
. . . unstated residual powers which are implied from the grant of executive power and which are necessary
for her to comply with her duties under the Constitution. The powers of the President are not limited to what
are expressly enumerated in the article on the Executive Department and in scattered provisions of the
Constitution. This is so, notwithstanding the avowed intent of the members of the Constitutional Commission of
1986 to limit the powers of the President as a reaction to the abuses under the regime of Mr. Marcos, for the result
was a limitation of specific powers of the President, particularly those relating to the commander-in-chief clause, but
not a diminution of the general grant of executive power.
Thus, the President's authority to declare a state of rebellion springs in the main from her powers as chief executive
and, at the same time, draws strength from her Commander-in-Chief powers. x x x (Emphasis and underscoring
supplied)
Similarly, the President's power to conduct peace negotiations is implicitly included in her powers as Chief Executive and
Commander-in-Chief. As Chief Executive, the President has the general responsibility to promote public peace, and as Commander-
in-Chief, she has the more specific duty to prevent and suppress rebellion and lawless violence.
169

As the experience of nations which have similarly gone through internal armed conflict will show, however, peace is rarely attained by
simply pursuing a military solution. Oftentimes, changes as far-reaching as a fundamental reconfiguration of the nation's constitutional
structure is required. The observations of Dr. Kirsti Samuels are enlightening, to wit:
x x x [T]he fact remains that a successful political and governance transition must form the core of any post-conflict peace-
building mission. As we have observed in Liberia and Haiti over the last ten years, conflict cessation without modification of
the political environment, even where state-building is undertaken through technical electoral assistance and institution- or
capacity-building, is unlikely to succeed. On average, more than 50 percent of states emerging from conflict return to
conflict. Moreover, a substantial proportion of transitions have resulted in weak or limited democracies.
The design of a constitution and its constitution-making process can play an important role in the political and governance
transition. Constitution-making after conflict is an opportunity to create a common vision of the future of a state and a road
map on how to get there. The constitution can be partly a peace agreement and partly a framework setting up the rules by
which the new democracy will operate.
170

In the same vein, Professor Christine Bell, in her article on the nature and legal status of peace agreements, observed that the typical
way that peace agreements establish or confirm mechanisms for demilitarization and demobilization is by linking them to new
constitutional structures addressing governance, elections, and legal and human rights institutions.
171

In the Philippine experience, the link between peace agreements and constitution-making has been recognized by no less than the
framers of the Constitution. Behind the provisions of the Constitution on autonomous regions
172
is the framers' intention to implement
a particular peace agreement, namely, the Tripoli Agreement of 1976 between the GRP and the MNLF, signed by then Undersecretary
of National Defense Carmelo Z. Barbero and then MNLF Chairman Nur Misuari.
MR. ROMULO. There are other speakers; so, although I have some more questions, I will reserve my right to ask them if
they are not covered by the other speakers. I have only two questions.
I heard one of the Commissioners say that local autonomy already exists in the Muslim region; it is working very well;
it has, in fact, diminished a great deal of the problems. So, my question is: since that already exists, why do we have to go
into something new?
MR. OPLE. May I answer that on behalf of Chairman Nolledo. Commissioner Yusup Abubakar is right that certain definite
steps have been taken to implement the provisions of the Tripoli Agreement with respect to an autonomous region in
Mindanao. This is a good first step, but there is no question that this is merely a partial response to the Tripoli
Agreement itself and to the fuller standard of regional autonomy contemplated in that agreement, and now by state
policy.
173
(Emphasis supplied)
The constitutional provisions on autonomy and the statutes enacted pursuant to them have, to the credit of their drafters, been partly
successful. Nonetheless, the Filipino people are still faced with the reality of an on-going conflict between the Government and the
MILF. If the President is to be expected to find means for bringing this conflict to an end and to achieve lasting peace in Mindanao,
then she must be given the leeway to explore, in the course of peace negotiations, solutions that may require changes to the
Constitution for their implementation. Being uniquely vested with the power to conduct peace negotiations with rebel groups, the
President is in a singular position to know the precise nature of their grievances which, if resolved, may bring an end to hostilities.
The President may not, of course, unilaterally implement the solutions that she considers viable, but she may not be prevented from
submitting them as recommendations to Congress, which could then, if it is minded, act upon them pursuant to the legal procedures
for constitutional amendment and revision. In particular, Congress would have the option, pursuant to Article XVII, Sections 1 and 3
of the Constitution, to propose the recommended amendments or revision to the people, call a constitutional convention, or submit to
the electorate the question of calling such a convention.
While the President does not possess constituent powers - as those powers may be exercised only by Congress, a Constitutional
Convention, or the people through initiative and referendum - she may submit proposals for constitutional change to Congress in a
manner that does not involve the arrogation of constituent powers.
In Sanidad v. COMELEC,
174
in issue was the legality of then President Marcos' act of directly submitting proposals for constitutional
amendments to a referendum, bypassing the interim National Assembly which was the body vested by the 1973 Constitution with the
power to propose such amendments. President Marcos, it will be recalled, never convened the interim National Assembly. The
majority upheld the President's act, holding that "the urges of absolute necessity" compelled the President as the agent of the people to
act as he did, there being no interim National Assembly to propose constitutional amendments. Against this ruling, Justices Teehankee
and Muoz Palma vigorously dissented. The Court's concern at present, however, is not with regard to the point on which it was then
divided in that controversial case, but on that which was not disputed by either side.
Justice Teehankee's dissent,
175
in particular, bears noting. While he disagreed that the President may directly submit proposed
constitutional amendments to a referendum, implicit in his opinion is a recognition that he would have upheld the President's action
along with the majority had the President convened the interim National Assembly and coursed his proposals through it. Thus Justice
Teehankee opined:
"Since the Constitution provides for the organization of the essential departments of government, defines and delimits the
powers of each and prescribes the manner of the exercise of such powers, and the constituent power has not been granted to
but has been withheld from the President or Prime Minister, it follows that the President's questioned decrees proposing and
submitting constitutional amendments directly to the people (without the intervention of the interim National Assembly in
whom the power is expressly vested) are devoid of constitutional and legal basis."
176
(Emphasis supplied)
From the foregoing discussion, the principle may be inferred that the President - in the course of conducting peace negotiations - may
validly consider implementing even those policies that require changes to the Constitution, but she may not unilaterally implement
them without the intervention of Congress, or act in any way as if the assent of that body were assumed as a certainty.
Since, under the present Constitution, the people also have the power to directly propose amendments through initiative and
referendum, the President may also submit her recommendations to the people, not as a formal proposal to be voted on in a plebiscite
similar to what President Marcos did in Sanidad, but for their independent consideration of whether these recommendations merit
being formally proposed through initiative.
These recommendations, however, may amount to nothing more than the President's suggestions to the people, for any further
involvement in the process of initiative by the Chief Executive may vitiate its character as a genuine "people's initiative." The only
initiative recognized by the Constitution is that which truly proceeds from the people. As the Court stated in Lambino v.
COMELEC:
177

"The Lambino Group claims that their initiative is the people's voice.' However, the Lambino Group unabashedly states in
ULAP Resolution No. 2006-02, in the verification of their petition with the COMELEC, that ULAP maintains its
unqualified support to the agenda of Her Excellency President Gloria Macapagal-Arroyo for constitutional reforms.' The
Lambino Group thus admits that their people's' initiative is an unqualified support to the agenda' of the incumbent
President to change the Constitution. This forewarns the Court to be wary of incantations of people's voice' or sovereign
will' in the present initiative."
It will be observed that the President has authority, as stated in her oath of office,
178
only to preserve and defend the Constitution. Such
presidential power does not, however, extend to allowing her to change the Constitution, but simply to recommend proposed
amendments or revision. As long as she limits herself to recommending these changes and submits to the proper procedure for
constitutional amendments and revision, her mere recommendation need not be construed as an unconstitutional act.
The foregoing discussion focused on the President's authority to propose constitutional amendments, since her authority to propose
new legislation is not in controversy. It has been an accepted practice for Presidents in this jurisdiction to propose new legislation.
One of the more prominent instances the practice is usually done is in the yearly State of the Nation Address of the President to
Congress. Moreover, the annual general appropriations bill has always been based on the budget prepared by the President, which - for
all intents and purposes - is a proposal for new legislation coming from the President.
179

The "suspensive clause" in the MOA-AD viewed in light of the above-discussed standards
Given the limited nature of the President's authority to propose constitutional amendments, she cannot guarantee to any third party
that the required amendments will eventually be put in place, nor even be submitted to a plebiscite. The most she could do is submit
these proposals as recommendations either to Congress or the people, in whom constituent powers are vested.
Paragraph 7 on Governance of the MOA-AD states, however, that all provisions thereof which cannot be reconciled with the present
Constitution and laws "shall come into force upon signing of a Comprehensive Compact and upon effecting the necessary changes to
the legal framework." This stipulation does not bear the marks of a suspensive condition - defined in civil law as a future and
uncertain event - but of a term. It is not a question of whether the necessary changes to the legal framework will be effected, but
when. That there is no uncertainty being contemplated is plain from what follows, for the paragraph goes on to state that the
contemplated changes shall be "with due regard to non derogation of prior agreements and within the stipulated timeframe to be
contained in the Comprehensive Compact."
Pursuant to this stipulation, therefore, it is mandatory for the GRP to effect the changes to the legal framework contemplated in the
MOA-AD - which changes would include constitutional amendments, as discussed earlier. It bears noting that,
By the time these changes are put in place, the MOA-AD itself would be counted among the "prior agreements" from which
there could be no derogation.
What remains for discussion in the Comprehensive Compact would merely be the implementing details for these "consensus points"
and, notably, the deadline for effecting the contemplated changes to the legal framework.
Plainly, stipulation-paragraph 7 on GOVERNANCE is inconsistent with the limits of the President's authority to propose
constitutional amendments, it being a virtual guarantee that the Constitution and the laws of the Republic of the Philippines will
certainly be adjusted to conform to all the "consensus points" found in the MOA-AD. Hence, it must be struck down as
unconstitutional.
A comparison between the "suspensive clause" of the MOA-AD with a similar provision appearing in the 1996 final peace agreement
between the MNLF and the GRP is most instructive.
As a backdrop, the parties to the 1996 Agreement stipulated that it would be implemented in two phases. Phase I covered a three-year
transitional period involving the putting up of new administrative structures through Executive Order, such as the Special Zone of
Peace and Development (SZOPAD) and the Southern Philippines Council for Peace and Development (SPCPD), while Phase II
covered the establishment of the new regional autonomous government through amendment or repeal of R.A. No. 6734, which was
then the Organic Act of the ARMM.
The stipulations on Phase II consisted of specific agreements on the structure of the expanded autonomous region envisioned by the
parties. To that extent, they are similar to the provisions of the MOA-AD. There is, however, a crucial difference between the two
agreements. While the MOA-AD virtually guarantees that the "necessary changes to the legal framework" will be put in place,
the GRP-MNLF final peace agreement states thus: "Accordingly, these provisions [on Phase II] shall be recommended by the GRP to
Congress for incorporation in the amendatory or repealing law."
Concerns have been raised that the MOA-AD would have given rise to a binding international law obligation on the part of the
Philippines to change its Constitution in conformity thereto, on the ground that it may be considered either as a binding agreement
under international law, or a unilateral declaration of the Philippine government to the international community that it would grant to
the Bangsamoro people all the concessions therein stated. Neither ground finds sufficient support in international law, however.
The MOA-AD, as earlier mentioned in the overview thereof, would have included foreign dignitaries as signatories. In addition,
representatives of other nations were invited to witness its signing in Kuala Lumpur. These circumstances readily lead one to surmise
that the MOA-AD would have had the status of a binding international agreement had it been signed. An examination of the prevailing
principles in international law, however, leads to the contrary conclusion.
The Decision on Challenge to Jurisdiction: Lom Accord Amnesty
180
(the Lom Accord case) of the Special Court of Sierra Leone is
enlightening. The Lom 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 Lom 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 Lom Accord case, the Defence argued that the Accord created an internationally binding obligation not to prosecute the
beneficiaries of the amnesty provided therein, citing, among other things, the participation of foreign dignitaries and international
organizations in the finalization of that agreement. The Special Court, however, rejected this argument, ruling that the Lome Accord is
not a treaty and that it can only create binding obligations and rights between the parties in municipal law, not in international law.
Hence, the Special Court held, it is ineffective in depriving an international court like it of jurisdiction.
"37. In regard to the nature of a negotiated settlement of an internal armed conflict it is easy to assume and to argue with
some degree of plausibility, as Defence counsel for the defendants seem to have done, that the mere fact that in
addition to the parties to the conflict, the document formalizing the settlement is signed by foreign heads of state or
their representatives and representatives of international organizations, means the agreement of the parties is
internationalized so as to create obligations in international law.
x x x x
40. Almost every conflict resolution will involve the parties to the conflict and the mediator or facilitator of the settlement, or
persons or bodies under whose auspices the settlement took place but who are not at all parties to the conflict, are not
contracting parties and who do not claim any obligation from the contracting parties or incur any obligation from the
settlement.
41. In this case, the parties to the conflict are the lawful authority of the State and the RUF which has no status of
statehood and is to all intents and purposes a faction within the state. The non-contracting signatories of the Lom
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 Lom Agreement created neither rights nor obligations capable of being regulated by international
law. An agreement such as the Lom 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 Lom
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.
x x x x
51. In announcing that the 1974 series of atmospheric tests would be the last, the French Government conveyed to the
world at large, including the Applicant, its intention effectively to terminate these tests. It was bound to assume that
other States might take note of these statements and rely on their being effective. The validity of these statements and
their legal consequences must be considered within the general framework of the security of international intercourse,
and the confidence and trust which are so essential in the relations among States. It is from the actual substance of these
statements, and from the circumstances attending their making, that the legal implications of the unilateral act must
be deduced. The objects of these statements are clear and they were addressed to the international community as a
whole, and the Court holds that they constitute an undertaking possessing legal effect. The Court considers *270 that the
President of the Republic, in deciding upon the effective cessation of atmospheric tests, gave an undertaking to the
international community to which his words were addressed. x x x (Emphasis and underscoring supplied)
As gathered from the above-quoted ruling of the ICJ, public statements of a state representative may be construed as a unilateral
declaration only when the following conditions are present: the statements were clearly addressed to the international community, the
state intended to be bound to that community by its statements, and that not to give legal effect to those statements would be
detrimental to the security of international intercourse. Plainly, unilateral declarations arise only in peculiar circumstances.
The limited applicability of the Nuclear Tests Case ruling was recognized in a later case decided by the ICJ entitled Burkina Faso v.
Mali,
183
also known as the Case Concerning the Frontier Dispute. The public declaration subject of that case was a statement made by
the President of Mali, in an interview by a foreign press agency, that Mali would abide by the decision to be issued by a commission
of the Organization of African Unity on a frontier dispute then pending between Mali and Burkina Faso.
Unlike in the Nuclear Tests Case, the ICJ held that the statement of Mali's President was not a unilateral act with legal implications. It
clarified that its ruling in the Nuclear Tests case rested on the peculiar circumstances surrounding the French declaration subject
thereof, to wit:
40. In order to assess the intentions of the author of a unilateral act, account must be taken of all the factual circumstances in
which the act occurred. For example, in the Nuclear Tests cases, the Court took the view that since the applicant States
were not the only ones concerned at the possible continuance of atmospheric testing by the French Government, that
Government's unilateral declarations had conveyed to the world at large, including the Applicant, its intention
effectively to terminate these tests (I.C.J. Reports 1974, p. 269, para. 51; p. 474, para. 53). In the particular
circumstances of those cases, the French Government could not express an intention to be bound otherwise than by
unilateral declarations. It is difficult to see how it could have accepted the terms of a negotiated solution with each of
the applicants without thereby jeopardizing its contention that its conduct was lawful. The circumstances of the
present case are radically different. Here, there was nothing to hinder the Parties from manifesting an intention to
accept the binding character of the conclusions of the Organization of African Unity Mediation Commission by the
normal method: a formal agreement on the basis of reciprocity. Since no agreement of this kind was concluded between
the Parties, the Chamber finds that there are no grounds to interpret the declaration made by Mali's head of State on 11 April
1975 as a unilateral act with legal implications in regard to the present case. (Emphasis and underscoring supplied)
Assessing the MOA-AD in light of the above criteria, it would not have amounted to a unilateral declaration on the part of the
Philippine State to the international community. The Philippine panel did not draft the same with the clear intention of being bound
thereby to the international community as a whole or to any State, but only to the MILF. While there were States and international
organizations involved, one way or another, in the negotiation and projected signing of the MOA-AD, they participated merely as
witnesses or, in the case of Malaysia, as facilitator. As held in the Lom Accord case, the mere fact that in addition to the parties to the
conflict, the peace settlement is signed by representatives of states and international organizations does not mean that the agreement is
internationalized so as to create obligations in international law.
Since the commitments in the MOA-AD were not addressed to States, not to give legal effect to such commitments would not be
detrimental to the security of international intercourse - to the trust and confidence essential in the relations among States.
In one important respect, the circumstances surrounding the MOA-AD are closer to that of Burkina Faso wherein, as already
discussed, the Mali President's statement was not held to be a binding unilateral declaration by the ICJ. As in that case, there was also
nothing to hinder the Philippine panel, had it really been its intention to be bound to other States, to manifest that intention by formal
agreement. Here, that formal agreement would have come about by the inclusion in the MOA-AD of a clear commitment to be legally
bound to the international community, not just the MILF, and by an equally clear indication that the signatures of the participating
states-representatives would constitute an acceptance of that commitment. Entering into such a formal agreement would not have
resulted in a loss of face for the Philippine government before the international community, which was one of the difficulties that
prevented the French Government from entering into a formal agreement with other countries. That the Philippine panel did not enter
into such a formal agreement suggests that it had no intention to be bound to the international community. On that ground, the MOA-
AD may not be considered a unilateral declaration under international law.
The MOA-AD not being a document that can bind the Philippines under international law notwithstanding, respondents' almost
consummated act of guaranteeing amendments to the legal framework is, by itself, sufficient to constitute grave abuse of
discretion. The grave abuse lies not in the fact that they considered, as a solution to the Moro Problem, the creation of a state within a
state, but in their brazen willingness to guarantee that Congress and the sovereign Filipino people would give their imprimatur
to their solution. Upholding such an act would amount to authorizing a usurpation of the constituent powers vested only in Congress,
a Constitutional Convention, or the people themselves through the process of initiative, for the only way that the Executive can ensure
the outcome of the amendment process is through an undue influence or interference with that process.
The sovereign people may, if it so desired, go to the extent of giving up a portion of its own territory to the Moros for the sake of
peace, for it can change the Constitution in any it wants, so long as the change is not inconsistent with what, in international law, is
known as Jus Cogens.
184
Respondents, however, may not preempt it in that decision.
SUMMARY
The petitions are ripe for adjudication. The failure of respondents to consult the local government units or communities affected
constitutes a departure by respondents from their mandate under E.O. No. 3. Moreover, respondents exceeded their authority by the
mere act of guaranteeing amendments to the Constitution. Any alleged violation of the Constitution by any branch of government is a
proper matter for judicial review.
As the petitions involve constitutional issues which are of paramount public interest or of transcendental importance, the Court grants
the petitioners, petitioners-in-intervention and intervening respondents the requisite locus standi in keeping with the liberal stance
adopted in David v. Macapagal-Arroyo.
Contrary to the assertion of respondents that the non-signing of the MOA-AD and the eventual dissolution of the GRP Peace Panel
mooted the present petitions, the Court finds that the present petitions provide an exception to the "moot and academic" principle in
view of (a) the grave violation of the Constitution involved; (b) the exceptional character of the situation and paramount public
interest; (c) the need to formulate controlling principles to guide the bench, the bar, and the public; and (d) the fact that the case is
capable of repetition yet evading review.
The MOA-AD is a significant part of a series of agreements necessary to carry out the GRP-MILF Tripoli Agreement on Peace signed
by the government and the MILF back in June 2001. Hence, the present MOA-AD can be renegotiated or another one drawn up that
could contain similar or significantly dissimilar provisions compared to the original.
The Court, however, finds that the prayers for mandamus have been rendered moot in view of the respondents' action in providing the
Court and the petitioners with the official copy of the final draft of the MOA-AD and its annexes.
The people's right to information on matters of public concern under Sec. 7, Article III of the Constitution is in splendid symmetry
with the state policy of full public disclosure of all its transactions involving public interest under Sec. 28, Article II of the
Constitution. The right to information guarantees the right of the people to demand information, while Section 28 recognizes the duty
of officialdom to give information even if nobody demands. The complete and effective exercise of the right to information
necessitates that its complementary provision on public disclosure derive the same self-executory nature, subject only to reasonable
safeguards or limitations as may be provided by law.
The contents of the MOA-AD is a matter of paramount public concern involving public interest in the highest order. In declaring that
the right to information contemplates steps and negotiations leading to the consummation of the contract, jurisprudence finds no
distinction as to the executory nature or commercial character of the agreement.
An essential element of these twin freedoms is to keep a continuing dialogue or process of communication between the government
and the people. Corollary to these twin rights is the design for feedback mechanisms. The right to public consultation was envisioned
to be a species of these public rights.
At least three pertinent laws animate these constitutional imperatives and justify the exercise of the people's right to be consulted on
relevant matters relating to the peace agenda.
One, E.O. No. 3 itself is replete with mechanics for continuing consultations on both national and local levels and for a principal
forum for consensus-building. In fact, it is the duty of the Presidential Adviser on the Peace Process to conduct regular dialogues to
seek relevant information, comments, advice, and recommendations from peace partners and concerned sectors of society.
Two, Republic Act No. 7160 or the Local Government Code of 1991 requires all national offices to conduct consultations before any
project or program critical to the environment and human ecology including those that may call for the eviction of a particular group
of people residing in such locality, is implemented therein. The MOA-AD is one peculiar program that unequivocally and unilaterally
vests ownership of a vast territory to the Bangsamoro people, which could pervasively and drastically result to the diaspora or
displacement of a great number of inhabitants from their total environment.
Three, Republic Act No. 8371 or the Indigenous Peoples Rights Act of 1997 provides for clear-cut procedure for the recognition and
delineation of ancestral domain, which entails, among other things, the observance of the free and prior informed consent of the
Indigenous Cultural Communities/Indigenous Peoples. Notably, the statute does not grant the Executive Department or any
government agency the power to delineate and recognize an ancestral domain claim by mere agreement or compromise.
The invocation of the doctrine of executive privilege as a defense to the general right to information or the specific right to
consultation is untenable. The various explicit legal provisions fly in the face of executive secrecy. In any event, respondents
effectively waived such defense after it unconditionally disclosed the official copies of the final draft of the MOA-AD, for judicial
compliance and public scrutiny.
In sum, the Presidential Adviser on the Peace Process committed grave abuse of discretion when he failed to carry out the pertinent
consultation process, as mandated by E.O. No. 3, Republic Act No. 7160, and Republic Act No. 8371. The furtive process by which
the MOA-AD was designed and crafted runs contrary to and in excess of the legal authority, and amounts to a whimsical, capricious,
oppressive, arbitrary and despotic exercise thereof. It illustrates a gross evasion of positive duty and a virtual refusal to perform the
duty enjoined.
The MOA-AD cannot be reconciled with the present Constitution and laws. Not only its specific provisions but the very concept
underlying them, namely, the associative relationship envisioned between the GRP and the BJE, are unconstitutional, for the concept
presupposes that the associated entity is a state and implies that the same is on its way to independence.
While there is a clause in the MOA-AD stating that the provisions thereof inconsistent with the present legal framework will not be
effective until that framework is amended, the same does not cure its defect. The inclusion of provisions in the MOA-AD establishing
an associative relationship between the BJE and the Central Government is, itself, a violation of the Memorandum of Instructions
From The President dated March 1, 2001, addressed to the government peace panel. Moreover, as the clause is worded, it virtually
guarantees that the necessary amendments to the Constitution and the laws will eventually be put in place. Neither the GRP Peace
Panel nor the President herself is authorized to make such a guarantee. Upholding such an act would amount to authorizing a
usurpation of the constituent powers vested only in Congress, a Constitutional Convention, or the people themselves through the
process of initiative, for the only way that the Executive can ensure the outcome of the amendment process is through an undue
influence or interference with that process.
While the MOA-AD would not amount to an international agreement or unilateral declaration binding on the Philippines under
international law, respondents' act of guaranteeing amendments is, by itself, already a constitutional violation that renders the MOA-
AD fatally defective.
WHEREFORE, respondents' motion to dismiss is DENIED. The main and intervening petitions are GIVEN DUE COURSE and
hereby GRANTED.
The Memorandum of Agreement on the Ancestral Domain Aspect of the GRP-MILF Tripoli Agreement on Peace of 2001 is declared
contrary to law and the Constitution.
SO ORDERED.


Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 183591 October 14, 2008
THE PROVINCE OF NORTH COTABATO, duly represented by GOVERNOR JESUS SACDALAN and/or VICE-
GOVERNOR EMMANUEL PIOL, for and in his own behalf, petitioners,
vs.
THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP),
represented by SEC. RODOLFO GARCIA, ATTY. LEAH ARMAMENTO, ATTY. SEDFREY CANDELARIA, MARK
RYAN SULLIVAN and/or GEN. HERMOGENES ESPERON, JR., the latter in his capacity as the present and duly-
appointed Presidential Adviser on the Peace Process (OPAPP) or the so-called Office of the Presidential Adviser on the Peace
Process, respondents.
x--------------------------------------------x
G.R. No. 183752 October 14, 2008
CITY GOVERNMENT OF ZAMBOANGA, as represented by HON. CELSO L. LOBREGAT, City Mayor of Zamboanga,
and in his personal capacity as resident of the City of Zamboanga, Rep. MA. ISABELLE G. CLIMACO, District 1, and Rep.
ERICO BASILIO A. FABIAN, District 2, City of Zamboanga, petitioners,
vs.
THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE NEGOTIATING PANEL (GRP), as
represented by RODOLFO C. GARCIA, LEAH ARMAMENTO, SEDFREY CANDELARIA, MARK RYAN SULLIVAN and
HERMOGENES ESPERON, in his capacity as the Presidential Adviser on Peace Process, respondents.
x--------------------------------------------x
G.R. No. 183893 October 14, 2008
THE CITY OF ILIGAN, duly represented by CITY MAYOR LAWRENCE LLUCH CRUZ, petitioner,
vs.
THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP),
represented by SEC. RODOLFO GARCIA, ATTY. LEAH ARMAMENTO, ATTY. SEDFREY CANDELARIA, MARK
RYAN SULLIVAN; GEN. HERMOGENES ESPERON, JR., in his capacity as the present and duly appointed Presidential
Adviser on the Peace Process; and/or SEC. EDUARDO ERMITA, in his capacity as Executive Secretary. respondents.
x--------------------------------------------x
G.R. No. 183951 October 14, 2008
THE PROVINCIAL GOVERNMENT OF ZAMBOANGA DEL NORTE, as represented by HON. ROLANDO E. YEBES, in
his capacity as Provincial Governor, HON. FRANCIS H. OLVIS, in his capacity as Vice-Governor and Presiding Officer of
the Sangguniang Panlalawigan, HON. CECILIA JALOSJOS CARREON, Congresswoman, 1
st
Congressional District, HON.
CESAR G. JALOSJOS, Congressman, 3
rd
Congressional District, and Members of the Sangguniang Panlalawigan of the
Province of Zamboanga del Norte, namely, HON. SETH FREDERICK P. JALOSJOS, HON. FERNANDO R. CABIGON,
JR., HON. ULDARICO M. MEJORADA II, HON. EDIONAR M. ZAMORAS, HON. EDGAR J. BAGUIO, HON. CEDRIC
L. ADRIATICO, HON. FELIXBERTO C. BOLANDO, HON. JOSEPH BRENDO C. AJERO, HON. NORBIDEIRI B.
EDDING, HON. ANECITO S. DARUNDAY, HON. ANGELICA J. CARREON and HON. LUZVIMINDA E. TORRINO,
petitioners,
vs.
THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE NEGOTIATING PANEL [GRP], as
represented by HON. RODOLFO C. GARCIA and HON. HERMOGENES ESPERON, in his capacity as the Presidential
Adviser of Peace Process, respondents.
x--------------------------------------------x
G.R. No. 183962 October 14, 2008
ERNESTO M. MACEDA, JEJOMAR C. BINAY, and AQUILINO L. PIMENTEL III, petitioners,
vs.
THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE NEGOTIATING PANEL, represented by its
Chairman RODOLFO C. GARCIA, and the MORO ISLAMIC LIBERATION FRONT PEACE NEGOTIATING PANEL,
represented by its Chairman MOHAGHER IQBAL, respondents.
x--------------------------------------------x
FRANKLIN M. DRILON and ADEL ABBAS TAMANO, petitioners-in-intervention.
x--------------------------------------------x
SEN. MANUEL A. ROXAS, petitioners-in-intervention.
x--------------------------------------------x
MUNICIPALITY OF LINAMON duly represented by its Municipal Mayor NOEL N. DEANO, petitioners-in-intervention,
x--------------------------------------------x
THE CITY OF ISABELA, BASILAN PROVINCE, represented by MAYOR CHERRYLYN P. SANTOS-AKBAR, petitioners-
in-intervention.
x--------------------------------------------x
THE PROVINCE OF SULTAN KUDARAT, rep. by HON. SUHARTO T. MANGUDADATU, in his capacity as Provincial
Governor and a resident of the Province of Sultan Kudarat, petitioner-in-intervention.
x-------------------------------------------x
RUY ELIAS LOPEZ, for and in his own behalf and on behalf of Indigenous Peoples in Mindanao Not Belonging to the MILF,
petitioner-in-intervention.
x--------------------------------------------x
CARLO B. GOMEZ, GERARDO S. DILIG, NESARIO G. AWAT, JOSELITO C. ALISUAG and RICHALEX G. JAGMIS,
as citizens and residents of Palawan, petitioners-in-intervention.
x--------------------------------------------x
MARINO RIDAO and KISIN BUXANI, petitioners-in-intervention.
x--------------------------------------------x
MUSLIM LEGAL ASSISTANCE FOUNDATION, INC (MUSLAF), respondent-in-intervention.
x--------------------------------------------x
MUSLIM MULTI-SECTORAL MOVEMENT FOR PEACE & DEVELOPMENT (MMMPD), respondent-in-intervention.
x--------------------------------------------x
D E C I S I O N
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 Piol 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 Prohibition
11
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,
20
docketed as G.R.
No. 183962, praying for a judgment prohibiting and permanently enjoining respondents from formally signing and executing the
MOA-AD and or any other agreement derived therefrom or similar thereto, and nullifying the MOA-AD for being unconstitutional
and illegal. Petitioners herein additionally implead as respondent the MILF Peace Negotiating Panel represented by its Chairman
Mohagher Iqbal.
Various parties moved to intervene and were granted leave of court to file their petitions-/comments-in-intervention. Petitioners-in-
Intervention include Senator Manuel A. Roxas, former Senate President Franklin Drilon and Atty. Adel Tamano, the City of Isabela
21

and Mayor Cherrylyn Santos-Akbar, the Province of Sultan Kudarat
22
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--vis ISSUES Nos. 4 and 5;
4. Whether there is a violation of the people's right to information on matters of public concern (1987 Constitution, Article
III, Sec. 7) under a state policy of full disclosure of all its transactions involving public interest (1987 Constitution, Article II,
Sec. 28) including public consultation under Republic Act No. 7160 (LOCAL GOVERNMENT CODE OF 1991)[;]
If it is in the affirmative, whether prohibition under Rule 65 of the 1997 Rules of Civil Procedure is an appropriate remedy;
5. Whether by signing the MOA, the Government of the Republic of the Philippines would be BINDING itself
a) to create and recognize the Bangsamoro Juridical Entity (BJE) as a separate state, or a juridical, territorial or
political subdivision not recognized by law;
b) to revise or amend the Constitution and existing laws to conform to the MOA;
c) to concede to or recognize the claim of the Moro Islamic Liberation Front for ancestral domain in violation of
Republic Act No. 8371 (THE INDIGENOUS PEOPLES RIGHTS ACT OF 1997), particularly Section 3(g) &
Chapter VII (DELINEATION, RECOGNITION OF ANCESTRAL DOMAINS)[;]
If in the affirmative, whether the Executive Branch has the authority to so bind the Government of the Republic of the
Philippines;
6. Whether the inclusion/exclusion of the Province of North Cotabato, Cities of Zamboanga, Iligan and Isabela, and the
Municipality of Linamon, Lanao del Norte in/from the areas covered by the projected Bangsamoro Homeland is a justiciable
question; and
7. Whether desistance from signing the MOA derogates any prior valid commitments of the Government of the Republic of
the Philippines.
24

The Court, thereafter, ordered the parties to submit their respective Memoranda. Most of the parties submitted their memoranda on
time.
III. OVERVIEW OF THE MOA-AD
As a necessary backdrop to the consideration of the objections raised in the subject five petitions and six petitions-in-intervention
against the MOA-AD, as well as the two comments-in-intervention in favor of the MOA-AD, the Court takes an overview of the
MOA.
The MOA-AD identifies the Parties to it as the GRP and the MILF.
Under the heading "Terms of Reference" (TOR), the MOA-AD includes not only four earlier agreements between the GRP and MILF,
but also two agreements between the GRP and the MNLF: the 1976 Tripoli Agreement, and the Final Peace Agreement on the
Implementation of the 1976 Tripoli Agreement, signed on September 2, 1996 during the administration of President Fidel Ramos.
The MOA-AD also identifies as TOR two local statutes - the organic act for the Autonomous Region in Muslim Mindanao (ARMM)
25

and the Indigenous Peoples Rights Act (IPRA),
26
and several international law instruments - the ILO Convention No. 169 Concerning
Indigenous and Tribal Peoples in Independent Countries in relation to the UN Declaration on the Rights of the Indigenous Peoples,
and the UN Charter, among others.
The MOA-AD includes as a final TOR the generic category of "compact rights entrenchment emanating from the regime of dar-ul-
mua'hada (or territory under compact) and dar-ul-sulh (or territory under peace agreement) that partakes the nature of a treaty device."
During the height of the Muslim Empire, early Muslim jurists tended to see the world through a simple dichotomy: there was the dar-
ul-Islam (the Abode of Islam) and dar-ul-harb (the Abode of War). The first referred to those lands where Islamic laws held sway,
while the second denoted those lands where Muslims were persecuted or where Muslim laws were outlawed or ineffective.
27
This way
of viewing the world, however, became more complex through the centuries as the Islamic world became part of the international
community of nations.
As Muslim States entered into treaties with their neighbors, even with distant States and inter-governmental organizations, the
classical division of the world into dar-ul-Islam and dar-ul-harb eventually lost its meaning. New terms were drawn up to describe
novel ways of perceiving non-Muslim territories. For instance, areas like dar-ul-mua'hada (land of compact) and dar-ul-sulh (land of
treaty) referred to countries which, though under a secular regime, maintained peaceful and cooperative relations with Muslim States,
having been bound to each other by treaty or agreement. Dar-ul-aman (land of order), on the other hand, referred to countries which,
though not bound by treaty with Muslim States, maintained freedom of religion for Muslims.
28

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

The MOA-AD states that the Parties "HAVE AGREED AND ACKNOWLEDGED AS FOLLOWS," and starts with its main body.
The main body of the MOA-AD is divided into four strands, namely, Concepts and Principles, Territory, Resources, and
Governance.
A. CONCEPTS AND PRINCIPLES
This strand begins with the statement that it is "the birthright of all Moros and all Indigenous peoples of Mindanao to identify
themselves and be accepted as Bangsamoros.'" It defines "Bangsamoro people" as the natives or original inhabitants of Mindanao
and its adjacent islands including Palawan and the Sulu archipelago at the time of conquest or colonization, and their descendants
whether mixed or of full blood, including their spouses.
30

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

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

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

The MOA-AD goes on to describe the Bangsamoro people as "the First Nation' with defined territory and with a system of
government having entered into treaties of amity and commerce with foreign nations."
The term "First Nation" is of Canadian origin referring to the indigenous peoples of that territory, particularly those known as
Indians. In Canada, each of these indigenous peoples is equally entitled to be called "First Nation," hence, all of them are usually
described collectively by the plural "First Nations."
36
To that extent, the MOA-AD, by identifying the Bangsamoro people as "the
First Nation" - suggesting its exclusive entitlement to that designation - departs from the Canadian usage of the term.
The MOA-AD then mentions for the first time the "Bangsamoro Juridical Entity" (BJE) to which it grants the authority and
jurisdiction over the Ancestral Domain and Ancestral Lands of the Bangsamoro.
37

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

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

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

The Parties to the MOA-AD stipulate that the BJE shall have jurisdiction over all natural resources within its "internal waters,"
defined as extending fifteen (15) kilometers from the coastline of the BJE area;
42
that the BJE shall also have "territorial waters,"
which shall stretch beyond the BJE internal waters up to the baselines of the Republic of the Philippines (RP) south east and south
west of mainland Mindanao; and that within these territorial waters, the BJE and the "Central Government" (used interchangeably
with RP) shall exercise joint jurisdiction, authority and management over all natural resources.
43
Notably, the jurisdiction over the
internal waters is not similarly described as "joint."
The MOA-AD further provides for the sharing of minerals on the territorial waters between the Central Government and the BJE, in
favor of the latter, through production sharing and economic cooperation agreement.
44
The activities which the Parties are allowed to
conduct on the territorial waters are enumerated, among which are the exploration and utilization of natural resources, regulation of
shipping and fishing activities, and the enforcement of police and safety measures.
45
There is no similar provision on the sharing of
minerals and allowed activities with respect to the internal waters of the BJE.
C. RESOURCES
The MOA-AD states that the BJE is free to enter into any economic cooperation and trade relations with foreign countries and shall
have the option to establish trade missions in those countries. Such relationships and understandings, however, are not to include
aggression against the GRP. The BJE may also enter into environmental cooperation agreements.
46

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

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

The sharing between the Central Government and the BJE of total production pertaining to natural resources is to be 75:25 in favor of
the BJE.
49

The MOA-AD provides that legitimate grievances of the Bangsamoro people arising from any unjust dispossession of their territorial
and proprietary rights, customary land tenures, or their marginalization shall be acknowledged. Whenever restoration is no longer
possible, reparation is to be in such form as mutually determined by the Parties.
50

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

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

The "associative" relationship
between the Central Government
and the BJE
The MOA-AD describes the relationship of the Central Government and the BJE as "associative," characterized by shared authority
and responsibility. And it states that the structure of governance is to be based on executive, legislative, judicial, and administrative
institutions with defined powers and functions in the Comprehensive Compact.
The MOA-AD provides that its provisions requiring "amendments to the existing legal framework" shall take effect upon signing of
the Comprehensive Compact and upon effecting the aforesaid amendments, with due regard to the non-derogation of prior
agreements and within the stipulated timeframe to be contained in the Comprehensive Compact. As will be discussed later, much of
the present controversy hangs on the legality of this provision.
The BJE is granted the power to build, develop and maintain its own institutions inclusive of civil service, electoral, financial and
banking, education, legislation, legal, economic, police and internal security force, judicial system and correctional institutions, the
details of which shall be discussed in the negotiation of the comprehensive compact.
As stated early on, the MOA-AD was set to be signed on August 5, 2008 by Rodolfo Garcia and Mohagher Iqbal, Chairpersons of the
Peace Negotiating Panels of the GRP and the MILF, respectively. Notably, the penultimate paragraph of the MOA-AD identifies the
signatories as "the representatives of the Parties," meaning the GRP and MILF themselves, and not merely of the negotiating panels.
53

In addition, the signature page of the MOA-AD states that it is "WITNESSED BY" Datuk Othman Bin Abd Razak, Special Adviser to
the Prime Minister of Malaysia, "ENDORSED BY" Ambassador Sayed Elmasry, Adviser to Organization of the Islamic Conference
(OIC) Secretary General and Special Envoy for Peace Process in Southern Philippines, and SIGNED "IN THE PRESENCE OF" Dr.
Albert G. Romulo, Secretary of Foreign Affairs of RP and Dato' Seri Utama Dr. Rais Bin Yatim, Minister of Foreign Affairs,
Malaysia, all of whom were scheduled to sign the Agreement last August 5, 2008.
Annexed to the MOA-AD are two documents containing the respective lists cum maps of the provinces, municipalities, and barangays
under Categories A and B earlier mentioned in the discussion on the strand on TERRITORY.
IV. PROCEDURAL ISSUES
A. RIPENESS
The power of judicial review is limited to actual cases or controversies.
54
Courts decline to issue advisory opinions or to resolve
hypothetical or feigned problems, or mere academic questions.
55
The limitation of the power of judicial review to actual cases and
controversies defines the role assigned to the judiciary in a tripartite allocation of power, to assure that the courts will not intrude into
areas committed to the other branches of government.
56

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

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

The Solicitor General argues that there is no justiciable controversy that is ripe for judicial review in the present petitions, reasoning
that
The unsigned MOA-AD is simply a list of consensus points subject to further negotiations and legislative enactments as well
as constitutional processes aimed at attaining a final peaceful agreement. Simply put, the MOA-AD remains to be a proposal
that does not automatically create legally demandable rights and obligations until the list of operative acts required have been
duly complied with. x x x
x x x x
In the cases at bar, it is respectfully submitted that this Honorable Court has no authority to pass upon issues based on
hypothetical or feigned constitutional problems or interests with no concrete bases. Considering the preliminary character of
the MOA-AD, there are no concrete acts that could possibly violate petitioners' and intervenors' rights since the acts
complained of are mere contemplated steps toward the formulation of a final peace agreement. Plainly, petitioners and
intervenors' perceived injury, if at all, is merely imaginary and illusory apart from being unfounded and based on mere
conjectures. (Underscoring supplied)
The Solicitor General cites
63
the following provisions of the MOA-AD:
TERRITORY
x x x x
2. Toward this end, the Parties enter into the following stipulations:
x x x x
d. Without derogating from the requirements of prior agreements, the Government stipulates to conduct and deliver, using all
possible legal measures, within twelve (12) months following the signing of the MOA-AD, a plebiscite covering the areas as
enumerated in the list and depicted in the map as Category A attached herein (the "Annex"). The Annex constitutes an
integral part of this framework agreement. Toward this end, the Parties shall endeavor to complete the negotiations and
resolve all outstanding issues on the Comprehensive Compact within fifteen (15) months from the signing of the MOA-AD.
x x x x
GOVERNANCE
x x x x
7. The Parties agree that mechanisms and modalities for the actual implementation of this MOA-AD shall be spelt out in the
Comprehensive Compact to mutually take such steps to enable it to occur effectively.
Any provisions of the MOA-AD requiring amendments to the existing legal framework shall come into force upon the
signing of a Comprehensive Compact and upon effecting the necessary changes to the legal framework with due regard to
non-derogation of prior agreements and within the stipulated timeframe to be contained in the Comprehensive Compact.
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.
x x x x
By the same token, when an act of the President, who in our constitutional scheme is a coequal of Congress, is seriously
alleged to have infringed the Constitution and the laws x x x settling the dispute becomes the duty and the responsibility of
the courts.
66

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

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

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

The authority of the GRP Negotiating Panel is defined by Executive Order No. 3 (E.O. No. 3), issued on February 28, 2001.
75
The said
executive order requires that "[t]he government's policy framework for peace, including the systematic approach and the
administrative structure for carrying out the comprehensive peace process x x x be governed by this Executive Order."
76

The present petitions allege that respondents GRP Panel and PAPP Esperon drafted the terms of the MOA-AD without consulting the
local government units or communities affected, nor informing them of the proceedings. As will be discussed in greater detail later,
such omission, by itself, constitutes a departure by respondents from their mandate under E.O. No. 3.
Furthermore, the petitions allege that the provisions of the MOA-AD violate the Constitution. The MOA-AD provides that "any
provisions of the MOA-AD requiring amendments to the existing legal framework shall come into force upon the signing of a
Comprehensive Compact and upon effecting the necessary changes to the legal framework," implying an amendment of the
Constitution to accommodate the MOA-AD. This stipulation, in effect, guaranteed to the MILF the amendment of the Constitution.
Such act constitutes another violation of its authority. Again, these points will be discussed in more detail later.
As the petitions allege acts or omissions on the part of respondent that exceed their authority, by violating their duties under E.O.
No. 3 and the provisions of the Constitution and statutes, the petitions make a prima facie case for Certiorari, Prohibition, and
Mandamus, and an actual case or controversy ripe for adjudication exists. When an act of a branch of government is seriously
alleged to have infringed the Constitution, it becomes not only the right but in fact the duty of the judiciary to settle the
dispute.
77

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

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

When suing as a citizen, the person complaining must allege that he has been or is about to be denied some right or privilege to which
he is lawfully entitled or that he is about to be subjected to some burdens or penalties by reason of the statute or act complained of.
80

When the issue concerns a public right, it is sufficient that the petitioner is a citizen and has an interest in the execution of the laws.
81

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

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

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

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

Intervenors, meanwhile, may be given legal standing upon showing of facts that satisfy the requirements of the law authorizing
intervention,
88
such as a legal interest in the matter in litigation, or in the success of either of the parties.
In any case, the Court has discretion to relax the procedural technicality on locus standi, given the liberal attitude it has exercised,
highlighted in the case of David v. Macapagal-Arroyo,
89
where technicalities of procedure were brushed aside, the constitutional
issues raised being of paramount public interest or of transcendental importance deserving the attention of the Court in view of their
seriousness, novelty and weight as precedents.
90
The Court's forbearing stance on locus standi on issues involving constitutional issues
has for its purpose the protection of fundamental rights.
In not a few cases, the Court, in keeping with its duty under the Constitution to determine whether the other branches of government
have kept themselves within the limits of the Constitution and the laws and have not abused the discretion given them, has brushed
aside technical rules of procedure.
91

In the petitions at bar, petitioners Province of North Cotabato (G.R. No. 183591) Province of Zamboanga del Norte (G.R. No.
183951), City of Iligan (G.R. No. 183893) and City of Zamboanga (G.R. No. 183752) and petitioners-in-intervention Province of
Sultan Kudarat, City of Isabela and Municipality of Linamon have locus standi in view of the direct and substantial injury that
they, as LGUs, would suffer as their territories, whether in whole or in part, are to be included in the intended domain of the BJE.
These petitioners allege that they did not vote for their inclusion in the ARMM which would be expanded to form the BJE territory.
Petitioners' legal standing is thus beyond doubt.
In G.R. No. 183962, petitioners Ernesto Maceda, Jejomar Binay and Aquilino Pimentel III would have no standing as citizens and
taxpayers for their failure to specify that they would be denied some right or privilege or there would be wastage of public funds. The
fact that they are a former Senator, an incumbent mayor of Makati City, and a resident of Cagayan de Oro, respectively, is of no
consequence. Considering their invocation of the transcendental importance of the issues at hand, however, the Court grants them
standing.
Intervenors Franklin Drilon and Adel Tamano, in alleging their standing as taxpayers, assert that government funds would be
expended for the conduct of an illegal and unconstitutional plebiscite to delineate the BJE territory. On that score alone, they can be
given legal standing. Their allegation that the issues involved in these petitions are of "undeniable transcendental importance" clothes
them with added basis for their personality to intervene in these petitions.
With regard to Senator Manuel Roxas, his standing is premised on his being a member of the Senate and a citizen to enforce
compliance by respondents of the public's constitutional right to be informed of the MOA-AD, as well as on a genuine legal interest in
the matter in litigation, or in the success or failure of either of the parties. He thus possesses the requisite standing as an intervenor.
With respect to Intervenors Ruy Elias Lopez, as a former congressman of the 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.
Romulo
100
and Manalo v. Calderon
101
where the Court similarly decided them on the merits, supervening events that would ordinarily
have rendered the same moot notwithstanding.
Petitions not mooted
Contrary then to the asseverations of respondents, the non-signing of the MOA-AD and the eventual dissolution of the GRP Peace
Panel did not moot the present petitions. It bears emphasis that the signing of the MOA-AD did not push through due to the Court's
issuance of a Temporary Restraining Order.
Contrary too to respondents' position, the MOA-AD cannot be considered a mere "list of consensus points," especially given its
nomenclature, the need to have it signed or initialed by all the parties concerned on August 5, 2008, and the far-reaching
Constitutional implications of these "consensus points," foremost of which is the creation of the BJE.
In fact, as what will, in the main, be discussed, there is a commitment on the part of respondents to amend and effect necessary
changes to the existing legal framework for certain provisions of the MOA-AD to take effect. Consequently, the present petitions
are not confined to the terms and provisions of the MOA-AD, but to other on-going and future negotiations and agreements necessary
for its realization. The petitions have not, therefore, been rendered moot and academic simply by the public disclosure of the MOA-
AD,
102
the manifestation that it will not be signed as well as the disbanding of the GRP Panel not withstanding.
Petitions are imbued with paramount public interest
There is no gainsaying that the petitions are imbued with paramount public interest, involving a significant part of the country's
territory and the wide-ranging political modifications of affected LGUs. The assertion that the MOA-AD is subject to further legal
enactments including possible Constitutional amendments more than ever provides impetus for the Court to formulate
controlling principles to guide the bench, the bar, the public and, in this case, the government and its negotiating entity.
Respondents cite Suplico v. NEDA, et al.
103
where the Court did not "pontificat[e] on issues which no longer legitimately constitute an
actual case or controversy [as this] will do more harm than good to the nation as a whole."
The present petitions must be differentiated from Suplico. Primarily, in Suplico, what was assailed and eventually cancelled was a
stand-alone government procurement contract for a national broadband network involving a one-time contractual relation between two
parties-the government and a private foreign corporation. As the issues therein involved specific government procurement policies and
standard principles on contracts, the majority opinion in Suplico found nothing exceptional therein, the factual circumstances being
peculiar only to the transactions and parties involved in the controversy.
The MOA-AD is part of a series of agreements
In the present controversy, the MOA-AD is a significant part of a series of agreements necessary to carry out the Tripoli Agreement
2001. The MOA-AD which dwells on the Ancestral Domain Aspect of said Tripoli Agreement is the third such component to be
undertaken following the implementation of the Security Aspect in August 2001 and the Humanitarian, Rehabilitation and
Development Aspect in May 2002.
Accordingly, even if the Executive Secretary, in his Memorandum of August 28, 2008 to the Solicitor General, has stated that "no
matter what the Supreme Court ultimately decides[,] the government will not sign the MOA[-AD]," mootness will not set in in light of
the terms of the Tripoli Agreement 2001.
Need to formulate principles-guidelines
Surely, the present MOA-AD can be renegotiated or another one will be drawn up to carry out the Ancestral Domain Aspect of the
Tripoli Agreement 2001, in another or in any form, which could contain similar or significantly drastic provisions. While the Court
notes the word of the Executive Secretary that the government "is committed to securing an agreement that is both constitutional and
equitable because that is the only way that long-lasting peace can be assured," it is minded to render a decision on the merits in the
present petitions to formulate controlling principles to guide the bench, the bar, the public and, most especially, the government
in negotiating with the MILF regarding Ancestral Domain.
Respondents invite the Court's attention to the separate opinion of then Chief Justice Artemio Panganiban in Sanlakas v. Reyes
104
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 the sovereignty and
territorial integrity of the State, which directly affects the lives of the public at large.
Matters of public concern covered by the right to information include steps and negotiations leading to the consummation of the
contract. In not distinguishing as to the executory nature or commercial character of agreements, the Court has categorically ruled:
x x x [T]he right to information "contemplates inclusion of negotiations leading to the consummation of the transaction."
Certainly, a consummated contract is not a requirement for the exercise of the right to information. Otherwise, the people can
never exercise the right if no contract is consummated, and if one is consummated, it may be too late for the public to expose
its defects.
Requiring a consummated contract will keep the public in the dark until the contract, which may be grossly disadvantageous
to the government or even illegal, becomes fait accompli. This negates the State policy of full transparency on matters of
public concern, a situation which the framers of the Constitution could not have intended. Such a requirement will prevent
the citizenry from participating in the public discussion of any proposed contract, effectively truncating a basic right
enshrined in the Bill of Rights. We can allow neither an emasculation of a constitutional right, nor a retreat by the State of its
avowed "policy of full disclosure of all its transactions involving public interest."
122
(Emphasis and italics in the original)
Intended as a "splendid symmetry"
123
to the right to information under the Bill of Rights is the policy of public disclosure under
Section 28, Article II of the Constitution reading:
Sec. 28. Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public
disclosure of all its transactions involving public interest.
124

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

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

Whether Section 28 is self-executory, the records of the deliberations of the Constitutional Commission so disclose:
MR. SUAREZ. And since this is not self-executory, this policy will not be enunciated or will not be in force and effect until
after Congress shall have provided it.
MR. OPLE. I expect it to influence the climate of public ethics immediately but, of course, the implementing law will have to
be enacted by Congress, Mr. Presiding Officer.
128

The following discourse, after Commissioner Hilario Davide, Jr., sought clarification on the issue, is enlightening.
MR. DAVIDE. I would like to get some clarifications on this. Mr. Presiding Officer, did I get the Gentleman correctly as
having said that this is not a self-executing provision? It would require a legislation by Congress to implement?
MR. OPLE. Yes. Originally, it was going to be self-executing, but I accepted an amendment from Commissioner Regalado,
so that the safeguards on national interest are modified by the clause "as may be provided by law"
MR. DAVIDE. But as worded, does it not mean that this will immediately take effect and Congress may provide for
reasonable safeguards on the sole ground national interest?
MR. OPLE. Yes. I think so, Mr. Presiding Officer, I said earlier that it should immediately influence the climate of the
conduct of public affairs but, of course, Congress here may no longer pass a law revoking it, or if this is approved, revoking
this principle, which is inconsistent with this policy.
129
(Emphasis supplied)
Indubitably, the effectivity of the policy of public disclosure need not await the passing of a statute. As Congress cannot revoke
this principle, it is merely directed to provide for "reasonable safeguards." The complete and effective exercise of the right to
information necessitates that its complementary provision on public disclosure derive the same self-executory nature. Since both
provisions go hand-in-hand, it is absurd to say that the 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.
131
Envisioned to be corollary to the twin rights to information and
disclosure is the design for feedback mechanisms.
MS. ROSARIO BRAID. Yes. And lastly, Mr. Presiding Officer, will the people be able to participate? Will the
government provide feedback mechanisms so that the people can participate and can react where the existing media
facilities are not able to provide full feedback mechanisms to the government? I suppose this will be part of the
government implementing operational mechanisms.
MR. OPLE. Yes. I think through their elected representatives and that is how these courses take place. There is a message
and a feedback, both ways.
x x x x
MS. ROSARIO BRAID. Mr. Presiding Officer, may I just make one last sentence?
I think when we talk about the feedback network, we are not talking about public officials but also network of private
business o[r] community-based organizations that will be reacting. As a matter of fact, we will put more credence or
credibility on the private network of volunteers and voluntary community-based organizations. So I do not think we are
afraid that there will be another OMA in the making.
132
(Emphasis supplied)
The imperative of a public consultation, as a species of the right to information, is evident in the "marching orders" to respondents.
The mechanics for the duty to disclose information and to conduct public consultation regarding the peace agenda and process is
manifestly provided by E.O. No. 3.
133
The preambulatory clause of E.O. No. 3 declares that there is a need to further enhance the
contribution of civil society to the comprehensive peace process by institutionalizing the people's participation.
One of the three underlying principles of the comprehensive peace process is that it "should be community-based, reflecting the
sentiments, values and principles important to all Filipinos" and "shall be defined not by the government alone, nor by the different
contending groups only, but by all Filipinos as one community."
134
Included as a component of the comprehensive peace process is
consensus-building and empowerment for peace, which includes "continuing consultations on both national and local levels to build
consensus for a peace agenda and process, and the mobilization and facilitation of people's participation in the peace process."
135

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

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

In fine, E.O. No. 3 establishes petitioners' right to be consulted on the peace agenda, as a corollary to the constitutional right to
information and disclosure.
PAPP Esperon committed grave abuse of discretion
The PAPP committed grave abuse of discretion when he failed to carry out the pertinent consultation. The furtive process by which
the MOA-AD was designed and crafted runs contrary to and in excess of the legal authority, and amounts to a whimsical,
capricious, oppressive, arbitrary and despotic exercise thereof.
The Court may not, of course, require the PAPP to conduct the consultation in a particular way or manner. It may, however, require
him to comply with the law and discharge the functions within the authority granted by the President.
139

Petitioners are not claiming a seat at the negotiating table, contrary to respondents' retort in justifying the denial of petitioners' right to
be consulted. Respondents' stance manifests the manner by which they treat the salient provisions of E.O. No. 3 on people's
participation. Such disregard of the express mandate of the President is not much different from superficial conduct toward token
provisos that border on classic lip service.
140
It illustrates a gross evasion of positive duty and a virtual refusal to perform the duty
enjoined.
As for respondents' invocation of the doctrine of executive privilege, it is not tenable under the premises. The argument defies sound
reason when contrasted with E.O. No. 3's explicit provisions on continuing consultation and dialogue on both national and local levels.
The executive order even recognizes the exercise of the public's right even before the GRP makes its official recommendations or
before the government proffers its definite propositions.
141
It bear emphasis that E.O. No. 3 seeks to elicit relevant advice, information,
comments and recommendations from the people through dialogue.
AT ALL EVENTS, respondents effectively waived the defense of executive privilege in view of their unqualified disclosure of the
official copies of the final draft of the MOA-AD. By unconditionally complying with the Court's August 4, 2008 Resolution, without a
prayer for the document's disclosure in camera, or without a manifestation that it was complying therewith ex abundante ad cautelam.
Petitioners' assertion that the Local Government Code (LGC) of 1991 declares it a State policy to "require all national agencies and
offices to conduct periodic consultations with appropriate local government units, non-governmental and people's organizations, and
other concerned sectors of the community before any project or program is implemented in their respective jurisdictions"
142
is well-
taken. The LGC chapter on intergovernmental relations puts flesh into this avowed policy:
Prior Consultations Required. - No project or program shall be implemented by government authorities unless the
consultations mentioned in Sections 2 (c) and 26 hereof are complied with, and prior approval of the sanggunian concerned is
obtained: Provided, That occupants in areas where such projects are to be implemented shall not be evicted unless appropriate
relocation sites have been provided, in accordance with the provisions of the Constitution.
143
(Italics and underscoring
supplied)
In Lina, Jr. v. Hon. Pao,
144
the Court held that the above-stated policy and above-quoted provision of the LGU apply only to national
programs or projects which are to be implemented in a particular local community. Among the programs and projects covered are
those that are critical to the environment and human ecology including those that may call for the eviction of a particular group of
people residing in the locality where these will be implemented.
145
The MOA-AD is one peculiar program that unequivocally and
unilaterally vests ownership of a vast territory to the Bangsamoro people,
146
which could pervasively and drastically result to
the diaspora or displacement of a great number of inhabitants from their total environment.
With respect to the indigenous cultural communities/indigenous peoples (ICCs/IPs), whose interests are represented herein by
petitioner Lopez and are adversely affected by the MOA-AD, the ICCs/IPs have, under the IPRA, the right to participate fully at all
levels of decision-making in matters which may affect their rights, lives and destinies.
147
The MOA-AD, an instrument recognizing
ancestral domain, failed to justify its non-compliance with the clear-cut mechanisms ordained in said Act,
148
which entails, among
other things, the observance of the free and prior informed consent of the ICCs/IPs.
Notably, the IPRA does not grant the Executive Department or any government agency the power to delineate and recognize an
ancestral domain claim by mere agreement or compromise. The recognition of the ancestral domain is the raison d'etre of the MOA-
AD, without which all other stipulations or "consensus points" necessarily must fail. In proceeding to make a sweeping declaration on
ancestral domain, without complying with the IPRA, which is cited as one of the TOR of the MOA-AD, respondents clearly
transcended the boundaries of their authority. As it seems, even the heart of the MOA-AD is still subject to necessary changes to
the legal framework. While paragraph 7 on Governance suspends the effectivity of all provisions requiring changes to the legal
framework, such clause is itself invalid, as will be discussed in the following section.
Indeed, ours is an open society, with all the acts of the government subject to public scrutiny and available always to public
cognizance. This has to be so if the country is to remain democratic, with sovereignty residing in the people and all government
authority emanating from them.
149

ON THE SECOND SUBSTANTIVE ISSUE
With regard to the provisions of the MOA-AD, there can be no question that they cannot all be accommodated under the present
Constitution and laws. Respondents have admitted as much in the oral arguments before this Court, and the MOA-AD itself
recognizes the need to amend the existing legal framework to render effective at least some of its provisions. Respondents,
nonetheless, counter that the MOA-AD is free of any legal infirmity because any provisions therein which are inconsistent with the
present legal framework will not be effective until the necessary changes to that framework are made. The validity of this argument
will be considered later. For now, the Court shall pass upon how
The MOA-AD is inconsistent with the Constitution and laws as presently worded.
In general, the objections against the MOA-AD center on the extent of the powers conceded therein to the BJE. Petitioners assert that
the powers granted to the BJE exceed those granted to any local government under present laws, and even go beyond those of the
present ARMM. Before assessing some of the specific powers that would have been vested in the BJE, however, it would be useful to
turn first to a general idea that serves as a unifying link to the different provisions of the MOA-AD, namely, the international law
concept of association. Significantly, the MOA-AD explicitly alludes to this concept, indicating that the Parties actually framed its
provisions with it in mind.
Association is referred to in paragraph 3 on TERRITORY, paragraph 11 on RESOURCES, and paragraph 4 on GOVERNANCE. It is
in the last mentioned provision, however, that the MOA-AD most clearly uses it to describe the envisioned relationship between the
BJE and the Central Government.
4. The relationship between the Central Government and the Bangsamoro juridical entity shall be associative
characterized by shared authority and responsibility with a structure of governance based on executive, legislative,
judicial and administrative institutions with defined powers and functions in the comprehensive compact. A period of
transition shall be established in a comprehensive peace compact specifying the relationship between the Central Government
and the BJE. (Emphasis and underscoring supplied)
The nature of the "associative" relationship may have been intended to be defined more precisely in the still to be forged
Comprehensive Compact. Nonetheless, given that there is a concept of "association" in international law, and the MOA-AD - by its
inclusion of international law instruments in its TOR- placed itself in an international legal context, that concept of association may be
brought to bear in understanding the use of the term "associative" in the MOA-AD.
Keitner and Reisman state that
[a]n association is formed when two states of unequal power voluntarily establish durable links. In the basic model, one
state, the associate, delegates certain responsibilities to the other, the principal, while maintaining its international
status as a state. Free associations represent a middle ground between integration and independence. x x x
150

(Emphasis and underscoring supplied)
For purposes of illustration, the Republic of the Marshall Islands and the Federated States of Micronesia (FSM), formerly part of the
U.S.-administered Trust Territory of the Pacific Islands,
151
are associated states of the U.S. pursuant to a Compact of Free Association.
The currency in these countries is the U.S. dollar, indicating their very close ties with the U.S., yet they issue their own travel
documents, which is a mark of their statehood. Their international legal status as states was confirmed by the UN Security Council and
by their admission to UN membership.
According to their compacts of free association, the Marshall Islands and the FSM generally have the capacity to conduct foreign
affairs in their own name and right, such capacity extending to matters such as the law of the sea, marine resources, trade, banking,
postal, civil aviation, and cultural relations. The U.S. government, when conducting its foreign affairs, is obligated to consult with the
governments of the Marshall Islands or the FSM on matters which it (U.S. government) regards as relating to or affecting either
government.
In the event of attacks or threats against the Marshall Islands or the FSM, the U.S. government has the authority and obligation to
defend them as if they were part of U.S. territory. The U.S. government, moreover, has the option of establishing and using military
areas and facilities within these associated states and has the right to bar the military personnel of any third country from having
access to these territories for military purposes.
It bears noting that in U.S. constitutional and international practice, free association is understood as an international association
between sovereigns. The Compact of Free Association is a treaty which is subordinate to the associated nation's national constitution,
and each party may terminate the association consistent with the right of independence. It has been said that, with the admission of the
U.S.-associated states to the UN in 1990, the UN recognized that the American model of free association is actually based on an
underlying status of independence.
152

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

Back to the MOA-AD, it contains many provisions which are consistent with the international legal concept of association,
specifically the following: the BJE's capacity to enter into economic and trade relations with foreign countries, the commitment of the
Central Government to ensure the BJE's participation in meetings and events in the ASEAN and the specialized UN agencies, and the
continuing responsibility of the Central Government over external defense. Moreover, the BJE's right to participate in Philippine
official missions bearing on negotiation of border agreements, environmental protection, and sharing of revenues pertaining to the
bodies of water adjacent to or between the islands forming part of the ancestral domain, resembles the right of the governments of
FSM and the Marshall Islands to be consulted by the U.S. government on any foreign affairs matter affecting them.
These provisions of the MOA indicate, among other things, that the Parties aimed to vest in the BJE the status of an associated state
or, at any rate, a status closely approximating it.
The concept of association is not recognized under the present Constitution
No province, city, or municipality, not even the ARMM, is recognized under our laws as having an "associative" relationship with the
national government. Indeed, the concept implies powers that go beyond anything ever granted by the Constitution to any local or
regional government. It also implies the recognition of the associated entity as a state. The Constitution, however, does not
contemplate any state in this jurisdiction other than the Philippine State, much less does it provide for a transitory status that aims to
prepare any part of Philippine territory for independence.
Even the mere concept animating many of the MOA-AD's provisions, therefore, already requires for its validity the amendment of
constitutional provisions, specifically the following provisions of Article X:
SECTION 1. The territorial and political subdivisions of the Republic of the Philippines are the provinces, cities,
municipalities, and barangays. There shall be autonomous regions in Muslim Mindanao and the Cordilleras as hereinafter
provided.
SECTION 15. There shall be created autonomous regions in Muslim Mindanao and in the Cordilleras consisting of
provinces, cities, municipalities, and geographical areas sharing common and distinctive historical and cultural heritage,
economic and social structures, and other relevant characteristics within the framework of this Constitution and the
national sovereignty as well as territorial integrity of the Republic of the Philippines.
The BJE is a far more powerful
entity than the autonomous region
recognized in the Constitution
It is not merely an expanded version of the ARMM, the status of its relationship with the national government being fundamentally
different from that of the ARMM. Indeed, BJE is a state in all but name as it meets the criteria of a state laid down in the
Montevideo Convention,
154
namely, a permanent population, a defined territory, a government, and a capacity to enter into relations
with other states.
Even assuming arguendo that the MOA-AD would not necessarily sever any portion of Philippine territory, the spirit animating it -
which has betrayed itself by its use of the concept of association - runs counter to the national sovereignty and territorial integrity
of the Republic.
The defining concept underlying the relationship between the national government and the BJE being itself contrary to the
present Constitution, it is not surprising that many of the specific provisions of the MOA-AD on the formation and powers of
the BJE are in conflict with the Constitution and the laws.
Article X, Section 18 of the Constitution provides that "[t]he creation of the autonomous region shall be effective when approved by a
majority of the votes cast by the constituent units in a plebiscite called for the purpose, provided that only provinces, cities, and
geographic areas voting favorably in such plebiscite shall be included in the autonomous region." (Emphasis supplied)
As reflected above, the BJE is more of a state than an autonomous region. But even assuming that it is covered by the term
"autonomous region" in the constitutional provision just quoted, the MOA-AD would still be in conflict with it. Under paragraph 2(c)
on TERRITORY in relation to 2(d) and 2(e), the present geographic area of the ARMM and, in addition, the municipalities of Lanao
del Norte which voted for inclusion in the ARMM during the 2001 plebiscite - Baloi, Munai, Nunungan, Pantar, Tagoloan and
Tangkal - are automatically part of the BJE without need of another plebiscite, in contrast to the areas under Categories A and B
mentioned earlier in the overview. That the present components of the ARMM and the above-mentioned municipalities voted for
inclusion therein in 2001, however, does not render another plebiscite unnecessary under the Constitution, precisely because what
these areas voted for then was their inclusion in the ARMM, not the BJE.
The MOA-AD, moreover, would not
comply with Article X, Section 20 of
the Constitution
since that provision defines the powers of autonomous regions as follows:
SECTION 20. Within its territorial jurisdiction and subject to the provisions of this Constitution and national laws, the
organic act of autonomous regions shall provide for legislative powers over:
(1) Administrative organization;
(2) Creation of sources of revenues;
(3) Ancestral domain and natural resources;
(4) Personal, family, and property relations;
(5) Regional urban and rural planning development;
(6) Economic, social, and tourism development;
(7) Educational policies;
(8) Preservation and development of the cultural heritage; and
(9) Such other matters as may be authorized by law for the promotion of the general welfare of the people of the region.
(Underscoring supplied)
Again on the premise that the BJE may be regarded as an autonomous region, the MOA-AD would require an amendment that would
expand the above-quoted provision. The mere passage of new legislation pursuant to sub-paragraph No. 9 of said constitutional
provision would not suffice, since any new law that might vest in the BJE the powers found in the MOA-AD must, itself, comply with
other provisions of the Constitution. It would not do, for instance, to merely pass legislation vesting the BJE with treaty-making power
in order to accommodate paragraph 4 of the strand on RESOURCES which states: "The BJE is free to enter into any economic
cooperation and trade relations with foreign countries: provided, however, that such relationships and understandings do not include
aggression against the Government of the Republic of the Philippines x x x." Under our constitutional system, it is only the President
who has that power. Pimentel v. Executive Secretary
155
instructs:
In our system of government, the President, being the head of state, is regarded as the sole organ and authority in external
relations and is the country's sole representative with foreign nations. As the chief architect of foreign policy, the
President acts as the country's mouthpiece with respect to international affairs. Hence, the President is vested with the
authority to deal with foreign states and governments, extend or withhold recognition, maintain diplomatic relations,
enter into treaties, and otherwise transact the business of foreign relations. In the realm of treaty-making, the
President has the sole authority to negotiate with other states. (Emphasis and underscoring supplied)
Article II, Section 22 of the Constitution must also be amended if the scheme envisioned in the MOA-AD is to be effected. That
constitutional provision states: "The State recognizes and promotes the rights of indigenous cultural communities within the
framework of national unity and development." (Underscoring supplied) An associative arrangement does not uphold national unity.
While there may be a semblance of unity because of the associative ties between the BJE and the national government, the act of
placing a portion of Philippine territory in a status which, in international practice, has generally been a preparation for independence,
is certainly not conducive to national unity.
Besides being irreconcilable with the Constitution, the MOA-AD is also inconsistent with prevailing statutory law, among which
are R.A. No. 9054
156
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:
x x x x
b) Petition for Delineation. - The process of delineating a specific perimeter may be initiated by the NCIP with the consent of
the ICC/IP concerned, or through a Petition for Delineation filed with the NCIP, by a majority of the members of the
ICCs/IPs;
c) Delineation Proper. - The official delineation of ancestral domain boundaries including census of all community members
therein, shall be immediately undertaken by the Ancestral Domains Office upon filing of the application by the ICCs/IPs
concerned. Delineation will be done in coordination with the community concerned and shall at all times include genuine
involvement and participation by the members of the communities concerned;
d) Proof Required. - Proof of Ancestral Domain Claims shall include the testimony of elders or community under oath, and
other documents directly or indirectly attesting to the possession or occupation of the area since time immemorial by such
ICCs/IPs in the concept of owners which shall be any one (1) of the following authentic documents:
1) Written accounts of the ICCs/IPs customs 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.
x x x x
To remove all doubts about the irreconcilability of the MOA-AD with the present legal system, a discussion of not only the
Constitution and domestic statutes, but also of international law is in order, for
Article II, Section 2 of the Constitution states that the Philippines "adopts the generally accepted principles of international
law as part of the law of the land."
Applying this provision of the Constitution, the Court, in Mejoff v. Director of Prisons,
158
held that the Universal Declaration of
Human Rights is part of the law of the land on account of which it ordered the release on bail of a detained alien of Russian descent
whose deportation order had not been executed even after two years. Similarly, the Court in Agustin v. Edu
159
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 or construed as authorizing or encouraging
any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign
and independent States.
Even if the UN DRIP were considered as part of the law of the land pursuant to Article II, Section 2 of the Constitution, it would not
suffice to uphold the validity of the MOA-AD so as to render its compliance with other laws unnecessary.
It is, therefore, clear that the MOA-AD contains numerous provisions that cannot be reconciled with the Constitution and the
laws as presently worded. Respondents proffer, however, that the signing of the MOA-AD alone would not have entailed any
violation of law or grave abuse of discretion on their part, precisely because it stipulates that the provisions thereof inconsistent with
the laws shall not take effect until these laws are amended. They cite paragraph 7 of the MOA-AD strand on GOVERNANCE quoted
earlier, but which is reproduced below for convenience:
7. The Parties agree that the mechanisms and modalities for the actual implementation of this MOA-AD shall be spelt out in
the Comprehensive Compact to mutually take such steps to enable it to occur effectively.
Any provisions of the MOA-AD requiring amendments to the existing legal framework shall come into force upon signing of
a Comprehensive Compact and upon effecting the necessary changes to the legal framework with due regard to non
derogation of prior agreements and within the stipulated timeframe to be contained in the Comprehensive Compact.
Indeed, the foregoing stipulation keeps many controversial provisions of the MOA-AD from coming into force until the necessary
changes to the legal framework are effected. While the word "Constitution" is not mentioned in the provision now under
consideration or anywhere else in the MOA-AD, the term "legal framework" is certainly broad enough to include the
Constitution.
Notwithstanding the suspensive clause, however, respondents, by their mere act of incorporating in the MOA-AD the provisions
thereof regarding the associative relationship between the BJE and the Central Government, have already violated the Memorandum
of Instructions From The President dated March 1, 2001, which states that the "negotiations shall be conducted in accordance with x x
x the principles of the sovereignty and territorial integrity of the Republic of the Philippines." (Emphasis supplied) Establishing an
associative relationship between the BJE and the Central Government is, for the reasons already discussed, a preparation for
independence, or worse, an implicit acknowledgment of an independent status already prevailing.
Even apart from the above-mentioned Memorandum, however, the MOA-AD is defective because the suspensive clause is invalid, as
discussed below.
The authority of the GRP Peace Negotiating Panel to negotiate with the MILF is founded on E.O. No. 3, Section 5(c), which states
that there shall be established Government Peace Negotiating Panels for negotiations with different rebel groups to be "appointed by
the President as her official emissaries to conduct negotiations, dialogues, and face-to-face discussions with rebel groups." These
negotiating panels are to report to the President, through the PAPP on the conduct and progress of the negotiations.
It bears noting that the GRP Peace Panel, in exploring lasting solutions to the Moro Problem through its negotiations with the MILF,
was not restricted by E.O. No. 3 only to those options available under the laws as they presently stand. One of the components of a
comprehensive peace process, which E.O. No. 3 collectively refers to as the "Paths to Peace," is the pursuit of social, economic, and
political reforms which may require new legislation or even constitutional amendments. Sec. 4(a) of E.O. No. 3, which reiterates
Section 3(a), of E.O. No. 125,
167
states:
SECTION 4. The Six Paths to Peace. - The components of the comprehensive peace process comprise the processes known
as the "Paths to Peace". These component processes are interrelated and not mutually exclusive, and must therefore be
pursued simultaneously in a coordinated and integrated fashion. They shall include, but may not be limited to, the following:
a. PURSUIT OF SOCIAL, ECONOMIC AND POLITICAL REFORMS. This component involves the vigorous
implementation of various policies, reforms, programs and projects aimed at addressing the root causes of internal
armed conflicts and social unrest. This may require administrative action, new legislation or even constitutional
amendments.
x x x x (Emphasis supplied)
The MOA-AD, therefore, may reasonably be perceived as an attempt of respondents to address, pursuant to this provision of E.O. No.
3, the root causes of the armed conflict in Mindanao. The E.O. authorized them to "think outside the box," so to speak. Hence, they
negotiated and were set on signing the MOA-AD that included various social, economic, and political reforms which cannot, however,
all be accommodated within the present legal framework, and which thus would require new legislation and constitutional
amendments.
The inquiry on the legality of the "suspensive clause," however, cannot stop here, because it must be asked whether the President
herself may exercise the power delegated to the GRP Peace Panel under E.O. No. 3, Sec. 4(a).
The President cannot delegate a power that she herself does not possess. May the President, in the course of peace negotiations, agree
to pursue reforms that would require new legislation and constitutional amendments, or should the reforms be restricted only to those
solutions which the present laws allow? The answer to this question requires a discussion of the extent of the President's power to
conduct peace negotiations.
That the authority of the President to conduct peace negotiations with rebel groups is not explicitly mentioned in the Constitution does
not mean that she has no such authority. In Sanlakas v. Executive Secretary,
168
in issue was the authority of the President to declare a
state of rebellion - an authority which is not expressly provided for in the Constitution. The Court held thus:
"In her ponencia in Marcos v. Manglapus, Justice Cortes put her thesis into jurisprudence. There, the Court, by a slim 8-7
margin, upheld the President's power to forbid the return of her exiled predecessor. The rationale for the majority's ruling
rested on the President's
. . . unstated residual powers which are implied from the grant of executive power and which are necessary
for her to comply with her duties under the Constitution. The powers of the President are not limited to what
are expressly enumerated in the article on the Executive Department and in scattered provisions of the
Constitution. This is so, notwithstanding the avowed intent of the members of the Constitutional Commission of
1986 to limit the powers of the President as a reaction to the abuses under the regime of Mr. Marcos, for the result
was a limitation of specific powers of the President, particularly those relating to the commander-in-chief clause, but
not a diminution of the general grant of executive power.
Thus, the President's authority to declare a state of rebellion springs in the main from her powers as chief executive
and, at the same time, draws strength from her Commander-in-Chief powers. x x x (Emphasis and underscoring
supplied)
Similarly, the President's power to conduct peace negotiations is implicitly included in her powers as Chief Executive and
Commander-in-Chief. As Chief Executive, the President has the general responsibility to promote public peace, and as Commander-
in-Chief, she has the more specific duty to prevent and suppress rebellion and lawless violence.
169

As the experience of nations which have similarly gone through internal armed conflict will show, however, peace is rarely attained by
simply pursuing a military solution. Oftentimes, changes as far-reaching as a fundamental reconfiguration of the nation's constitutional
structure is required. The observations of Dr. Kirsti Samuels are enlightening, to wit:
x x x [T]he fact remains that a successful political and governance transition must form the core of any post-conflict peace-
building mission. As we have observed in Liberia and Haiti over the last ten years, conflict cessation without modification of
the political environment, even where state-building is undertaken through technical electoral assistance and institution- or
capacity-building, is unlikely to succeed. On average, more than 50 percent of states emerging from conflict return to
conflict. Moreover, a substantial proportion of transitions have resulted in weak or limited democracies.
The design of a constitution and its constitution-making process can play an important role in the political and governance
transition. Constitution-making after conflict is an opportunity to create a common vision of the future of a state and a road
map on how to get there. The constitution can be partly a peace agreement and partly a framework setting up the rules by
which the new democracy will operate.
170

In the same vein, Professor Christine Bell, in her article on the nature and legal status of peace agreements, observed that the typical
way that peace agreements establish or confirm mechanisms for demilitarization and demobilization is by linking them to new
constitutional structures addressing governance, elections, and legal and human rights institutions.
171

In the Philippine experience, the link between peace agreements and constitution-making has been recognized by no less than the
framers of the Constitution. Behind the provisions of the Constitution on autonomous regions
172
is the framers' intention to implement
a particular peace agreement, namely, the Tripoli Agreement of 1976 between the GRP and the MNLF, signed by then Undersecretary
of National Defense Carmelo Z. Barbero and then MNLF Chairman Nur Misuari.
MR. ROMULO. There are other speakers; so, although I have some more questions, I will reserve my right to ask them if
they are not covered by the other speakers. I have only two questions.
I heard one of the Commissioners say that local autonomy already exists in the Muslim region; it is working very well;
it has, in fact, diminished a great deal of the problems. So, my question is: since that already exists, why do we have to go
into something new?
MR. OPLE. May I answer that on behalf of Chairman Nolledo. Commissioner Yusup Abubakar is right that certain definite
steps have been taken to implement the provisions of the Tripoli Agreement with respect to an autonomous region in
Mindanao. This is a good first step, but there is no question that this is merely a partial response to the Tripoli
Agreement itself and to the fuller standard of regional autonomy contemplated in that agreement, and now by state
policy.
173
(Emphasis supplied)
The constitutional provisions on autonomy and the statutes enacted pursuant to them have, to the credit of their drafters, been partly
successful. Nonetheless, the Filipino people are still faced with the reality of an on-going conflict between the Government and the
MILF. If the President is to be expected to find means for bringing this conflict to an end and to achieve lasting peace in Mindanao,
then she must be given the leeway to explore, in the course of peace negotiations, solutions that may require changes to the
Constitution for their implementation. Being uniquely vested with the power to conduct peace negotiations with rebel groups, the
President is in a singular position to know the precise nature of their grievances which, if resolved, may bring an end to hostilities.
The President may not, of course, unilaterally implement the solutions that she considers viable, but she may not be prevented from
submitting them as recommendations to Congress, which could then, if it is minded, act upon them pursuant to the legal procedures
for constitutional amendment and revision. In particular, Congress would have the option, pursuant to Article XVII, Sections 1 and 3
of the Constitution, to propose the recommended amendments or revision to the people, call a constitutional convention, or submit to
the electorate the question of calling such a convention.
While the President does not possess constituent powers - as those powers may be exercised only by Congress, a Constitutional
Convention, or the people through initiative and referendum - she may submit proposals for constitutional change to Congress in a
manner that does not involve the arrogation of constituent powers.
In Sanidad v. COMELEC,
174
in issue was the legality of then President Marcos' act of directly submitting proposals for constitutional
amendments to a referendum, bypassing the interim National Assembly which was the body vested by the 1973 Constitution with the
power to propose such amendments. President Marcos, it will be recalled, never convened the interim National Assembly. The
majority upheld the President's act, holding that "the urges of absolute necessity" compelled the President as the agent of the people to
act as he did, there being no interim National Assembly to propose constitutional amendments. Against this ruling, Justices Teehankee
and Muoz Palma vigorously dissented. The Court's concern at present, however, is not with regard to the point on which it was then
divided in that controversial case, but on that which was not disputed by either side.
Justice Teehankee's dissent,
175
in particular, bears noting. While he disagreed that the President may directly submit proposed
constitutional amendments to a referendum, implicit in his opinion is a recognition that he would have upheld the President's action
along with the majority had the President convened the interim National Assembly and coursed his proposals through it. Thus Justice
Teehankee opined:
"Since the Constitution provides for the organization of the essential departments of government, defines and delimits the
powers of each and prescribes the manner of the exercise of such powers, and the constituent power has not been granted to
but has been withheld from the President or Prime Minister, it follows that the President's questioned decrees proposing and
submitting constitutional amendments directly to the people (without the intervention of the interim National Assembly in
whom the power is expressly vested) are devoid of constitutional and legal basis."
176
(Emphasis supplied)
From the foregoing discussion, the principle may be inferred that the President - in the course of conducting peace negotiations - may
validly consider implementing even those policies that require changes to the Constitution, but she may not unilaterally implement
them without the intervention of Congress, or act in any way as if the assent of that body were assumed as a certainty.
Since, under the present Constitution, the people also have the power to directly propose amendments through initiative and
referendum, the President may also submit her recommendations to the people, not as a formal proposal to be voted on in a plebiscite
similar to what President Marcos did in Sanidad, but for their independent consideration of whether these recommendations merit
being formally proposed through initiative.
These recommendations, however, may amount to nothing more than the President's suggestions to the people, for any further
involvement in the process of initiative by the Chief Executive may vitiate its character as a genuine "people's initiative." The only
initiative recognized by the Constitution is that which truly proceeds from the people. As the Court stated in Lambino v.
COMELEC:
177

"The Lambino Group claims that their initiative is the people's voice.' However, the Lambino Group unabashedly states in
ULAP Resolution No. 2006-02, in the verification of their petition with the COMELEC, that ULAP maintains its
unqualified support to the agenda of Her Excellency President Gloria Macapagal-Arroyo for constitutional reforms.' The
Lambino Group thus admits that their people's' initiative is an unqualified support to the agenda' of the incumbent
President to change the Constitution. This forewarns the Court to be wary of incantations of people's voice' or sovereign
will' in the present initiative."
It will be observed that the President has authority, as stated in her oath of office,
178
only to preserve and defend the Constitution. Such
presidential power does not, however, extend to allowing her to change the Constitution, but simply to recommend proposed
amendments or revision. As long as she limits herself to recommending these changes and submits to the proper procedure for
constitutional amendments and revision, her mere recommendation need not be construed as an unconstitutional act.
The foregoing discussion focused on the President's authority to propose constitutional amendments, since her authority to propose
new legislation is not in controversy. It has been an accepted practice for Presidents in this jurisdiction to propose new legislation.
One of the more prominent instances the practice is usually done is in the yearly State of the Nation Address of the President to
Congress. Moreover, the annual general appropriations bill has always been based on the budget prepared by the President, which - for
all intents and purposes - is a proposal for new legislation coming from the President.
179

The "suspensive clause" in the MOA-AD viewed in light of the above-discussed standards
Given the limited nature of the President's authority to propose constitutional amendments, she cannot guarantee to any third party
that the required amendments will eventually be put in place, nor even be submitted to a plebiscite. The most she could do is submit
these proposals as recommendations either to Congress or the people, in whom constituent powers are vested.
Paragraph 7 on Governance of the MOA-AD states, however, that all provisions thereof which cannot be reconciled with the present
Constitution and laws "shall come into force upon signing of a Comprehensive Compact and upon effecting the necessary changes to
the legal framework." This stipulation does not bear the marks of a suspensive condition - defined in civil law as a future and
uncertain event - but of a term. It is not a question of whether the necessary changes to the legal framework will be effected, but
when. That there is no uncertainty being contemplated is plain from what follows, for the paragraph goes on to state that the
contemplated changes shall be "with due regard to non derogation of prior agreements and within the stipulated timeframe to be
contained in the Comprehensive Compact."
Pursuant to this stipulation, therefore, it is mandatory for the GRP to effect the changes to the legal framework contemplated in the
MOA-AD - which changes would include constitutional amendments, as discussed earlier. It bears noting that,
By the time these changes are put in place, the MOA-AD itself would be counted among the "prior agreements" from which
there could be no derogation.
What remains for discussion in the Comprehensive Compact would merely be the implementing details for these "consensus points"
and, notably, the deadline for effecting the contemplated changes to the legal framework.
Plainly, stipulation-paragraph 7 on GOVERNANCE is inconsistent with the limits of the President's authority to propose
constitutional amendments, it being a virtual guarantee that the Constitution and the laws of the Republic of the Philippines will
certainly be adjusted to conform to all the "consensus points" found in the MOA-AD. Hence, it must be struck down as
unconstitutional.
A comparison between the "suspensive clause" of the MOA-AD with a similar provision appearing in the 1996 final peace agreement
between the MNLF and the GRP is most instructive.
As a backdrop, the parties to the 1996 Agreement stipulated that it would be implemented in two phases. Phase I covered a three-year
transitional period involving the putting up of new administrative structures through Executive Order, such as the Special Zone of
Peace and Development (SZOPAD) and the Southern Philippines Council for Peace and Development (SPCPD), while Phase II
covered the establishment of the new regional autonomous government through amendment or repeal of R.A. No. 6734, which was
then the Organic Act of the ARMM.
The stipulations on Phase II consisted of specific agreements on the structure of the expanded autonomous region envisioned by the
parties. To that extent, they are similar to the provisions of the MOA-AD. There is, however, a crucial difference between the two
agreements. While the MOA-AD virtually guarantees that the "necessary changes to the legal framework" will be put in place,
the GRP-MNLF final peace agreement states thus: "Accordingly, these provisions [on Phase II] shall be recommended by the GRP to
Congress for incorporation in the amendatory or repealing law."
Concerns have been raised that the MOA-AD would have given rise to a binding international law obligation on the part of the
Philippines to change its Constitution in conformity thereto, on the ground that it may be considered either as a binding agreement
under international law, or a unilateral declaration of the Philippine government to the international community that it would grant to
the Bangsamoro people all the concessions therein stated. Neither ground finds sufficient support in international law, however.
The MOA-AD, as earlier mentioned in the overview thereof, would have included foreign dignitaries as signatories. In addition,
representatives of other nations were invited to witness its signing in Kuala Lumpur. These circumstances readily lead one to surmise
that the MOA-AD would have had the status of a binding international agreement had it been signed. An examination of the prevailing
principles in international law, however, leads to the contrary conclusion.
The Decision on Challenge to Jurisdiction: Lom Accord Amnesty
180
(the Lom Accord case) of the Special Court of Sierra Leone is
enlightening. The Lom 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 Lom 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 Lom Accord case, the Defence argued that the Accord created an internationally binding obligation not to prosecute the
beneficiaries of the amnesty provided therein, citing, among other things, the participation of foreign dignitaries and international
organizations in the finalization of that agreement. The Special Court, however, rejected this argument, ruling that the Lome Accord is
not a treaty and that it can only create binding obligations and rights between the parties in municipal law, not in international law.
Hence, the Special Court held, it is ineffective in depriving an international court like it of jurisdiction.
"37. In regard to the nature of a negotiated settlement of an internal armed conflict it is easy to assume and to argue with
some degree of plausibility, as Defence counsel for the defendants seem to have done, that the mere fact that in
addition to the parties to the conflict, the document formalizing the settlement is signed by foreign heads of state or
their representatives and representatives of international organizations, means the agreement of the parties is
internationalized so as to create obligations in international law.
x x x x
40. Almost every conflict resolution will involve the parties to the conflict and the mediator or facilitator of the settlement, or
persons or bodies under whose auspices the settlement took place but who are not at all parties to the conflict, are not
contracting parties and who do not claim any obligation from the contracting parties or incur any obligation from the
settlement.
41. In this case, the parties to the conflict are the lawful authority of the State and the RUF which has no status of
statehood and is to all intents and purposes a faction within the state. The non-contracting signatories of the Lom
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 Lom Agreement created neither rights nor obligations capable of being regulated by international
law. An agreement such as the Lom 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 Lom
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.
x x x x
51. In announcing that the 1974 series of atmospheric tests would be the last, the French Government conveyed to the
world at large, including the Applicant, its intention effectively to terminate these tests. It was bound to assume that
other States might take note of these statements and rely on their being effective. The validity of these statements and
their legal consequences must be considered within the general framework of the security of international intercourse,
and the confidence and trust which are so essential in the relations among States. It is from the actual substance of these
statements, and from the circumstances attending their making, that the legal implications of the unilateral act must
be deduced. The objects of these statements are clear and they were addressed to the international community as a
whole, and the Court holds that they constitute an undertaking possessing legal effect. The Court considers *270 that the
President of the Republic, in deciding upon the effective cessation of atmospheric tests, gave an undertaking to the
international community to which his words were addressed. x x x (Emphasis and underscoring supplied)
As gathered from the above-quoted ruling of the ICJ, public statements of a state representative may be construed as a unilateral
declaration only when the following conditions are present: the statements were clearly addressed to the international community, the
state intended to be bound to that community by its statements, and that not to give legal effect to those statements would be
detrimental to the security of international intercourse. Plainly, unilateral declarations arise only in peculiar circumstances.
The limited applicability of the Nuclear Tests Case ruling was recognized in a later case decided by the ICJ entitled Burkina Faso v.
Mali,
183
also known as the Case Concerning the Frontier Dispute. The public declaration subject of that case was a statement made by
the President of Mali, in an interview by a foreign press agency, that Mali would abide by the decision to be issued by a commission
of the Organization of African Unity on a frontier dispute then pending between Mali and Burkina Faso.
Unlike in the Nuclear Tests Case, the ICJ held that the statement of Mali's President was not a unilateral act with legal implications. It
clarified that its ruling in the Nuclear Tests case rested on the peculiar circumstances surrounding the French declaration subject
thereof, to wit:
40. In order to assess the intentions of the author of a unilateral act, account must be taken of all the factual circumstances in
which the act occurred. For example, in the Nuclear Tests cases, the Court took the view that since the applicant States
were not the only ones concerned at the possible continuance of atmospheric testing by the French Government, that
Government's unilateral declarations had conveyed to the world at large, including the Applicant, its intention
effectively to terminate these tests (I.C.J. Reports 1974, p. 269, para. 51; p. 474, para. 53). In the particular
circumstances of those cases, the French Government could not express an intention to be bound otherwise than by
unilateral declarations. It is difficult to see how it could have accepted the terms of a negotiated solution with each of
the applicants without thereby jeopardizing its contention that its conduct was lawful. The circumstances of the
present case are radically different. Here, there was nothing to hinder the Parties from manifesting an intention to
accept the binding character of the conclusions of the Organization of African Unity Mediation Commission by the
normal method: a formal agreement on the basis of reciprocity. Since no agreement of this kind was concluded between
the Parties, the Chamber finds that there are no grounds to interpret the declaration made by Mali's head of State on 11 April
1975 as a unilateral act with legal implications in regard to the present case. (Emphasis and underscoring supplied)
Assessing the MOA-AD in light of the above criteria, it would not have amounted to a unilateral declaration on the part of the
Philippine State to the international community. The Philippine panel did not draft the same with the clear intention of being bound
thereby to the international community as a whole or to any State, but only to the MILF. While there were States and international
organizations involved, one way or another, in the negotiation and projected signing of the MOA-AD, they participated merely as
witnesses or, in the case of Malaysia, as facilitator. As held in the Lom Accord case, the mere fact that in addition to the parties to the
conflict, the peace settlement is signed by representatives of states and international organizations does not mean that the agreement is
internationalized so as to create obligations in international law.
Since the commitments in the MOA-AD were not addressed to States, not to give legal effect to such commitments would not be
detrimental to the security of international intercourse - to the trust and confidence essential in the relations among States.
In one important respect, the circumstances surrounding the MOA-AD are closer to that of Burkina Faso wherein, as already
discussed, the Mali President's statement was not held to be a binding unilateral declaration by the ICJ. As in that case, there was also
nothing to hinder the Philippine panel, had it really been its intention to be bound to other States, to manifest that intention by formal
agreement. Here, that formal agreement would have come about by the inclusion in the MOA-AD of a clear commitment to be legally
bound to the international community, not just the MILF, and by an equally clear indication that the signatures of the participating
states-representatives would constitute an acceptance of that commitment. Entering into such a formal agreement would not have
resulted in a loss of face for the Philippine government before the international community, which was one of the difficulties that
prevented the French Government from entering into a formal agreement with other countries. That the Philippine panel did not enter
into such a formal agreement suggests that it had no intention to be bound to the international community. On that ground, the MOA-
AD may not be considered a unilateral declaration under international law.
The MOA-AD not being a document that can bind the Philippines under international law notwithstanding, respondents' almost
consummated act of guaranteeing amendments to the legal framework is, by itself, sufficient to constitute grave abuse of
discretion. The grave abuse lies not in the fact that they considered, as a solution to the Moro Problem, the creation of a state within a
state, but in their brazen willingness to guarantee that Congress and the sovereign Filipino people would give their imprimatur
to their solution. Upholding such an act would amount to authorizing a usurpation of the constituent powers vested only in Congress,
a Constitutional Convention, or the people themselves through the process of initiative, for the only way that the Executive can ensure
the outcome of the amendment process is through an undue influence or interference with that process.
The sovereign people may, if it so desired, go to the extent of giving up a portion of its own territory to the Moros for the sake of
peace, for it can change the Constitution in any it wants, so long as the change is not inconsistent with what, in international law, is
known as Jus Cogens.
184
Respondents, however, may not preempt it in that decision.
SUMMARY
The petitions are ripe for adjudication. The failure of respondents to consult the local government units or communities affected
constitutes a departure by respondents from their mandate under E.O. No. 3. Moreover, respondents exceeded their authority by the
mere act of guaranteeing amendments to the Constitution. Any alleged violation of the Constitution by any branch of government is a
proper matter for judicial review.
As the petitions involve constitutional issues which are of paramount public interest or of transcendental importance, the Court grants
the petitioners, petitioners-in-intervention and intervening respondents the requisite locus standi in keeping with the liberal stance
adopted in David v. Macapagal-Arroyo.
Contrary to the assertion of respondents that the non-signing of the MOA-AD and the eventual dissolution of the GRP Peace Panel
mooted the present petitions, the Court finds that the present petitions provide an exception to the "moot and academic" principle in
view of (a) the grave violation of the Constitution involved; (b) the exceptional character of the situation and paramount public
interest; (c) the need to formulate controlling principles to guide the bench, the bar, and the public; and (d) the fact that the case is
capable of repetition yet evading review.
The MOA-AD is a significant part of a series of agreements necessary to carry out the GRP-MILF Tripoli Agreement on Peace signed
by the government and the MILF back in June 2001. Hence, the present MOA-AD can be renegotiated or another one drawn up that
could contain similar or significantly dissimilar provisions compared to the original.
The Court, however, finds that the prayers for mandamus have been rendered moot in view of the respondents' action in providing the
Court and the petitioners with the official copy of the final draft of the MOA-AD and its annexes.
The people's right to information on matters of public concern under Sec. 7, Article III of the Constitution is in splendid symmetry
with the state policy of full public disclosure of all its transactions involving public interest under Sec. 28, Article II of the
Constitution. The right to information guarantees the right of the people to demand information, while Section 28 recognizes the duty
of officialdom to give information even if nobody demands. The complete and effective exercise of the right to information
necessitates that its complementary provision on public disclosure derive the same self-executory nature, subject only to reasonable
safeguards or limitations as may be provided by law.
The contents of the MOA-AD is a matter of paramount public concern involving public interest in the highest order. In declaring that
the right to information contemplates steps and negotiations leading to the consummation of the contract, jurisprudence finds no
distinction as to the executory nature or commercial character of the agreement.
An essential element of these twin freedoms is to keep a continuing dialogue or process of communication between the government
and the people. Corollary to these twin rights is the design for feedback mechanisms. The right to public consultation was envisioned
to be a species of these public rights.
At least three pertinent laws animate these constitutional imperatives and justify the exercise of the people's right to be consulted on
relevant matters relating to the peace agenda.
One, E.O. No. 3 itself is replete with mechanics for continuing consultations on both national and local levels and for a principal
forum for consensus-building. In fact, it is the duty of the Presidential Adviser on the Peace Process to conduct regular dialogues to
seek relevant information, comments, advice, and recommendations from peace partners and concerned sectors of society.
Two, Republic Act No. 7160 or the Local Government Code of 1991 requires all national offices to conduct consultations before any
project or program critical to the environment and human ecology including those that may call for the eviction of a particular group
of people residing in such locality, is implemented therein. The MOA-AD is one peculiar program that unequivocally and unilaterally
vests ownership of a vast territory to the Bangsamoro people, which could pervasively and drastically result to the diaspora or
displacement of a great number of inhabitants from their total environment.
Three, Republic Act No. 8371 or the Indigenous Peoples Rights Act of 1997 provides for clear-cut procedure for the recognition and
delineation of ancestral domain, which entails, among other things, the observance of the free and prior informed consent of the
Indigenous Cultural Communities/Indigenous Peoples. Notably, the statute does not grant the Executive Department or any
government agency the power to delineate and recognize an ancestral domain claim by mere agreement or compromise.
The invocation of the doctrine of executive privilege as a defense to the general right to information or the specific right to
consultation is untenable. The various explicit legal provisions fly in the face of executive secrecy. In any event, respondents
effectively waived such defense after it unconditionally disclosed the official copies of the final draft of the MOA-AD, for judicial
compliance and public scrutiny.
In sum, the Presidential Adviser on the Peace Process committed grave abuse of discretion when he failed to carry out the pertinent
consultation process, as mandated by E.O. No. 3, Republic Act No. 7160, and Republic Act No. 8371. The furtive process by which
the MOA-AD was designed and crafted runs contrary to and in excess of the legal authority, and amounts to a whimsical, capricious,
oppressive, arbitrary and despotic exercise thereof. It illustrates a gross evasion of positive duty and a virtual refusal to perform the
duty enjoined.
The MOA-AD cannot be reconciled with the present Constitution and laws. Not only its specific provisions but the very concept
underlying them, namely, the associative relationship envisioned between the GRP and the BJE, are unconstitutional, for the concept
presupposes that the associated entity is a state and implies that the same is on its way to independence.
While there is a clause in the MOA-AD stating that the provisions thereof inconsistent with the present legal framework will not be
effective until that framework is amended, the same does not cure its defect. The inclusion of provisions in the MOA-AD establishing
an associative relationship between the BJE and the Central Government is, itself, a violation of the Memorandum of Instructions
From The President dated March 1, 2001, addressed to the government peace panel. Moreover, as the clause is worded, it virtually
guarantees that the necessary amendments to the Constitution and the laws will eventually be put in place. Neither the GRP Peace
Panel nor the President herself is authorized to make such a guarantee. Upholding such an act would amount to authorizing a
usurpation of the constituent powers vested only in Congress, a Constitutional Convention, or the people themselves through the
process of initiative, for the only way that the Executive can ensure the outcome of the amendment process is through an undue
influence or interference with that process.
While the MOA-AD would not amount to an international agreement or unilateral declaration binding on the Philippines under
international law, respondents' act of guaranteeing amendments is, by itself, already a constitutional violation that renders the MOA-
AD fatally defective.
WHEREFORE, respondents' motion to dismiss is DENIED. The main and intervening petitions are GIVEN DUE COURSE and
hereby GRANTED.
The Memorandum of Agreement on the Ancestral Domain Aspect of the GRP-MILF Tripoli Agreement on Peace of 2001 is declared
contrary to law and the Constitution.
SO ORDERED.

Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-14279 October 31, 1961
THE COMMISSIONER OF CUSTOMS and THE COLLECTOR OF CUSTOMS, petitioners,
vs.
EASTERN SEA TRADING, respondent.
Office of the Solicitor General for petitioners.
Valentin Gutierrez for respondent.
CONCEPCION, J .:
Petition for review of a judgment of the Court of Tax Appeals reversing a decision of the Commissioner of Customs.
Respondent Eastern Sea Trading was the consignee of several shipments of onion and garlic which arrived at the Port of Manila from
August 25 to September 7, 1954. Some shipments came from Japan and others from Hong Kong. In as much as none of the shipments
had the certificate required by Central Bank Circulars Nos. 44 and 45 for the release thereof, the goods thus imported were seized and
subjected to forfeiture proceedings for alleged violations of section 1363(f) of the Revised Administrative Code, in relation to the
aforementioned circulars of the Central Bank. In due course, the Collector of Customs of Manila rendered a decision on September 4,
1956, declaring said goods forfeited to the Government and the goods having been, in the meantime, released to the consignees on
surety bonds, filed by the same, as principal, and the Alto Surety & Insurance Co., Inc., as surety, in compliance with orders of the
Court of First Instance of Manila, in Civil Cases Nos. 23942 and 23852 thereof directing that the amounts of said bonds be paid, by
said principal and surety, jointly and severally, to the Bureau of Customs, within thirty (30) days from notice.
On appeal taken by the consignee, said decision was affirmed by the Commissioner of Customs on December 27, 1956. Subsequently,
the consignee sought a review of the decision of said two (2) officers by the Court of Tax Appeals, which reversed the decision of the
Commissioner of Customs and ordered that the aforementioned bonds be cancelled and withdrawn. Hence, the present petition of the
Commissioner of Customs for review of the decision of the Court of Tax Appeals.
The latter is based upon the following premises, namely: that the Central Bank has no authority to regulate transactions not involving
foreign exchange; that the shipments in question are in the nature of "no-dollar" imports; that, as such, the aforementioned shipments
do not involve foreign exchange; that, insofar as a Central Bank license and a certificate authorizing the importation or release of the
goods under consideration are required by Central Bank Circulars Nos. 44 and 45, the latter are null and void; and that the seizure and
forfeiture of the goods imported from Japan cannot be justified under Executive Order No. 328,
1
not only because the same seeks to
implement an executive agreement
2
extending the effectivity of our
3
Trades and Financial Agreements
4
with Japan which
(executive agreement), it believed, is of dubious validity, but, also, because there is no governmental agency authorized to issue the
import license required by the aforementioned executive order.
The authority of the Central Bank to regulate no-dollar imports and the validity of the aforementioned Circulars Nos. 44, and 45 have
already been passed upon and repeatedly upheld by this Court (Pascual vs. Commissioner of Customs, L-10979 [June 30, 1959];
Acting Commissioner of Customs vs. Leuterio, L-9142 [October 17, 1959] Commissioner of Customs vs. Pascual, L-9836 [November
18, 1959]; Commissioner of Customs vs. Serree Investment Co., L-12007 [May 16, 1960]; Commissioner of Customs vs. Serree
Investment Co., L-14274 [November 29, 1960]), for the reason that the broad powers of the Central Bank, under its charter, to
maintain our monetary stability and to preserve the international value of our currency, under section 2 of Republic Act No. 265, in
relation to section 14 of said Act authorizing the bank to issue such rules and regulations as it may consider necessary for the
effective discharge of the responsibilities and the exercise of the powers assigned to the Monetary Board and to the Central Bank
connote the authority to regulate no-dollar imports, owing to the influence and effect that the same may and do have upon the stability
of our peso and its international value.
The Court of Tax Appeals entertained doubts on the legality of the executive agreement sought to be implemented by Executive Order
No. 328, owing to the fact that our Senate had not concurred in the making of said executive agreement. The concurrence of said
House of Congress is required by our fundamental law in the making of "treaties" (Constitution of the Philippines, Article VII, Section
10[7]), which are, however, distinct and different from "executive agreements," which may be validly entered into without such
concurrence.
Treaties are formal documents which require ratification with the approval of two thirds of the Senate. Executive agreements
become binding through executive action without the need of a vote by the Senate or by Congress.
xxx xxx xxx
. . . 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.
xxx xxx xxx
Agreements with respect to the registration of trade-marks have been concluded by the Executive with various countries
under the Act of Congress of March 3, 1881 (21 Stat. 502). Postal conventions regulating the reciprocal treatment of mail
matters, money orders, parcel post, etc., have been concluded by the Postmaster General with various countries under
authorization by Congress beginning with the Act of February 20, 1792 (1 Stat. 232, 239). Ten executive agreements were
concluded by the President pursuant to the McKinley Tariff Act of 1890 (26 Stat. 567, 612), and nine such agreements were
entered into under the Dingley Tariff Act 1897 (30 Stat. 151, 203, 214). A very much larger number of agreements, along the
lines of the one with Rumania previously referred to, providing for most-favored-nation treatment in customs and related
matters have been entered into since the passage of the Tariff Act of 1922, not by direction of the Act but in harmony with it.
xxx xxx xxx
International agreements involving political issues or changes of national policy and those involving international
arrangements of a permanent character usually take the form of treaties. But international agreements embodying adjustments
of detail carrying out well-established national policies and traditions and those involving arrangements of a more or less
temporary nature usually take the form of executive agreements.
xxx xxx xxx
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.
Constitutional 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). (Emphasis supplied.)
In this connection, Francis B. Sayre, former U.S. High Commissioner to the Philippines, said in his work on "The Constitutionality of
Trade Agreement Acts":
Agreements concluded by the President which fall short of treaties are commonly referred to as executive agreements and are
no less common in our scheme of government than are the more formal instruments treaties and conventions. They
sometimes take the form of exchanges of notes and at other times that of more formal documents denominated "agreements"
time or "protocols". The point where ordinary correspondence between this and other governments ends and agreements
whether denominated executive agreements or exchanges of notes or otherwise begin, may sometimes be difficult of ready
ascertainment. 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-agreements act, have been
negotiated with foreign governments. . . . It would seem to be sufficient, in order to show that the trade agreements under the
act of 1934 are not anomalous in character, that they are not treaties, and that they have abundant precedent in our history, to
refer to certain classes of agreements heretofore entered into by the Executive without the approval of the Senate. They cover
such subjects as the inspection of vessels, navigation dues, income tax on shipping profits, the admission of civil aircraft,
customs matters, and commercial relations generally, international claims, postal matters, the registration of trademarks and
copyrights, etcetera. Some of them were concluded not by specific congressional authorization but in conformity with
policies declared in acts of Congress with respect to the general subject matter, such as tariff acts; while still others,
particularly those with respect of the settlement of claims against foreign governments, were concluded independently of any
legislation." (39 Columbia Law Review, pp. 651, 755.)
The validity of the executive agreement in question is thus patent. In fact, the so-called Parity Rights provided for in the Ordinance
Appended to our Constitution were, prior thereto, the subject of an executive agreement, made without the concurrence of two-thirds
(2/3) of the Senate of the United States.
Lastly, the lower court held that it would be unreasonable to require from respondent-appellee an import license when the Import
Control Commission was no longer in existence and, hence, there was, said court believed, no agency authorized to issue the
aforementioned license. This conclusion is untenable, for the authority to issue the aforementioned licenses was not vested exclusively
upon the Import Control Commission or Administration. Executive Order No. 328 provided for export or import licenses "from the
Central Bank of the Philippines or the Import Control Administration" or Commission. Indeed, the latter was created only to perform
the task of implementing certain objectives of the Monetary Board and the Central Bank, which otherwise had to be undertaken by
these two (2) agencies. Upon the abolition of said Commission, the duty to provide means and ways for the accomplishment of said
objectives had merely to be discharged directly by the Monetary Board and the Central Bank, even if the aforementioned Executive
Order had been silent thereon.
WHEREFORE, the decision appealed from is hereby reversed and another one shall be entered affirming that of the Commissioner of
Customs, with cost against respondents defendant-appellee, Eastern Sea Trading. It is so ordered.


Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 159938 March 31, 2006
SHANGRI-LA INTERNATIONAL HOTEL MANAGEMENT, LTD., SHANGRI-LA PROPERTIES, INC., MAKATI
SHANGRI-LA HOTEL & RESORT, INC., AND KUOK PHILIPPINES PROPERTIES, INC., Petitioners,
vs.
DEVELOPERS GROUP OF COMPANIES, INC., Respondent.
D E C I S I O N
GARCIA, J .:
In this petition for review under Rule 45 of the Rules of Court, petitioners Shangri-La International Hotel Management, Ltd.
(SLIHM), et al. assail and seek to set aside the Decision dated May 15, 2003
1
of the Court of Appeals (CA) in CA-G.R. CV No. 53351
and its Resolution
2
of September 15, 2003 which effectively affirmed with modification an earlier decision of the Regional Trial Court
(RTC) of Quezon City in Civil Case No. Q-91-8476, an action for infringement and damages, thereat commenced by respondent
Developers Group of Companies, Inc. (DGCI) against the herein petitioners.
The facts:
At the core of the controversy are the "Shangri-La" mark and "S" logo. Respondent DGCI claims ownership of said mark and logo in
the Philippines on the strength of its prior use thereof within the country. As DGCI stresses at every turn, it filed on October 18, 1982
with the Bureau of Patents, Trademarks and Technology Transfer (BPTTT) pursuant to Sections 2 and 4 of Republic Act (RA) No.
166,
3
as amended, an application for registration covering the subject mark and logo. On May 31, 1983, the BPTTT issued in favor of
DGCI the corresponding certificate of registration therefor, i.e., Registration No. 31904. Since then, DGCI started using the "Shangri-
La" mark and "S" logo in its restaurant business.
On the other hand, the Kuok family owns and operates a chain of hotels with interest in hotels and hotel-related transactions since
1969. As far back as 1962, it adopted the name "Shangri-La" as part of the corporate names of all companies organized under the aegis
of the Kuok Group of Companies (the Kuok Group). The Kuok Group has used the name "Shangri-La" in all Shangri-La hotels and
hotel-related establishments around the world which the Kuok Family owned.
To centralize the operations of all Shangri-la hotels and the ownership of the "Shangri-La" mark and "S" logo, the Kuok Group had
incorporated in Hong Kong and Singapore, among other places, several companies that form part of the Shangri-La International
Hotel Management Ltd. Group of Companies. EDSA Shangri-La Hotel and Resort, Inc., and Makati Shangri-La Hotel and Resort, Inc.
were incorporated in the Philippines beginning 1987 to own and operate the two (2) hotels put up by the Kuok Group in Mandaluyong
and Makati, Metro Manila.
All hotels owned, operated and managed by the aforesaid SLIHM Group of Companies adopted and used the distinctive lettering of
the name "Shangri-La" as part of their trade names.
From the records, it appears that Shangri-La Hotel Singapore commissioned a Singaporean design artist, a certain Mr. William Lee, to
conceptualize and design the logo of the Shangri-La hotels.
During the launching of the stylized "S" Logo in February 1975, Mr. Lee gave the following explanation for the logo, to wit:
The logo which is shaped like a "S" represents the uniquely Asean architectural structures as well as keep to the legendary Shangri-la
theme with the mountains on top being reflected on waters below and the connecting centre [sic] line serving as the horizon. This
logo, which is a bold, striking definitive design, embodies both modernity and sophistication in balance and thought.
Since 1975 and up to the present, the "Shangri-La" mark and "S" logo have been used consistently and continuously by all Shangri-La
hotels and companies in their paraphernalia, such as stationeries, envelopes, business forms, menus, displays and receipts.
The Kuok Group and/or petitioner SLIHM caused the registration of, and in fact registered, the "Shangri-La" mark and "S" logo in the
patent offices in different countries around the world.
On June 21, 1988, the petitioners filed with the BPTTT a petition, docketed as Inter Partes Case No. 3145, praying for the cancellation
of the registration of the "Shangri-La" mark and "S" logo issued to respondent DGCI on the ground that the same were illegally and
fraudulently obtained and appropriated for the latter's restaurant business. They also filed in the same office Inter Partes Case No.
3529, praying for the registration of the same mark and logo in their own names.
Until 1987 or 1988, the petitioners did not operate any establishment in the Philippines, albeit they advertised their hotels abroad since
1972 in numerous business, news, and/or travel magazines widely circulated around the world, all readily available in Philippine
magazines and newsstands. They, too, maintained reservations and booking agents in airline companies, hotel organizations, tour
operators, tour promotion organizations, and in other allied fields in the Philippines.
It is principally upon the foregoing factual backdrop that respondent DGCI filed a complaint for Infringement and Damages with the
RTC of Quezon City against the herein petitioners SLIHM, Shangri-La Properties, Inc., Makati Shangri-La Hotel & Resort, Inc., and
Kuok Philippine Properties, Inc., docketed as Civil Case No. Q-91-8476 and eventually raffled to Branch 99 of said court. The
complaint with prayer for injunctive relief and damages alleged that DGCI has, for the last eight (8) years, been the prior exclusive
user in the Philippines of the mark and logo in question and the registered owner thereof for its restaurant and allied services. As
DGCI alleged in its complaint, SLIHM, et al., in promoting and advertising their hotel and other allied projects then under
construction in the country, had been using a mark and logo confusingly similar, if not identical, with its mark and "S" logo.
Accordingly, DGCI sought to prohibit the petitioners, as defendants a quo, from using the "Shangri-La" mark and "S" logo in their
hotels in the Philippines.
In their Answer with Counterclaim, the petitioners accused DGCI of appropriating and illegally using the "Shangri-La" mark and "S"
logo, adding that the legal and beneficial ownership thereof pertained to SLIHM and that the Kuok Group and its related companies
had been using this mark and logo since March 1962 for all their corporate names and affairs. In this regard, they point to the Paris
Convention for the Protection of Industrial Property as affording security and protection to SLIHM's exclusive right to said mark and
logo. They further claimed having used, since late 1975, the internationally-known and specially-designed "Shangri-La" mark and "S"
logo for all the hotels in their hotel chain.
Pending trial on the merits of Civil Case No. Q-91-8476, the trial court issued a Writ of Preliminary Injunction enjoining the
petitioners from using the subject mark and logo. The preliminary injunction issue ultimately reached the Court in G.R. No. 104583
entitled Developers Group of Companies, Inc. vs. Court of Appeals, et al. In a decision
4
dated March 8, 1993, the Court nullified the
writ of preliminary injunction issued by the trial court and directed it to proceed with the main case and decide it with deliberate
dispatch.
While trial was in progress, the petitioners filed with the court a motion to suspend proceedings on account of the pendency before the
BPTTT of Inter Partes Case No. 3145 for the cancellation of DGCI's certificate of registration. For its part, respondent DGCI filed a
similar motion in that case, invoking in this respect the pendency of its infringement case before the trial court. The parties' respective
motions to suspend proceedings also reached the Court via their respective petitions in G.R. No. 114802, entitled Developers Group of
Companies, Inc. vs. Court of Appeals, et al. and G.R. No. 111580, entitled Shangri-La International Hotel Management LTD., et al.
vs. Court of Appeals, et al., which were accordingly consolidated.
In a consolidated decision
5
dated June 21, 2001, the Court, limiting itself to the core issue of whether, despite the petitioners'
institution of Inter Partes Case No. 3145 before the BPTTT, herein respondent DGCI "can file a subsequent action for infringement
with the regular courts of justice in connection with the same registered mark," ruled in the affirmative, but nonetheless ordered the
BPTTT to suspend further proceedings in said inter partes case and to await the final outcome of the main case.
Meanwhile, trial on the merits of the infringement case proceeded. Presented as DGCI's lone witness was Ramon Syhunliong,
President and Chairman of DGCI's Board of Directors. Among other things, this witness testified that:
1. He is a businessman, with interest in lumber, hotel, hospital, trading and restaurant businesses but only the restaurant
business bears the name "Shangri-La" and uses the same and the "S-logo" as service marks. The restaurant now known as
"Shangri-La Finest Chinese Cuisine" was formerly known as the "Carvajal Restaurant" until December 1982, when
respondent took over said restaurant business.
2. He had traveled widely around Asia prior to 1982, and admitted knowing the Shangri-La Hotel in Hong Kong as early as
August 1982.
3. The "S-logo" was one of two (2) designs given to him in December 1982, scribbled on a piece of paper by a jeepney
signboard artist with an office somewhere in Balintawak. The unnamed artist supposedly produced the two designs after
about two or three days from the time he (Syhunliong) gave the idea of the design he had in mind.
4. On October 15, 1982, or before the unknown signboard artist supposedly created the "Shangri-La" and "S" designs, DGCI
was incorporated with the primary purpose of "owning or operating, or both, of hotels and restaurants".
5. On October 18, 1982, again prior to the alleged creation date of the mark and logo, DGCI filed an application for
trademark registration of the mark "SHANGRI-LA FINEST CHINESE CUISINE & S. Logo" with the BPTTT. On said date,
respondent DGCI amended its Articles of Incorporation to reflect the name of its restaurant, known and operating under the
style and name of "SHANGRI-LA FINEST CHINESE CUISINE." Respondent DGCI obtained Certificate of Registration
No. 31904 for the "Shangri-La" mark and "S" logo.
Eventually, the trial court, on the postulate that petitioners', more particularly petitioner SLIHM's, use of the mark and logo in dispute
constitutes an infringement of DGCI's right thereto, came out with its decision
6
on March 8, 1996 rendering judgment for DGCI, as
follows:
WHEREFORE, judgment is hereby rendered in favor of [respondent DGCI] and against [SLIHM, et al.] -
a) Upholding the validity of the registration of the service mark "Shangri-la" and "S-Logo" in the name of [respondent];
b) Declaring [petitioners'] use of said mark and logo as infringement of [respondent's] right thereto;
c) Ordering [petitioners], their representatives, agents, licensees, assignees and other persons acting under their authority and
with their permission, to permanently cease and desist from using and/or continuing to use said mark and logo, or any copy,
reproduction or colorable imitation
thereof, in the promotion, advertisement, rendition of their hotel and allied projects and services or in any other manner
whatsoever;
d) Ordering [petitioners] to remove said mark and logo from any premises, objects, materials and paraphernalia used by them
and/or destroy any and all prints, signs, advertisements or other materials bearing said mark and logo in their possession
and/or under their control; and
e) Ordering [petitioners], jointly and severally, to indemnify [respondent] in the amounts of P2,000,000.00 as actual and
compensatory damages, P500,000.00 as attorney's fee and expenses of litigation.
Let a copy of this Decision be certified to the Director, Bureau of Patents, Trademarks and Technology Transfer for his information
and appropriate action in accordance with the provisions of Section 25, Republic Act No. 166
Costs against [petitioners].
SO ORDERED. [Words in brackets added.]
Therefrom, the petitioners went on appeal to the CA whereat their recourse was docketed as CA G.R. SP No. 53351.
As stated at the threshold hereof, the CA, in its assailed Decision of May 15, 2003,
7
affirmed that of the lower court with the
modification of deleting the award of attorney's fees. The appellate court predicated its affirmatory action on the strength or interplay
of the following premises:
1. Albeit the Kuok Group used the mark and logo since 1962, the evidence presented shows that the bulk use of the
tradename was abroad and not in the Philippines (until 1987). Since the Kuok Group does not have proof of actual use in
commerce in the Philippines (in accordance with Section 2 of R.A. No. 166), it cannot claim ownership of the mark and logo
in accordance with the holding in Kabushi Kaisha Isetan v. IAC
8
, as reiterated in Philip Morris, Inc. v. Court of Appeals.
9

2. On the other hand, respondent has a right to the mark and logo by virtue of its prior use in the Philippines and the issuance
of Certificate of Registration No. 31904.
3. The use of the mark or logo in commerce through the bookings made by travel agencies is unavailing since the Kuok
Group did not establish any branch or regional office in the Philippines. As it were, the Kuok Group was not engaged in
commerce in the Philippines inasmuch as the bookings were made through travel agents not owned, controlled or managed
by the Kuok Group.
4. While the Paris Convention protects internationally known marks, R.A. No. 166 still requires use in commerce in the
Philippines. Accordingly, and on the premise that international agreements, such as Paris Convention, must yield to a
municipal law, the question on the exclusive right over the mark and logo would still depend on actual use in commerce in
the Philippines.
Petitioners then moved for a reconsideration, which motion was denied by the CA in its equally assailed Resolution of September 15,
2003.
10

As formulated by the petitioners, the issues upon which this case hinges are:
1. Whether the CA erred in finding that respondent had the right to file an application for registration of the "Shangri-La"
mark and "S" logo although respondent never had any prior actual commercial use thereof;
2. Whether the CA erred in finding that respondent's supposed use of the identical "Shangri-La" mark and "S" logo of the
petitioners was not evident bad faith and can actually ripen into ownership, much less registration;
3. Whether the CA erred in overlooking petitioners' widespread prior use of the "Shangri-La" mark and "S" logo in their
operations;
4. Whether the CA erred in refusing to consider that petitioners are entitled to protection under both R.A. No. 166, the old
trademark law, and the Paris Convention for the Protection of Industrial Property;
5. Whether the CA erred in holding that SLIHM did not have the right to legally own the "Shangri-La" mark and "S" logo by
virtue of and despite their ownership by the Kuok Group;
6. Whether the CA erred in ruling that petitioners' use of the mark and logo constitutes actionable infringement;
7. Whether the CA erred in awarding damages in favor of respondent despite the absence of any evidence to support the
same, and in failing to award relief in favor of the petitioners; and
8. Whether petitioners should be prohibited from continuing their use of the mark and logo in question.
There are two preliminary issues, however, that respondent DGCI calls our attention to, namely:
1. Whether the certification against forum-shopping submitted on behalf of the petitioners is sufficient;
2. Whether the issues posed by petitioners are purely factual in nature hence improper for resolution in the instant petition for
review on certiorari.
DGCI claims that the present petition for review should be dismissed outright for certain procedural defects, to wit: an insufficient
certification against forum shopping and raising pure questions of fact. On both counts, we find the instant petition formally and
substantially sound.
In its Comment, respondent alleged that the certification against forum shopping signed by Atty. Lee Benjamin Z. Lerma on behalf
and as counsel of the petitioners was insufficient, and that he was not duly authorized to execute such document. Respondent further
alleged that since petitioner SLIHM is a foreign entity based in Hong Kong, the Director's Certificate executed by Mr. Madhu Rama
Chandra Rao, embodying the board resolution which authorizes Atty. Lerma to act for SLIHM and execute the certification against
forum shopping, should contain the authentication by a consular officer of the Philippines in Hong Kong.
In National Steel Corporation v. CA,
11
the Court has ruled that the certification on non-forum shopping may be signed, for and in
behalf of a corporation, by a specifically authorized lawyer who has personal knowledge of the facts required to be disclosed in such
document. The reason for this is that a corporation can only exercise its powers through its board of directors and/or its duly
authorized officers and agents. Physical acts, like the signing of documents, can be performed only by natural persons duly authorized
for the purpose.
12

Moreover, Rule 7, Section 5 of the Rules of Court concerning the certification against forum shopping does not require any consular
certification if the petitioner is a foreign entity. Nonetheless, to banish any lingering doubt, petitioner SLIHM furnished this Court
with a consular certification dated October 29, 2003 authenticating the Director's Certificate authorizing Atty. Lerma to execute the
certification against forum shopping, together with petitioners' manifestation of February 9, 2004.
Respondent also attacks the present petition as one that raises pure questions of fact. It points out that in a petition for review under
Rule 45 of the Rules of Court, the questions that may properly be inquired into are strictly circumscribed by the express limitation that
"the petition shall raise only questions of law which must be distinctly set forth."
13
We do not, however, find that the issues involved
in this petition consist purely of questions of fact. These issues will be dealt with as we go through the questions raised by the
petitioners one by one.
Petitioners' first argument is that the respondent had no right to file an application for registration of the "Shangri-La" mark and "S"
logo because it did not have prior actual commercial use thereof. To respondent, such an argument raises a question of fact that was
already resolved by the RTC and concurred in by the CA.
First off, all that the RTC found was that respondent was the prior user and registrant of the subject mark and logo in the Philippines.
Taken in proper context, the trial court's finding on "prior use" can only be interpreted to mean that respondent used the subject mark
and logo in the country before the petitioners did. It cannot be construed as being a factual finding that there was prior use of the mark
and logo before registration.
Secondly, the question raised is not purely factual in nature. In the context of this case, it involves resolving whether a certificate of
registration of a mark, and the presumption of regularity in the performance of official functions in the issuance thereof, are sufficient
to establish prior actual use by the registrant. It further entails answering the question of whether prior actual use is required before
there may be a valid registration of a mark.
Under the provisions of the former trademark law, R.A. No. 166, as amended, which was in effect up to December 31, 1997, hence,
the law in force at the time of respondent's application for registration of trademark, the root of ownership of a trademark is actual use
in commerce. Section 2 of said law requires that before a trademark can be registered, it must have been actually used in commerce
and service for not less than two months in the Philippines prior to the filing of an application for its registration.
Registration, without more, does not confer upon the registrant an absolute right to the registered mark. The certificate of registration
is merely a prima facie proof that the registrant is the owner of the registered mark or trade name. Evidence of prior and continuous
use of the mark or trade name by another can overcome the presumptive ownership of the registrant and may very well entitle the
former to be declared owner in an appropriate case.
14

Among the effects of registration of a mark, as catalogued by the Court in Lorenzana v. Macagba,
15
are:
1. Registration in the Principal Register gives rise to a presumption of the validity of the registration, the registrant's
ownership of the mark, and his right to the exclusive use thereof. x x x
2. Registration in the Principal Register is limited to the actual owner of the trademark and proceedings therein pass on the
issue of ownership, which may be contested through opposition or interference proceedings, or, after registration, in a
petition for cancellation. xxx
[Emphasis supplied]1avvphil.et
Ownership of a mark or trade name may be acquired not necessarily by registration but by adoption and use in trade or commerce. As
between actual use of a mark without registration, and registration of the mark without actual use thereof, the former prevails over the
latter. For a rule widely accepted and firmly entrenched, because it has come down through the years, is that actual use in commerce
or business is a pre-requisite to the acquisition of the right of ownership.
16

While the present law on trademarks
17
has dispensed with the requirement of prior actual use at the time of registration, the law in
force at the time of registration must be applied, and thereunder it was held that as a condition precedent to registration of trademark,
trade name or service mark, the same must have been in actual use in the Philippines before the filing of the application for
registration.
18
Trademark is a creation of use and therefore actual use is a pre-requisite to exclusive ownership and its registration with
the Philippine Patent Office is a mere administrative confirmation of the existence of such right.
19

By itself, registration is not a mode of acquiring ownership. When the applicant is not the owner of the trademark being applied for, he
has no right to apply for registration of the same. Registration merely creates a prima facie presumption of the validity of the
registration, of the registrant's ownership of the trademark and of the exclusive right to the use thereof.
20
Such presumption, just like
the presumptive regularity in the performance of official functions, is rebuttable and must give way to evidence to the contrary.
Here, respondent's own witness, Ramon Syhunliong, testified that a jeepney signboard artist allegedly commissioned to create the
mark and logo submitted his designs only in December 1982.
21
This was two-and-a-half months after the filing of the respondent's
trademark application on October 18, 1982 with the BPTTT. It was also only in December 1982 when the respondent's restaurant was
opened for business.
22
Respondent cannot now claim before the Court that the certificate of registration itself is proof that the two-
month prior use requirement was complied with, what with the fact that its very own witness testified otherwise in the trial court. And
because at the time (October 18, 1982) the respondent filed its application for trademark registration of the "Shangri-La" mark and "S"
logo, respondent was not using these in the Philippines commercially, the registration is void.
Petitioners also argue that the respondent's use of the "Shangri-La" mark and "S" logo was in evident bad faith and cannot therefore
ripen into ownership, much less registration. While the respondent is correct in saying that a finding of bad faith is factual, not legal,
23

hence beyond the scope of a petition for review, there are, however, noted exceptions thereto. Among these exceptions are:
1. When the inference made is manifestly mistaken, absurd or impossible;
24

2. When there is grave abuse of discretion;
25

3. When the judgment is based on a misapprehension of facts;
26

4. When the findings of fact are conflicting;
27
and
5. When the facts set forth in the petition as well as in the petitioner's main and reply briefs are not disputed by the
respondent.
28

And these are naming but a few of the recognized exceptions to the rule.
The CA itself, in its Decision of May 15, 2003, found that the respondent's president and chairman of the board, Ramon Syhunliong,
had been a guest at the petitioners' hotel before he caused the registration of the mark and logo, and surmised that he must have copied
the idea there:
Did Mr. Ramon Syhunliong, [respondent's] President copy the mark and devise from one of [petitioners'] hotel (Kowloon Shangri-la)
abroad? The mere fact that he was a visitor of [petitioners'] hotel abroad at one time (September 27, 1982) establishes [petitioners']
allegation that he got the idea there.
29

Yet, in the very next paragraph, despite the preceding admission that the mark and logo must have been copied, the CA tries to make it
appear that the adoption of the same mark and logo could have been coincidental:
The word or name "Shangri-la" and the S-logo, are not uncommon. The word "Shangri-la" refers to a (a) remote beautiful imaginary
place where life approaches perfection or (b) imaginary mountain land depicted as a utopia in the novel Lost Horizon by James Hilton.
The Lost Horizon was a well-read and popular novel written in 1976. It is not impossible that the parties, inspired by the novel, both
adopted the mark for their business to conjure [a] place of beauty and pleasure.
The S-logo is, likewise, not unusual. The devise looks like a modified Old English print.
30

To jump from a recognition of the fact that the mark and logo must have been copied to a rationalization for the possibility that both
the petitioners and the respondent coincidentally chose the same name and logo is not only contradictory, but also manifestly mistaken
or absurd. Furthermore, the "S" logo appears nothing like the "Old English" print that the CA makes it out to be, but is obviously a
symbol with oriental or Asian overtones. At any rate, it is ludicrous to believe that the parties would come up with the exact same
lettering for the word "Shangri-La" and the exact same logo to boot. As correctly observed by the petitioners, to which we are in full
accord:
x x x When a trademark copycat adopts the word portion of another's trademark as his own, there may still be some doubt that the
adoption is intentional. But if he copies not only the word but also the word's exact font and lettering style and in addition, he copies
also the logo portion of the trademark, the slightest doubt vanishes. It is then replaced by the certainty that the adoption was deliberate,
malicious and in bad faith.
31

It is truly difficult to understand why, of the millions of terms and combination of letters and designs available, the respondent had to
choose exactly the same mark and logo as that of the petitioners, if there was no intent to take advantage of the goodwill of petitioners'
mark and logo.
32

One who has imitated the trademark of another cannot bring an action for infringement, particularly against the true owner of the
mark, because he would be coming to court with unclean hands.
33
Priority is of no avail to the bad faith plaintiff. Good faith is
required in order to ensure that a second user may not merely take advantage of the goodwill established by the true owner.
This point is further bolstered by the fact that under either Section 17 of R.A. No. 166, or Section 151 of R.A. No. 8293, or Article
6bis(3) of the Paris Convention, no time limit is fixed for the cancellation of marks registered or used in bad faith.
34
This is precisely
why petitioners had filed an inter partes case before the BPTTT for the cancellation of respondent's registration, the proceedings on
which were suspended pending resolution of the instant case.
Respondent DGCI also rebukes the next issue raised by the petitioners as being purely factual in nature, namely, whether the CA erred
in overlooking petitioners' widespread prior use of the "Shangri-La" mark and "S" logo in their operations. The question, however, is
not whether there had been widespread prior use, which would have been factual, but whether that prior use entitles the petitioners to
use the mark and logo in the Philippines. This is clearly a question which is legal in nature.
It has already been established in the two courts below, and admitted by the respondent's president himself, that petitioners had prior
widespread use of the mark and logo abroad:
There is, to be sure, an impressive mass of proof that petitioner SLIHM and its related companies abroad used the name and logo for
one purpose or another x x x.
35
[Emphasis supplied]
In respondent's own words, "[T]he Court of Appeals did note petitioners' use of the mark and logo but held that such use did not
confer to them ownership or exclusive right to use them in the Philippines."
36
To petitioners' mind, it was error for the CA to rule that
their worldwide use of the mark and logo in dispute could not have conferred upon them any right thereto. Again, this is a legal
question which is well worth delving into.
R.A. No. 166, as amended, under which this case was heard and decided provides:
Section 2. What are registrable. - Trademarks, trade names and service marks owned by persons, corporations, partnerships or
associations domiciled in the Philippines and by persons, corporations, partnerships or associations domiciled in any foreign country
may be registered in accordance with the provisions of this Act: Provided, That said trademarks trade names, or service marks are
actually in use in commerce and services not less than two months in the Philippines before the time the applications for
registration are filed: And provided, further, That the country of which the applicant for registration is a citizen grants by law
substantially similar privileges to citizens of the Philippines, and such fact is officially certified, with a certified true copy of the
foreign law translated into the English language, by the government of the foreign country to the Government of the Republic of the
Philippines.
Section 2-A. Ownership of trademarks, trade names and service marks; how acquired. - Anyone who lawfully produces or deals in
merchandise of any kind or who engages in any lawful business, or who renders any lawful service in commerce, by actual use
thereof in manufacture or trade, in business, and in the service rendered, may appropriate to his exclusive use a trademark, a trade
name, or a servicemark not so appropriated by another, to distinguish his merchandise, business or service from the merchandise,
business or services of others. The ownership or possession of a trademark, trade name, service mark, heretofore or hereafter
appropriated, as in this section provided, shall be recognized and protected in the same manner and to the same extent as are other
property rights known to this law. [Emphasis supplied]
Admittedly, the CA was not amiss in saying that the law requires the actual use in commerce of the said trade name and "S" logo in
the Philippines. Hence, consistent with its finding that the bulk of the petitioners' evidence shows that the alleged use of the Shangri-
La trade name was done abroad and not in the Philippines, it is understandable for that court to rule in respondent's favor.
Unfortunately, however, what the CA failed to perceive is that there is a crucial difference between the aforequoted Section 2 and
Section 2-A of R.A. No. 166. For, while Section 2 provides for what is registrable, Section 2-A, on the other hand, sets out how
ownership is acquired. These are two distinct concepts.
Under Section 2, in order to register a trademark, one must be the owner thereof and must have actually used the mark in commerce in
the Philippines for 2 months prior to the application for registration. Since "ownership" of the trademark is required for registration,
Section 2-A of the same law sets out to define how one goes about acquiring ownership thereof. Under Section 2-A, it is clear that
actual use in commerce is also the test of ownership but the provision went further by saying that the mark must not have been so
appropriated by another. Additionally, it is significant to note that Section 2-A does not require that the actual use of a trademark must
be within the Philippines. Hence, under R.A. No. 166, as amended, one may be an owner of a mark due to actual use thereof but not
yet have the right to register such ownership here due to failure to use it within the Philippines for two months.
While the petitioners may not have qualified under Section 2 of R.A. No. 166 as a registrant, neither did respondent DGCI, since the
latter also failed to fulfill the 2-month actual use requirement. What is worse, DGCI was not even the owner of the mark. For it to have
been the owner, the mark must not have been already appropriated (i.e., used) by someone else. At the time of respondent DGCI's
registration of the mark, the same was already being used by the petitioners, albeit abroad, of which DGCI's president was fully
aware.
It is respondent's contention that since the petitioners adopted the "Shangri-La" mark and "S" logo as a mere corporate name or as the
name of their hotels, instead of using them as a trademark or service mark, then such name and logo are not trademarks. The two
concepts of corporate name or business name and trademark or service mark, are not mutually exclusive. It is common, indeed likely,
that the name of a corporation or business is also a trade name, trademark or service mark. Section 38 of R.A. No. 166 defines the
terms as follows:
Sec. 38. Words and terms defined and construed - In the construction of this Act, unless the contrary is plainly apparent from the
context - The term "trade name" includes individual names and surnames, firm names, trade names, devices or words used by
manufacturers, industrialists, merchants, agriculturists, and others to identify their business, vocations or occupations; the names or
titles lawfully adopted and used by natural or juridical persons, unions, and any manufacturing, industrial, commercial,
agricultural or other organizations engaged in trade or commerce.
The term "trade mark" includes any word, name, symbol, emblem, sign or device or any combination thereof adopted and used by a
manufacturer or merchant to identify his goods and distinguish them from those manufactured, sold or dealt in by others.
The term "service mark" means a mark used in the sale or advertising of services to identify the services of one person and
distinguish them from the services of others and includes without limitation the marks, names, symbols, titles, designations,
slogans, character names, and distinctive features of radio or other advertising. [Emphasis supplied]
Clearly, from the broad definitions quoted above, the petitioners can be considered as having used the "Shangri-La" name and "S"
logo as a tradename and service mark.
The new Intellectual Property Code (IPC), Republic Act No. 8293, undoubtedly shows the firm resolve of the Philippines to observe
and follow the Paris Convention by incorporating the relevant portions of the Convention such that persons who may question a mark
(that is, oppose registration, petition for the cancellation thereof, sue for unfair competition) include persons whose internationally
well-known mark, whether or not registered, is
identical with or confusingly similar to or constitutes a translation of a mark that is sought to be registered or is actually registered.
37

However, while the Philippines was already a signatory to the Paris Convention, the IPC only took effect on January 1, 1988, and in
the absence of a retroactivity clause, R.A. No. 166 still applies.
38
Under the prevailing law and jurisprudence at the time, the CA had
not erred in ruling that:
The Paris Convention mandates that protection should be afforded to internationally known marks as signatory to the Paris
Convention, without regard as to whether the foreign corporation is registered, licensed or doing business in the Philippines. It goes
without saying that the same runs afoul to Republic Act No. 166, which requires the actual use in commerce in the Philippines of the
subject mark or devise. The apparent conflict between the two (2) was settled by the Supreme Court in this wise -
"Following universal acquiescence and comity, our municipal law on trademarks regarding the requirement of actual use in the
Philippines must subordinate an international agreement inasmuch as the apparent clash is being decided by a municipal tribunal
(Mortensen vs. Peters, Great Britain, High Court of Judiciary of Scotland, 1906, 8 Sessions 93; Paras, International Law and World
Organization, 1971 Ed., p. 20). 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 legislative enactments (Salonga and Yap,
Public International Law, Fourth ed., 1974, p. 16)."
39
[Emphasis supplied]
Consequently, the petitioners cannot claim protection under the Paris Convention. Nevertheless, with the double infirmity of lack of
two-month prior use, as well as bad faith in the respondent's registration of the mark, it is evident that the petitioners cannot be guilty
of infringement. It would be a great injustice to adjudge the petitioners guilty of infringing a mark when they are actually the
originator and creator thereof.
Nor can the petitioners' separate personalities from their mother corporation be an obstacle in the enforcement of their rights as part of
the Kuok Group of Companies and as official repository, manager and operator of the subject mark and logo. Besides, R.A. No. 166
did not require the party seeking relief to be the owner of the mark but "any person who believes that he is or will be damaged by the
registration of a mark or trade name."
40

WHEREFORE, the instant petition is GRANTED. The assailed Decision and Resolution of the Court of Appeals dated May 15, 2003
and September 15, 2003, respectively, and the Decision of the Regional Trial Court of Quezon City dated March 8, 1996 are hereby
SET ASIDE. Accordingly, the complaint for infringement in Civil Case No. Q-91-8476 is ordered DISMISSED.
SO ORDERED.



Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-2662 March 26, 1949
SHIGENORI KURODA, petitioner,
vs.
Major General RAFAEL JALANDONI, Brigadier General CALIXTO DUQUE, Colonel MARGARITO TORALBA, Colonel
IRENEO BUENCONSEJO, Colonel PEDRO TABUENA, Major FEDERICO ARANAS, MELVILLE S. HUSSEY and
ROBERT PORT, respondents.
Pedro Serran, Jose G. Lukban, and Liberato B. Cinco for petitioner.
Fred Ruiz Castro Federico Arenas Mariano Yengco, Jr., Ricardo A. Arcilla and S. Melville Hussey for respondents.
MORAN, C.J .:
Shigenori Kuroda, formerly a Lieutenant-General of the Japanese Imperial Army and Commanding General of the Japanese Imperial
Forces in The Philippines during a period covering 19433 and 19444 who is now charged before a military Commission convened by
the Chief of Staff of the Armed forces of the Philippines with having unlawfully disregarded and failed "to discharge his duties as
such command, permitting them to commit brutal atrocities and other high crimes against noncombatant civilians and prisoners of the
Imperial Japanese Forces in violation of the laws and customs of war" comes before this Court seeking to establish the illegality of
Executive Order No. 68 of the President of the Philippines: to enjoin and prohibit respondents Melville S. Hussey and Robert Port
from participating in the prosecution of petitioner's case before the Military Commission and to permanently prohibit respondents
from proceeding with the case of petitioners.
In support of his case petitioner tenders the following principal arguments.
First. "That Executive Order No. 68 is illegal on the ground that it violates not only the provision of our constitutional law but also
our local laws to say nothing of the fact (that) the Philippines is not a signatory nor an adherent to the Hague Convention on Rules and
Regulations covering Land Warfare and therefore petitioners is charged of 'crimes' not based on law, national and international."
Hence petitioner argues "That in view off the fact that this commission has been empanelled by virtue of an unconstitutional law an
illegal order this commission is without jurisdiction to try herein petitioner."
Second. That the participation in the prosecution of the case against petitioner before the Commission in behalf of the United State
of America of attorneys Melville Hussey and Robert Port who are not attorneys authorized by the Supreme Court to practice law in the
Philippines is a diminution of our personality as an independent state and their appointment as prosecutor are a violation of our
Constitution for the reason that they are not qualified to practice law in the Philippines.
Third. That Attorneys Hussey and Port have no personality as prosecution the United State not being a party in interest in the case.
Executive Order No. 68, establishing a National War Crimes Office prescribing rule and regulation governing the trial of accused war
criminals, was issued by the President of the Philippines on the 29th days of July, 1947 This Court holds that this order is valid and
constitutional. Article 2 of our Constitution provides in its section 3, that
The Philippines renounces war as an instrument of national policy and adopts the generally accepted principles of
international law as part of the of the nation.
In accordance with the generally accepted principle of international law of the present day including the Hague Convention the
Geneva Convention and significant precedents of international jurisprudence established by the United Nation all those person
military or civilian who have been guilty of planning preparing or waging a war of aggression and of the commission of crimes and
offenses consequential and incidental thereto in violation of the laws and customs of war, of humanity and civilization are held
accountable therefor. Consequently in the promulgation and enforcement of Execution Order No. 68 the President of the Philippines
has acted in conformity with the generally accepted and policies of international law which are part of the our Constitution.
The promulgation of said executive order is an exercise by the President of his power as Commander in chief of all our armed forces
as upheld by this Court in the case of Yamashita vs. Styer (L-129, 42 Off. Gaz., 664) 1 when we said
War is not ended simply because hostilities have ceased. After cessation of armed hostilities incident of war may remain
pending which should be disposed of as in time of war. An importance incident to a conduct of war is the adoption of
measure by the military command not only to repel and defeat the enemies but to seize and subject to disciplinary measure
those enemies who in their attempt to thwart or impede our military effort have violated the law of war. (Ex parte Quirin 317
U.S., 1; 63 Sup. Ct., 2.) Indeed the power to create a military commission for the trial and punishment of war criminals is an
aspect of waging war. And in the language of a writer a military commission has jurisdiction so long as a technical state of
war continues. This includes the period of an armistice or military occupation up to the effective of a treaty of peace and may
extend beyond by treaty agreement. (Cowles Trial of War Criminals by Military Tribunals, America Bar Association Journal
June, 1944.)
Consequently, the President as Commander in Chief is fully empowered to consummate this unfinished aspect of war namely the trial
and punishment of war criminal through the issuance and enforcement of Executive Order No. 68.
Petitioner argues that respondent Military Commission has no Jurisdiction to try petitioner for acts committed in violation of the
Hague Convention and the Geneva Convention because the Philippines is not a signatory to the first and signed the second only in
1947. It cannot be denied that the rules and regulation of the Hague and Geneva conventions form, part of and are wholly based on the
generally accepted principals of international law. In facts these rules and principles were accepted by the two belligerent nation the
United State and Japan who were signatories to the two Convention, Such rule and principles therefore form part of the law of our
nation even if the Philippines was not a signatory to the conventions embodying them for our Constitution has been deliberately
general and extensive in its scope and is not confined to the recognition of rule and principle of international law as continued inn
treaties to which our government may have been or shall be a signatory.
Furthermore when the crimes charged against petitioner were allegedly committed the Philippines was under the sovereignty of
United States and thus we were equally bound together with the United States and with Japan to the right and obligation contained in
the treaties between the belligerent countries. These rights and obligation were not erased by our assumption of full sovereignty. If at
all our emergency as a free state entitles us to enforce the right on our own of trying and punishing those who committed crimes
against crimes against our people. In this connection it is well to remember what we have said in the case of Laurel vs. Misa (76 Phil.,
372):
. . . The change of our form government from Commonwealth to Republic does not affect the prosecution of those charged
with the crime of treason committed during then Commonwealth because it is an offense against the same sovereign people. .
. .
By the same token war crimes committed against our people and our government while we were a Commonwealth are triable and
punishable by our present Republic.
Petitioner challenges the participation of two American attorneys namely Melville S. Hussey and Robert Port in the prosecution of his
case on the ground that said attorney's are not qualified to practice law in Philippines in accordance with our Rules of court and the
appointment of said attorneys as prosecutors is violative of our national sovereignty.
In the first place respondent Military Commission is a special military tribunal governed by a special law and not by the Rules of court
which govern ordinary civil court. It has already been shown that Executive Order No. 68 which provides for the organization of such
military commission is a valid and constitutional law. There is nothing in said executive order which requires that counsel appearing
before said commission must be attorneys qualified to practice law in the Philippines in accordance with the Rules of Court. In facts it
is common in military tribunals that counsel for the parties are usually military personnel who are neither attorneys nor even possessed
of legal training.
Secondly the appointment of the two American attorneys is not violative of our nation sovereignty. It is only fair and proper that
United States, which has submitted the vindication of crimes against her government and her people to a tribunal of our nation should
be allowed representation in the trial of those very crimes. If there has been any relinquishment of sovereignty it has not been by our
government but by the United State Government which has yielded to us the trial and punishment of her enemies. The least that we
could do in the spirit of comity is to allow them representation in said trials.
Alleging that the United State is not a party in interest in the case petitioner challenges the personality of attorneys Hussey and Port as
prosecutors. It is of common knowledge that the United State and its people have been equally if not more greatly aggrieved by the
crimes with which petitioner stands charged before the Military Commission. It can be considered a privilege for our Republic that a
leader nation should submit the vindication of the honor of its citizens and its government to a military tribunal of our country.
The Military Commission having been convened by virtue of a valid law with jurisdiction over the crimes charged which fall under
the provisions of Executive Order No. 68, and having said petitioner in its custody, this Court will not interfere with the due process of
such Military commission.
For all the foregoing the petition is denied with costs de oficio.
Paras, Feria, Pablo, Bengzon, Tuason, Montemayor and Reyes, JJ., concur.

Separate Opinions
PERFECTO, J ., dissenting:
A military commission was empanelled on December 1, 1948 to try Lt. Gen. Shigenori Kuroda for Violation of the laws and customs
of land warfare.
Melville S. Hussey and Robert Port, American citizens and not authorized by the Supreme Court to practice law were appointed
prosecutor representing the American CIC in the trial of the case.
The commission was empanelled under the authority of Executive Order No. 68 of the President of the Philippines the validity of
which is challenged by petitioner on constitutional grounds. Petitioner has also challenged the personality of Attorneys Hussey and
Port to appear as prosecutors before the commission.
The charges against petitioner has been filed since June 26, 1948 in the name of the people of the Philippines as accusers.
We will consideration briefly the challenge against the appearance of Attorneys Hussey and Port. It appearing that they are aliens and
have not been authorized by the Supreme Court to practice law there could not be any question that said person cannot appear as
prosecutors in petitioner case as with such appearance they would be practicing law against the law.
Said violation vanishes however into insignificance at the side of the momentous question involved in the challenge against the
validity of Executive Order No. 68. Said order is challenged on several constitutional ground. To get a clear idea of the question raised
it is necessary to read the whole context of said order which is reproduced as follows:
EXECUTIVE ORDER NO. 68.
ESTABLISHING A NATIONAL WAR CRIMES OFFICE AND PRESCRIBING RULES AND REGULATION
GOVERNING THE TRIAL OF ACCUSED WAR CRIMINAL.
I, Manuel Roxas president of the Philippines by virtue of the power vested in me by the Constitution and laws of the
Philippines do hereby establish a National War Crimes Office charged with the responsibility of accomplishing the speedy
trial of all Japanese accused of war crimes committed in the Philippines and prescribe the rules and regulation such trial.
The National War crimes office is established within the office of the Judge Advocate General of the Army of the Philippines
and shall function under the direction supervision and control of the Judge Advocate General. It shall proceed to collect from
all available sources evidence of war crimes committed in the Philippines from the commencement of hostilities by Japan in
December 1941, maintain a record thereof and bring about the prompt trial maintain a record thereof and bring about the
prompt trial of the accused.
The National War Crimes Office shall maintain direct liaison with the Legal Section General Headquarters, Supreme
Commander for the Allied power and shall exchange with the said Office information and evidence of war crimes.
The following rules and regulation shall govern the trial off person accused as war criminals:
ESTABLISHMENT OF MILITARY COMMISSIONS
(a) General. person accused as war criminal shall be tried by military commission to be convened by or under the
authority of the Philippines.
II. JURISDICTION
(a) Over Person. Thee military commission appointed hereunder shall have jurisdiction over all persons charged with war
crimes who are in the custody of the convening authority at the time of the trial.
(b) Over Offenses. The military commission established hereunder shall have jurisdiction over all offenses including but
not limited to the following:
(1) The planning preparation initiation or waging of a war of aggression or a war in violation of international treaties
agreement or assurance or participation in a common plan or conspiracy for the accomplishment of any of the foregoing.
(2) Violation of the laws or customs of war. Such violation shall include but not be limited to murder ill-treatment or
deportation to slave labor or for other purpose of civilian population of or in occupied territory; murder or ill-treatment of
prisoners of war or internees or person on the seas or elsewhere; improper treatment of hostage; plunder of public or private
property wanton destruction of cities towns or village; or devastation not justified by military necessity.
(3) Murder extermination enslavement deportation and other inhuman acts committed against civilian population before or
during the war or persecution on political racial or religion ground in executive of or in connection with any crime defined
herein whether or not in violation of the local laws.
III. MEMBERSHIP OF COMMISSIONS
(a) Appointment. The members of each military commission shall be appointed by the President of the Philippines or
under authority delegated by him. Alternates may be appointed by the convening authority. Such shall attend all session of
the commission, and in case of illness or other incapacity of any principal member, an alternate shall take the place of that
member. Any vacancy among the members or alternates, occurring after a trial has begun, may be filled by the convening
authority but the substance of all proceeding had evidence taken in that case shall be made known to the said new member or
alternate. This facts shall be announced by the president of the commission in open court.
(b) Number of Members. Each commission shall consist of not less than three (3) members.
(c) Qualifications. The convening authority shall appoint to the commission persons whom he determines to be competent
to perform the duties involved and not disqualified by personal interest or prejudice, provided that no person shall be
appointed to hear a case in which he personally investigated or wherein his presence as a witness is required. One specially
qualified member whose ruling is final in so far as concerns the commission on an objection to the admissibility of evidence
offered during the trial.
(d) Voting. Except as to the admissibility of evidence all rulings and finding of the Commission shall be by majority vote
except that conviction and sentence shall be by the affirmative vote of not less than conviction and sentence shall be by the
affirmative vote of not less than two-thirds (2\3) of the member present.
(e) Presiding Member. In the event that the convening authority does not name one of the member as the presiding
member, the senior officer among the member of the Commission present shall preside.
IV. PROSECUTORS
(a) Appointment. The convening authority shall designate one or more person to conduct the prosecution before each
commission.
(b) Duties. The duties of the prosecutor are:
(1) To prepare and present charges and specifications for reference to a commission.
(2) To prepare cases for trial and to conduct the prosecution before the commission of all cases referred for trial.
V. POWER AND PROCEDURE OF COMMISSION
(a) Conduct of the Trial. A Commission shall:
(1) Confine each trial strictly to fair and expeditious hearing on the issues raised by the charges, excluding irrelevant issues or
evidence and preventing any unnecessary delay or interference.
(2) Deal summarily with any contumacy or contempt, imposing any appropriate punishment therefor.
(3) Hold public session when otherwise decided by the commission.
(4) Hold each session at such time and place as it shall determine, or as may be directed by the convening authority.
(b) Rights of the Accused. The accused shall be entitled:
(1) To have in advance of the trial a copy of the charges and specifications clearly worded so as to apprise the accused of
each offense charged.
(2) To be represented, prior to and during trial, by counsel appointed by the convening authority or counsel of his own
choice, or to conduct his own defense.
(3) To testify in his own behalf and have his counsel present relevant evidence at the trial in support of his defense, and cross-
examine each adverse witness who personally appears before the commission.
(4) To have the substance of the charges and specifications, the proceedings and any documentary evidence translated, when
he is unable otherwise to understand them.
(c) Witnesses. The Commission shall have power:
(1) To summon witnesses and require their attendance and testimony; to administer oaths or affirmations to witnesses and
other persons and to question witnesses.
(2) To require the production of documents and other evidentiary material.
(3) To delegate the Prosecutors appointed by the convening authority the powers and duties set forth in (1) and (2) above.
(4) To have evidence taken by a special commissioner appointed by the commission.
(d) Evidence.
(1) The commission shall admit such evidence as in its opinion shall be of assistance in proving or disproving the charge, or
such as in the commission's opinion would have probative value in the mind of a reasonable man. The commission shall
apply the rules of evidence and pleading set forth herein with the greatest liberality to achieve expeditious procedure. In
particular, and without limiting in any way the scope of the foregoing general rules, the following evidence may be admitted:
(a) Any document, irrespective of its classification, which appears to the commission to have been signed or issued by any
officer, department, agency or member of the armed forces of any Government without proof of the signature or of the
issuance of the document.
(b) Any report which appears to the commission to have been signed or issued by the International Red Cross or a member of
any medical service personnel, or by any investigator or intelligence officer, or by any other person whom commission
considers as possessing knowledge of the matters contained in the report.
(c) Affidavits, depositions or other signed statements.
(d) Any diary, letter to other document, including sworn statements, appearing to the commission to contain information
relating to the charge.
(e) A copy of any document or other secondary evidence of the contents, if the original is not immediately available.
(2) The commission shall take judicial notice of facts of common knowledge, official government documents of any nation,
and the proceedings, records and findings of military or other agencies of any of the United Nation.
(3) A commission may require the prosecution and the defense to make a preliminary offer of proof whereupon the
commission may rule in advance on the admissibility of such evidence.
(4) The official position of the accused shall not absolve him from responsibility nor be considered in mitigation of
punishment. Further action pursuant to an order of the accused's superior, or of his Government, shall not constitute a
defense, but may be considered in mitigation of punishment if the commission determines that justice so requires.
(5) All purposed confessions or statements of the accused shall bee admissible in evidence without any showing that they
were voluntarily made. If it is shown that such confession or statement was procured by mean which the commission believe
to have been of such a character that may have caused the accused to make a false statement the commission may strike out
or disregard any such portion thereof as was so procured.
(e) Trial Procedure. The proceedings of each trial shall be conducted substantially as follows unless modified by the
commission to suit the particular circumstances:
(1) Each charge and specification shall be read or its substance stated in open court.
(2) The presiding member shall ask each accused whether he pleads "Guilty" or "Not guilty."
(3) The prosecution shall make its opening statement."(4) The presiding member may at this or any other time require the
prosecutor to state what evidence he proposes to submit to the commission and the commission thereupon may rule upon the
admissibility of such evidence.
(4) The witnesses and other evidence for the prosecution shall be heard or presented. At the close of the case for the
prosecution, the commission may, on motion of the defense for a finding of not guilty, consider and rule whether he evidence
before the commission may defer action on any such motion and permit or require the prosecution to reopen its case and
produce any further available evidence.
(5) The defense may make an opening statement prior to presenting its case. The presiding member may, at this any other
time require the defense to state what evidence it proposes to submit to the commission where upon the commission may rule
upon the admissibility of such evidence.
(6) The witnesses and other evidence for the defense shall be heard or presented. Thereafter, the prosecution and defense may
introduce such evidence in rebuttal as the commission may rule as being admissible.
(7) The defense and thereafter the prosecution shall address the commission.
(8) The commission thereafter shall consider the case in closed session and unless otherwise directed by the convening
authority, announce in open court its judgment and sentence if any. The commission may state the reason on which judgment
is based.
( f ) Record of Proceedings. Each commission shall make a separate record of its proceeding in the trial of each case
brought before it. The record shall be prepared by the prosecutor under the direction of the commission and submitted to the
defense counsel. The commission shall be responsible for its accuracy. Such record, certified by the presiding member of the
commission or his successor, shall be delivered to the convening authority as soon as possible after the trial.
(g) Sentence. The commission may sentence an accused, upon conviction to death by hanging or shooting, imprisonment
for life or for any less term, fine or such other punishment as the commission shall determine to be proper.
(h) Approval of Sentence. No. sentence of a military commission shall be carried into effect until approved by the chief off
Staff: Provided, That no sentence of death or life imprisonment shall be carried into execution until confirmed by the
President of the Philippines. For the purpose of his review the Chief of Staff shall create a Board of Review to be composed
of not more than three officers none of whom shall be on duty with or assigned to the Judge Advocate General's Office. The
Chief of Staff shall have authority to approve, mitigate remit in whole or in part, commute, suspend, reduce or otherwise alter
the sentence imposed, or (without prejudice to the accused) remand the case for rehearing before a new military commission;
but he shall not have authority to increase the severity of the sentence. Except as herein otherwise provided the judgment and
sentence of a commission shall final and not subject to review by any other tribunal.
VI. RULE-MAKING POWER
Supplementary Rule and Forms. Each commission shall adopt rules and forms to govern its procedure, not inconsistent
with the provision of this Order, or such rules and forms as may be prescribed by the convening authority]or by the President
of the Philippines.
VII. The amount of amount of seven hundred thousand pesos is hereby set aside out of the appropriations for the Army of the
Philippines for use by the National War Crimes Office in the accomplishment of its mission as hereinabove set forth, and
shall be expended in accordance with the recommendation of the Judge Advocate General as approved by the President. The
buildings, fixtures, installations, messing, and billeting equipment and other property herefore used by then Legal Section,
Manila Branch, of the General Headquarters, Supreme Commander for the Allied Power, which will be turned over by the
United States Army to the Philippines Government through the Foreign Liquidation Commission and the Surplus Property
Commission are hereby specification reserved for use off the National War Crimes Office.
Executive Order No. 64, dated August 16, 1945, is hereby repealed.
Done in the City of Manila, this 29th day of July in the year of Our Lord, nineteen hundred and forty-seven, and of the
Independence of the Philippines, the second.
MANUEL ROXAS
President of the Philippines
By the President:
EMILIO ABELLO
Chief of the Executive Office
EXECUTIVE LEGISLATION
Executive Order No. 68 is a veritable piece of Legislative measure, without the benefit of congressional enactment.
The first question that is trust at our face spearheading a group of other no less important question, is whether or not the President of
the Philippines may exercise the legislative power expressly vested in Congress by the Constitution. .
The Constitution provides:
The Legislative powers shall be vested in a Congress of the Philippines which shall consist of a Senate and House of
Representatives. (Section 1, Article VI.)
While there is no express provision in the fundamental law prohibiting the exercise of legislative power by agencies other than
Congress, a reading of the whole context of the Constitution would dispel any doubt as to the constitutional intent that the legislative
power is to be exercised exclusively by Congress, subject only to the veto power of the President of the President of the Philippines, to
the specific provision which allow the president of the Philippines to suspend the privileges of the writ of habeas corpus and to place
any part of the Philippines under martial law, and to the rule-making power expressly vested by the Constitution in the Supreme
Court.
There cannot be any question that the member of the Constitutional Convention were believers in the tripartite system of government
as originally enunciated by Aristotle, further elaborated by Montequieu and accepted and practiced by modern democracies, especially
the United State of America, whose Constitution, after which ours has been patterned, has allocated the three power of government
legislative, executive, judicial to distinct and separate department of government.
Because the power vested by our Constitution to the several department of the government are in the nature of grants, not recognition
of pre-existing power, no department of government may exercise any power or authority not expressly granted by the Constitution or
by law by virtue express authority of the Constitution.
Executive Order No. 68 establishes a National War Crimes Office and the power to establish government office is essentially
legislative.
The order provides that person accused as war criminals shall be tried by military commissions. Whether such a provision is
substantive or adjective, it is clearly legislative in nature. It confers upon military commissions jurisdiction to try all persons charge
with war crimes. The power to define and allocate jurisdiction for the prosecution of person accused of any crime is exclusively vested
by the Constitution in Congress. .
It provides rules of procedure for the conduct of trial of trial. This provision on procedural subject constitutes a usurpation of the rule-
making power vested by Constitution in the Supreme Court.
It authorized military commission to adopt additional rule of procedure. If the President of the Philippines cannot exercise the rule -
making power vested by the Constitution in the Supreme Court, he cannot, with more reason, delegate that power to military
commission.
It appropriates the sum of P7000,000 for the expenses of the National War Crimes office established by the said Executive Order No.
68. This constitutes another usurpation of legislative power as the power to vote appropriations belongs to Congress.
Executive Order No. 68., is, therefore, null and void, because, though it the President of the Philippines usurped power expressly
vested by the Constitution in Congress and in the Supreme Court.
Challenged to show the constitutional or legal authority under which the President issued Executive Order No. 68, respondent could
not give any definite answer. They attempted, however, to suggest that the President of the Philippines issued Executive Order No. 68
under the emergency power granted to him by Commonwealth Act No. 600, as amended by Commonwealth Act No. 620, and
Commonwealth Act No. 671, both of which are transcribed below:

COMMONWEALTH ACT NO. 600.
AN ACT DECLARING A STATE OF EMERGENCY AND AUTHORIZING THE PRESIDENT TO
PROMULGATE RULES AND REGULATION TO SAFEGUARD THE INTEGRITY OF THE PHILIPPINES
AND TO INSURE THE TRANQUILITY OF ITS INHABITANTS.
Be it enacted by the National Assembly of the Philippines:
SECTION 1. The existence of war in many parts of the world has created a national emergency which makes it necessary to
invest the President of the Philippines with extraordinary power in order to safeguard the integrity of the Philippines and to
insure the tranquility of its inhabitants, by suppressing espionage, lawlessness, and all subversive to the people adequate
shelter and clothing and sufficient food supply, and by providing means for the speedy evacuation of the civilian population
the establishment of an air protective service and the organization of volunteer guard units, and to adopt such other measures
as he may deem necessary for the interest of the public. To carry out this policy the President is authorized to promulgate
rules and regulations which shall have the force and effect off law until the date of adjournment of the next regulation which
shall have the force and effect of law until the date of adjournment of the next regular session of the First Congress of the
Philippines, unless sooner amended or repealed by the Congress of Philippines. Such rules and regulation may embrace the
following objects: (1) to suppress espionage and other subversive activities; (2) to require all able-bodied citizens (a) when
not engaged in any lawful occupation, to engage in farming or other productive activities or (b) to perform such services as
may bee necessary in the public interest; (3) to take over farm lands in order to prevent or shortage of crops and hunger and
destitution; (4) to take over industrial establishment in order to insure adequate production, controlling wages and profits
therein; (5) to prohibit lockouts and strikes whenever necessary to prevent the unwarranted suspension of work in productive
enterprises or in the interest of national security; (6) to regulate the normal hours of work for wage-earning and salaried
employees in industrial or business undertakings of all kinds; (7) to insure an even distribution of labor among the productive
enterprises; (8) to commandership and other means of transportation in order to maintain, as much as possible, adequate and
continued transportation facilities; (9) to requisition and take over any public service or enterprise for use or operation by the
Government;(10) to regulate rents and the prices of articles or commodities of prime necessity, both imported and locally
produced or manufactured; and (11) to prevent, locally or generally, scarcity, monopolization, hoarding injurious
speculations, and private control affecting the supply, distribution and movement of foods, clothing, fuel, fertilizer, chemical,
building, material, implements, machinery, and equipment required in agriculture and industry, with power to requisition
these commodities subject to the payment of just compensation. (As amended by Com. Act No. 620.)
SEC. 2. For the purpose of administering this Act and carrying out its objective, the President may designate any officer,
without additional compensation, or any department, bureau, office, or instrumentality of the National Government.
SEC. 3. Any person, firm, or corporation found guilty of the violation of any provision of this Act or of this Act or any of the
rules or regulations promulgated by the President under the authority of section one of this Act shall be punished by
imprisonment of not more than ten years or by a fine of not more than ten thousand pesos, or by both. If such violation is
committed by a firm or corporation, the manager, managing director, or person charge with the management of the business
of such firm, or corporation shall be criminally responsible therefor.
SEC. 4. The President shall report to the national Assembly within the first ten days from the date of the opening of its next
regular session whatever action has been taken by him under the authority herein granted.
SEC. 5. To carry out the purposed of this Act, the President is authorized to spend such amounts as may be necessary from
the sum appropriated under section five Commonwealth Act Numbered four hundred and ninety-eight.
SEC. 6. If any province of this Act shall be declared by any court of competent jurisdiction to be unconstitutional and void,
such declaration shall not invalidate the remainder of this Act.
SEC. 7. This Act shall take upon its approval.
Approved, August 19, 1940.

COMMONWEALTH ACT NO. 671
AN ACT DECLARING A STATE OF TOTAL EMERGENCY AS A RESULT OF WAR INVOLVING THE
PHILIPPINES AND AUTHORIZING THE PRESIDENT TO PROMULGATE RULE AND REGULATIONS TO
MEET SUCH EMERGENCY.
Be it enacted the National Assembly of the Philippines;
SECTION 1. The existed of war between the United State and other countries of Europe and Asia, which involves the
Philippines, makes it necessary to invest the President with extraordinary powers in order to meet the resulting emergency.
SEC. 2. Pursuant to the provision of Article VI, section 16, of the Constitution, the President is hereby authorized, during the
existence of the emergency, to promulgate such rules and regulation as he may deem necessary to carry out the national
policy declared in section 1 hereof. Accordingly, he is, among other things, empowered (a) to transfer the seat of the
Government or any of its subdivisions, branches, department, offices, agencies or instrumentalities; (b) to reorganize the
Government of the Commonwealth including the determination of the order of precedence of the heads of the Executive
Department; (c) to create new subdivision, branches, departments, offices, agency or instrumentalities of government and to
abolish any of those already existing; (d) to continue in force laws and appropriation which would lapse or otherwise became
inoperative, and to modify or suspend the operation or application of those of an administrative character; (e) to imposed new
taxes or to increase, reduce, suspend, or abolish those in existence; (f) to raise funds through the issuance of bonds or
otherwise, and to authorize the expensive of the proceeds thereof; (g) to authorize the National, provincial, city or municipal
governments to incur in overdrafts for purposes that he may approve; (h) to declare the suspension of the collection of credits
or the payment of debts; and (i) to exercise such other power as he may deem necessary to enable the Government to fulfill
its responsibilities and to maintain and enforce its authority.
SEC. 3. The President of the Philippines report thereto all the rules and regulation promulgated by him under the power
herein granted.
SEC. 4. This Act shall take effect upon its approval and the rules and regulations. promulgated hereunder shall be in force
and effect until the Congress of the Philippines shall otherwise provide.
Approved December 16, 1941.
The above Acts cannot validly be invoked, Executive Order No. 68 was issued on July 29, 1947. Said Acts had elapsed upon the
liberation of the Philippines form the Japanese forces or, at the latest, when the surrender of Japan was signed in Tokyo on September
2, 1945.
When both Acts were enacted by the Second National Assembly, we happened to have taken direct part in their consideration and
passage, not only as one of the members of said legislative body as chairman of the Committee on Third Reading population Known
as the "Little Senate." We are, therefore in a position to state that said measures were enacted by the second national Assembly for the
purpose of facing the emergency of impending war and of the Pacific War that finally broke out with the attack of Pearl Harbor on
December 7, 1941. We approved said extraordinary measures, by which under the exceptional circumstances then prevailing
legislative power were delegated to the President of the Philippines, by virtue of the following provisions of the Constitution:
In time of war or other national emergency, the Congress may by law authorize the President, for a limited period and subject
to such restrictions as it may prescribe to promulgate rules and regulations to carry out declared national policy. (Article VI,
section 26.)
It has never been the purpose of the National Assembly to extend the delegation beyond the emergency created by the war as to extend
it farther would be violative of the express provision of the Constitution. We are of the opinion that there is no doubt on this question.;
but if there could still be any the same should be resolved in favor of the presumption that the National Assembly did not intend to
violate the fundamental law.
The absurdity of the contention that the emergency Acts continued in effect even after the surrender of Japan can not be gainsaid.
Only a few months after liberation and even before the surrender of Japan, or since the middle of 1945, the Congress started to
function normally. In the hypothesis that the contention can prevail, then, since 1945, that is, four years ago, even after the
Commonwealth was already replaced by the Republic of the Philippines with the proclamation of our Independence, two district,
separate and independence legislative organs, Congress and the President of the Philippines would have been and would
continue enacting laws, the former to enact laws of every nature including those of emergency character, and the latter to enact laws,
in the form of executive orders, under the so-called emergency powers. The situation would be pregnant with dangers to peace and
order to the rights and liberties of the people and to Philippines democracy.
Should there be any disagreement between Congress and the President of the Philippines, a possibility that no one can dispute the
President of the Philippines may take advantage of he long recess of Congress (two-thirds of every year ) to repeal and overrule
legislative enactments of Congress, and may set up a veritable system of dictatorship, absolutely repugnant to the letter and spirit of
the Constitution.
Executive Order No. 68 is equally offensive to the Constitution because it violates the fundamental guarantees of the due process and
equal protection of the law. It is especially so, because it permit the admission of many kinds evidence by which no innocent person
can afford to get acquittal and by which it is impossible to determine whether an accused is guilty or not beyond all reasonable doubt.
The rules of evidence adopted in Executive Order No. 68 are a reproduction of the regulation governing the trial of twelve criminal,
issued by General Douglas Mac Arthur, Commander in Chief of the United State Armed Forces in Western Pacific, for the purpose of
trying among other, General Yamashita and Homma. What we said in our concurring and dissenting opinion to the decision
promulgated on December 19, 1945, in the Yamashita case, L-129, and in our concurring and dissenting opinion to the resolution of
January 23, 1946 in disposing the Homma case, L-244, are perfectly applicable to the offensive rules of evidence in Executive Order
No. 68. Said rules of evidence are repugnant to conscience as under them no justice can expected.
For all the foregoing, conformably with our position in the Yamashita and Homma cases, we vote to declare Executive Order No. 68
null and void and to grant petition.

Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION

G.R. No. 110120 March 16, 1994
LAGUNA LAKE DEVELOPMENT AUTHORITY, petitioner,
vs.
COURT OF APPEALS, HON. MANUEL JN. SERAPIO, Presiding Judge RTC, Branch 127, Caloocan City, HON.
MACARIO A. ASISTIO, JR., City Mayor of Caloocan and/or THE CITY GOVERNMENT OF CALOOCAN, respondents.
Alberto N. Hidalgo and Ma. Teresa T. Oledan for petitioner.
The City Legal Officer & Chief, Law Department for Mayor Macario A. Asistio, Jr. and the City Government of Caloocan.

ROMERO, J .:
The clash between the responsibility of the City Government of Caloocan to dispose off the 350 tons of garbage it collects daily and
the growing concern and sensitivity to a pollution-free environment of the residents of Barangay Camarin, Tala Estate, Caloocan City
where these tons of garbage are dumped everyday is the hub of this controversy elevated by the protagonists to the Laguna Lake
Development Authority (LLDA) for adjudication.
The instant case stemmed from an earlier petition filed with this Court by Laguna Lake Development Authority (LLDA for short)
docketed as G.R.
No. 107542 against the City Government of Caloocan, et al. In the Resolution of November 10, 1992, this Court referred G.R. No.
107542 to the Court of Appeals for appropriate disposition. Docketed therein as CA-G.R. SP
No. 29449, the Court of Appeals, in a decision
1
promulgated on January 29, 1993 ruled that the LLDA has no power and authority to
issue a cease and desist order enjoining the dumping of garbage in Barangay Camarin, Tala Estate, Caloocan City. The LLDA now
seeks, in this petition, a review of the decision of the Court of Appeals.
The facts, as disclosed in the records, are undisputed.
On March 8, 1991, the Task Force Camarin Dumpsite of Our Lady of Lourdes Parish, Barangay Camarin, Caloocan City, filed a
letter-complaint
2
with the Laguna Lake Development Authority seeking to stop the operation of the 8.6-hectare open garbage
dumpsite in Tala Estate, Barangay Camarin, Caloocan City due to its harmful effects on the health of the residents and the possibility
of pollution of the water content of the surrounding area.
On November 15, 1991, the LLDA conducted an on-site investigation, monitoring and test sampling of the leachate
3
that seeps from
said dumpsite to the nearby creek which is a tributary of the Marilao River. The LLDA Legal and Technical personnel found that the
City Government of Caloocan was maintaining an open dumpsite at the Camarin area without first securing an Environmental
Compliance Certificate (ECC) from the Environmental Management Bureau (EMB) of the Department of Environment and Natural
Resources, as required under Presidential Decree No. 1586,
4
and clearance from LLDA as required under Republic Act No. 4850,
5
as
amended by Presidential Decree No. 813 and Executive Order No. 927, series of 1983.
6

After a public hearing conducted on December 4, 1991, the LLDA, acting on the complaint of Task Force Camarin Dumpsite, found
that the water collected from the leachate and the receiving streams could considerably affect the quality, in turn, of the receiving
waters since it indicates the presence of bacteria, other than coliform, which may have contaminated the sample during collection or
handling.
7
On December 5, 1991, the LLDA issued a Cease and Desist Order
8
ordering the City Government of Caloocan,
Metropolitan Manila Authority, their contractors, and other entities, to completely halt, stop and desist from dumping any form or kind
of garbage and other waste matter at the Camarin dumpsite.
The dumping operation was forthwith stopped by the City Government of Caloocan. However, sometime in August 1992 the dumping
operation was resumed after a meeting held in July 1992 among the City Government of Caloocan, the representatives of Task Force
Camarin Dumpsite and LLDA at the Office of Environmental Management Bureau Director Rodrigo U. Fuentes failed to settle the
problem.
After an investigation by its team of legal and technical personnel on August 14, 1992, the LLDA issued another order reiterating the
December 5, 1991, order and issued an Alias Cease and Desist Order enjoining the City Government of Caloocan from continuing its
dumping operations at the Camarin area.
On September 25, 1992, the LLDA, with the assistance of the Philippine National Police, enforced its Alias Cease and Desist Order by
prohibiting the entry of all garbage dump trucks into the Tala Estate, Camarin area being utilized as a dumpsite.
Pending resolution of its motion for reconsideration earlier filed on September 17, 1992 with the LLDA, the City Government of
Caloocan filed with the Regional Trial Court of Caloocan City an action for the declaration of nullity of the cease and desist order
with prayer for the issuance of writ of injunction, docketed as Civil Case No. C-15598. In its complaint, the City Government of
Caloocan sought to be declared as the sole authority empowered to promote the health and safety and enhance the right of the people
in Caloocan City to a balanced ecology within its territorial jurisdiction.
9

On September 25, 1992, the Executive Judge of the Regional Trial Court of Caloocan City issued a temporary restraining order
enjoining the LLDA from enforcing its cease and desist order. Subsequently, the case was raffled to the Regional Trial Court, Branch
126 of Caloocan which, at the time, was presided over by Judge Manuel Jn. Serapio of the Regional Trial Court, Branch 127, the
pairing judge of the recently-retired presiding judge.
The LLDA, for its part, filed on October 2, 1992 a motion to dismiss on the ground, among others, that under Republic Act No. 3931,
as amended by Presidential Decree No. 984, otherwise known as the Pollution Control Law, the cease and desist order issued by it
which is the subject matter of the complaint is reviewable both upon the law and the facts of the case by the Court of Appeals and not
by the Regional Trial Court.
10

On October 12, 1992 Judge Manuel Jn. Serapio issued an order consolidating Civil Case No. C-15598 with Civil Case No. C-15580,
an earlier case filed by the Task Force Camarin Dumpsite entitled "Fr. John Moran, et al. vs. Hon. Macario Asistio." The LLDA,
however, maintained during the trial that the foregoing cases, being independent of each other, should have been treated separately.
On October 16, 1992, Judge Manuel Jn. Serapio, after hearing the motion to dismiss, issued in the consolidated cases an order
11

denying LLDA's motion to dismiss and granting the issuance of a writ of preliminary injunction enjoining the LLDA, its agent and all
persons acting for and on its behalf, from enforcing or implementing its cease and desist order which prevents plaintiff City of
Caloocan from dumping garbage at the Camarin dumpsite during the pendency of this case and/or until further orders of the court.
On November 5, 1992, the LLDA filed a petition for certiorari, prohibition and injunction with prayer for restraining order with the
Supreme Court, docketed as G.R. No. 107542, seeking to nullify the aforesaid order dated October 16, 1992 issued by the Regional
Trial Court, Branch 127 of Caloocan City denying its motion to dismiss.
The Court, acting on the petition, issued a Resolution
12
on November 10, 1992 referring the case to the Court of Appeals for proper
disposition and at the same time, without giving due course to the petition, required the respondents to comment on the petition and
file the same with the Court of Appeals within ten (10) days from notice. In the meantime, the Court issued a temporary restraining
order, effective immediately and continuing until further orders from it, ordering the respondents: (1) Judge Manuel Jn. Serapio,
Presiding Judge, Regional Trial Court, Branch 127, Caloocan City to cease and desist from exercising jurisdiction over the case for
declaration of nullity of the cease and desist order issued by the Laguna Lake Development Authority (LLDA); and (2) City Mayor of
Caloocan and/or the City Government of Caloocan to cease and desist from dumping its garbage at the Tala Estate, Barangay
Camarin, Caloocan City.
Respondents City Government of Caloocan and Mayor Macario A. Asistio, Jr. filed on November 12, 1992 a motion for
reconsideration and/or to quash/recall the temporary restraining order and an urgent motion for reconsideration alleging that ". . . in
view of the calamitous situation that would arise if the respondent city government fails to collect 350 tons of garbage daily for lack of
dumpsite (i)t is therefore, imperative that the issue be resolved with dispatch or with sufficient leeway to allow the respondents to find
alternative solutions to this garbage problem."
On November 17, 1992, the Court issued a Resolution
13
directing the Court of Appeals to immediately set the case for hearing for the
purpose of determining whether or not the temporary restraining order issued by the Court should be lifted and what conditions, if any,
may be required if it is to be so lifted or whether the restraining order should be maintained or converted into a preliminary injunction.
The Court of Appeals set the case for hearing on November 27, 1992, at 10:00 in the morning at the Hearing Room, 3rd Floor, New
Building, Court of Appeals.
14
After the oral argument, a conference was set on December 8, 1992 at 10:00 o'clock in the morning
where the Mayor of Caloocan City, the General Manager of LLDA, the Secretary of DENR or his duly authorized representative and
the Secretary of DILG or his duly authorized representative were required to appear.
It was agreed at the conference that the LLDA had until December 15, 1992 to finish its study and review of respondent's technical
plan with respect to the dumping of its garbage and in the event of a rejection of respondent's technical plan or a failure of settlement,
the parties will submit within 10 days from notice their respective memoranda on the merits of the case, after which the petition shall
be deemed submitted for resolution.
15
Notwithstanding such efforts, the parties failed to settle the dispute.
On April 30, 1993, the Court of Appeals promulgated its decision holding that: (1) the Regional Trial Court has no jurisdiction on
appeal to try, hear and decide the action for annulment of LLDA's cease and desist order, including the issuance of a temporary
restraining order and preliminary injunction in relation thereto, since appeal therefrom is within the exclusive and appellate
jurisdiction of the Court of Appeals under Section 9, par. (3), of Batas Pambansa Blg. 129; and (2) the Laguna Lake Development
Authority has no power and authority to issue a cease and desist order under its enabling law, Republic Act No. 4850, as amended by
P.D. No. 813 and Executive Order
No. 927, series of 1983.
The Court of Appeals thus dismissed Civil Case No. 15598 and the preliminary injunction issued in the said case was set aside; the
cease and desist order of LLDA was likewise set aside and the temporary restraining order enjoining the City Mayor of Caloocan
and/or the City Government of Caloocan to cease and desist from dumping its garbage at the Tala Estate, Barangay Camarin,
Caloocan City was lifted, subject, however, to the condition that any future dumping of garbage in said area, shall be in conformity
with the procedure and protective works contained in the proposal attached to the records of this case and found on pages 152-160 of
the Rollo, which was thereby adopted by reference and made an integral part of the decision, until the corresponding restraining and/or
injunctive relief is granted by the proper Court upon LLDA's institution of the necessary legal proceedings.
Hence, the Laguna Lake Development Authority filed the instant petition for review on certiorari, now docketed as G.R. No. 110120,
with prayer that the temporary restraining order lifted by the Court of Appeals be re-issued until after final determination by this Court
of the issue on the proper interpretation of the powers and authority of the LLDA under its enabling law.
On July, 19, 1993, the Court issued a temporary restraining order
16
enjoining the City Mayor of Caloocan and/or the City Government
of Caloocan to cease and desist from dumping its garbage at the Tala Estate, Barangay Camarin, Caloocan City, effective as of this
date and containing until otherwise ordered by the Court.
It is significant to note that while both parties in this case agree on the need to protect the environment and to maintain the ecological
balance of the surrounding areas of the Camarin open dumpsite, the question as to which agency can lawfully exercise jurisdiction
over the matter remains highly open to question.
The City Government of Caloocan claims that it is within its power, as a local government unit, pursuant to the general welfare
provision of the Local Government Code,
17
to determine the effects of the operation of the dumpsite on the ecological balance and to
see that such balance is maintained. On the basis of said contention, it questioned, from the inception of the dispute before the
Regional Trial Court of Caloocan City, the power and authority of the LLDA to issue a cease and desist order enjoining the dumping
of garbage in the Barangay Camarin over which the City Government of Caloocan has territorial jurisdiction.
The Court of Appeals sustained the position of the City of Caloocan on the theory that Section 7 of Presidential Decree No. 984,
otherwise known as the Pollution Control law, authorizing the defunct National Pollution Control Commission to issue an ex-parte
cease and desist order was not incorporated in Presidential Decree No. 813 nor in Executive Order No. 927, series of
1983. The Court of Appeals ruled that under Section 4, par. (d), of Republic Act No. 4850, as amended, the LLDA is instead required
"to institute the necessary legal proceeding against any person who shall commence to implement or continue implementation of any
project, plan or program within the Laguna de Bay region without previous clearance from the Authority."
The LLDA now assails, in this partition for review, the abovementioned ruling of the Court of Appeals, contending that, as an
administrative agency which was granted regulatory and adjudicatory powers and functions by Republic Act No. 4850 and its
amendatory laws, Presidential Decree No. 813 and Executive Order No. 927, series of 1983, it is invested with the power and
authority to issue a cease and desist order pursuant to Section 4 par. (c), (d), (e), (f) and (g) of Executive Order No. 927 seri es of 1983
which provides, thus:
Sec. 4. Additional Powers and Functions. The authority shall have the following powers and functions:
xxx xxx xxx
(c) Issue orders or decisions to compel compliance with the provisions of this Executive Order and its implementing
rules and regulations only after proper notice and hearing.
(d) Make, alter or modify orders requiring the discontinuance of pollution specifying the conditions and the time
within which such discontinuance must be accomplished.
(e) Issue, renew, or deny permits, under such conditions as it may determine to be reasonable, for the prevention and
abatement of pollution, for the discharge of sewage, industrial waste, or for the installation or operation of sewage
works and industrial disposal system or parts thereof.
(f) After due notice and hearing, the Authority may also revoke, suspend or modify any permit issued under this
Order whenever the same is necessary to prevent or abate pollution.
(g) Deputize in writing or request assistance of appropriate government agencies or instrumentalities for the purpose
of enforcing this Executive Order and its implementing rules and regulations and the orders and decisions of the
Authority.
The LLDA claims that the appellate court deliberately suppressed and totally disregarded the above provisions of Executive Order No.
927, series of 1983, which granted administrative quasi-judicial functions to LLDA on pollution abatement cases.
In light of the relevant environmental protection laws cited which are applicable in this case, and the corresponding overlapping
jurisdiction of government agencies implementing these laws, the resolution of the issue of whether or not the LLDA has the authority
and power to issue an order which, in its nature and effect was injunctive, necessarily requires a determination of the threshold
question: Does the Laguna Lake Development Authority, under its Charter and its amendatory laws, have the authority to entertain the
complaint against the dumping of garbage in the open dumpsite in Barangay Camarin authorized by the City Government of Caloocan
which is allegedly endangering the health, safety, and welfare of the residents therein and the sanitation and quality of the water in the
area brought about by exposure to pollution caused by such open garbage dumpsite?
The matter of determining whether there is such pollution of the environment that requires control, if not prohibition, of the operation
of a business establishment is essentially addressed to the Environmental Management Bureau (EMB) of the DENR which, by virtue
of Section 16 of Executive Order No. 192, series of 1987,
18
has assumed the powers and functions of the defunct National Pollution
Control Commission created under Republic Act No. 3931. Under said Executive Order, a Pollution Adjudication Board (PAB) under
the Office of the DENR Secretary now assumes the powers and functions of the National Pollution Control Commission with respect
to adjudication of pollution cases.
19

As a general rule, the adjudication of pollution cases generally pertains to the Pollution Adjudication Board (PAB), except in cases
where the special law provides for another forum. It must be recognized in this regard that the LLDA, as a specialized administrative
agency, is specifically mandated under Republic Act No. 4850 and its amendatory laws to carry out and make effective the declared
national policy
20
of promoting and accelerating the development and balanced growth of the Laguna Lake area and the surrounding
provinces of Rizal and Laguna and the cities of San Pablo, Manila, Pasay, Quezon and Caloocan
21
with due regard and adequate
provisions for environmental management and control, preservation of the quality of human life and ecological systems, and the
prevention of undue ecological disturbances, deterioration and pollution. Under such a broad grant and power and authority, the
LLDA, by virtue of its special charter, obviously has the responsibility to protect the inhabitants of the Laguna Lake region from the
deleterious effects of pollutants emanating from the discharge of wastes from the surrounding areas. In carrying out the
aforementioned declared policy, the LLDA is mandated, among others, to pass upon and approve or disapprove all plans, programs,
and projects proposed by local government offices/agencies within the region, public corporations, and private persons or enterprises
where such plans, programs and/or projects are related to those of the LLDA for the development of the region.
22

In the instant case, when the complainant Task Force Camarin Dumpsite of Our Lady of Lourdes Parish, Barangay Camarin, Caloocan
City, filed its letter-complaint before the LLDA, the latter's jurisdiction under its charter was validly invoked by complainant on the
basis of its allegation that the open dumpsite project of the City Government of Caloocan in Barangay Camarin was undertaken
without a clearance from the LLDA, as required under Section 4, par. (d), of Republic Act. No. 4850, as amended by P.D. No. 813 and
Executive Order No. 927. While there is also an allegation that the said project was without an Environmental Compliance Certificate
from the Environmental Management Bureau (EMB) of the DENR, the primary jurisdiction of the LLDA over this case was
recognized by the Environmental Management Bureau of the DENR when the latter acted as intermediary at the meeting among the
representatives of the City Government of Caloocan, Task Force Camarin Dumpsite and LLDA sometime in July 1992 to discuss the
possibility of
re-opening the open dumpsite.
Having thus resolved the threshold question, the inquiry then narrows down to the following issue: Does the LLDA have the power
and authority to issue a "cease and desist" order under Republic Act No. 4850 and its amendatory laws, on the basis of the facts
presented in this case, enjoining the dumping of garbage in Tala Estate, Barangay Camarin, Caloocan City.
The irresistible answer is in the affirmative.
The cease and desist order issued by the LLDA requiring the City Government of Caloocan to stop dumping its garbage in the
Camarin open dumpsite found by the LLDA to have been done in violation of Republic Act No. 4850, as amended, and other relevant
environment laws,
23
cannot be stamped as an unauthorized exercise by the LLDA of injunctive powers. By its express terms, Republic
Act No. 4850, as amended by P.D. No. 813 and Executive Order No. 927, series of 1983, authorizes the LLDA to "make, alter or
modify order requiring the discontinuance or pollution."
24
(Emphasis supplied) Section 4, par. (d) explicitly authorizes the LLDA to
make whatever order may be necessary in the exercise of its jurisdiction.
To be sure, the LLDA was not expressly conferred the power "to issue and ex-parte cease and desist order" in a language, as suggested
by the City Government of Caloocan, similar to the express grant to the defunct National Pollution Control Commission under Section
7 of P.D. No. 984 which, admittedly was not reproduced in P.D. No. 813 and E.O. No. 927, series of 1983. However, it would be a
mistake to draw therefrom the conclusion that there is a denial of the power to issue the order in question when the power "to make,
alter or modify orders requiring the discontinuance of pollution" is expressly and clearly bestowed upon the LLDA by Executive
Order No. 927, series of 1983.
Assuming arguendo that the authority to issue a "cease and desist order" were not expressly conferred by law, there is jurisprudence
enough to the effect that the rule granting such authority need not necessarily be express.
25
While it is a fundamental rule that an
administrative agency has only such powers as are expressly granted to it by law, it is likewise a settled rule that an administrative
agency has also such powers as are necessarily implied in the exercise of its express powers.
26
In the exercise, therefore, of its express
powers under its charter as a regulatory and quasi-judicial body with respect to pollution cases in the Laguna Lake region, the
authority of the LLDA to issue a "cease and desist order" is, perforce, implied. Otherwise, it may well be reduced to a "toothless"
paper agency.
In this connection, it must be noted that in Pollution Adjudication Board v. Court of Appeals, et al.,
27
the Court ruled that the
Pollution Adjudication Board (PAB) has the power to issue an ex-parte cease and desist order when there is prima facie evidence of
an establishment exceeding the allowable standards set by the anti-pollution laws of the country. The ponente, Associate Justice
Florentino P. Feliciano, declared:
Ex parte cease and desist orders are permitted by law and regulations in situations like that here presented precisely
because stopping the continuous discharge of pollutive and untreated effluents into the rivers and other inland waters
of the Philippines cannot be made to wait until protracted litigation over the ultimate correctness or propriety of such
orders has run its full course, including multiple and sequential appeals such as those which Solar has taken, which
of course may take several years. The relevant pollution control statute and implementing regulations were enacted
and promulgated in the exercise of that pervasive, sovereign power to protect the safety, health, and general welfare
and comfort of the public, as well as the protection of plant and animal life, commonly designated as the police
power. It is a constitutional commonplace that the ordinary requirements of procedural due process yield to the
necessities of protecting vital public interests like those here involved, through the exercise of police power. . . .
The immediate response to the demands of "the necessities of protecting vital public interests" gives vitality to the statement on
ecology embodied in the Declaration of Principles and State Policies or the 1987 Constitution. Article II, Section 16 which provides:
The State shall protect and advance the right of the people to a balanced and healthful ecology in accord with the
rhythm and harmony of nature.
As a constitutionally guaranteed right of every person, it carries the correlative duty of non-impairment. This is but in consonance with
the declared policy of the state "to protect and promote the right to health of the people and instill health consciousness among them."

28
It is to be borne in mind that the Philippines is party to the Universal Declaration of Human Rights and the Alma Conference
Declaration of 1978 which recognize health as a fundamental human right.
29

The issuance, therefore, of the cease and desist order by the LLDA, as a practical matter of procedure under the circumstances of the
case, is a proper exercise of its power and authority under its charter and its amendatory laws. Had the cease and desist order issued by
the LLDA been complied with by the City Government of Caloocan as it did in the first instance, no further legal steps would have
been necessary.
The charter of LLDA, Republic Act No. 4850, as amended, instead of conferring upon the LLDA the means of directly enforcing such
orders, has provided under its Section 4 (d) the power to institute "necessary legal proceeding against any person who shall commence
to implement or continue implementation of any project, plan or program within the Laguna de Bay region without previous clearance
from the LLDA."
Clearly, said provision was designed to invest the LLDA with sufficiently broad powers in the regulation of all projects initiated in the
Laguna Lake region, whether by the government or the private sector, insofar as the implementation of these projects is concerned. It
was meant to deal with cases which might possibly arise where decisions or orders issued pursuant to the exercise of such broad
powers may not be obeyed, resulting in the thwarting of its laudabe objective. To meet such contingencies, then the writs of
mandamus and injunction which are beyond the power of the LLDA to issue, may be sought from the proper courts.
Insofar as the implementation of relevant anti-pollution laws in the Laguna Lake region and its surrounding provinces, cities and
towns are concerned, the Court will not dwell further on the related issues raised which are more appropriately addressed to an
administrative agency with the special knowledge and expertise of the LLDA.
WHEREFORE, the petition is GRANTED. The temporary restraining order issued by the Court on July 19, 1993 enjoining the City
Mayor of Caloocan and/or the City Government of Caloocan from dumping their garbage at the Tala Estate, Barangay Camarin,
Caloocan City is hereby made permanent.
SO ORDERED.



Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-4254 September 26, 1951
BORIS MEJOFF, petitioner,
vs.
THE DIRECTOR OF PRISONS, respondent.
Ambrosio T. Dollete for petitioner.
First Assistant Solicitor General Roberto A. Gianson and Solicitor Florencio Villamor for respondents.
TUASON, J .:
This is a second petition for habeas corpus by Boris Mejoff, the first having been denied in a decision of this Court of July 30, 1949.
The history of the petitioner's detention was thus briefly set forth in that decision, written by Mr. Justice Bengzon:
The petitioner Boris Mejoff is an alien of Russian descent who was brought to this country from Shanghai as a secret
operative by the Japanese forces during the latter's regime in these Islands. Upon liberation he was arrested as a Japanese spy,
by U.S. Army Counter Intelligence Corps. Later he was handed to theCommonwealth Government for disposition in
accordance with Commonwealth Act No. 682. Thereafter, the People's Court ordered his release. But the deportation Board
taking his case up, found that having no travel documents Mejoff was illegally in this country, and consequently referred the
matter to the immigration authorities. After the corresponding investigation, the Board of commissioners of Immigration on
April 5, 1948, declared that Mejoff had entered the Philippines illegally in 1944, without inspection and admission by the
immigration officials at a designation port of entry and, therefore, it ordered that he be deported on the first available
transportation to Russia. The petitioner was then under custody, he having been arrested on March 18, 1948. In May 1948 he
was transferred to the Cebu Provincial Jail together with three other Russians to await the arrival of some Russian vessels. In
July and August of that year two boats of Russian nationality called at the Cebu Port. But their masters refused to take
petitioner and his companions alleging lack of authority to do so. In October 1948 after repeated failures to ship this deportee
abroad, the authorities removed him to Bilibid Prison at Muntinglupa where he has been confined up to the present time,
inasmuch as the Commissioner of Immigration believes it is for the best interests of the country to keep him under detention
while arrangements for his departure are being made.
The Court held the petitioner's detention temporary and said that "temporary detention is a necessary step in the process of exclusion
or expulsion of undesirable aliens and that pending arrangements for his deportation, the Government has the right to hold the
undesirable alien under confinement for a reasonable lenght of time." It took note of the fact, manifested by the Solicitor General's
representative in the course of the of the oral argumment, that "this Government desires to expel the alien, and does not relish keeping
him at the people's expense . . . making efforts to carry out the decree of exclusion by the highest officer of the land." No period was
fixed within which the immigration authorities should carry out the contemplated deportation beyond the statement that "The meaning
of 'reasonable time' depends upon the circumstances, specially the difficulties of obtaining a passport, the availability of
transportation, the diplomatic arrangements with the governments concerned and the efforts displayed to send the deportee away;" but
the Court warned that "under established precedents, too long a detention may justify the issuance of a writ of habeas corpus."
Mr. Justice Paras, now Chief Justice, Mr. Justice Feria, Mr. Justice Perfecto, and the writer of this decision dissented. Mr. Justice Feria
and Mr. Justice Perfecto voted for outright discharge of the prisoner from custody. Mr. Justice Paras qualified his dissent by stating
that he might agree "to further detention of the herein petitioner, provided that he be released if after six months, the Government is
still unable to deport him." This writer joined in the latter dissent but thought that two months constituted reasonable time.
Over two years having elapsed since the decision aforesaid was promulgated, the Government has not found way and means of
removing the petitioner out of the country, and none are in sight, although it should be said in justice to the deportation authorities, it
was through no fault of theirs that no ship or country would take the petitioner.
Aliens illegally staying in the Philippines have no right of asylum therein (Sowapadji vs. Wixon, Sept. 18, 1946, 157 F. ed., 289, 290),
even if they are "stateless," which the petitioner claims to be. It is no less true however, as impliedly stated in this Court's decision,
supra, that foreign nationals, not enemy against whom no charge has been made other than that their permission to stay has expired,
may not indefinitely be kept in detention. The protection against deprivation of liberty without due process of law and except for
crimes committed against the laws of the land is not limited to Philippine citizens but extends to all residents, except enemy aliens,
regardless of nationality. Whether an alien who entered the country in violation of its immigration laws may be detained for as long as
the Government is unable to deport him, is a point we need not decide. The petitioner's entry into the Philippines was not unlawful; he
was brought by the armed and belligerent forces of a de facto government whose decrees were law furing the occupation.
Moreover, by its Constitution (Art. II, Sec. 3) the Philippines "adopts the generally accepted principles of international law as part of
the law of Nation." And in a resolution entitled "Universal Declaration of Human Rights" and approved by the General Assembly of
the United Nations of which the Philippines is a member, at its plenary meeting on December 10, 1948, the right to life and liberty and
all other fundamental rights as applied to all human beings were proclaimed. It was there resolved that "All human beings are born
free and equal in degree and rights" (Art. 1); that "Everyone is entitled to all the rights and freedom set forth in this Declaration,
without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, nationality or social origin,
property, birth, or other status" (Art. 2): that "Every one has the right to an effective remedy by the competent national tribunals for
acts violating the fundamental rights granted him by the Constitution or by law" (Art. 8); that "No one shall be subjected to arbitrary
arrest, detention or exile" (Art. 9); etc.
In U. S. vs. Nichols, 47 Fed. Supp., 201, it was said that the court "has the power to release from custody an alien who has been
detained an unreasonably long period of time by the Department of Justice after it has become apparent that although a warrant for his
deportation has been issued, the warrant can not be effectuated;" that "the theory on which the court is given the power to act is that
the warrant of deportation, not having been able to be executed, is functus officio and the alien is being held without any authority of
law." The decision cited several cases which, it said, settled the matter definitely in that jurisdiction, adding that the same result had
reached in innumerable cases elsewhere. The cases referred to were United States ex rel. Ross vs. Wallis, 2 Cir. 279 F. 401, 404;
Caranica vs. Nagle, 9 Cir., 28 F. 2d 955; Saksagansky vs. Weedin, 9 Cir., 53 F. 2d 13, 16 last paragraph; Ex parte Matthews,
D.C.W.D. Wash., 277 F. 857; Moraitis vs. Delany, D.C. Md. Aug. 28, 1942, 46 F. Supp. 425.
The most recent case, as far as we have been able to find, was that of Staniszewski vs. Watkins (1948), 90 Fed. Supp., 132, which is
nearly foursquare with the case at hand. In that case a stateless person, formerly a Polish national, resident in the United States since
1911 and many times serving as a seaman on American vessels both in peace and in war, was ordered excluded from the United States
and detained at Ellis Island at the expense of the steamship company, when he returned from a voyage on which he had shipped from
New York for one or more European ports and return to the United States. The grounds for his exclusion were that he had no passport
or immigration visa, and that in 1937 had been convicted of perjury because in certain documents he presented himself to be an
American citizen. Upon his application for release on habeas corpus, the Court released him upon his own recognizance. Judge
Leibell, of the United States District Court for the Southern District of New York, said in part:
When the return to the writ of habeas corpus came before this court, I suggested that all interested parties . . . make an effort
to arrange to have the petitioner ship out of some country that he would receive him as a resident. He is, a native-born Pole
but the Polish Consul has advised him in writing that he is no longer a Polish subject. This Government does not claim that
he is a Polish citizen. His attorney says he is a stateless. The Government is willing that he go back to the ship, but if he were
sent back aboard a ship and sailed to the Port (Cherbourg, France) from which he last sailed to the United States, he would
probably be denied permission to land. There is no other country that would take him, without proper documents.
It seems to me that this is a genuine hardship case and that the petitioner should be released from custody on proper terms. . .
.
What is to be done with the petitioner? The government has had him in custody almost seven months and practically admits it
has no place to send him out of this country. The steamship company, which employed him as one of a group sent to the ship
by the Union, with proper seaman's papers issued by the United States Coast Guard, is paying $3 a day for petitioner's board
at Ellis Island. It is no fault of the steamship company that petitioner is an inadmissible alien as the immigration officials
describe him. . . .
I intend to sustain the writ of habeas corpus and order the release of the petitioner on his own recognizance. He will be
required to inform the immigration officials at Ellis Island by mail on the 15th of each month, stating where he is employed
and where he can be reached by mail. If the government does succeed in arranging for petitioner's deportation to a country
that will be ready to receive him as a resident, it may then advise the petitioner to that effect and arrange for his deportation in
the manner provided by law.
Although not binding upon this Court as a precedent, the case aforecited affords a happy solution to the quandry in which the parties
here finds themselves, solution which we think is sensible, sound and compatible with law and the Constitution. For this reason, and
since the Philippine law on immigration was patterned after or copied from the American law and practice, we choose to follow and
adopt the reasoning and conclusions in the Staniszewski decision with some modifications which, it is believed, are in consonance
with the prevailing conditions of peace and order in the Philippines.
It was said or insinuated at the hearing ofthe petition at bar, but not alleged in the return, that the petitioner was engaged in subversive
activities, and fear was expressed that he might join or aid the disloyal elements if allowed to be at large. Bearing in mind the
Government's allegation in its answer that "the herein petitioner was brought to the Philippines by the Japanese forces," and the fact
that Japan is no longer at war with the United States or the Philippines nor identified with the countries allied against these nations, the
possibility of the petitioner's entertaining or committing hostile acts prejudicial to the interest and security of this country seems
remote.
If we grant, for the sake of argument, that such a possibility exists, still the petitioner's unduly prolonged detention would be
unwarranted by law and the Constitution, if the only purpose of the detention be to eliminate a danger that is by no means actual,
present, or uncontrolable. After all, the Government is not impotent to deal with or prevent any threat by such measure as that just
outlined. The thought eloquently expressed by Mr. Justice Jackson of the United States Supreme Court in connection with the
appliccation for bail of ten Communists convicted by a lower court of advocacy of violent overthrow of the United States Government
is, in principle, pertinent and may be availed of at this juncture. Said the learned Jurist:
The Governmet's alternative contention is that defendants, by misbehavior after conviction, have forfeited their claim to bail.
Grave public danger is said to result from what they may be expected to do, in addition to what they have done since their
conviction. If I assume that defendants are disposed to commit every opportune disloyal to act helpful to Communist
countries, it is still difficult to reconcile with traditional American law the jailing of persons by the courts because of
anticipated but as yet uncommitted crimes. lmprisonment to protect society from predicted but unconsummated offenses is so
unprecedented in this country and so fraught with danger of excesses and injustice that I am loath to resort it, even as a
discretionary judicial technique to supplement conviction of such offenses as those of which defendants stand convicted.
But the right of every American to equal treatment before the law is wrapped up in the same constitutional bundle with those
of these Communists. If an anger or disgust with these defendants we throw out the bundle, we alsocast aside protection for
the liberties of more worthy critics who may be in opposition to the government of some future day.
x x x x x x x x x1wphl.nt
If, however, I were to be wrong on all of these abstract or theoretical matters of principle, there is a very practical aspect of
this application which must not be overlooked or underestimated that is the disastrous effect on the reputation of
American justice if I should now send these men to jail and the full Court later decide that their conviction is invalid. All
experience with litigation teaches that existence of a substantial question about a conviction implies a more than negligible
risk of reversal. Indeed this experience lies back of our rule permitting and practice of allowing bail where such questions
exist, to avoid the hazard of unjustifiably imprisoning persons with consequent reproach to our system of justice. If that is
prudent judicial practice in the ordinary case, how much more important to avoid every chance of handing to the Communist
world such an ideological weapon as it would have if this country should imprison this handful of Communist leaders on a
conviction that our highest Court would confess to be illegal. Risks, of course, are involved in either granting or refusing bail.
I am naive enough to underestimate the troublemaking propensities of the defendants. But, with the Department of Justice
alert to the the dangers, the worst they can accomplish in the short time it will take to end the litigation is preferable to the
possibility of national embarrassment from a celebrated case of unjustified imprisonment of Communist leaders. Under no
circumstances must we permit their symbolization of an evil force in the world to be hallowed and glorified by any
semblance of martyrdom. The way to avoid that risk is not to jail these men until it is finally decided that they should stay
jailed.
If that case is not comparable with ours on the issues presented, its underlying principle is of universal application. In fact, its ratio
decidendi applies with greater force to the present petition, since the right of accused to bail pending apppeal of his case, as in the case
of the ten Communists, depends upon the discretion of the court, whereas the right to be enlarged before formal charges are instituted
is absolute. As already noted, not only are there no charges pending against the petitioner, but the prospects of bringing any against
him are slim and remote.
Premises considered, the writ will issue commanding the respondents to release the petitioner from custody upon these terms: The
petitioner shall be placed under the surveillance of the immigration authorities or their agents in such form and manner as may be
deemed adequate to insure that he keep peace and be available when the Government is ready to deport him. The surveillance shall be
reasonable and the question of reasonableness shall be submitted to this Court or to the Court of First Instance of Manila for decision
in case of abuse. He shall also put up a bond for the above purpose in the amount of P5,000 with sufficient surety or sureties, which
bond the Commissioner of Immigration is authorized to exact by section 40 of Commonwealth Act No. 613.
No costs will be charged.
Paras, C.J., Feria, Bengzon, Padilla, Reyes and Jugo, JJ., concur.

Separate Opinions
PABLO, M., disidente:
Disiento
En decision disada por este Tribunal en la primera causa de habeas corpus incoada por el solicitante Boris Mejoff (G.R. No. L-2855,
Mejoff vs. Director of Prisons)*, se declaro que el habia venido a Filipinas procedente de Shanghai como espia japones; en la
liberacion, el ejercito americano le arresto por se espia, habiendo sido mas tarde entregado al Gobierno del Commonwealth para ser
tratado de acuerdo con la ley No.682; pero como bajo el Codgo Penal Revisado, antes de su enmienda por la Orden Ejecutiva No. 44,
(mayo 31, 1945) no se castiga al extranjero que comete traicion, Mejoff fue puesto en libertad. Despues de una debida investigacion,
la Junta de Departacion encontra que el solicitante no tenia permiso para entrar en Filipinas; fue entregado a la Junta de Inmigacion, la
cual ordeno su deportacion a Rusia por el primer transporte disponible por haber vendo aqui ilegalmente; fue enviado a Cebu para que
alli se embarcase, pero los dos barcos de nacionalidad rusa que llegaron a dicho puerto en julio y agosto de 1948 rehusaron admitirle.
Por no encontrar transportacion para su departacion, Mejoff fue enviado a la Prison de Muntinglupa, donde esta actualmente de tenido
mientras el Gobierno no encuenra medio de transportarle a Rusia.
La mayoria contiende que "The Petitioner's entry into the Philippines was not unlawful; he was brought by the armed and belligerent
forces of a de facto government whose decrees were law during the occupation." Es tan ilegal la entrada del solicitante como la del
ejercito al que sirvio como espia. Ninguno tiene derecho a permanecer aqui. Puesto que fue vencido el ejercito invasor que le trajo, el
solicitante no tiene derecho a pemanecer aqui ni un minuto mas. Si desea proteccion, debe acudir al Gobierno Japones a cuyo ejercito
el sirvio; el hecho de que ya esta aqui no le da titulo para permanecer libre aqui. El que ha venido como espia de enemigo del Pueblo
de Filipinas no tiene derecho a pedir igual trato que aquel ha entrado de buena fe. Es que Filipinos tiene la obligacion de acoger a un
ciudadano indeseable de Rusia? Desde cuando tiene que allanarse una nacion a ser residencia de una extranjero que entro como
enemigo o, peor aun, como espia? Un Estado tiene indiscutible derecho a deportar y expulsar de su territorio a todo extranjero
indeseable.
El solicitante sostiene que no tiene estado. Eso no es razon para que tenga derecho a permanecer aqui. Puede ser departado a Rusio o a
Shanghai de donde vino. Si todos los rusos que, por alguno que otro motivo, o por odio al comunisomo, dejasen su pais y emigrasen
aqui reclamando igual derecho, no habria territorio suficiente para ellos. Se puede decir otro tanto de los chinos que, so pretexto de no
querer someterse al regimen comunista, optasen por resider para siempre aqui. Y si los mismos communistas chinos viniesen
clandestinamente y despues reclamasen igual proteccion como la concedida a Mejoff, tendreos que darles por el gusto?
Se invoca la resolucion aprobada por la Asamblea General de las Naciones Unidas, titulada "Universal Declaration of Human Rights",
en la que se establece, entre otras cosas, que "no one shall be subjected to arbitrary arrest, detention or exile." Yo soy de los que creen
firmemente en lo sagrado de esta resolucion; no puedo permitir que se detenga y se arreste a alguien sin motivo justificado, de una
manera arbitraria; pero el solicitante no esta detenido de esta manera, lo esta de una manera provisional. Tan pronto como haya barco
disponible para su deportacion o tan pronto como pueda embarcarse en algun barco para el extenjero o para cualquier otro punto a
donde quiera ir, dejara de ser detenido. Conste que no esta preso como un criminal condenado por un delito; esta tratado como
cualquier otro extranjero sujeto a deportacion. Si el solicitante no hubiera sido espia, si no hubiera venido aqui para ayudar a las
hordas japonesas en la subyugacion del pueblo filipino, si hubiera venido como visitante, por ejemplo, y, por azares de la fortuna, no
pudo salir, yo seria el primero en abogar por su liberacion inmediata.
Se cita el caso de Staniszewski vs. Watkins, (1948 A.M.C. 931, 42 American Journal of International Law, 732) en el cual el
recurrente estuvo detenido ya casi siete meses cuando se decreto su libertad en un recurso de habeas corpus. En nuestra opinion, dicho
caso no tiene simulitud con la causa presente. Staniszewski era residente de los Estados desde 1911; estuvo sirviendo como marino en
barcos mercantes americanos en tiempo de guerra y se ordeno su detencion en Ellis Island cuando volvio a America procedente de un
viaje a Europa por no tener papeles de inmigracion. Staniszewski no habia entrado en los Estados Unidos como espia, estuvo
residiendo en dicho pais por varios aos, era ya habitante de los Estados unidos. La ocupacion de marino es honrosa, la del espia
mercenario, detestable. El espia es peor que el enemigo. Este lucha cara a cara, y el espia, con disimulo y arte engaosa, escucha lo
que a Staniszewski se le haya puesto en libertad. Poner en libertad a un espia es poner en peligro la seguridad del Estado.
En cuanto a la duracion de la detencion provisional del recurrente, no hay regla fija, depende de la cincunstancia de cada caso
particular. Es evidente que los medios de comunicacion entre Filipinas y Rusia o Shanghai, debico a fala de relciones diplomaticas,
son completamente anormales. No es culpa del gobierno el que no encuentre medios de transportacion para el.
La Comision de Inmigracion ha dado pasos para que la International Refugee Organziation of the United Nations (IRO0 se hiciera
cargo del recurrente para que pueda ser repartriado o enviado a otro pais extranjero, pero el Jefe de dicha organizacion contesto que no
estaba en condicines para aceptar dicha recomendacion.
William Martin Jurgans fue arrestado en 9 de enero de 1920, en 20 de mayo se decreto su deportacion por el Sub Secretario del
Tarabajo por violacion de la Ley de Inmigracion; solicto su libertad bajo el recurso de Habeas Corpus, y en 16 de febrero de 1927 se
denego su peticion; no se le pudo deportar porque "the necessary arrangements for his deportation could obviously not be made."
(District Court of Minnesota, 17 F. 2nd series, 507). Como se vera, la detencion provisional de William Martin Jurgans duro mas de
seis aos; la de Mejoff no ha sido mas que de 31 meses, y no porque el gobierno no quiere deportarle, sino porque no hay medio
disponible para realizarlo.
En Moraitis vs. Delany, 46 F. Supp., 425, se dijo:
What constitutes a reasonable time for the detention of the petitioner in custody for deportation depends upon the facts and
circumstances of particular cases. This court cannot shut its eyes to the vitally important interests of this country at this time
with respect to the bottleneck of shipping, when every available ship, domestic and foreign, must be utilized to the utmost
without delay consequent upon the lack of avilable seamen. Under these present conditions the court should be liberal indeed
in aiding the executive branch of the govenment in the strict enforcement of laws so vitally necessary in the common defns.
There is sound authority for this view in United States ex. rel. Schlimm vs. Howe, D C.N. U Y. 222 F. 96, 97, where Circuit
Judge Lacombe refused to release an alien who had come here from Germany and was ordered deported in 1915 when, by
reason of the then existing war between Germany and England, his deportation to Germany was not possible. It was said:
At the present time there is no regular passenger ocean service to German ports, so the authorities are unable to forward him,
and are holding him until some opportunity of returning him to Germany may present itself. His continual detention is
unfortunate, but certainly is not illegal. His present condition can be alleviated only by the action of the executive branch of
the government. A federal court would not be justified in discharging him. . . .
If he is not really fit for sea service, it is not probable that he would be forced into it, although he may be able to serve his
government in some other capacity. But however that may be, while this country has no power under existing legislation to
impress him into sea service against his will, he has no just cause to be relieved from the strict enforcement of our
deportation laws, and to remain at liberty in this country as a sanctuary contrary to our laws.
No es arbitraria la detencion de Mejoff. Esta jutificada por las circunstancias anormales.
La proposicion de vigilar al recurrente hasta que el gobierno encuentre transporte para su deportacion, supon un gasto innecesario.

Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-49112 February 2, 1979
LEOVILLO C. AGUSTIN, petitioner,
vs.
HON. ROMEO F. EDU, in his capacity as Land Transportation Commissioner; HON. JUAN PONCE ENRILE, in his
capacity as Minister of National Defense; HON. ALFREDO L. JUINIO, in his capacity as Minister Of Public Works,
Transportation and Communications; and HON: BALTAZAR AQUINO, in his capacity as Minister of Public Highways,
respondents.
Leovillo C. Agustin Law Office for petitioner.
Solicitor General Estelito P. Mendoza, Assistant Solicitor General Ruben E. Agpalo and Solicitor Amado D. Aquino for respondents.

FERNANDO, J .:
The validity of a letter of Instruction
1
providing for an early seaming device for motor vehicles is assailed in this prohibition
proceeding as being violative of the constitutional guarantee of due process and, insofar as the rules and regulations for its
implementation are concerned, for transgressing the fundamental principle of non- delegation of legislative power. The Letter of
Instruction is stigmatized by petitioner who is possessed of the requisite standing, as being arbitrary and oppressive. A temporary
restraining order as issued and respondents Romeo F. Edu, Land Transportation Commissioner Juan Ponce Enrile, Minister of
National Defense; Alfredo L. Juinio, Minister of Public Works, Transportation and Communications; and Baltazar Aquino, Minister
of Public Highways; were to answer. That they did in a pleading submitted by Solicitor General Estelito P. Mendoza.
2
Impressed with
a highly persuasive quality, it makes devoid clear that the imputation of a constitutional infirmity is devoid of justification The Letter
of Instruction on is a valid police power measure. Nor could the implementing rules and regulations issued by respondent Edu be
considered as amounting to an exercise of legislative power. Accordingly, the petition must be dismissed.
The facts are undisputed. The assailed Letter of Instruction No. 229 of President Marcos, issued on December 2, 1974, reads in full:
"[Whereas], statistics show that one of the major causes of fatal or serious accidents in land transportation is the presence of disabled,
stalled or parked motor vehicles along streets or highways without any appropriate early warning device to signal approaching
motorists of their presence; [Whereas], the hazards posed by such obstructions to traffic have been recognized by international bodies
concerned with traffic safety, the 1968 Vienna Convention on Road Signs and Signals and the United Nations Organization (U.N.);
[Whereas], the said Vienna Convention which was ratified by the Philippine Government under P.D. No. 207, recommended the
enactment of local legislation for the installation of road safety signs and devices; [Now, therefore, I, Ferdinand E. Marcos], President
of the Philippines, in the interest of safety on all streets and highways, including expressways or limited access roads, do hereby
direct: 1. That all owners, users or drivers of motor vehicles shall have at all times in their motor vehicles at least one (1) pair of early
warning device consisting of triangular, collapsible reflectorized plates in red and yellow colors at least 15 cms. at the base and 40
cms. at the sides. 2. Whenever any motor vehicle is stalled or disabled or is parked for thirty (30) minutes or more on any street or
highway, including expressways or limited access roads, the owner, user or driver thereof shall cause the warning device mentioned
herein to be installed at least four meters away to the front and rear of the motor vehicle staged, disabled or parked. 3. The Land
Transportation Commissioner shall cause Reflectorized Triangular Early Warning Devices, as herein described, to be prepared and
issued to registered owners of motor vehicles, except motorcycles and trailers, charging for each piece not more than 15 % of the
acquisition cost. He shall also promulgate such rules and regulations as are appropriate to effectively implement this order. 4. All
hereby concerned shall closely coordinate and take such measures as are necessary or appropriate to carry into effect then instruction.
3

Thereafter, on November 15, 1976, it was amended by Letter of Instruction No. 479 in this wise. "Paragraph 3 of Letter of Instruction
No. 229 is hereby amended to read as follows: 3. The Land transportation Commissioner shall require every motor vehicle owner to
procure from any and present at the registration of his vehicle, one pair of a reflectorized early warning device, as d bed of any brand
or make chosen by mid motor vehicle . The Land Transportation Commissioner shall also promulgate such rule and regulations as are
appropriate to effectively implement this order.'"
4
There was issued accordingly, by respondent Edu, the implementing rules and
regulations on December 10, 1976.
5
They were not enforced as President Marcos on January 25, 1977, ordered a six-month period of
suspension insofar as the installation of early warning device as a pre-registration requirement for motor vehicle was concerned.
6

Then on June 30, 1978, another Letter of Instruction
7
the lifting of such suspension and directed the immediate implementation of
Letter of Instruction No. 229 as amended.
8
It was not until August 29, 1978 that respondent Edu issued Memorandum Circular No.
32, worded thus: "In pursuance of Letter of Instruction No. 716, dated June 30, 1978, the implementation of Letter of Instruction No.
229, as amended by Letter of Instructions No. 479, requiring the use of Early Warning Devices (EWD) on motor vehicle, the
following rules and regulations are hereby issued: 1. LTC Administrative Order No. 1, dated December 10, 1976; shall now be
implemented provided that the device may come from whatever source and that it shall have substantially complied with the EWD
specifications contained in Section 2 of said administrative order; 2. In order to insure that every motor vehicle , except motorcycles,
is equipped with the device, a pair of serially numbered stickers, to be issued free of charge by this Commission, shall be attached to
each EWD. The EWD. serial number shall be indicated on the registration certificate and official receipt of payment of current
registration fees of the motor vehicle concerned. All Orders, Circulars, and Memoranda in conflict herewith are hereby superseded,
This Order shall take effect immediately.
9
It was for immediate implementation by respondent Alfredo L. Juinio, as Minister of
Public Works, transportation, and Communications.
10

Petitioner, after setting forth that he "is the owner of a Volkswagen Beetle Car, Model 13035, already properly equipped when it came
out from the assembly lines with blinking lights fore and aft, which could very well serve as an early warning device in case of the
emergencies mentioned in Letter of Instructions No. 229, as amended, as well as the implementing rules and regulations in
Administrative Order No. 1 issued by the land transportation Commission,"
11
alleged that said Letter of Instruction No. 229, as
amended, "clearly violates the provisions and delegation of police power, [sic] * * *: " For him they are "oppressive, unreasonable,
arbitrary, confiscatory, nay unconstitutional and contrary to the precepts of our compassionate New Society."
12
He contended that
they are "infected with arbitrariness because it is harsh, cruel and unconscionable to the motoring public;"
13
are "one-sided, onerous
and patently illegal and immoral because [they] will make manufacturers and dealers instant millionaires at the expense of car owners
who are compelled to buy a set of the so-called early warning device at the rate of P 56.00 to P72.00 per set."
14
are unlawful and
unconstitutional and contrary to the precepts of a compassionate New Society [as being] compulsory and confiscatory on the part of
the motorists who could very well provide a practical alternative road safety device, or a better substitute to the specified set of
EWD's."
15
He therefore prayed for a judgment both the assailed Letters of Instructions and Memorandum Circular void and
unconstitutional and for a restraining order in the meanwhile.
A resolution to this effect was handed down by this Court on October 19, 1978: "L-49112 (Leovillo C. Agustin v. Hon. Romeo F.
Edu, etc., et al.) Considering the allegations contained, the issues raised and the arguments adduced in the petition for prohibition
with writ of p prohibitory and/or mandatory injunction, the Court Resolved to (require) the respondents to file an answer thereto
within ton (10) days from notice and not to move to dismiss the petition. The Court further Resolved to [issue] a [temporary
restraining order] effective as of this date and continuing until otherwise ordered by this Court.
16

Two motions for extension were filed by the Office of the Solicitor General and granted. Then on November 15, 1978, he Answer for
respondents was submitted. After admitting the factual allegations and stating that they lacked knowledge or information sufficient to
form a belief as to petitioner owning a Volkswagen Beetle car," they "specifically deny the allegations and stating they lacked
knowledge or information sufficient to form a belief as to petitioner owning a Volkswagen Beetle Car,
17
they specifically deny the
allegations in paragraphs X and XI (including its subparagraphs 1, 2, 3, 4) of Petition to the effect that Letter of Instruction No. 229 as
amended by Letters of Instructions Nos. 479 and 716 as well as Land transportation Commission Administrative Order No. 1 and its
Memorandum Circular No. 32 violates the constitutional provisions on due process of law, equal protection of law and undue
delegation of police power, and that the same are likewise oppressive, arbitrary, confiscatory, one-sided, onerous, immoral
unreasonable and illegal the truth being that said allegations are without legal and factual basis and for the reasons alleged in the
Special and Affirmative Defenses of this Answer."
18
Unlike petitioner who contented himself with a rhetorical recital of his litany of
grievances and merely invoked the sacramental phrases of constitutional litigation, the Answer, in demonstrating that the assailed
Letter of Instruction was a valid exercise of the police power and implementing rules and regulations of respondent Edu not
susceptible to the charge that there was unlawful delegation of legislative power, there was in the portion captioned Special and
Affirmative Defenses, a citation of what respondents believed to be the authoritative decisions of this Tribunal calling for application.
They are Calalang v. Williams,
19
Morfe v. Mutuc,
20
and Edu v. Ericta.
21
Reference was likewise made to the 1968 Vienna
Conventions of the United Nations on road traffic, road signs, and signals, of which the Philippines was a signatory and which was
duly ratified.
22
Solicitor General Mendoza took pains to refute in detail, in language calm and dispassionate, the vigorous, at times
intemperate, accusation of petitioner that the assailed Letter of Instruction and the implementing rules and regulations cannot survive
the test of rigorous scrutiny. To repeat, its highly-persuasive quality cannot be denied.
This Court thus considered the petition submitted for decision, the issues being clearly joined. As noted at the outset, it is far from
meritorious and must be dismissed.
1. The Letter of Instruction in question was issued in the exercise of the police power. That is conceded by petitioner and is the main
reliance of respondents. It is the submission of the former, however, that while embraced in such a category, it has offended against
the due process and equal protection safeguards of the Constitution, although the latter point was mentioned only in passing. The
broad and expansive scope of the police power which was originally Identified by Chief Justice Taney of the American Supreme
Court in an 1847 decision as "nothing more or less than the powers of government inherent in every sovereignty"
23
was stressed in the
aforementioned case of Edu v. Ericta thus: "Justice Laurel, in the first leading decision after the Constitution came into force,
Calalang v. Williams, Identified police power with state authority to enact legislation that may interfere with personal liberty or
property in order to promote the general welfare. Persons and property could thus 'be subjected to all kinds of restraints and burdens in
order to we the general comfort, health and prosperity of the state.' Shortly after independence in 1948, Primicias v. Fugoso reiterated
the doctrine, such a competence being referred to as 'the power to prescribe regulations to promote the health, morals, peace,
education, good order or safety, and general welfare of the people. The concept was set forth in negative terms by Justice Malcolm in
a pre-Commonwealth decision as 'that inherent and plenary power in the State which enables it to prohibit all things hurtful to the
comfort, safety and welfare of society. In that sense it could be hardly distinguishable as noted by this Court in Morfe v. Mutuc with
the totality of legislative power. It is in the above sense the greatest and most powerful at. tribute of government. It is, to quote Justice
Malcolm anew, 'the most essential, insistent, and at least table powers, I extending as Justice Holmes aptly pointed out 'to all the great
public needs.' Its scope, ever-expanding to meet the exigencies of the times, even to anticipate the future where it could be done,
provides enough room for an efficient and flexible response to conditions and circumstances thus assuring the greatest benefits. In the
language of Justice Cardozo: 'Needs that were narrow or parochial in the past may be interwoven in the present with the well-being of
the nation. What is critical or urgent changes with the time.' The police power is thus a dynamic agency, suitably vague and far from
precisely defined, rooted in the conception that men in organizing the state and imposing upon its government limitations to safeguard
constitutional rights did not intend thereby to enable an individual citizen or a group of citizens to obstruct unreasonably the enactment
of such salutary measures calculated to communal peace, safety, good order, and welfare."
24

2. It was thus a heavy burden to be shouldered by petitioner, compounded by the fact that the particular police power measure
challenged was clearly intended to promote public safety. It would be a rare occurrence indeed for this Court to invalidate a legislative
or executive act of that character. None has been called to our attention, an indication of its being non-existent. The latest decision in
point, Edu v. Ericta, sustained the validity of the Reflector Law,
25
an enactment conceived with the same end in view. Calalang v.
Williams found nothing objectionable in a statute, the purpose of which was: "To promote safe transit upon, and. avoid obstruction on
roads and streets designated as national roads * * *.
26
As a matter of fact, the first law sought to be nullified after the effectivity of the
1935 Constitution, the National Defense Act,
27
with petitioner failing in his quest, was likewise prompted by the imperative demands
of public safety.
3. The futility of petitioner's effort to nullify both the Letter of Instruction and the implementing rules and regulations becomes even
more apparent considering his failure to lay the necessary factual foundation to rebut the presumption of validity. So it was held in
Ermita-Malate Hotel and Motel Operators Association, Inc. v. City Mayor of Manila.
28
The rationale was clearly set forth in an
excerpt from a decision of Justice Branders of the American Supreme Court, quoted in the opinion: "The statute here questioned deals
with a subject clearly within the scope of the police power. We are asked to declare it void on the ground that the specific method of
regulation prescribed is unreasonable and hence deprives the plaintiff of due process of law. As underlying questions of fact may
condition the constitutionality of legislation of this character, the presumption of constitutionality must prevail in the absence of some
factual foundation of record in overthrowing the statute.
29

4. Nor did the Solicitor General as he very well could, rely solely on such rebutted presumption of validity. As was pointed out in his
Answer "The President certainly had in his possession the necessary statistical information and data at the time he issued said letter of
instructions, and such factual foundation cannot be defeated by petitioner's naked assertion that early warning devices 'are not too vital
to the prevention of nighttime vehicular accidents' because allegedly only 390 or 1.5 per cent of the supposed 26,000 motor vehicle
accidents that in 1976 involved rear-end collisions (p. 12 of petition). Petitioner's statistics is not backed up by demonstrable data on
record. As aptly stated by this Honorable Court: Further: "It admits of no doubt therefore that there being a presumption of validity,
the necessity for evidence to rebut it is unavoidable, unless the statute or ordinance is void on its face, which is not the case here"' * *
*. But even as g the verity of petitioner's statistics, is that not reason enough to require the installation of early warning devices to
prevent another 390 rear-end collisions that could mean the death of 390 or more Filipinos and the deaths that could likewise result
from head-on or frontal collisions with stalled vehicles?"
30
It is quite manifest then that the issuance of such Letter of Instruction is
encased in the armor of prior, careful study by the Executive Department. To set it aside for alleged repugnancy to the due process
clause is to give sanction to conjectural claims that exceeded even the broadest permissible limits of a pleader's well known penchant
for exaggeration.
5. The rather wild and fantastic nature of the charge of oppressiveness of this Letter of Instruction was exposed in the Answer of the
Solicitor General thus: "Such early warning device requirement is not an expensive redundancy, nor oppressive, for car owners whose
cars are already equipped with 1) blinking lights in the fore and aft of said motor vehicles,' 2) "battery-powered blinking lights inside
motor vehicles," 3) "built-in reflectorized tapes on front and rear bumpers of motor vehicles," or 4) "well-lighted two (2) petroleum
lamps (the Kinke) * * * because: Being universal among the signatory countries to the said 1968 Vienna Conventions, and visible even
under adverse conditions at a distance of at least 400 meters, any motorist from this country or from any part of the world, who sees a
reflectorized rectangular early seaming device installed on the roads, highways or expressways, will conclude, without thinking, that
somewhere along the travelled portion of that road, highway, or expressway, there is a motor vehicle which is stationary, stalled or
disabled which obstructs or endangers passing traffic. On the other hand, a motorist who sees any of the aforementioned other built in
warning devices or the petroleum lamps will not immediately get adequate advance warning because he will still think what that
blinking light is all about. Is it an emergency vehicle? Is it a law enforcement car? Is it an ambulance? Such confusion or uncertainty
in the mind of the motorist will thus increase, rather than decrease, the danger of collision.
31

6. Nor did the other extravagant assertions of constitutional deficiency go unrefuted in the Answer of the Solicitor General "There is
nothing in the questioned Letter of Instruction No. 229, as amended, or in Administrative Order No. 1, which requires or compels
motor vehicle owners to purchase the early warning device prescribed thereby. All that is required is for motor vehicle owners
concerned like petitioner, to equip their motor vehicles with a pair of this early warning device in question, procuring or obtaining the
same from whatever source. In fact, with a little of industry and practical ingenuity, motor vehicle owners can even personally make
or produce this early warning device so long as the same substantially conforms with the specifications laid down in said letter of
instruction and administrative order. Accordingly the early warning device requirement can neither be oppressive, onerous, immoral,
nor confiscatory, much less does it make manufacturers and dealers of said devices 'instant millionaires at the expense of car owners'
as petitioner so sweepingly concludes * * *. Petitioner's fear that with the early warning device requirement 'a more subtle racket may
be committed by those called upon to enforce it * * * is an unfounded speculation. Besides, that unscrupulous officials may try to
enforce said requirement in an unreasonable manner or to an unreasonable degree, does not render the same illegal or immoral where,
as in the instant case, the challenged Letter of Instruction No. 229 and implementing order disclose none of the constitutional defects
alleged against it.
32

7 It does appear clearly that petitioner's objection to this Letter of Instruction is not premised on lack of power, the justification for a
finding of unconstitutionality, but on the pessimistic, not to say negative, view he entertains as to its wisdom. That approach, it put it
at its mildest, is distinguished, if that is the appropriate word, by its unorthodoxy. It bears repeating "that this Court, in the language of
Justice Laurel, 'does not pass upon questions of wisdom justice or expediency of legislation.' As expressed by Justice Tuason: 'It is not
the province of the courts to supervise legislation and keep it within the bounds of propriety and common sense. That is primarily and
exclusively a legislative concern.' There can be no possible objection then to the observation of Justice Montemayor. 'As long as laws
do not violate any Constitutional provision, the Courts merely interpret and apply them regardless of whether or not they are wise or
salutary. For they, according to Justice Labrador, 'are not supposed to override legitimate policy and * * * never inquire into the
wisdom of the law.' It is thus settled, to paraphrase Chief Justice Concepcion in Gonzales v. Commission on Elections, that only
congressional power or competence, not the wisdom of the action taken, may be the basis for declaring a statute invalid. This is as it
ought to be. The principle of separation of powers has in the main wisely allocated the respective authority of each department and
confined its jurisdiction to such a sphere. There would then be intrusion not allowable under the Constitution if on a matter left to the
discretion of a coordinate branch, the judiciary would substitute its own. If there be adherence to the rule of law, as there ought to be,
the last offender should be courts of justice, to which rightly litigants submit their controversy precisely to maintain unimpaired the
supremacy of legal norms and prescriptions. The attack on the validity of the challenged provision likewise insofar as there may be
objections, even if valid and cogent on is wisdom cannot be sustained.
33

8. The alleged infringement of the fundamental principle of non-delegation of legislative power is equally without any support well-
settled legal doctrines. Had petitioner taken the trouble to acquaint himself with authoritative pronouncements from this Tribunal, he
would not have the temerity to make such an assertion. An exempt from the aforecited decision of Edu v. Ericta sheds light on the
matter: "To avoid the taint of unlawful delegation, there must be a standard, which implies at the very least that the legislature itself
determines matters of principle and lays down fundamental policy. Otherwise, the charge of complete abdication may be hard to repel
A standard thus defines legislative policy, marks its maps out its boundaries and specifies the public agency to apply it. It indicates the
circumstances under which the legislative command is to be effected. It is the criterion by which legislative purpose may be carried
out. Thereafter, the executive or administrative office designated may in pursuance of the above guidelines promulgate supplemental
rules and regulations. The standard may be either express or implied. If the former, the non-delegation objection is easily met. The
standard though does not have to be spelled out specifically. It could be implied from the policy and purpose of the act considered as a
whole. In the Reflector Law clearly, the legislative objective is public safety. What is sought to be attained as in Calalang v. Williams
is "safe transit upon the roads.' This is to adhere to the recognition given expression by Justice Laurel in a decision announced not too
long after the Constitution came into force and effect that the principle of non-delegation "has been made to adapt itself to the
complexities of modern governments, giving rise to the adoption, within certain limits, of the principle of "subordinate legislation" not
only in the United States and England but in practically all modern governments.' He continued: 'Accordingly, with the growing
complexity of modern life, the multiplication of the subjects of governmental regulation, and the increased difficulty of administering
the laws, there is a constantly growing tendency toward the delegation of greater powers by the legislature and toward the approval of
the practice by the courts.' Consistency with the conceptual approach requires the reminder that what is delegated is authority non-
legislative in character, the completeness of the statute when it leaves the hands of Congress being assumed."
34

9. The conclusion reached by this Court that this petition must be dismissed is reinforced by this consideration. The petition itself
quoted these two whereas clauses of the assailed Letter of Instruction: "[Whereas], the hazards posed by such obstructions to traffic
have been recognized by international bodies concerned with traffic safety, the 1968 Vienna Convention on Road Signs and Signals
and the United Nations Organization (U.N.); [Whereas], the said Vionna Convention, which was ratified by the Philippine
Government under P.D. No. 207, recommended the enactment of local legislation for the installation of road safety signs and devices;
* * * "
35
It cannot be disputed then that this Declaration of Principle found in the Constitution possesses relevance: "The Philippines *
* * adopts the generally accepted principles of international law as part of the law of the land * * *."
36
The 1968 Vienna Convention
on Road Signs and Signals is impressed with such a character. It is not for this country to repudiate a commitment to which it had
pledged its word. The concept of Pacta sunt servanda stands in the way of such an attitude, which is, moreover, at war with the
principle of international morality.
10. That is about all that needs be said. The rather court reference to equal protection did not even elicit any attempt on the Part of
Petitioner to substantiate in a manner clear, positive, and categorical why such a casual observation should be taken seriously. In no
case is there a more appropriate occasion for insistence on what was referred to as "the general rule" in Santiago v. Far Eastern
Broadcasting Co.,
37
namely, "that the constitutionality of a law wig not be considered unless the point is specially pleaded, insisted
upon, and adequately argued."
38
"Equal protection" is not a talismanic formula at the mere invocation of which a party to a lawsuit
can rightfully expect that success will crown his efforts. The law is anything but that.
WHEREFORE, this petition is dismissed. The restraining order is lifted. This decision is immediately executory. No costs.
Castro, C.J., Barredo, Antonio, Santos, Fernandez, Guerrero, Abad Santos, De Castro and Melencio-Herrera, concur.
Makasiar, J, reserves the right to file a separate opinion.
Aquino J., took no part.
Concepcion J., is on leave.
Castro, C.J., certifies that Justice Concepcion concurs in their decision.


Separate Opinions

TEEHANKEE, J ., dissenting:
I dissent from the majority's peremptory dismissal of the petition and lifting of the restraining order issued on October 19, 1978
against the blanket enforcement of the requirement that all motor vehicles be equipped with the so-called early warning device,
without even hearing the parties in oral argument as generally required by the Court in original cases of far-reaching consequence such
as the case at bar.
Lack of time presents my filing an extended dissent. I only wish to state that the petition advances grave and serious grounds of
assailing "the rules and regulations issued by the Land Transportation Commission under Administrative Order No. 1 and
Memorandum Circular No. 32 [which] do not reflect the real intent, noble objectives and spirit of Letter of Instructions No. 229, as
amended by Letter of Instructions Nos. 479 and 716, because it is oppressive, unreasonable, arbitrary, confiscatory, nay
unconstitutional and contrary to the precepts of our compassionate New Society," because of the following considerations, inter alia:
1. It is oppressive, arbitrary and discriminatory to require owners of motor vehicles with built-in and more effective and efficient
E.W.D.'S such as "a) blinking lights in the fore and aft of said motor vehicles, 1)) battery-powered blinking lights inside motor
vehicles, c) built-in reflectorized tapes on front and rear bumpers of motor vehicles....... to purchase the E.W.D. specified in the
challenged administrative order, whose effectivity and utility have yet to be demonstrated.
2. The public necessity for the challenged order has yet to be shown. No valid refutation has been made of petitioner's assertion that
the "E.W.D.'s are not too vital to the prevention of nighttime vehicular accidents. Statistics shows that of the 26,000 motor vehicle
accidents that occurred in 1976, only 390 or 1.5 per cent involved rear-end collisions," as to require the purchase and installation of
the questioned E.W.D. for almost 900,000 vehicles throughout the country;
3. The big financial burden to be imposed on all motorists is staggering, and petitioner's assertion that "as of 1975, there were at least
865,037 motor vehicles all over the country requiring E.W.D.'S and at the minimum price of 1156.00 per set, this would mean a
consumer outlay of P 48,451,872.00, or close to P 50 million for the questioned E.W.D.'S "stands unchallenged;
4. No real effort has been made to show that there can be practical and less burdensome alternative road safety devices for stalled
vehicles than the prescribed E.W.D., such as the common petroleum lamps "kinke" which can be placed just as effectively in front of
stalled vehicles on the highways; and
5. There is no imperative need for imposing such a bet requirement on all vehicles. The respondents have not shown that they have
availed of the powers and prerogatives vested in their offices such as ridding the country of dilapidated trucks and vehicles which are
the main cause of the deplorable -highway accidents due to stoned vehicles, establishing an honest and foolproof system of
examination and licensing of motor vehicle drivers so as to ban the reckless and irresponsible and a sustained education campaign to
instill safe driving habits and attitudes that can be carried out for much less than the P 50 million burden that would be imposed by the
challenged order.
I do feel that a greater "degree of receptivity and sympathy" could be extended to the petitioner for his civic mindedness in having
filed the present petition g as capricious and unreasonable the "all pervading police power" of the State instead of throwing the case
out of court and leaving the wrong impression that the exercise of police power insofar as it may affect the life, liberty and property of
any person is no longer subject to judicial inquiry.


# Separate Opinions
TEEHANKEE, J ., dissenting:
I dissent from the majority's peremptory dismissal of the petition and lifting of the restraining order issued on October 19, 1978
against the blanket enforcement of the requirement that all motor vehicles be equipped with the so-called early warning device,
without even hearing the parties in oral argument as generally required by the Court in original cases of far-reaching consequence such
as the case at bar.
Lack of time presents my filing an extended dissent. I only wish to state that the petition advances grave and serious grounds of
assailing "the rules and regulations issued by the Land Transportation Commission under Administrative Order No. 1 and
Memorandum Circular No. 32 [which] do not reflect the real intent, noble objectives and spirit of Letter of Instructions No. 229, as
amended by Letter of Instructions Nos. 479 and 716, because it is oppressive, unreasonable, arbitrary, confiscatory, nay
unconstitutional and contrary to the precepts of our compassionate New Society," because of the following considerations, inter alia:
1. It is oppressive, arbitrary and discriminatory to require owners of motor vehicles with built-in and more effective and efficient
E.W.D.'S such as "a) blinking lights in the fore and aft of said motor vehicles, 1)) battery-powered blinking lights inside motor
vehicles, c) built-in reflectorized tapes on front and rear bumpers of motor vehicles....... to purchase the E.W.D. specified in the
challenged administrative order, whose effectivity and utility have yet to be demonstrated.
2. The public necessity for the challenged order has yet to be shown. No valid refutation has been made of petitioner's assertion that
the "E.W.D.'s are not too vital to the prevention of nighttime vehicular accidents. Statistics shows that of the 26,000 motor vehicle
accidents that occurred in 1976, only 390 or 1.5 per cent involved rear-end collisions," as to require the purchase and installation of
the questioned E.W.D. for almost 900,000 vehicles throughout the country;
3. The big financial burden to be imposed on all motorists is staggering, and petitioner's assertion that "as of 1975, there were at least
865,037 motor vehicles all over the country requiring E.W.D.'S and at the minimum price of 1156.00 per set, this would mean a
consumer outlay of P 48,451,872.00, or close to P 50 million for the questioned E.W.D.'S "stands unchallenged;
4. No real effort has been made to show that there can be practical and less burdensome alternative road safety devices for stalled
vehicles than the prescribed E.W.D., such as the common petroleum lamps "kinke" which can be placed just as effectively in front of
stalled vehicles on the highways; and
5. There is no imperative need for imposing such a bet requirement on all vehicles. The respondents have not shown that they have
availed of the powers and prerogatives vested in their offices such as ridding the country of dilapidated trucks and vehicles which are
the main cause of the deplorable -highway accidents due to stoned vehicles, establishing an honest and foolproof system of
examination and licensing of motor vehicle drivers so as to ban the reckless and irresponsible and a sustained education campaign to
instill safe driving habits and attitudes that can be carried out for much less than the P 50 million burden that would be imposed by the
challenged order.
I do feel that a greater "degree of receptivity and sympathy" could be extended to the petitioner for his civic mindedness in having
filed the present petition g as capricious and unreasonable the "all pervading police power" of the State instead of throwing the case
out of court and leaving the wrong impression that the exercise of police power insofar as it may affect the life, liberty and property of
any person is no longer subject to judicial inquiry.



LAWYERS LEAGUE FOR A BETTER PHILIPPINES vs. PRES. AQUINO
G.R. NO. 73748, May 22, 1986

FACTS:
President Corazon Aquino issued Proclamation No. 1 on February 25, 1986 announcing that she and Vice President Laurel were
taking power. On March 25, 1986, proclamation No.3 was issued providing the basis of the Aquino government assumption of power
by stating that the "new government was installed through a direct exercise of the power of the Filipino people assisted by units of the
New Armed Forces of the Philippines."

Petitioners alleged that the Aquino government is illegal because it was not established pursuant to the 1973 Constitution.

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

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

The Supreme Court further held that:
1. The people have accepted the Aquino government which is in effective control of the entire country;
2. It is not merely a de facto government but in fact and law a de jure government; and
3. The community of nations has recognized the legitimacy of the new government.