[G.R. No. 72119. May 29, 1987.

VALENTIN L. LEGASPI, petitioner, vs. CIVIL SERVICE COMMISSION, respondent.

DECISION

CORTES, J p:

The fundamental right of the people to information on matters of public concern is invoked in this special
civil action for Mandamus instituted by petitioner Valentin L. Legaspi against the Civil Service Commission.
The respondent had earlier denied Legaspi's request for information on the civil service eligibilities of
certain persons employed as sanitarians in the Health Department of Cebu City. These government
employees, Julian Sibonghanoy and Mariano Agas, had allegedly represented themselves as civil service
eligibles who passed the civil service examinations for sanitarians.

Claiming that his right to be informed of the eligibilities of Julian Sibonghanoy and Mariano Agas is
guaranteed by the Constitution, and that he has no other plain, speedy and adequate remedy to acquire
the information, petitioner prays for the issuance of the extraordinary writ of Mandamus to compel the
respondent Commission to disclose said information.

This is not the first time that the writ of Mandamus is sought to enforce the fundamental right to
information. The same remedy was resorted to in the case of Tanada et al. vs. Tuvera et al., (G.R. No. L-
63915, April 24, 1985, 136 SCRA 27) wherein the people's right to be informed under the 1973
Constitution (Article IV, Section 6) was invoked in order to compel the publication in the Official Gazette
of various presidential decrees, letters of instructions and other presidential issuances. Prior to the
recognition of the right in said Constitution, the statutory right to information provided for in the Land
Registration Act (Section 56, Act 496, as amended) was claimed by a newspaper editor in another
Mandamus proceeding, this time to demand access to the records of the Register of Deeds for the purpose
of gathering data on real estate transactions involving aliens (Subido vs. Ozaeta, 80 Phil. 383 [1948]).

The constitutional right to information on matters of public concern first gained recognition in the Bill of
Rights, Article IV, of the 1973 Constitution, which states:

Sec. 6. 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, shall
be afforded the citizen subject to such limitations as may be provided by law.

The foregoing provision has been retained and the right therein provided amplified in Article III, Sec. 7 of
the 1987 Constitution with the addition of the phrase, "as well as to government research data used as
basis for policy development." The new provision reads:

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. cdphil

These constitutional provisions are self-executing. They supply the rules by means of which the right to
information may be enjoyed (Cooley, A Treatise on the Constitutional Limitations 167 [1927]) by
guaranteeing the right and mandating the duty to afford access to sources of information. Hence, the
fundamental right therein recognized may be asserted by the people upon the ratification of the
constitution without need for any ancillary act of the Legislature. (Id. at, p. 165) What may be provided
for by the Legislature are reason able conditions and limitations upon the access to be afforded which
must, of necessity, be consistent with the declared State policy of full public disclosure of all transactions
involving public interest (Constitution, Art. II, Sec. 28). However, it cannot be overemphasized that
whatever limitation may be prescribed by the Legislature, the right and the duty under Art. III, Sec. 7 have
become operative and enforceable by virtue of the adoption of the New Charter. Therefore, the right may
be properly invoked in a Mandamus proceeding such as this one.

The Solicitor General interposes procedural objections to Our giving due course to this Petition. He
challenges the petitioner's standing to sue upon the ground that the latter does not possess any clear
legal right to be informed of the civil service eligibilities of the government employees concerned. He calls
attention to the alleged failure of the petitioner to show his actual interest in securing this particular
information. He further argues that there is no ministerial duty on the part of the Commission to furnish
the petitioner with the information he seeks.

1. 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. (Anti-Chinese League of the Philippines vs. Felix, 77 Phil. 1012 [1947]).
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.

In the case before Us, the respondent takes issue on the personality of the petitioner to bring this suit. It
is asserted that, the instant Petition is bereft of any allegation of Legaspi's actual interest in the civil
service eligibilities of Julian Sibonghanoy and Mariano Agas. At most there is a vague reference to an
unnamed client in whose behalf he had allegedly acted when he made inquiries on the subject (Petition,
Rollo, p. 3).

But what is clear upon the face of the Petition is that the petitioner has firmly anchored his case upon the
right of the people to information on matters of public concern, which, by its very nature, is a public right.
It has been held that: LLphil

. . . when the question is one of public right and the object of the mandamus is to procure the enforcement
of a public duty, the people are regarded as the real party in interest and the relator at whose instigation
the proceedings are instituted need not show that he has any legal or special interest in the result, it being
sufficient to show that he is a citizen and as such interested in the execution of the laws . . . (Tanada et al.
vs. Tuvera, et al., G.R. No. L-63915, April 24, 1985, 136 SCRA 27, 36).

From the foregoing, it becomes apparent that when a Mandamus proceeding involves the assertion of a
public right, the requirement of personal interest is satisfied by the mere fact that the petitioner is a
citizen, and therefore, part of the general "public" which possesses the right.

The Court had opportunity to define the word "public" in the Subido case, supra, when it held that even
those who have no direct or tangible interest in any real estate transaction are part of the "public" to
whom "(a)ll records relating to registered lands in the Office of the Register of Deeds shall be open . . ."
(Sec. 56, Act No. 496, as amended). In the words of the Court:
. . . "Public" is a comprehensive, all-inclusive term. Properly construed, it embraces every person. To say
that only those who have a present and existing interest of a pecuniary character in the particular
information sought are given the right of inspection is to make an unwarranted distinction. . . . (Subido vs.
Ozaeta, supra at p. 387).

The petitioner, being a citizen who, as such is clothed with personality to seek redress for the alleged
obstruction of the exercise of the public right. We find no cogent reason to deny his standing to bring the
present suit.

2. For every right of the people recognized as fundamental, there lies a corresponding duty on the part of
those who govern, to respect and protect that right. That is the very essence of the Bill of Rights in a
constitutional regime. Only governments operating under fundamental rules defining the limits of their
power so as to shield individual rights against its arbitrary exercise can properly claim to be constitutional
(Cooley, supra. at p. 5). Without a government's acceptance of the limitations imposed upon it by the
Constitution in order to uphold individual liberties, without an acknowledgment on its part of those duties
exacted by the rights pertaining to the citizens, the Bill of Rights becomes a sophistry, and liberty, the
ultimate illusion.

In recognizing the people's right to be informed, both the 1973 Constitution and the New Charter
expressly mandate the duty of the State and its agents to afford access to official records, documents,
papers and in addition, government research data used as basis for policy development, subject to such
limitations as may be provided by law. The guarantee has been further enhanced in the New Constitution
with the adoption of a policy of full public disclosure, this time "subject to reasonable conditions
prescribed by law," in Article II, Section 28 thereof, to wit:

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. (Art. II, Sec. 28).

In the Tanada case, supra, the constitutional guarantee was bolstered by what this Court declared as an
imperative duty of the government officials concerned to publish all important legislative acts and
resolutions of a public nature as well as all executive orders and proclamations of general applicability.
We granted Mandamus in said case, and in the process, We found occasion to expound briefly on the
nature of said duty: LexLib

. . . That duty must be enforced if the Constitutional right of the people to be informed on matters of
public concern is to be given substance and reality. The law itself makes a list of what should be published
in the Official Gazette. Such listing, to our mind, leaves respondents with no discretion whatsoever as to
what must be included or excluded from such publication. (Tanada v. Tuvera, supra, at 39), (Emphasis
supplied).

The absence of discretion on the part of government agencies in allowing the examination of public
records, specifically, the records in the Office of the Register of Deeds, is emphasized in Subido vs. Ozaeta,
supra:

Except, perhaps when it is clear that the purpose of the examination is unlawful, or sheer, idle curiosity,
we do not believe it is the duty under the law of registration officers to concern themselves with the
motives, reasons, and objects of the person seeking access to the records. It is not their prerogative to
see that the information which the records contain is not flaunted before public gaze, or that scandal is
not made of it. If it be wrong to publish the contents of the records, it is the legislature and not the officials
having custody thereof which is called upon to devise a remedy. . . . (Subido v. Ozaeta, supra at 388).
(Emphasis supplied).

It is clear from the foregoing pronouncements of this Court that government agencies are without
discretion in refusing disclosure of, or access to, information of public concern. This is not to lose sight of
the reasonable regulations which may be imposed by said agencies in custody of public records on the
manner in which the right to information may be exercised by the public. In the Subido case, We
recognized the authority of the Register of Deeds to regulate the manner in which persons desiring to do
so, may inspect, examine or copy records relating to registered lands. However, the regulations which the
Register of Deeds may promulgate are confined to:

. . . prescribing the manner and hours of examination to the end that damage to or loss of, the records
may be avoided, that undue interference with the duties of the custodian of the books and documents
and other employees may be prevented, that the right of other persons entitled to make inspection may
be insured . . . (Subido vs. Ozaeta, 80 Phil. 383, 387).

Applying the Subido ruling by analogy, We recognized a similar authority in a municipal judge, to regulate
the manner of inspection by the public of criminal docket records in the case of Baldoza vs.
Dimaano (Adm. Matter No. 1120-MJ, May 5, 1976, 71 SCRA 14). Said administrative case was filed against
the respondent judge for his alleged refusal to allow examination of the criminal docket records in his
sala. Upon a finding by the Investigating Judge that the respondent had allowed the complainant to open
and view the subject records, We absolved the respondent. In effect, We have also held that the rules and
conditions imposed by him upon themanner of examining the public records were reasonable.

In both the Subido and the Baldoza cases, We were emphatic in Our statement that the authority to
regulate the manner of examining public records does not carry with it the power to prohibit. A distinction
has to be made between the discretion to refuse outright the disclosure of or access to a particular
information and the authority to regulate the manner in which the access is to be afforded. The first is a
limitation upon the availability of access to the information sought, which only the Legislature may impose
(Art. III, Sec. 6, 1987 Constitution). The second pertains to the government agency charged with the
custody of public records. Its authority to regulate access is to be exercised solely to the end that damage
to, or loss of, public records may be avoided, undue interference with the duties of said agencies may be
prevented, and more importantly, that the exercise of the same constitutional right by other persons shall
be assured (Subido vs. Ozaeta, supra). Cdpr

Thus, while the manner of examining public records may be subject to reasonable regulation by the
government agency in custody thereof, the duty to disclose the information of public concern, and to
afford access to public records cannot be discretionary on the part of said agencies. Certainly, its
performance cannot be made contingent upon the discretion of such agencies. Otherwise, the enjoyment
of the constitutional right may be rendered nugatory by any whimsical exercise of agency discretion. The
constitutional duty, not being discretionary, its performance may be compelled by a writ of Mandamus in
a proper case.
But what is a proper case for Mandamus to issue? In the case before Us, the public right to be enforced
and the concomitant duty of the State are unequivocably set forth in the Constitution. The decisive
question on the propriety of the issuance of the writ of Mandamus in this case is, whether the information
sought by the petitioner is within the ambit of the constitutional guarantee.

3. The incorporation in the Constitution of a guarantee of access to information of public concern is a

recognition of the essentiality of the free flow of ideas and information in a democracy (Baldoza v.
Dimaano, Adm. Matter No. 1120-MJ, May 5, 1976, 17 SCRA 14). In the same way that free discussion
enables members of society to cope with the exigencies of their time (Thornhill vs. Alabama, 310 U.S. 88,
102 [1939]), access to information of general interest aids the people in democratic decision-making (87
Harvard Law Review 1505 [1974] by giving them a better perspective of the vital issues confronting the
nation.

But the constitutional guarantee to information on matters of public concern is not absolute. It does not
open every door to any and all information. Under the Constitution, access to official records, papers, etc.,
are "subject to limitations as may be provided by law" (Art. III, Sec. 7, second sentence). The law may
therefore exempt certain types of information from public scrutiny, such as those affecting national
security (Journal No. 90, September 23, 1986, p. 10; and Journal No. 91, September 24, 1986, p. 32, 1986
Constitutional Commission). It follows that, in every case, the availability of access to a particular public
record must be circumscribed by the nature of the information sought, i.e., (a) being of public concern or
one that involves public interest, and, (b) not being exempted by law from the operation of the
constitutional guarantee. The threshold question is, therefore, whether or not the information sought is
of public interest or public concern.

a. This question is first addressed to the government agency having custody of the desired information.
However, as already discussed, this does not give the agency concerned any discretion to grant or deny
access. In case of denial of access, the government agency has the burden of showing that the information
requested is not of public concern, or, if it is of public concern, that the same has been exempted by law
from the operation of the guarantee. To hold otherwise will serve to dilute the constitutional right. As
aptly observed, ". . . the government is in an advantageous position to marshall and interpret arguments
against release . . ." (87 Harvard Law Review 1511 [1974]). To safeguard the constitutional right, every
denial of access by the government agency concerned is subject to review by the courts, and in the proper
case, access may be compelled by a writ of Mandamus.

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 in a case by case basis whether the matter at issue is of
interest or importance, as it relates to or affects the public. LibLex

The public concern invoked in the case of Taada v. Tuvera, supra, was the need for adequate notice to
the public of the various laws which are to regulate the actions and conduct of citizens. In Subido vs.
Ozaeta, supra, the public concern deemed covered by the statutory right was the knowledge of those real
estate transactions which some believed to have been registered in violation of the Constitution.
The information sought by the petitioner in this case is the truth of the claim of certain government
employees that they are civil service eligibles for the positions to which they were appointed. The
Constitution expressly declares as a State policy that:

Appointments in the civil service shall be made only according to merit and fitness to be determined, as
far as practicable, and except as to positions which are policy determining, primarily confidential or highly
technical, by competitive examination. (Art. IX, B, Sec. 2. [2]).

Public office being a public trust, [Const., Art. XI, Sec: 1] it is the legitimate concern of citizens to ensure
that government positions requiring civil service eligibility are occupied only by persons who are eligibles.
Public officers are at all times accountable to the people even as to their eligibilities for their respective
positions.

b. But then, it is not enough that the information sought is of public interest. For Mandamus to lie in a
given case, the information must not be among the species exempted by law from the operation of the
constitutional guarantee.

In the instant, case while refusing to confirm or deny the claims of eligibility, the respondent has failed to
cite any provision in the Civil Service Law which would limit the petitioner's right to know who are, and
who are not, civil service eligibles. We take judicial notice of the fact that the names of those who pass
the civil service examinations, as in bar examinations and licensure examinations for various professions,
are released to the public. Hence, there is nothing secret about one's civil service eligibility, if actually
possessed. Petitioner's request is, therefore, neither unusual nor unreasonable. And when, as in this case,
the government employees concerned claim to be civil service eligibles, the public, through any citizen,
has a right to verify their professed eligibilities from the Civil Service Commission.

The civil service eligibility of a sanitarian being of public concern, and in the absence of express limitations
under the law upon access to the register of civil service eligibles for said position, the duty of the
respondent Commission to confirm or deny the civil service eligibility of any person occupying the position
becomes imperative. Mandamus, therefore lies.

WHEREFORE:, the Civil Service Commission is ordered to open its register of eligibles for the position of
sanitarian, and to confirm or deny, the civil service eligibility of Julian Sibonghanoy and Mariano Agas for
said position in the Health Department of Cebu City, as requested by the petitioner Valentin L. Legaspi.

Teehankee, C.J., Yap, Fernan, Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Gancayco, Padilla,
Bidin and Sarmiento, JJ., concur.

Feliciano, J., is on leave.

||| (Legaspi v. CSC, G.R. No. 72119, May 29, 1987)

[G.R. No. 74930. February 13, 1989.]

RICARDO VALMONTE, OSWALDO CARBONELL, DOY DEL CASTILLO, ROLANDO BARTOLOME, LEO OBLIGAR,
JUN GUTIERREZ, REYNALDO BAGATSING, JUN "NINOY" ALBA, PERCY LAPID, ROMMEL CORRO and
ROLANDO FADUL, petitioners, vs. FELICIANO BELMONTE, JR., respondent.

Ricardo C. Valmonte for and in his own behalf and his co-petitioners.

The Solicitor General for respondent.

SYLLABUS

1.ADMINISTRATIVE LAW; EXHAUSTION OF ADMINISTRATIVE REMEDIES BEFORE RESORT TO COURTS OF

LAW MAY BE ALLOWED; EXCEPTIONS. A settled principles in administrative law is that before a party
can be allowed to resort to the courts, he is expected to have exhausted all means of administrative
redress available under the law. The courts for reasons of law, comity and convenience will not entertain
a case unless the available administrative remedies have been resorted to and the appropriate authorities
have been given opportunity to act and correct the errors committed in the administrative forum.
However, the principle of exhaustion of administrative remedies is subject to settled exceptions, among
which is when only a question of law is involved.

2.CONSTITUTIONAL LAW; RIGHT OF ACCESS TO INFORMATION; EFFECT OF DENIAL THEREOF. The

cornerstone of this republican system of government is delegation of power by the people to the State.
In this system, governmental agencies and institutions operate within the limits of the authority conferred
by the people. Denied access to information on the inner workings of government, the citizenry can
become prey to the whims and caprices of those to whom the power had been delegated. The postulate
of public office as a public trust, institutionalized in the Constitution (in Art. XI, Sec. 1) to protect the people
from abuse of governmental power, would certainly be mere empty words if access to such information
of public concern is denied, except under limitations prescribed by implementing legislation adopted
pursuant to the Constitution.

3.ID.; ID.; NOT RESTRICTED BY THE EXERCISE OF THE FREEDOM OF SPEECH AND OF THE PRESS. The
right to information is an essential premise of a meaningful right to speech and expression. But this is not
to say that the right to information is merely an adjunct of and therefore restricted in application by the
exercise of the freedoms of speech and of the press. Far from it. The right to information goes hand-in-
hand with the constitutional policies of full public disclosure and honesty in the public service. It is meant
to enhance the widening role of the citizenry in governmental decision-making as well in checking abuse
in government.

4.ID.; ID.; NOT ABSOLUTE. Like all the constitutional guarantees, the right to information is not absolute.
The people's right to information is limited to "matters of public concern", and is further "subject to such
limitations as may be provided by law." Similarly, the State's policy of full disclosure is limited to
"transactions involving public interest", and is "subject to reasonable conditions prescribed by law."

5.ID.; RIGHT OF PRIVACY; CANNOT BE INVOKED BY A JURIDICAL ENTITY; RIGHT IS PURELY PERSONAL IN
NATURE. When the information requested from the government intrudes into the privacy of a citizen,
a potential conflict between the rights to information and to privacy may arise. The right to privacy
belongs to the individual in his private capacity, and not to public and governmental agencies like the GSIS.
A corporation has no right to privacy since the entire basis of the right to privacy is injury to the feelings
and sensibilities of the party and a corporation would have no such ground for relief. Neither can the GSIS
through its General Manager, the respondent, invoke the right to privacy of its borrowers. The right is
purely personal in nature.

6.ID.; RIGHT OF ACCESS TO INFORMATION; GOVERNMENT AGENCY PERFORMING PROPRIETARY

FUNCTIONS, NOT EXCLUDED FROM THE COVERAGE. The government, whether carrying out its
sovereign attributes or running some business, discharges the same function of service to the people.
Consequently, that the GSIS, in granting the loans, was exercising a proprietary function would not justify
the exclusion of the transactions from the coverage and scope of the right to information.

7.ID.; ID.; LIMITATION. The consideration in guaranting access to information on matters of public
concern does not however, accord to citizen the right to compel custodian of public records to prepare
lists, abstracts, summaries and the like in their desire to acquire such information.

8.REMEDIAL LAW; SPECIAL CIVIL ACTION; MANDAMUS; REQUISITES FOR ISSUANCE OF WRIT. It must
be stressed that it is essential for a writ of mandamus to issue that the applicant has a well-defined, clear
and certain legal right to the thing demanded and that it is the imperative duty of defendant to perform
the act required. The corresponding duty of the respondent to perform the required act must be clear
and specific.

DECISION

CORTES, J p:

Petitioners in this special civil action for mandamus with preliminary injunction invoke their right to
information and pray that respondent be directed:

(a)to furnish petitioners the list of the names of the Batasang Pambansa members belonging to the UNIDO
and PDP-Laban who were able to secure clean loans immediately before the February 7 election thru the
intercession/marginal note of the then First Lady Imelda Marcos; and/or

(b)to furnish petitioners with certified true copies of the documents evidencing their respective loans;
and/or

(c)to allow petitioners access to the public records for the subject information. [Petition, pp. 4-5;
paragraphing supplied.]

The controversy arose when petitioner Valmonte wrote respondent Belmonte the following letter:

June 4, 1986

Hon. Feliciano Belmonte

GSIS General Manager

Arroceros, Manila.

Sir:

As a lawyer, member of the media and plain citizen of our Republic, I am requesting that I be furnished
with the list of names of the opposition members of (the) Batasang Pambansa who were able to secure a
clean loan of P2 million each on guaranty (sic) of Mrs. Imelda Marcos. We understand that OIC Mel Lopez
of Manila was one of those aforesaid MPs. Likewise, may we be furnished with the certified true copies
of the documents evidencing their loan. Expenses in connection herewith shall be borne by us.

If we could not secure the above documents could we have access to them?

We are premising the above request on the following provision of the Freedom Constitution of the present
regime.

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, shall be
afforded the citizen subject to such limitation as may be provided by law. (Art. IV, Sec. 6).

We trust that within five (5) days from receipt hereof we will receive your favorable response on the
matter.

Very truly yours,

(Sgd.) RICARDO C. VALMONTE

[Rollo, p. 7.]

To the aforesaid letter, the Deputy General Counsel of the GSIS replied:

June 17, 1986

Atty. Ricardo C. Valmonte

108 E. Benin Street

Caloocan City

Dear Companero:

Possibly because he must have thought that it contained serious legal implications, President & General
Manager Feliciano Belmonte, Jr. referred to me for study and reply your letter to him of June 4, 1986
requesting a list of "the opposition members of Batasang Pambansa who were able to secure a clean loan
of P2 million each on guaranty of Mrs. Imelda Marcos."

My opinion in this regard is that a confidential relationship exists between the GSIS and all those who
borrow from it, whoever they may be; that the GSIS has a duty to its customers to preserve this
confidentiality; and that it would not be proper for the GSIS to breach this confidentiality unless so
ordered by the courts.

As a violation of this confidentiality may mar the image of the GSIS as a reputable financial institution, I
regret very much that at this time we cannot respond positively to your request.

Very truly yours,

(Sgd.) MEYNARDO A. TIRO

Deputy General Counsel

[Rollo, p. 40.]
On June 20, 1986, apparently not having yet received the reply of the Government Service and Insurance
System (GSIS) Deputy General Counsel, petitioner Valmonte wrote respondent another letter, saying that
for failure to receive a reply "(W)e are now considering ourselves free to do whatever action necessary
within the premises to pursue our desired objective in pursuance of public interest." [Rollo, p. 8.]

On June 26, 1986, Valmonte, joined by the other petitioners, filed the instant suit.

On July 19, 1986, the Daily Express carried a news item reporting that 137 former members of the defunct
interim and regular Batasang Pambansa, including ten (10) opposition members, were granted housing
loans by the GSIS [Rollo, p. 41.].

Separate comments were filed by respondent Belmonte and the Solicitor General. After petitioners filed
a consolidated reply, the petition was given due course and the parties were required to file their
memoranda. The parties having complied, the case was deemed submitted for decision.

In his comment respondent raises procedural objections to the issuance of a writ of mandamus, among
which is that petitioners have failed to exhaust administrative remedies.

Respondent claims that actions of the GSIS General Manager are reviewable by the Board of Trustees of
the GSIS. Petitioners, however did not seek relief from the GSIS Board of Trustees. It is therefore asserted
that since administrative remedies were not exhausted, then petitioners have no cause of action.

To this objection, petitioners claim that they have raised a purely legal issue, viz., whether or not they are
entitled to the documents sought, by virtue of their constitutional right to information. Hence, it is argued
that this case falls under one of the exceptions to the principle of exhaustion of administrative remedies.

Among the settled principles in administrative law is that before a party can be allowed to resort to the
courts, he is expected to have exhausted all means of administrative redress available under the law. The
courts for reasons of law, comity and convenience will not entertain a case unless the available
administrative remedies have been resorted to and the appropriate authorities have been given
opportunity to act and correct the errors committed in the administrative forum. However, the principle
of exhaustion of administrative remedies is subject to settled exceptions, among which is when only a
question of law is involved [Pascual v. Provincial Board, 106 Phil. 466 (1959); Aguilar v. Valencia, et al.,
G.R. No. L-30396, July 30, 1971, 40 SCRA 210; Malabanan v. Ramento, G.R. No. L-2270, May 21, 1984, 129
SCRA 359.] The issue raised by petitioners, which requires the interpretation of the scope of the
constitutional right to information, is one which can be passed upon by the regular courts more
competently than the GSIS or its Board of Trustees, involving as it does a purely legal question. Thus, the
exception of this case from the application of the general rule on exhaustion of administrative remedies
is warranted. Having disposed of this procedural issue, We now address ourselves to the issue of whether
or not mandamus lies to compel respondent to perform the acts sought by petitioners to be done, in
pursuance of their right to information.

We shall deal first with the second and third alternative acts sought to be done, both of which involve the
issue of whether or not petitioners are entitled to access to the documents evidencing loans granted by
the GSIS.
This is not the first time that the Court is confronted with a controversy directly involving the
constitutional right to information. In Tanada v. Tuvera, G.R. No. 63915, April 24, 1985, 136 SCRA 27 and
in the recent case of Legaspi v. Civil Service Commission, G.R. No. 72119, May 29, 1987, 150 SCRA 530,
the Court upheld the people's constitutional right to be informed of matters of public interest and ordered
the government agencies concerned to act as prayed for by the petitioners.

The pertinent provision under the 1987 Constitution is Art. 111, Sec. 7 which states:

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.

The right of access to information was also recognized in the 1973 Constitution, Art. IV Sec. 6 of which
provided:

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, shall be
afforded the citizen subject to such limitations as may be provided by law.

An informed citizenry with access to the diverse currents in political, moral and artistic thought and data
relative to them, and the free exchange of ideas and discussion of issues thereon, is vital to the democratic
government envisioned under our Constitution. The cornerstone of this republican system of government
is delegation of power by the people to the State. In this system, governmental agencies and institutions
operate within the limits of the authority conferred by the people. Denied access to information on the
inner workings of government, the citizenry can become prey to the whims and caprices of those to whom
the power had been delegated. The postulate of public office as a public trust, institutionalized in the
Constitution (in Art. XI, Sec. 1) to protect the people from abuse of governmental power, would certainly
be mere empty words if access to such information of public concern is denied, except under limitations
prescribed by implementing legislation adopted pursuant to the Constitution.

Petitioners are practitioners in media. As such, they have both the right to gather and the obligation to
check the accuracy of information they disseminate. For them, the freedom of the press and of speech is
not only critical, but vital to the exercise of their professions. The right of access to information ensures
that these freedoms are not rendered nugatory by the government's monopolizing pertinent information.
For 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. Yet, this open dialogue can be effective only to the extent that the citizenry is informed
and thus able to formulate its will intelligently. Only when the participants in the discussion are aware of
the issues and have access to information relating thereto can such bear fruit.

The right to information is an essential premise of a meaningful right to speech and expression. But this
is not to say that the right to information is merely an adjunct of and therefore restricted in application
by the exercise of the freedoms of speech and of the press. Far from it. The right to information goes
hand-in-hand with the constitutional policies of full public disclosure ** and honesty in the public
service. *** It is meant to enhance the widening role of the citizenry in governmental decision-making as
well in checking abuse in government.

Yet, like all the constitutional guarantees, the right to information is not absolute. As stated in Legaspi, The
people's right to information is limited to "matters of public concern", and is further "subject to such
limitations as may be provided by law." Similarly, the State's policy of full disclosure is limited to
"transactions involving public interest", and is "subject to reasonable conditions prescribed by law."

Hence, before mandamus may issue, it must be clear that the information sought is of "public interest" or
"public concern", and is not exempted by law from the operation of the constitutional guarantee [Legaspi
v. Civil Service Commission, supra, at p. 542.].

The Court has always grappled with the meanings of the terms "public interest" and "public concern". As
observed in Legaspi: prcd

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. [Ibid. at p. 541.]

In the Taada case the public concern deemed covered by the constitutional right to information was the
need for adequate notice to the public of the various laws which are to regulate the actions and conduct
of citizens. In Legaspi, it was the "legitimate concern of citizens to ensure that government positions
requiring civil service eligibility are occupied only by persons who are eligibles" [Supra at p. 539.].

The information sought by petitioners in this case is the truth of reports that certain Members of the
Batasang Pambansa belonging to the opposition were able to secure "clean" loans from the GSIS
immediately before the February 7, 1986 election through the intercession of the former First Lady, Mrs.
Imelda R. Marcos.

The GSIS is a trustee of contributions from the government and its employees and the administrator of
various insurance programs for the benefit of the latter. Undeniably, its funds assume a public character.
More particularly, Secs. 5(b) and 46 of P.D. 1146, as amended (the Revised Government Service Insurance
Act of 1977), provide for annual appropriations to pay the contributions, premiums, interest and other
amounts payable to GSIS by the government, as employer, as well as the obligations which the Republic
of the Philippines assumes or guarantees to pay. Considering the nature of its funds, the GSIS is expected
to manage its resources with utmost prudence and in strict compliance with the pertinent laws or rules
and regulations. Thus, one of the reasons that prompted the revision of the old GSIS law (C.A No. 186, as
amended) was the necessity "to preserve at all times the actuarial solvency of the funds administered by
the Systems [Second Whereas Clause,P.D. No. 1146.] Consequently, as respondent himself admits, the
GSIS "is not supposed to grant `clean loans'." [Comment, p. 8.] It is therefore the legitimate concern of
the public to ensure that these funds are managed properly with the end in view of maximizing the
benefits that accrue to the insured government employees. Moreover, the supposed borrowers were
Members of the defunct Batasang Pambansa who themselves appropriated funds for the GSIS and were
therefore expected to be the first to see to it that the GSIS performed its tasks with the greatest degree
of fidelity and that all its transactions were above board.

In sum, the public nature of the loanable funds of the GSIS and the public office held by the alleged
borrowers make the information sought clearly a matter of public interest and concern.

A second requisite must be met before the right to information may be enforced through mandamus
proceedings, viz., that the information sought must not be among those excluded by law.

Respondent maintains that a confidential relationship exists between the GSIS and its borrowers. It is
argued that a policy of confidentiality restricts the indiscriminate dissemination of information.

Yet, respondent has failed to cite any law granting the GSIS the privilege of confidentiality as regards the
documents subject of this petition. His position is apparently based merely on considerations of policy.
The judiciary does not settle policy issues. The Court can only declare what the law is, and not what the
law should be. Under our system of government, policy issues are within the domain of the political
branches of the government, and of the people themselves as the repository of all State power.

Respondent however contends that in view of the right to privacy which is equally protected by the
Constitution and by existing laws, the documents evidencing loan transactions of the GSIS must be
deemed outside the ambit of the right to information. llcd

There can be no doubt that right to privacy is constitutionally protected. In the landmark case of Morfe v.
Mutuc [130 Phil. 415 (1968), 22 SCRA 424], this Court, speaking through then Mr. Justice Fernando, stated:

. . . The right to privacy as such is accorded recognition independently of its identification with liberty; in
itself, it is fully deserving of constitutional protection. The language of Prof. Emerson is particularly apt:
"The concept of limited government has always included the idea that governmental powers stop short
of certain intrusions into the personal life of the citizen. This is indeed one of the basic distinctions
between absolute and limited government. Ultimate and pervasive control of the individual, in all aspects
of his life, is the hallmark of the absolute state. In contrast, a system of limited government safeguards a
private sector, which belongs to the individual, firmly distinguishing it from the public sector, which the
state can control. Protection of this private sector protection, in other words, of the dignity and integrity
of the individual has become increasingly important as modern society has developed. All the forces of
technological age industrialization, urbanization, and organization operate to narrow the area of
privacy and facilitate intrusion into it. In modern terms, the capacity to maintain and support this enclave
of private life marks the difference between a democratic and a totalitarian society." [at pp. 444-445.]

When the information requested from the government intrudes into the privacy of a citizen, a potential
conflict between the rights to information and to privacy may arise. However, the competing interests of
these rights need not be resolved in this case. Apparent from the above-quoted statement of the Court
inMorfe is that the right to privacy belongs to the individual in his private capacity, and not to public and
governmental agencies like the GSIS. Moreover, the right cannot be invoked by juridical entities like the
GSIS. As held in the case of Vassar College v. Loose Wills Biscuit Co. [197 F. 982 (1912)], a corporation has
no right of privacy in its name since the entire basis of the right to privacy is an injury to the feelings and
sensibilities of the party and a corporation would have no such ground for relief.
Neither can the GSIS through its General Manager, the respondent, invoke the right to privacy of its
borrowers. The right is purely personal in nature [Cf.Atkinson v. John Doherty & Co., 121 Mich 372, 80
N.W. 285, 46 L.R.A. 219 (1899); Schuyler v. Curtis, 147 N.Y. 434, 42 N.E. 22, 31 L.R.A. 286 (1895)], and
hence may be invoked only by the person whose privacy is claimed to be violated.

It may be observed, however, that in the instant case, the concerned borrowers themselves may not
succeed if they choose to invoke their right to privacy, considering the public offices they were holding at
the time the loans were alleged to have been granted. It cannot be denied that because of the interest
they generate and their newsworthiness, public figures, most especially those holding responsible
positions in government, enjoy a more limited right to privacy as compared to ordinary individuals, their
actions being subject to closer public scrutiny [Cf. Ayer Productions Pty. Ltd. v. Capulong, G.R. Nos. 82380
and 82398, April 29, 1988; See also Cohen v. Marx, 211 P. 2d 321 (1949).].

Respondent next asserts that the documents evidencing the loan transactions of the GSIS are private in
nature and hence, are not covered by the Constitutional right to information on matters of public concern
which guarantees "(a)ccess to official records, and to documents, and papers pertaining to officialacts,
transactions, or decisions" only.

It is argued that the records of the GSIS, a government corporation performing proprietary functions, are
outside the coverage of the people's right of access toofficial records. llcd

It is further contended that since the loan function of the GSIS is merely incidental to its insurance
function, then its loan transactions are not covered by the constitutional policy of full public disclosure
and the right to information which is applicable only to "official" transactions.

First of all, the "constituent ministrant" dichotomy characterizing government function has long been
repudiated. In ACCFA v. Confederation of Unions and Government Corporations and Offices [G.R. Nos. L-
21484 and L-23605, November 29, 1969, 30 SCRA 644], the Court said that the government, whether
carrying out its sovereign attributes or running some business, discharges the same function of service to
the people.

Consequently, that the GSIS, in granting the loans, was exercising a proprietary function would not justify
the exclusion of the transactions from the coverage and scope of the right to information.

Moreover, the intent of the members of the Constitutional Commission of 1986, to include government-
owned and controlled corporations and transactions entered into by them within the coverage of the
State policy of full public disclosure is manifest from the records of the proceedings:

xxx xxx xxx

THE PRESIDING OFFICER (Mr. Colayco).

Commissioner Suarez is recognized.

MR. SUAREZ.Thank you. May I ask the Gentleman a few question?

MR. OPLE.Very gladly.

MR. SUAREZ.Thank you.

When we declare "a policy of full public disclosure of all its transactions" referring to the transactions
of the State and when we say the "State" which I suppose would include all of the various agencies,
departments, ministries and instrumentalities of the government. . . .

MR. OPLE.Yes, and individual public officers, Mr. Presiding Officer.

MR. SUAREZ.Including government-owned and controlled corporations.

MR. OPLE.That is correct, Mr. Presiding Officer.

MR. SUAREZ.And when we say "transactions which should be distinguished from contracts, agreements,
or treaties or whatever, does the Gentleman refer to the steps leading to the consummation of the
contract, or does he refer to the contract itself?

MR. OPLE.The "transactions" used here, I suppose, is generic and, therefore, it can cover both steps
leading to a contract, and already a consummated contract, Mr. Presiding Officer.

MR. SUAREZ.This contemplates inclusion of negotiations leading to the consummation of the transaction.

MR. OPLE.Yes, subject only to reasonable safeguards on the national interest.

MR. SUAREZ.Thank you. [V Record of the Constitutional Commission 24-25.] (Emphasis supplied.)

Considering the intent of the framers of the Constitution which, though not binding upon the Court, are
nevertheless persuasive, and considering further that government-owned and controlled corporations,
whether performing proprietary or governmental functions are accountable to the people, the Court is
convinced that transactions entered into by the GSIS, a government-controlled corporation created by
special legislation are within the ambit of the people's right to be informed pursuant to the constitutional
policy of transparency in government dealings.

In fine, petitioners are entitled to access to the documents evidencing loans granted by the GSIS, subject
to reasonable regulations that the latter may promulgate relating to the manner and hours of
examination, to the end that damage to or loss of the records may be avoided, that undue interference
with the duties of the custodian of the records may be prevented and that the right of other persons
entitled to inspect the records may be insured [Legaspi v. Civil Service Commission, supra at p. 538,
quoting Subido v. Ozaeta, 80 Phil. 383, 387.] The petition, as to the second and third alternative acts
sought to be done by petitioners, is meritorious.

However, the same cannot be said with regard to the first act sought by petitioners, i.e., "to furnish
petitioners the list of the names of the Batasang Pambansa members belonging to the UNIDO and PDP-
Laban who were able to secure clean loans immediately before the February 7 election thru the
intercession/marginal note of the then First Lady Imelda Marcos."

Although citizens are afforded the right to information and, pursuant thereto, are entitled to "access to
official records," the constitution does not accord them a right to compel custodians of official records to
prepare lists, abstracts, summaries and the like in their desire to acquire information or matters of public
concern.cdrep

It must be stressed that it is essential for a writ of mandamus to issue that the applicant has a well-defined,
clear and certain legal right to the thing demanded and that it is the imperative duty of defendant to
perform the act required. The corresponding duty of the respondent to perform the required act must be
clear and specific [Lemi v. Valencia, G.R. No. L-20768, November 29, 1968, 126 SCRA 203; Ocampo v.
Subido, G.R. No. L-28344, August 27, 1976, 72 SCRA 443.] The request of the petitioners fails to meet this
standard, there being no duty on the part of respondent to prepare the list requested.

WHEREFORE, the instant petition is hereby granted and respondent General Manager of the Government
Service Insurance System is ORDERED to allow petitioners access to documents and records evidencing
loans granted to Members of the former Batasang Pambansa, as petitioners may specify, inspection, not
incompatible with this decision, as the GSIS may deem necessary.

SO ORDERED.

Fernan C .J ., Narvasa, Melencio-Herrera, Gutierrez, Jr., Paras, Feliciano, Gancayco, Padilla, Bidin,
Sarmiento, Grio-Aquino, Medialdea and Regalado, JJ ., concur.

||| (Valmonte v. Belmonte, Jr., G.R. No. 74930, February 13, 1989)

[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.

[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.

[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.

[G.R. No. 183951. October 14, 2008.]

THE PROVINCIAL GOVERNMENT OF ZAMBOANGA DEL NORTE, as represented by HON. ROLANDO E.
YEBES, in his capacity as Provincial Governor, HON. FRANCIS H. OLVIS, in his capacity as Vice-Governor
and Presiding Officer of the Sangguniang Panlalawigan, HON. CECILIA JALOSJOS CARREON,
Congresswoman, 1st Congressional District, HON. CESAR G. JALOSJOS, Congressman, 3rd Congressional
District, and Members of the Sangguniang Panlalawigan of the Province of Zamboanga del Norte, namely,
HON. SETH FREDERICK P. JALOSJOS, HON. FERNANDO R. CABIGON, JR., HON. ULDARICO M. MEJORADA II,
HON. EDIONAR M. ZAMORAS, HON. EDGAR J. BAGUIO, HON. CEDRIC L. ADRIATICO, HON. FELIXBERTO C.
BOLANDO, HON. JOSEPH BRENDO C. AJERO, HON. NORBIDEIRI B. EDDING, HON. ANECITO S. DARUNDAY,
HON. ANGELICA J. CARREON and HON. LUZVIMINDA E. TORRINO, petitioners, vs. THE GOVERNMENT OF
THE REPUBLIC OF THE PHILIPPINES PEACE NEGOTIATING PANEL [GRP], as represented by HON. RODOLFO
C. GARCIA and HON. HERMOGENES ESPERON, in his capacity as the Presidential Adviser of Peace
Process,respondents.

[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.

FRANKLIN M. DRILON and ADEL ABBAS TAMANO, petitioners-in-intervention.

SEN. MANUEL A. ROXAS, petitioner-in-intervention.

MUNICIPALITY OF LINAMON duly represented by its Municipal Mayor NOEL N. DEANO, petitioner-in-
intervention.

THE CITY OF ISABELA, BASILAN PROVINCE, represented by MAYOR CHERRYLYN P. SANTOS-

AKBAR, petitioner-in-intervention.

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.

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.

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.

MARINO RIDAO and KISIN BUXANI, petitioners-in-intervention.

MUSLIM LEGAL ASSISTANCE FOUNDATION, INC. (MUSLAF), respondent-in-intervention.

MUSLIM MULTI-SECTORAL MOVEMENT FOR PEACE & DEVELOPMENT (MMMPD), respondent-in-

intervention.

DECISION

CARPIO-MORALES, J p:
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. IECcaA

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. cHDaEI

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 Aspectof 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 ISCHET

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. HSDCTA

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 theSangguniang 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. aIHSEc

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 ACcISa

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. TICAcD

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) anddar-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
archipelagoat 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. ICTaEH

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 ADaECI

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 ACcaET

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 STDEcA

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. AIaDcH

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 CEHcSI

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
obligationsuntil the list of operative acts required have been duly complied with. . . .

xxx xxx xxx

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

xxx xxx xxx

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

xxx xxx xxx

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.caTESD

xxx xxx xxx

GOVERNANCE

xxx xxx xxx

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. CASTDI

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:

. . . [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. DEaCSA

xxx xxx xxx

By the same token, when an act of the President, who in our constitutional scheme is a coequal of
Congress, is seriously alleged to have infringed the Constitution and the laws . . . 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 unconstitutionalon 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. 72Mandamus 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, Mandamusand
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 . . . 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
adjudicationexists. 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 HSIDTE

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 EaHcDS

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 ScHADI

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 standiin view of the direct and substantial injury that they, as LGUs, would suffer as
their territories, whether in whole or in part, are to be included in the intended domain of the BJE. These
petitioners allege that they did not vote for their inclusion in the ARMM which would be expanded to
form the BJE territory. Petitioners' legal standing is thus beyond doubt.

In G.R. No. 183962, petitioners Ernesto Maceda, Jejomar Binay and Aquilino Pimentel III would have no
standing as citizens and taxpayers for their failure to specify that they would be denied some right or
privilege or there would be wastage of public funds. The fact that they are a former Senator, an incumbent
mayor of Makati City, and a resident of Cagayan de Oro, respectively, is of no consequence. Considering
their invocation of the transcendental importance of the issues at hand, however, the Court grants them
standing.

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

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

With respect to Intervenors Ruy Elias Lopez, as a former congressman of the 3rd district of Davao City, a
taxpayer and a member of the Bagobo tribe; Carlo B. Gomez, et al., as members of the IBP Palawan
chapter, citizens and taxpayers; Marino Ridao, as taxpayer, resident and member of the Sangguniang
Panlungsod of Cotabato City; and Kisin Buxani, as taxpayer, they failed to allege any proper legal interest
in the present petitions. Just the same, the Court exercises its discretion to relax the procedural
technicality on locus standi given the paramount public interest in the issues at hand. ECaAHS

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. 93 SICDAa

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, 101 the manifestation that it will not be signed as well as the disbanding of the GRP Panel
notwithstanding.

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. ATcaID

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. DHSEcI

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 Court has recognized the statutory right to examine and inspect
public records, a right which was eventually accorded constitutional status. SaHTCE

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 public has a legitimate interest in matters of social and political
significance.

. . . 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." . . . 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. ACcHIa

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:

. . . [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, becomesfait 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 DcaCSE

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. SDHAEC

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

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

MS. ROSARIO BRAID.

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

MR. OPLE.

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

xxx xxx xxx

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) ScCEIA

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". 134Included 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 aTADcH

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 bears 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. ESTDcC

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. TcSHaD

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. aTCAcI

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. cdrep

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. . . . 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 ACTISE

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 participatein 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. caTIDE

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:
SEC. 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.

SEC. 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. AEITDH

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. ScCIaA
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:

SEC. 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 . . . ." Under our constitutional system, it is only the President who has that
power. Pimentel v. Executive Secretary 155instructs:

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) CIHAED

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) cHAaCE

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:

SEC. 52.Delineation Process. The identification and delineation of ancestral domains shall be done in
accordance with the following procedures:

xxx xxx xxx

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; CSaIAc

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; ISaCTE

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; aCTADI

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.

xxx xxx xxx

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 162which 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". DICSaH
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.
...

External self-determination can be defined as in the following statement from the Declaration on Friendly
Relations, supra, as

The establishment of a sovereign and independent State, the free association or integration with an
independent State or the emergence into any other political status freely determined by
a people constitute modes of implementing the right of self-determination by that people. (Emphasis
added) HDAaIS

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.

xxx xxx xxx (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:
. . . [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) DHTCaI

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. 164Examples 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. TAHCEc

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. SHCaDA
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. ScCIaA

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. CEHcSI

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. EScIAa

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. IDTSEH

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: AcSIDE

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 . . . 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. HDAaIS

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: HSEcTC

SEC. 4.The Six Paths to Peace. The components of the comprehensive peace process comprise the
processes known as the "Paths to Peace". These component processes are interrelated and not mutually
exclusive, and must therefore be pursued simultaneously in a coordinated and integrated fashion. They
shall include, but may not be limited to, the following:

a.PURSUIT OF SOCIAL, ECONOMIC AND POLITICAL REFORMS. This component involves the vigorous
implementation of various policies, reforms, programs and projects aimed at addressing the root causes
of internal armed conflicts and social unrest. This may require administrative action, new legislation or
even constitutional amendments.

xxx xxx xxx (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 AIcaDC

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 HIEAcC

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. cEITCA

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. . . . (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:

. . . [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. aTIEcA

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. DAaIEc

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. TEAaDC

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." SEcITC

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, TSHcIa

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 ofR.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". cHECAS

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. AETcSa

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. cHITCS

xxx xxx xxx

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. . . ." (Emphasis, italics and
underscoring supplied) AHSaTI

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). EcIaTA

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. cCSTHA

xxx xxx xxx

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. . . .
(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. CaASIc

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. HaAIES

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. aTIAES
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. EDcICT

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. HcaATE

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. AIHECa

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. ISCDEA

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. ScaEIT

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. DTcASE

SO ORDERED.

Quisumbing, J., concurs.

Puno, C.J., please see separate concurring opinion.

Ynares-Santiago, J., see separate concurring opinion; I concur with separate opinion of C.J. Puno.

Carpio, J., see concurring opinion.

Austria-Martinez, J., also concurs with C.J.'s separate opinion.

Corona, J., shares the dissent of Mr. Justice Tinga.

Azcuna, J., concurs in a separate opinion.

Tinga, J., dissents from the result. See separate opinion.

Chico-Nazario, Velasco, Jr., Nachura and Brion, JJ., please see dissenting opinion.

Reyes, J., certifies that J. Reyes filed a Separate Opinion concurring with the majority. C.J., Puno (RSP).

Leonardo-de Castro, J., please see concurring and dissenting opinion.

||| (Province of North Cotabato v. Government of the Republic of the Philippines Peace Panel on
Ancestral Domain, G.R. No. 183591, 183752, 183893, 183951, 183962, October 14, 2008)

[G.R. No. 132601. October 12, 1998.]

LEO ECHEGARAY y PILO, petitioner, vs. THE SECRETARY OF JUSTICE and THE DIRECTOR OF THE BUREAU
OF CORRECTIONS, THE EXECUTIVE JUDGE OF THE REGIONAL TRIAL COURT OF QUEZON CITY AND THE
PRESIDING JUDGE OF REGIONAL TRIAL COURT OF QUEZON CITY, BRANCH 104, respondents.
SYLLABUS

1. CONSTITUTIONAL LAW; BILL OF RIGHTS; PROSCRIPTION AGAINST CRUEL, DEGRADING OR INHUMAN

PUNISHMENT; DEATH PER SE, NOT CRUEL, DEGRADING OR INHUMAN. The death penalty per se is not
a cruel, degrading or inhuman punishment. In the oft-cited case of Harden vs. Director of Prisons, this
Court held that "[p]unishments are cruel when they involve torture or a lingering death; but the
punishment of death is not cruel, within the meaning of that word as used in the constitution .It implies
there something inhuman and barbarous, something more than the mere extinguishment of life."

2. ID; ID; ID; DEATH BY LETHAL INJECTION, CONSTITUTIONAL; INFLICTION OF PAIN, MERELY INCIDENTAL.
Any infliction of pain in lethal injection is merely in carrying out the execution of the death penalty and
does not fall within the constitutional prescription against cruel, degrading or inhuman punishment. "In a
limited sense, anything is cruel which is calculated to give pain or distress, and since punishment imports
pain of suffering to the convict, it may be said that all punishment are cruel. But of course the Constitution
does not mean that crime, for this reason, is to go unpunished." The cruelty against which the Constitution
protects a convicted man is cruelty inherent in the method of punishment, not the necessary suffering
involved in any method employed to extinguish life humanely.

3. ID.; ID.; REIMPOSITION OF DEATH PENALTY DOES NOT VIOLATE INTERNATIONAL TREATY OBLIGATIONS.
Petitioner assiduously argues that the reimposition of the death penalty law violates our international
obligations, in particular, the International Covenant on Civil and Political Rights, which was adopted by
the General Assembly of the United Nations on December 16, 1966, signed and ratified by the Philippines
on December 19, 1966 and October 23, 1986, respectively. Indisputably, Article 6 of
the Covenant enshrines the individual's right to life. Nevertheless, Article 6 (2) of the Covenant explicitly
recognizes that capital punishment is an allowable limitation on the right to life, subject to the limitation
that it be imposed for the "most serious crimes." On the other hand, the Second Optional Protocol to the
International Covenant on Civil and Political Rights, Aiming at the Abolition of the Death Penalty was
adopted by the General Assembly on December 15, 1989. The Philippines neither signed nor ratified said
document. Evidently, petitioner's assertion of our obligation under Second Optional Protocol is misplaced.

4. POLITICAL LAW; SEPARATION OF POWERS; CONSTRUED. The separation of powers is a fundamental

principle in our system of government. It obtains not through express provision but by actual division in
the framing of our Constitution. each department of the government has exclusive cognizance of matters
placed within its jurisdiction, and is supreme within its own sphere. ACETSa

5. CONSTITUTIONAL LAW; NON-DELEGATION OF POWERS; EXCEPTIONS. Corollary to the doctrine of

separation of powers is the principle of non-delegation of powers. "The rule is that what has been
delegated, cannot be delegated or as expressed in Latin maxim: potestas delegata non delegari potest."
The recognized exceptions to the rule are as follows: (1) Delegation of tariff powers to the President under
Section 28 (2) of Article VI of the Constitution; (2) Delegation of emergency powers to the President under
Section 23 (2) of Article VI of the Constitution; (3) Delegation to the people at large; (4) Delegation to local
governments; and (5) Delegation of administrative bodies.

6. ID.; DELEGATION OF POWERS; REQUISITES. Although Congress may delegate to another branch of
the Government the power to fill in the details in the execution, enforcement or administration of a law,
it is essential, to forestall a violation of the principle of separation of powers, that said law: (a) be complete
in itself it must set forth therein the policy to be executed, carried out or implemented by the delegate
 and (b) fix a standard the limits of which are sufficiently determinate or determinable to which
the delegate must conform in the performance of his functions. aEHASI

7. ID.; ID.; R.A. 8177, VALID DELEGATION OF AUTHORITY TO SECRETARY OF JUSTICE. Empowering the
Secretary of Justice in conjunction with the Secretary of Health and the Director of the Bureau of
Corrections, to promulgate rules and regulations on the subject of lethal injection is a form of delegation
of legislative authority to administrative bodies. Considering the scope and the definiteness of R.A. No.
8177, which changed the mode of carrying out the death penalty, the Court finds that the law sufficiently
describes what job must be done, who is to do it and what is the scope of his authority. R.A No. 8177
likewise provides the standards which define the legislative policy, marks its limits, map out its boundaries
and specify the public agencies which will apply it. Thus, the Court finds that the existence of an area for
exercise of discretion by the Secretary of Justice and the Director of the Bureau of Corrections under
delegated legislative power is proper where standards are formulated for the guidance and the exercise
of limited discretion, which though general, are capable of reasonable application. A careful reading
of R.A. No. 8177would show that there is no undue delegation of legislative power from the Secretary of
Justice to the Director of the Bureau of Corrections for the simple reason that under the Administrative
Code of 1987, the Bureau of Corrections is a mere constituent unit of the Department of Justice. Further,
the Department of Justice is tasked, among others, to take charge of the "administration of correctional
system." Hence, the import of the phraseology of the law is that the Secretary of Justice should supervise
the Director of the Bureau of Corrections in promulgating the Lethal Injection Manual, in consultation
with the Department of Health. CaAIES

8. ID.; ID.; RULES AND REGULATIONS TO IMPLEMENT R.A. No. 8177, AN UNDUE DELEGATION OF POWER.
The Rules and Regulations to Implement Republic Act No. 8177 suffer serious flaws that could not be
overlooked. the Court finds in the first paragraph of Section 19 of the implementing rules a veritable
vacuum. The Secretary of Justice has practically abdicated the power to promulgate the manual on the
execution procedure to the Director of the Bureau of Corrections, by not providing for a mode of review
and approval thereof. Being a mere constituent unit of the Department of Justice, the Bureau of
Corrections could not promulgate a manual that would not bear the imprimatur of the administrative
superior, the Secretary of Justice as the rule-making authority under R.A. No. 8177. Such apparent
abdication of departmental responsibility renders the said paragraph invalid. As to the second paragraph
of Section 19, the Court finds the requirement of confidentiality of the contents of the manual even with
respect to the convict unduly suppressive. It sees no legal impediment for the convict, should he so desire,
to obtain, a copy of the manual. The contents of the manual are matters of public concern, "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."

9. ID.; BILL OF RIGHTS; FREE ACCESS TO INFORMATION OF PUBLIC CONCERN; A RECOGNITION OF

ESSENTIALITY OF THE FREE FLOW OF IDEAS AND INFORMATION. The incorporation in the Constitution
of a guarantee of access to information of public concern is a recognition of the essentiality of the free
flow of ideas and information in a democracy. 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. caIDSH
10. ID.; DELEGATION OF POWER; RULES AND REGULATIONS TO IMPLEMENT R.A. No. 8177; SECTION 17
THEREOF ADDING A GROUND FOR SUSPENSION OF DEATH SENTENCE, DISCRIMINATORY. While Article
83 of the Revised Penal Code, as amended by Section 25 of Republic Act No. 7659, suspends the
implementation of the death penalty while a woman is pregnant or within one (1) year after delivery,
Section 17 of the implementing rules omits the one (1) year period following delivery as an instance when
the death sentence is suspended, and adds a ground for suspension of sentence no longer found under
Article 83 of the Revised Penal Code as amended, which is the three-year reprieve after a woman is
sentenced. This addition is, in petitioner's review, tantamount to a gender-based discrimination sans
statutory basis, while the omission is an impermissible contravention of the applicable law.

11. ADMINISTRATIVE LAW; ADMINISTRATIVE RULES AND REGULATIONS; CANNOT SUPPLANT OR MODIFY
LAW; CASE AT BAR. Being merely an implementing rule, Section 17 aforecited must not override, but
instead remain consistent and in harmony with the law it seeks to apply and implement. Administrative
rules and regulations are intended to carry out, neither to supplant nor to modify, the law. An
administrative agency cannot amend an act of Congress. In case of discrepancy between a provision of
statute and a rule or regulation issued to implement said statute, the statutory provision prevails. Since
the cited clause in Section 17 which suspends the execution of a woman within the three years (3) next
following the date of sentence finds no support in Article 83 of the Revised Penal Code as amended,
perforce Section 17 must be declared invalid. ETAICc

DECISION

PER CURIAM p:

On June 25, 1996, this Court affirmed 1 the conviction of petitioner Leo Echegaray y Pilo for the crime of
rape of the 10 year-old daughter of his common-law spouse and the imposition upon him of the death
penalty for the said crime. LexLib

Petitioner duly filed a Motion for Reconsideration raising mainly factual issues, and on its heels, a
Supplemental Motion for Reconsideration raising for the first time the issue of the constitutionality
of Republic Act No. 7659 2 (the death penalty law) and the imposition of the death penalty for the crime
of rape.

On February 7, 1998, this Court denied 3 petitioner's Motion for Reconsideration and Supplemental
Motion for Reconsideration with a finding that Congress duly complied with the requirements for the
reimposition of the death penalty and therefore the death penalty law is not unconstitutional.

In the meantime, Congress had seen it fit to change the mode of execution of the death penalty from
electrocution to lethal injection, 4 and passed Republic Act No. 8177, AN ACT DESIGNATING DEATH BY
LETHAL INJECTION AS THE METHOD OF CARRYING OUT CAPITAL PUNISHMENT, AMENDING FOR THE
PURPOSE ARTICLE 81 OF THE REVISED PENAL CODE, AS AMENDED BY SECTION 24 OF Republic Act No.
7659. 5 Pursuant to the provisions of said law, the Secretary of Justice promulgated the Rules and
Regulations to Implement Republic Act No. 8177 ("implementing rules") 6 and directed the Director of
the Bureau of Corrections to prepare the Lethal Injection Manual. 7
On March 2, 1998, petitioner filed a Petition 8 for Prohibition, Injunction and/or Temporary Restraining
Order to enjoin respondents Secretary of Justice and Director of the Bureau of Prisons from carrying out
the execution by lethal injection of petitioner under R.A. No. 8177 and its implementing rules as these are
unconstitutional and void for being: (a) cruel, degrading and inhuman punishment per se as well as by
reason of its being (b) arbitrary, unreasonable and a violation of due process, (c) a violation of the
Philippines' obligations under international covenants, (d) an undue delegation of legislative power by
Congress, (e) an unlawful exercise by respondent Secretary of the power to legislate, and (f) an unlawful
delegation of delegated powers by the Secretary of Justice to respondent Director.

On March 3, 1998, petitioner, through counsel, filed a Motion for Leave of Court 9 to Amend and
Supplement Petition with the Amended and Supplemental Petition 10attached thereto, invoking the
additional ground of violation of equal protection, and impleading the Executive Judge of the Regional
Trial Court of Quezon City and the Presiding Judge of the Regional Trial Court, Branch 104, in order to
enjoin said public respondents from acting under the questioned rules by setting a date for petitioner's
execution.

On March 3, 1998, the Court resolved, without giving due course to the petition, to require the
respondents to COMMENT thereon within a non-extendible period of ten (10) days from notice, and
directed the parties "to MAINTAIN the status quo prevailing at the time of the filing of this petition."

On March 10, 1998, the Court granted the Motion for Leave of Court to Amend and Supplement Petition,
and required respondents to COMMENT thereon within ten (10) days from notice.

On March 16, 1998, petitioner filed a Very Urgent Motion (1) To Clarify Status Quo Order, and (2) For the
Issuance of a Temporary Restraining Order expressly enjoining public respondents from taking any action
to carry out petitioner's execution until the petition is resolved.

On March 16, 1998, the Office of the Solicitor General 11 filed a Comment (On the Petition and the
Amended Supplemental Petition) 12 stating that (1) this Court has already upheld the constitutionality of
the Death Penalty Law, and has repeatedly declared that the death penalty is not cruel, unjust, excessive
or unusual punishment; (2) execution by lethal injection, as authorized under R.A. No. 8177 and the
questioned rules, is constitutional, lethal injection being the most modern, more humane, more
economical, safer and easier to apply (than electrocution or the gas chamber); (3) the International
Covenant on Civil and Political Rights does not expressly or impliedly prohibit the imposition of the death
penalty; (4) R.A. No. 8177 properly delegated legislative power to respondent Director; and that (5) R.A.
No. 8177 confers the power to promulgate the implementing rules to the Secretary of Justice, Secretary
of Health and the Bureau of Corrections.

On March 17, 1998, the Court required the petitioner to file a REPLY thereto within a non-extendible
period of ten days from notice.

On March 25, 1998, the Commission on Human Rights 13 filed a Motion for Leave of Court to Intervene
and/or Appear as Amicus Curiae 14 with the attached Petition to Intervene and/or Appear as Amicus
Curiae 15 alleging that the death penalty imposed under R.A. NO. 7659 which is to be implemented
by R.A. No. 8177 is cruel, degrading and outside the limits of civil society standards, and further invoking
(a) Article II, Section 11 of the Constitution which provides: "The State values the dignity of every human
person and guarantees full respect for human rights."; (b) Article III of the Universal Declaration of Human
Rights which states that "Everyone has the right to life, liberty and security of person," and Article V
thereof, which states that "No one shall be subjected to torture or to cruel, inhuman or degrading
treatment or punishment."; (c) The International Covenant on Civil and Political Rights, in particular,
Article 6 thereof, and the Second Optional Protocol to the International Covenant on Civil and Political
Rights Aiming At The Abolition of The Death Penalty; (d) Amnesty International statistics showing that as
of October 1996, 58 countries have abolished the death penalty for all crimes, 15 countries have abolished
the death penalty for ordinary crimes, and 26 countries are abolitionists de facto, which means that they
have retained the death penalty for ordinary crimes but are considered abolitionists in practice in that
they have not executed anyone during the past ten (10) years or more, or in that they have made an
international commitment not to carry out executions, for a total of 99 countries which are total
abolitionists in law or practice, and 95 countries as retentionists; 16 and (e) Pope John Paul II's encyclical,
"Evangelium Vitae." In a Resolution dated April 3, 1998, the Court duly noted the motion.

On March 27, 1998, petitioner filed a Reply 17 stating that (1) this Court is not barred from exercising
judicial review over the death penalty per se, the death penalty for rape and lethal injection as a mode of
carrying out the death penalty; (2) capital punishment is a cruel, degrading and inhuman punishment; (3)
lethal injection is cruel, degrading and inhuman punishment, and that being the "most modern" does not
make it less cruel or more humane, and that the Solicitor General's "aesthetic" criteria is short-sighted,
and that lethal injection is not risk free nor is it easier to implement; and (4) the death penalty violates
the International Covenant on Civil and Political Rights considering that the Philippines participated in the
deliberations of and voted for the Second Optional Protocol.

After deliberating on the pleadings, the Court gave due course to the petition, which it now resolves on
the merits.

In the Amended and Supplemental Petition, petitioner assails the constitutionality of the mode of carrying
out his death sentence by lethal injection on the following grounds: 18

I.

DEATH BY LETHAL INJECTION IS UNCONSTITUTIONAL FOR BEING A CRUEL, DEGRADING AND INHUMAN
PUNISHMENT.

II.

THE DEATH PENALTY VIOLATES THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS, WHICH
IS PART OF THE LAW OF THE LAND.

III.

LETHAL INJECTION, AS AUTHORIZED UNDER Republic Act No. 8177 AND THE QUESTIONED RULES, IS
UNCONSTITUTIONAL BECAUSE IT IS AN UNNECESSARY AND WANTON INFLICTION OF PAIN ON A PERSON
AND IS, THUS, A CRUEL, DEGRADING, AND INHUMAN PUNISHMENT.

IV.

Republic Act No. 8177 UNDULY DELEGATES LEGISLATIVE POWER TO RESPONDENT DIRECTOR.

V.
RESPONDENT SECRETARY UNLAWFULLY DELEGATED THE LEGISLATIVE POWERS DELEGATED TO HIM
UNDER Republic Act No. 8177 T O RESPONDENT DIRECTOR.

VI.

RESPONDENT SECRETARY EXCEEDED THE AUTHORITY DELEGATED TO HIM UNDER Republic Act No.
8177 AND UNLAWFULLY USURPED THE POWER TO LEGISLATE IN PROMULGATING THE QUESTIONED
RULES.

VII.

SECTION 17 OF THE QUESTIONED RULES IS UNCONSTITUTIONAL FOR BEING DISCRIMINATORY AS WELL

AS FOR BEING AN INVALID EXERCISE BY RESPONDENT SECRETARY OF THE POWER TO LEGISLATE.

VIII.

INJUNCTION MUST ISSUE TO PREVENT IRREPARABLE DAMAGE AND INJURY TO PETITIONER'S RIGHTS BY
REASON OF THE EXISTENCE, OPERATION AND IMPLEMENTATION OF AN UNCONSTITUTIONAL STATUTE
AND EQUALLY INVALID IMPLEMENTING RULES.

Concisely put, petitioner argues that R.A. No. 8177 and its implementing rules do not pass constitutional
muster for: (a) violation of the constitutional proscription against cruel, degrading or inhuman
punishment, (b) violation of our international treaty obligations, (c) being an undue delegation of
legislative power, and (d) being discriminatory.

The Court shall now proceed to discuss these issues in seriatim.

I. LETHAL INJECTION, NOT CRUEL, DEGRADING OR INHUMAN PUNISHMENT UNDER SECTION 19, ARTICLE
III OF THE 1987 Constitution

The main challenge to R.A. No. 8177 and its implementing rules is anchored on Article III, Section 19 (1)
of the 1987 Constitution which proscribes the imposition of "cruel, degrading or inhuman" punishment.
"The prohibition in the Philippine Bill against cruel and unusual punishments is an Anglo-Saxon safeguard
against governmental oppression of the subject, which made its first appearance in the reign of William
and Mary of England in 'An Act declaring the rights and liberties of the subject, and settling the succession
of the crown,' passed in the year 1689. It has been incorporated into the Constitution of the United States
(of America) and into most constitutions of the various States in substantially the same language as that
used in the original statute. The exact language of the Constitution of the United States is used in the
Philippine Bill." 19 "The counterpart of Section 19 (1) in the 1935 Constitution reads: 'Excessive fines shall
not be imposed, nor cruel and inhuman punishment inflicted.' . . . In the 1973 Constitution the phrase
became 'cruel or unusual punishment.' The Bill of Rights Committee of the 1986 Constitutional
Commission read the 1973 modification as prohibiting 'unusual' punishment even if not 'cruel.' It was thus
seen as an obstacle to experimentation in penology. Consequently, the Committee reported out the
present text which prohibits 'cruel, degrading or inhuman punishment' as more consonant with the
meaning desired and with jurisprudence on the subject." 20

Petitioner contends that death by lethal injection constitutes cruel, degrading and inhuman punishment
considering that (1) R.A. No. 8177 fails to provide for the drugs to be used in carrying out lethal injection,
the dosage for each drug to be administered, and the procedure in administering said drug/s into the
accused; (2) R.A. No. 8177 and its implementing rules are uncertain as to the date of execution, time of
notification, the court which will fix the date of execution, which uncertainties cause the greatest pain
and suffering for the convict; and (3) the possibility of "botched executions" or mistakes in administering
the drugs renders lethal injection inherently cruel.

Before the Court proceeds any further, a brief explanation of the process of administering lethal injection
is in order.

In lethal injection, the condemned inmate is strapped on a hospital gurney and wheeled into the execution
room. A trained technician inserts a needle into a vein in the inmate's arm and begins an intravenous flow
of saline solution. At the warden's signal, a lethal combination of drugs is injected into the intravenous
line. The deadly concoction typically includes three drugs: (1) a nonlethal dose of sodium thiopenthotal,
a sleep inducing barbiturate; (2) lethal doses of pancuronium bromide, a drug that paralyzes the muscles;
and (3) potassium chloride, which stops the heart within seconds. The first two drugs are commonly used
during surgery to put the patient to sleep and relax muscles; the third is used in heart bypass surgery. 21

Now it is well-settled in jurisprudence that the death penalty per se is not a cruel, degrading or inhuman
punishment. 22 In the oft-cited case of Harden v. Director of Prisons, 23 this Court held that
"[p]unishments are cruel when they involve torture or a lingering death; but the punishment of death is
not cruel, within the meaning of that word as used in the constitution. It implies there something inhuman
and barbarous, something more than the mere extinguishment of life." Would the lack in particularity
then as to the details involved in the execution by lethal injection render said law "cruel, degrading or
inhuman"? The Court believes not. For reasons hereafter discussed, the implementing details of R.A. No.
8177 are matters which are properly left to the competence and expertise of administrative officials. 24

Petitioner contends that Sec. 16 25 of R.A. No. 8177 is uncertain as to which "court" will fix the time and
date of execution, and the date of execution and time of notification of the death convict. As petitioner
already knows, the "court" which designates the date of execution is the trial court which convicted the
accused, that is, after this Court has reviewed the entire records of the case 26 and has affirmed the
judgment of the lower court. Thereupon, the procedure is that the "judgment is entered fifteen (15) days
after its promulgation, and 10 days thereafter, the records are remanded to the court below including a
certified copy of the judgment for execution." 27 Neither is there any uncertainty as to the date of
execution nor the time of notification. As to the date of execution, Section 15 of the implementing rules
must be read in conjunction with the last sentence of Section 1 of R.A. No. 8177 which provides that the
death sentence shall be carried out "not earlier than one (1) year nor later than eighteen (18) months
after the judgment has become final and executory, without prejudice to the exercise by the President of
his executive clemency powers at all times." Hence, the death convict is in effect assured of eighteen (18)
months from the time the judgment imposing the death penalty became final and executory 28 wherein
he can seek executive clemency 29 and attend to all his temporal and spiritual affairs. 30

Petitioner further contends that the infliction of "wanton pain" in case of possible complications in the
intravenous injection, considering and as petitioner claims, that respondent Director is an untrained and
untested person insofar as the choice and administration of lethal injection is concerned, renders lethal
injection a cruel, degrading and inhuman punishment. Such supposition is highly speculative and
unsubstantiated.
First. Petitioner has neither alleged nor presented evidence that lethal injection requires the expertise
only of phlebotomists and not trained personnel and that the drugs to be administered are unsafe or
ineffective. 31 Petitioner simply cites situations in the United States wherein execution by lethal injection
allegedly resulted in prolonged and agonizing death for the convict, 32 without any other evidence
whatsoever. cdrep

Second. Petitioner overlooked Section 1, third paragraph of R.A. No. 8177 which requires that all
personnel involved in the execution proceedings should be trained prior to the performance of such task.
We must presume that the public officials entrusted with the implementation of the death penalty (by
lethal injection) will carefully avoid inflicting cruel punishment. 33

Third. Any infliction of pain in lethal injection is merely incidental in carrying out the execution of the
death penalty and does not fall within the constitutional proscription against cruel, degrading or inhuman
punishment. "In a limited sense, anything is cruel which is calculated to give pain or distress, and since
punishment imports pain or suffering to the convict, it may be said that all punishments are cruel. But of
course the Constitution does not mean that crime, for this reason, is to go unpunished." 34 The cruelty
against which the Constitution protects a convicted man is cruelty inherent in the method of punishment,
not the necessary suffering involved in any method employed to extinguish life humanely. 35 Numerous
federal and state courts of the United States have been asked to review whether lethal injections
constitute cruel and unusual punishment. No court has found lethal injections to implicate prisoners'
Eighth Amendment rights. In fact, most courts that have addressed the issue state in one or two sentences
that lethal injection clearly is a constitutional form of execution. 36 A few jurisdictions, however, have
addressed the merits of the Eighth Amendment claims. Without exception, these courts have found that
lethal injection does not constitute cruel and unusual punishment. After reviewing medical evidence that
indicates that improper doses or improper administration of the drugs causes severe pain and that prison
officials tend to have little training in the administration of the drugs, the courts have found that the few
minutes of pain does not rise to a constitutional violation. 37

What is cruel and unusual "is not fastened to the obsolete but may acquire meaning as public opinion
becomes enlightened by a humane justice" and "must draw its meaning from the evolving standards of
decency that mark the progress of a maturing society." 38 Indeed, "[o]ther (U.S.) courts have focused on
'standards of decency' finding that the widespread use of lethal injections indicates that it comports with
contemporary norms." 39 The primary indicator of society's standard of decency with regard to capital
punishment is the response of the country's legislatures to the sanction. 40 Hence, for as long as the death
penalty remains in our statute books and meets the most stringent requirements provided by the
Constitution, we must confine our inquiry to the legality of R.A. No. 8177, whose constitutionality we duly
sustain in the face of petitioner's challenge. We find that the legislature's substitution of the mode of
carrying out the death penalty from electrocution to lethal injection infringes no constitutional rights of
petitioner herein.

II. REIMPOSITION OF THE DEATH PENALTY LAW DOES NOT VIOLATE INTERNATIONAL TREATY
OBLIGATIONS

Petitioner assiduously argues that the reimposition of the death penalty law violates our international
obligations, in particular, the International Covenant on Civil And Political Rights, which was adopted by
the General Assembly of the United Nations on December 16, 1966, signed and ratified by the Philippines
on December 19, 1966 and October 23, 1986, 41 respectively.
Article 6 of the International Covenant on Civil and Political Rights provides:

"1. Every human being has the inherent right to life. This right shall be protected by law. No one shall be
arbitrarily deprived of his life.

2. In countries which have not abolished the death penalty, sentence of death may be imposed only for
the most serious crimes in accordance with the law in force at the time of the commission of the crime
and not contrary to the provisions of the present Covenant and to the Convention on the Prevention and
Punishment of the Crime of Genocide. This penalty can only be carried out pursuant to a final judgment
rendered by a competent court." (emphasis supplied)

3. When deprivation of life constitutes the crime of genocide, it is understood that nothing in this article
shall authorize any State Party to the present Covenant to derogate in any way from any obligation
assumed under the provisions of the Convention on the Prevention and Punishment of the Crime of
Genocide.

4. Anyone sentenced to death shall have the right to seek pardon or commutation of the sentence.
Amnesty, pardon or commutation of the sentence of death may be granted in all cases.

5. Sentence of death shall not be imposed for crimes committed by persons below eighteen years of age
and shall not be carried out on pregnant women.

6. Nothing in this article shall be invoked to delay or to prevent the abolition of capital punishment by any
State Party to the present Covenant."

Indisputably, Article 6 of the Covenant enshrines the individual's right to life. Nevertheless, Article 6 (2) of
the Covenant explicitly recognizes that capital punishment is an allowable limitation on the right to life,
subject to the limitation that it be imposed for the "most serious crimes". Pursuant to Article 28 of
the Covenant, a Human Rights Committee was established and under Article 40 of the Covenant, States
Parties to the Covenant are required to submit an initial report to the Committee on the measures they
have adopted which give effect to the rights recognized within the Covenant and on the progress made
on the enjoyment of those rights within one year of its entry into force for the State Party concerned and
thereafter, after five years. On July 27, 1982, the Human Rights Committee issued General Comment
No. 6interpreting Article 6 of the Covenant stating that "(while) it follows from Article 6 (2) to (6) that
State parties are not obliged to abolish the death penalty totally, they are obliged to limit its use and, in
particular, to abolish it for other than the 'most serious crimes.' Accordingly, they ought to consider
reviewing their criminal laws in this light and, in any event, are obliged to restrict the application of the
death penalty to the most serious crimes.' The article strongly suggests (pars. 2 (2) and (6)) that abolition
is desirable. . . . The Committee is of the opinion that the expression 'most serious crimes' must be read
restrictively to mean that the death penalty should be a quite exceptional measure." Further,
The Safeguards Guaranteeing Protection of Those Facing the Death Penalty 42 adopted by the Economic
and Social Council of the United Nations declare that the ambit of the term 'most serious crimes' should
not go beyond intentional crimes, with lethal or other extremely grave consequences.

The Optional Protocol to the International Covenant on Civil and Political Rights was adopted by the
General Assembly of the United Nations on December 16, 1966, and signed and ratified by the Philippines
on December 19, 1966 and August 22 1989, 43 respectively. The Optional Protocol provides that the
Human Rights Committee shall receive and consider communications from individuals claiming to be
victims of violations of any of the rights set forth in the Covenant.

On the other hand, the Second Optional Protocol to the International Covenant on Civil and Political
Rights, Aiming at the Abolition of the Death Penalty was adopted by the General Assembly on December
15, 1989. The Philippines neither signed nor ratified said document. 44 Evidently, petitioner's assertion of
our obligation under theSecond Optional Protocol is misplaced.

III. THERE IS NO UNDUE DELEGATION OF LEGISLATIVE POWER IN R.A. No. 8177 TO THE SECRETARY OF
JUSTICE AND THE DIRECTOR OF BUREAU OF CORRECTIONS, BUT SECTION 19 OF THE RULES AND
REGULATIONS TO IMPLEMENT R.A. No. 8177 IS INVALID.

The separation of powers is a fundamental principle in our system of government. It obtains not through
express provision but by actual division in the framing of our Constitution. Each department of the
government has exclusive cognizance of matters placed within its jurisdiction, and is supreme within its
own sphere. 45 Corollary to the doctrine of separation of powers is the principle of non-delegation of
powers. "The rule is that what has been delegated, cannot be delegated or as expressed in a Latin
maxim: potestas delegata non delegari potest." 46 The recognized exceptions to the rule are as follows:

(1) Delegation of tariff powers to the President under Section 28 (2) of Article VI of the Constitution;

(2) Delegation of emergency powers to the President under Section 23(2) of Article VI of the Constitution;

(3) Delegation to the people at large;

(4) Delegation to local governments; and

(5) Delegation to administrative bodies. 47

Empowering the Secretary of Justice in conjunction with the Secretary of Health and the Director of the
Bureau of Corrections, to promulgate rules and regulations on the subject of lethal injection is a form of
delegation of legislative authority to administrative bodies.

The reason for delegation of authority to administrative agencies is the increasing complexity of the task
of government requiring expertise as well as the growing inability of the legislature to cope directly with
the myriad problems demanding its attention. The growth of society has ramified its activities and created
peculiar and sophisticated problems that the legislature cannot be expected to attend to by itself.
Specialization even in legislation has become necessary. On many problems involving day-to-day
undertakings, the legislature may not have the needed competence to provide the required direct and
efficacious, not to say, specific solutions. These solutions may, however, be expected from its delegates,
who are supposed to be experts in the particular fields assigned to them. 48

Although Congress may delegate to another branch of the Government the power to fill in the details in
the execution, enforcement or administration of a law, it is essential, to forestall a violation of the principle
of separation of powers, that said law: (a) be complete in itself it must set forth therein the policy to
be executed, carried out or implemented by the delegate 49 and (b) fix a standard the limits of which
are sufficiently determinate or determinable to which the delegate must conform in the performance
of his functions. 50
Considering the scope and the definiteness of R.A. No. 8177, which changed the mode of carrying out the
death penalty, the Court finds that the law sufficiently describes what job must be done, who is to do it,
and what is the scope of his authority. 51

R.A. No. 8177 likewise provides the standards which define the legislative policy, mark its limits, map out
its boundaries, and specify the public agencies which will apply it. It indicates the circumstances under
which the legislative purpose may be carried out. 52 R.A. No. 8177 specifically requires that "[t]he death
sentence shall be executed under the authority of the Director of the Bureau of Corrections, endeavoring
so far as possible to mitigate the sufferings of the person under the sentence during the lethal injection
as well as during the proceedings prior to the execution." 53 Further, "[t]he Director of the Bureau of
Corrections shall take steps to ensure that the lethal injection to be administered is sufficient to cause the
instantaneous death of the convict." 54 The legislature also mandated that "all personnel involved in the
administration of lethal injection shall be trained prior to the performance of such task." 55 The Court
cannot see that any useful purpose would be served by requiring greater detail. 56 The question raised is
not the definition of what constitutes a criminal offense, 57 but the mode of carrying out the penalty
already imposed by the Courts. In this sense, R.A. No. 8177 is sufficiently definite and the exercise of
discretion by the administrative officials concerned is, to use the words of Justice Benjamin Cardozo,
canalized within banks that keep it from overflowing.

Thus, the Court finds that the existence of an area for exercise of discretion by the Secretary of Justice
and the Director of the Bureau of Corrections under delegated legislative power is proper where standards
are formulated for the guidance and the exercise of limited discretion, which though general, are capable
of reasonable application. 58

It is also noteworthy that Article 81 of the Revised Penal Code which originally provided for the death
penalty by electrocution was not subjected to attack on the ground that it failed to provide for details
such as the kind of chair to be used, the amount of voltage, volume of amperage or place of attachment
of electrodes on the death convict. Hence, petitioner's analogous argument with respect to lethal injection
must fail.

A careful reading of R.A. No. 8177 would show that there is no undue delegation of legislative power from
the Secretary of Justice to the Director of the Bureau of Corrections for the simple reason that under the
Administrative Code of 1987, the Bureau of Corrections is a mere constituent unit of the Department of
Justice. 59Further, the Department of Justice is tasked, among others, to take charge of the
"administration of the correctional system." 60 Hence, the import of the phraseology of the law is that
the Secretary of Justice should supervise the Director of the Bureau of Corrections in promulgating the
Lethal Injection Manual, in consultation with the Department of Health. 61

However, the Rules and Regulations to Implement Republic Act No. No. 8177 suffer serious flaws that
could not be overlooked. To begin with, something basic appears missing in Section 19 of the
implementing rules which provides:

"SEC. 19. EXECUTION PROCEDURE. Details of the procedure prior to, during and after administering the
lethal injection shall be set forth in a manual to be prepared by the Director. The manual shall contain
details of, among others, the sequence of events before and after execution; procedures in setting up the
intravenous line; the administration of the lethal drugs; the pronouncement of death; and the removal of
the intravenous system.
Said manual shall be confidential and its distribution shall be limited to authorized prison personnel."

Thus, the Court finds in the first paragraph of Section 19 of the implementing rules a veritable vacuum.
The Secretary of Justice has practically abdicated the power to promulgate the manual on the execution
procedure to the Director of the Bureau of Corrections, by not providing for a mode of review and
approval thereof. Being a mere constituent unit of the Department of Justice, the Bureau of Corrections
could not promulgate a manual that would not bear the imprimatur of the administrative superior, the
Secretary of Justice as the rule-making authority under R.A. No. 8177. Such apparent abdication of
departmental responsibility renders the said paragraph invalid.

As to the second paragraph of section 19, the Court finds the requirement of confidentiality of the
contents of the manual even with respect to the convict unduly suppressive. It sees no legal impediment
for the convict, should he so desire, to obtain a copy of the manual. The contents of the manual are
matters of public concern "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."62 Section 7 of
Article III of the 1987 Constitution provides:

"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 a basis for policy development, shall be afforded the citizen,
subject to such limitation as may be provided by law."

The incorporation in the Constitution of a guarantee of access to information of public concern is a

recognition of the essentiality of the free flow of ideas and information in a democracy. 63 In the same
way that free discussion enables members of society to cope with the exigencies of their time, 64 access
to information of general interest aids the people in democratic decision-making 65 by giving them a
better perspective of the vital issues confronting the nation. 66

D. SECTION 17 OF THE RULES AND REGULATIONS TO IMPLEMENT R.A. No. 8177 IS INVALID FOR BEING
DISCRIMINATORY AND CONTRARY TO LAW.

Even more seriously flawed than Section 19 is Section 17 of the implementing rules which provides:

"SEC. 17. SUSPENSION OF THE EXECUTION OF THE DEATH SENTENCE. Execution by lethal injection shall
not be inflicted upon a woman within the three years next following the date of the sentence or while she
is pregnant, nor upon any person over seventy (70) years of age. In this latter case, the death penalty shall
be commuted to the penalty of reclusion perpetua with the accessory penalties provided in Article 40 of
the Revised Penal Code."

Petitioner contends that Section 17 is unconstitutional for being discriminatory as well as for being an
invalid exercise of the power to legislate by respondent Secretary. Petitioner insists that Section 17
amends the instances when lethal injection may be suspended, without an express amendment of Article
83 of the Revised Penal Code, as amended by section 25 of R.A. NO. 7659.

Article 83 of the Revised Penal Code, as amended by section 25 of R.A. NO. 7659 now reads as follows:
"ART. 83. Suspension of the execution of the death sentence. The death sentence shall not be inflicted
upon a woman while she is pregnant or within one (1) year after delivery, nor upon any person over
seventy years of age. In this last case, the death sentence shall be commuted to the penalty of reclusion
perpetua with the accessory penalty provided in Article 40. . .".

On this point, the Court finds petitioner's contention impressed with merit. While Article 83 of the Revised
Penal Code, as amended by Section 25 of Republic Act No. 7659, suspends the implementation of the
death penalty while a woman is pregnant or within one (1) year after delivery, Section 17 of the
implementing rules omits the one (1) year period following delivery as an instance when the death
sentence is suspended, and adds a ground for suspension of sentence no longer found under Article 83 of
the Revised Penal Code as amended, which is the three-year reprieve after a woman is sentenced.
This addition is, in petitioner's view, tantamount to a gender-based discrimination sans statutory basis,
while the omission is an impermissible contravention of the applicable law.

Being merely an implementing rule, Section 17 aforecited must not override, but instead remain
consistent and in harmony with the law it seeks to apply and implement. Administrative rules and
regulations are intended to carry out, neither to supplant nor to modify, the law." 67 An administrative
agency cannot amend an act of Congress. 68 In case of discrepancy between a provision of statute and a
rule or regulation issued to implement said statute, the statutory provision prevails. Since the cited clause
in Section 17 which suspends the execution of a woman within the three (3) years next following the date
of sentence finds no support in Article 83 of the Revised Penal Code as amended, perforce Section 17
must be declared invalid.

One member of the Court voted to declare Republic Act No. 8177 as unconstitutional insofar as it
delegates the power to make rules over the same subject matter to two persons (the Secretary of Justice
and the Director of the Bureau of Corrections) and constitutes a violation of the international norm
towards the abolition of the death penalty. One member of the Court, consistent with his view in People
v. Echegaray, 267 SCRA 682, 734-758 (1997) that the death penalty law (Republic Act No. 7659) is itself
unconstitutional, believes that Republic Act No. 8177 which provides for the means of carrying out the
death sentence, is likewise unconstitutional. Two other members of the court concurred in the aforesaid
Separate Opinions in that the death penalty law (Republic Act No. 7659) together with the assailed statute
(Republic Act No. 8177) are unconstitutional. In sum, four members of the Court voted to declare Republic
Act No. 8177 as unconstitutional. These Separate Opinions are hereto annexed, infra.

WHEREFORE, the petition is DENIED insofar as petitioner seeks to declare the assailed statute (Republic
Act No. 8177) as unconstitutional; but GRANTED insofar as Sections 17 and 19 of the Rules and Regulations
to Implement Republic Act No. 8177 are concerned, which are hereby declared INVALID because (a)
Section 17 contravenes Article 83 of the Revised Penal Code, as amended by Section 25 of Republic Act.
No. 7659; and (b) Section 19 fails to provide for review and approval of the Lethal Injection Manual by the
Secretary of Justice, and unjustifiably makes the manual confidential, hence unavailable to interested
parties including the accused/convict and counsel. Respondents are hereby enjoined from enforcing and
implementing Republic Act No. 8177 until the aforesaid Sections 17 and 19 of the Rules and Regulations
to Implement Republic Act No. 8177 are appropriately amended, revised and/or corrected in accordance
with this Decision.

NO COSTS. Cdpr
SO ORDERED.

Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Martinez,
Quisumbing and Purisima, JJ ., concur.

Pardo, J ., took no part.

Narvasa, C .J ., on official leave.

||| (Echegaray v. Secretary of Justice, G.R. No. 132601, October 12, 1998)

[G.R. No. 130716. December 9, 1998.]

FRANCISCO I. CHAVEZ, petitioner, vs. PRESIDENTIAL COMMISSION ON GOOD GOVERNMENT (PCGG) and
MAGTANGGOL GUNIGUNDO (in his capacity as chairman of the PCGG), respondents, GLORIA A. JOPSON,
CELNAN A. JOPSON, SCARLET A. JOPSON, and TERESA A. JOPSON, petitioners-in-intervention.

SYLLABUS

1.CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT TO INFORMATION ON MATTERS OF PUBLIC CONCERN

AND ACCESS TO OFFICIAL DOCUMENTS AND RECORDS; SUFFICIENT BASIS TO UPHOLD
PETITIONER'S LOCUS STANDI IN CASE AT BAR. The instant petition is anchored on the right of the
people to information and access to official records, documents and papers a right guaranteed under
Section 7, Article III of the 1987 Constitution. Petitioner, a former solicitor general, is a Filipino citizen.
Because of the satisfaction of the two basic requisites laid down by decisional law to sustain petitioner's
legal standing, i.e. (1) the enforcement of a public right (2) espoused by a Filipino citizen, we rule that the
petition at bar should be allowed. In any event, the question on the standing of Petitioner Chavez is
rendered moot by the intervention of the Jopsons, who are among the legitimate claimants to the Marcos
wealth. The standing of the Jopsons is not seriously contested by the solicitor general. Indeed, said
petitioners-intervenors have a legal interest in the subject matter of the instant case, since a distribution
or disposition of the Marcoses' ill-gotten properties may adversely affect the satisfaction of their claims.

2.ID.; ID.; ID.; RIGHT TO FULL PUBLIC DISCLOSURE OF ALL TRANSACTIONS INVOLVING PUBLIC INTEREST;
LIMITATIONS IN THE EXERCISE THEREOF, ENUMERATED. The "information" and the "transactions"
referred to in Sec. 7 (Article III) and Sec. 28 (Article II) of the Constitution have as yet no defined scope
and extent. There are no specific laws prescribing the exact limitations within which the right may be
exercised or the correlative state duty may be obliged. However, the following are some of the recognized
restrictions: (1) national security matters and intelligence information, (2) trade secrets and banking
transactions, (3) criminal matters, and (4) other confidential information.

3.ID.; ID.; ID.; ID.; SCOPE THEREOF; TERM "PUBLIC INTEREST" AND "PUBLIC CONCERN," CONSTRUED.
In Valmonte v. Belmonte, Jr., the Court emphasized that the information sought must be "matters of
public concern," access to which may be limited by law. Similarly, the state policy of full public disclosure
extends only to "transactions involving public interest" and may also be "subject to reasonable conditions
prescribed by law." As to the meanings of the terms "public interest" and "public concern," the Court,
in Legaspi v. Civil Service Commission, elucidated: "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
" In Aquino-Sarmiento v. Morato, the Court also held that official acts of public officers done in pursuit of
their official functions are public in character; hence, the records pertaining to such official acts and
decisions are within the ambit of the constitutional right of access to public records. DACcIH

4.ID.; ID.; ID.; ID ; RATIONALE. Under Republic Act No. 6713, public officials and employees are
mandated to "provide information on their policies and procedures in clear and understandable language,
[and] ensure openness of information, public consultations and hearings whenever appropriate . . .,"
except when "otherwise provided by law or when required by the public interest." In particular, the law
mandates free public access, at reasonable hours, to the annual performance reports of offices and
agencies of government and government-owned or controlled corporations; and the statements of assets,
liabilities and financial disclosures of all public officials and employees. In general, writings coming into
the hands of public officers in connection with their official functions must be accessible to the public,
consistent with the policy of transparency of governmental affairs. This principle is aimed at affording the
people an opportunity to determine whether those to whom they have entrusted the affairs of the
government are honestly, faithfully and competently performing their functions as public servants.
Undeniably, the essence of democracy lies in the free flow of thought; but thoughts and ideas must be
well-informed so that the public would gain a better perspective of vital issues confronting them and,
thus, be able to criticize as well as participate in the affairs of the government in a responsible, reasonable
and effective manner. Certainly, 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.

5.ID.; ID.; ID.; ID.; ILL-GOTTEN WEALTH, CONSTRUED; RECOVERY OF ILL-GOTTEN WEALTH, CONSIDERED A
MATTER OF PUBLIC CONCERN AND IMBUED WITH PUBLIC INTEREST. With such pronouncements of
our government, whose authority emanates from the people, there is no doubt that the recovery of the
Marcoses' alleged ill-gotten wealth is a matter of public concern and imbued with public interest We may
also add that "ill-gotten wealth," by its very nature, assumes a public character. Based on the
aforementioned Executive Orders, "ill-gotten wealth" refers to assets and properties purportedly
acquired, directly or indirectly, by former President Marcos, his immediate family, relatives and close
associates through or as a result of their improper or illegal use of government funds or properties; or
their having taken undue advantage of their public office; or their use of powers, influences or
relationships, "resulting in their unjust enrichment and causing grave damage and prejudice to the Filipino
people and the Republic of the Philippines." Clearly, the assets and properties referred to supposedly
originated from the government itself. To all intents and purposes, therefore, they belong to the people.
As such, upon reconveyance they will be returned to the public treasury, subject only to the satisfaction
of positive claims of certain persons as may be adjudged by competent courts. Another declared
overriding consideration for the expeditious recovery of ill-gotten wealth is that it may be used for
national economic recovery. We believe the foregoing disquisition settles the question of whether
petitioner has a right to respondents' disclosure of any agreement that may be arrived at concerning the
Marcoses' purported ill-gotten wealth.

6.ID.; ID.; ID.; ID.; INCLUDES DISCLOSURE ON ANY PROPOSED SETTLEMENT BETWEEN THE PCGG AND
OSTENSIBLE OWNERS AND HOLDERS OF ILL-GOTTEN WEALTH SUBJECT TO RESTRICTIONS. Considering
the intent of the framers of the Constitution, we believe that it is incumbent upon the PCGG and its
officers, as well as other government representatives, to disclose sufficient public information on any
proposed settlement they have decided to take up with the ostensible owners and holders of ill-gotten
wealth. Such information, though, must pertain to definite propositions of the government, not
necessarily to intra-agency or inter-agency recommendations or communications during the stage when
common assertions are still in the process of being formulated or are in the "exploratory" stage. There is
a need, of course, to observe the same restrictions on disclosure of information in general, as discussed
earlier such as on matters involving national security, diplomatic or foreign relations, intelligence and
other classified information. HCISED

7.CONSTITUTIONAL LAW; PCCG; E.O. No. 14, SECTION 5 THEREOF, AS AMENDED BY E.O. No. 14-A;
CONDITIONS UNDER WHICH THE PCGG MAY EXERCISE THE POWER TO GRANT CRIMINAL IMMUNITY,
ENUMERATED. In the present case, the power to grant criminal immunity was conferred on PCGG by
Section 5 of EO No. 14, as amended by EO No. 14-A. The said provision specifies that the PCGG may
exercise such authority under these conditions: (1) the person to whom criminal immunity is granted
provides information or testifies in an investigation conducted by the Commission; (2) the information or
testimony pertains to the unlawful manner in which the respondent, defendant or accused acquired or
accumulated ill-gotten property; and (3) such information or testimony is necessary to ascertain or prove
guilt or civil liability of such individual. From the wording of the law, it can be easily deduced that
the person referred to is a witness in the proceeding, not the principal respondent, defendant or accused.

8.ID.; ID., ID.; COMPROMISE AGREEMENT BETWEEN PCGG AND MARCOS IN CASE AT BAR, NOT IN
CONFORMITY THERETO; GRANT OF CRIMINAL IMMUNITY TO PRINCIPAL DEFENDANTS IN THE ILL-GOTTEN
WEALTH CASE, UNWARRANTED. Going now to the subject General and Supplemental Agreements
between the PCGG and the Marcos heirs, a cursory perusal thereof reveals serious legal flaws. First, the
Agreements do not conform to the above requirements of EO Nos. 14 and 14-A. We believe that criminal
immunity under Section 5 cannot be granted to the Marcoses, who are the principal defendants in the
spate of ill-gotten wealth cases now pending before the Sandiganbayan. As stated earlier, the provision is
applicable mainly to witnesses who provide information or testify against a respondent, defendant or
accused in an ill-gotten wealth case. While the General Agreement states that the Marcoses "shall provide
the [government] assistance by way of testimony or deposition on any information [they] may have that
could shed light on the cases being pursued by the [government] against other parties," the clause does
not fully comply with the law. Its inclusion in the Agreement may have been only an afterthought,
conceived in pro forma compliance with Section 5 of EO No. 14, as amended. There is no indication
whatsoever that any of the Marcos heirs has indeed provided vital information against any respondent or
defendant as to the manner in which the latter may have unlawfully acquired public property. HSaIDc

9.ID.; ID.; NO POWER TO GRANT TAX EXEMPTION EVEN UNDER THE COVER OF ITS AUTHORITY TO
COMPROMISE ILL-GOTTEN WEALTH CASES; PCGG'S COMMITMENT TO EXEMPT FROM TAX THE
PROPERTIES TO BE RETAINED BY MARCOS HEIRS, CONSIDERED A VIOLATION OF THE CONSTITUTION.
Under Item No. 2 of the General Agreement, the PCGG commits to exempt from all forms of taxes the
properties to be retained by the Marcos heirs. This is a clear violation of the Constitution. The power to
tax and to grant tax exemptions is vested in the Congress and, to a certain extent, in the local legislative
bodies. Section 28 (4), Article VI of the Constitution, specifically provides: "No law granting any tax
exemption shall be passed without the concurrence of a majority of all the Members of the
Congress." The PCGG has absolutely no power to grant tax exemption, even under the cover of its
authority to compromise ill-gotten wealth cases. Even granting that Congress enacts a law exempting the
Marcoses from paying taxes on their properties, such law will definitely not pass the test of the equal
protection clause under the Bill of Rights. Any special grant of tax exemption in favor only of the Marcos
heirs will constitute class legislation. It will also violate the constitutional rule that "taxation shall be
uniform and equitable."

10.ID.; ID.; GRANT OF TAX EXEMPTION TO MARCOSES DOES NOT FALL WITHIN THE POWER OF
COMMISSIONER OF INTERNAL REVENUE TO COMPROMISE TAXES OR ABATE TAX LIABILITY; REQUISITES
FOR A VALID EXERCISE OF THE POWER TO COMPROMISE TAXES OR TO ABATE TAX LIABILITY,
ENUMERATED. Neither can the stipulation be construed to fall within the power of the commissioner
of internal revenue to compromise taxes. Such authority may be exercised only when (1) there
isreasonable doubt as to the validity of the claim against the taxpayer, and (2) the taxpayer's financial
position demonstrates a clear inability to pay. Definitely, neither requisite is present in the case of the
Marcoses, because under the Agreement they are effectively conceding the validity of the claims against
their properties, part of which they will be allowed to retain. Nor can the PCGG grant of tax exemption
fall within the power of the commissioner to abate or cancel a tax liability. This power can be exercised
only when (1) the tax appears to be unjustly or excessively assessed, or (2) the administration and
collection costs involved do not justify the collection of the tax due. In this instance, the cancellation of
tax liability is done even before the determination of the amount due. In any event, criminal violations of
the Tax Code, for which legal actions have been filed in court or in which fraud is involved, cannot be
compromised.

11.ID.; ID.; CANNOT GUARANTEE THE DISMISSAL OF ALL PENDING CRIMINAL CASES AGAINST THE
MARCOSES. The government binds itself to cause the dismissal of all cases against the Marcos heirs,
pending before the Sandiganbayan and other courts. This is a direct encroachment on judicial powers,
particularly in regard to criminal jurisdiction. Well-settled is the doctrine that once a case has been filed
before a court of competent jurisdiction, the matter of its dismissal or pursuance lies within the full
discretion and control of the judge. In a criminal case, the manner in which the prosecution is handled,
including the matter of whom to present as witnesses, may lie within the sound discretion of the
government prosecutor; but the court decides, based on the evidence proffered, in what manner it will
dispose of the case. Jurisdiction, once acquired by the trial court, is not lost despite a resolution, even by
the justice secretary, to withdraw the information or to dismiss the complaint. The prosecution's motion
to withdraw or to dismiss is not the least binding upon the court. On the contrary, decisional rules require
the trial court to make its own evaluation of the merits of the case, because granting such motion is
equivalent to effecting a disposition of the case itself. Thus, the PCGG, as the government prosecutor of
ill-gotten wealth cases, cannot guarantee the dismissal of all such criminal cases against the Marcoses
pending in the courts, for said dismissal is not within its sole power and discretion. IEHScT

12.ID.; ID.; STIPULATION IN COMPROMISE AGREEMENTS BETWEEN THE PCGG AND MARCOSES WAIVING
ALL GOVERNMENT CLAIMS AGAINST THE LATTER, CONSIDERED CONTRARY TO LAW AND A VIOLATION OF
THE DUE PROCESS AND EQUAL PROTECTION CLAUSE. The government also waives all claims and
counterclaims, "whether past, present, or future, matured or inchoate," against the Marcoses. Again, this
all-encompassing stipulation is contrary to law. Under the Civil Code, an action for future fraud may not
be waived. The stipulation in the Agreement does not specify the exact scope of future claims against the
Marcoses that the government thereby relinquishes. Such vague and broad statement may well be
interpreted to include all future illegal acts of any of the Marcos heirs, practically giving them a license to
perpetrate fraud against the government without any liability at all. This is a palpable violation of the due
process and equal protection guarantees of the Constitution. It effectively ensconces the Marcoses
beyond the reach of the law. It also sets a dangerous precedent for public accountability. It is a virtual
warrant for public officials to amass public funds illegally, since there is an open option to compromise
their liability in exchange for only a portion of their ill-gotten wealth.

13.ID.; ID.; COMPROMISE AGREEMENTS BETWEEN THE PCGG AND MARCOSES IN CASE AT BAR DO NOT
PROVIDE FOR DEFINITE PERIOD FOR FULFILLMENT OF THE PRESTATION. The Agreements do not
provide for a definite or determinable period within which the parties shall fulfill their respective
prestations. It may take a lifetime before the Marcoses submit an inventory of their total assets.

14.ID.; ID.; ID.; DO NOT STATE WITH SPECIFICITY THE STANDARDS FOR DETERMINING WHICH ASSETS TO
BE FORFEITED AND WHICH SHALL BE RETAINED BY THE MARCOSES. The Agreements do not state with
specificity the standards for determining which assets shall be forfeited by the government and which
shall be retained by the Marcoses. While the Supplemental Agreement provides that the Marcoses shall
be entitled to 25 percent of the $356 million Swiss deposits (less government recovery expenses), such
sharing arrangement pertains only to the said deposits. No similar splitting scheme is defined with respect
to the other properties. Neither is there, anywhere in the Agreements, a statement of the basis for the
25-75 percent sharing ratio. Public officers entering into an arrangement appearing to be manifestly and
grossly disadvantageous to the government, in violation of the Anti-Graft and Corrupt Practices Act, invite
their indictment for corruption under the said law.

15.ID.; ID.; ID.; CONSIDERED INVALID; CASE AT BAR. The absence of then President Ramos' approval of
the principal Agreement, an express condition therein, renders the compromise incomplete and
unforceable. Nevertheless, as detailed above, even if such approval were obtained the Agreements would
still not be valid. From the foregoing disquisition, it is crystal clear to the Court that the General and
Supplemental Agreements, both dated December 28, 1993, which the PCGG entered into with the Marcos
heirs, are violative of the Constitution and the laws aforementioned.

16.REMEDIAL LAW; COMPROMISE; PROHIBITED COMPROMISE, ENUMERATED. In general, the law

encourages compromises in civil cases, except with regard to the following matters: the civil status of
persons, (2) the validity of a marriage or a legal separation, (3) any ground for legal separation, (4) future
support, (5) the jurisdiction of courts, and (6) future legitime. And like any other contract, the terms and
conditions of a compromise must not be contrary to laws, morals, good customs, public policy or public
order. A compromise is binding and has the force of law between the parties, unless the consent of a party
is vitiated such as by mistake, fraud, violence, intimidation or undue influence or when there is
forgery, or if the terms of the settlement are so palpably unconscionable. In the latter instances, the
agreement may be invalidated by the courts.

17.ID.; ID.; EFFECT THEREOF IN CIVIL ACTION. One of the consequences of a compromise, and usually
its primary object, is to avoid or to end a litigation. In fact, the law urges courts to persuade the parties in
a civil case to agree to a fair settlement. As an incentive, a court may mitigate damages to be paid by a
losing party who shows a sincere desire to compromise.
18.ID.; ID.; RELATING TO CIVIL LIABILITY ARISING FROM AN OFFENSE DOES NOT AUTOMATICALLY
EXTINGUISH CRIMINAL LIABILITY; POWER TO GRANT CRIMINAL IMMUNITY MUST BE SPECIFICALLY
CONFERRED. Any compromise relating to the civil liability arising from an offense does not
automatically terminate the criminal proceeding against or extinguish the criminal liability of the
malefactor. While a compromise in civil suits is expressly authorized by law, there is no similar general
sanction as regards criminal liability. The authority must be specifically conferred. CSDcTA

19.ID.; COURTS; SUPREME COURT HAS JURISDICTION OVER ISSUE INVOLVING THE PRECISE
INTERPRETATION IN TERMS OF SCOPE OF THE TWIN CONSTITUTIONAL PROVISIONS ON PUBLIC
TRANSACTIONS In Taada and Legaspi, we upheld therein petitioners' resort to
a mandamus proceeding, seeking to enforce a public right as well as to compel performance of a public
duty mandated by no less than the fundamental law. Further, Section 5, Article VIII of the Constitution,
expressly confers upon the Supreme Court original jurisdiction over petitions for certiorari, prohibition,
mandamus, quo warranto and habeas corpus. Respondents argue that petitioner should have properly
sought relief before the Sandiganbayan, particularly in Civil Case No. 0141, in which the enforcement of
the compromise Agreements is pending resolution. There may seem to be some merit in such argument;
if petitioner is merely seeking to enjoin the enforcement of the compromise and/or to compel the PCGG
to disclose to the public the terms contained in said Agreements. However, petitioner is here seeking the
public disclosure of "all negotiations and agreement, be they ongoing or perfected, and documents
related to or relating to such negotiations and Agreement between the PCGG and the Marcos heirs." In
other words, this petition is not confined to the Agreements that have already been drawn, but likewise
to any ongoing or future undertaking towards settlement on the alleged Marcos loot. Ineluctably, the core
issue boils down to the precise interpretation, in terms of scope, of the twin constitutional provisions on
"public transactions." This broad and prospective relief sought by the instant petition brings it out of the
realm of Civil Case No. 0141.

DECISION

PANGANIBAN, J p:

Petitioner asks this Court to define the nature and the extent of the people's constitutional right to
information on matters of public concern. Does this right include access to the terms of government
negotiations, prior to their consummation or conclusion? May the government, through the Presidential
Commission on Good Government (PCGG), be required to reveal the proposed terms of a compromise
agreement with the Marcos heirs as regards their alleged ill-gotten wealth? More specifically, are the
"General Agreement" and "Supplemental Agreement," both dated December 28, 1993 and executed
between the PCGG and the Marcos heirs, valid and binding?

The Case

These are the main questions raised in this original action seeking (1) to prohibit and "[e]njoin respondents
[PCGG and its chairman] from privately entering into, perfecting and/or executing any agreement with
the heirs of the late President Ferdinand E. Marcos . . . relating to and concerning the properties and
assets of Ferdinand Marcos located in the Philippines and/or abroad including the so-called Marcos
gold hoard"; and (2) to "[c]ompel respondent[s] to make public all negotiations and agreement, be they
ongoing or perfected, and all documents related to or relating to such negotiations and agreement
between the PCGG and the Marcos heirs." 1

The Facts

Petitioner Francisco I. Chavez, as "taxpayer, citizen and former government official who initiated the
prosecution of the Marcoses and their cronies who committed unmitigated plunder of the public treasury
and the systematic subjugation of the country's economy," alleges that what impelled him to bring this
action were several news reports 2 bannered in a number of broadsheets sometime in September 1997.
These news items referred to (1) the alleged discovery of billions of dollars of Marcos assets deposited in
various coded accounts in Swiss banks; and (2) the reported execution of a compromise, between the
government (through PCGG) and the Marcos heirs, on how to split or share these assets. Cdpr

Petitioner, invoking his constitutional right to information 3 and the correlative duty of the state to
disclose publicly all its transactions involving the national interest, 4 demands that respondents make
public any and all negotiations and agreements pertaining to PCGG's task of recovering the Marcoses' ill-
gotten wealth. He claims that any compromise on the alleged billions of ill-gotten wealth involves an issue
of "paramount public interest," since it has a "debilitating effect on the country's economy" that would
be greatly prejudicial to the national interest of the Filipino people. Hence, the people in general have a
right to know the transactions or deals being contrived and effected by the government.

Respondents, on the other hand, do not deny forging a compromise agreement with the Marcos heirs.
They claim, though, that petitioner's action is premature, because there is no showing that he has asked
the PCGG to disclose the negotiations and the Agreements. And even if he has, PCGG may not yet be
compelled to make any disclosure, since the proposed terms and conditions of the Agreements have not
become effective and binding.

Respondents further aver that the Marcos heirs have submitted the subject Agreements to the
Sandiganbayan for its approval in Civil Case No. 141, entitledRepublic v. Heirs of Ferdinand E. Marcos, and
that the Republic opposed such move on the principal grounds that (1) said Agreements have not been
ratified by or even submitted to the President for approval, pursuant to Item No. 8 of the General
Agreement; and (2) the Marcos heirs have failed to comply with their undertakings therein, particularly
the collation and submission of an inventory of their assets. The Republic also cited an April 11, 1995
Resolution in Civil Case No. 0165, in which the Sandiganbayan dismissed a similar petition filed by the
Marcoses' attorney-in-fact.

Furthermore, then President Fidel V. Ramos, in his May 4, 1998 Memorandum 5 to then PCGG Chairman
Magtanggol Gunigundo, categorically stated:

"This is to reiterate my previous position embodied in the Palace Press Release of 6 April 1995 that I have
not authorized you to approve the Compromise Agreements of December 28, 1993 or any agreement at
all with the Marcoses, and would have disapproved them had they been submitted to me.

"The Full Powers of Attorney of March 1994 and July 4, 1994, did not authorize you to approve said
Agreements, which I reserve for myself as President of the Republic of the Philippines."

The assailed principal Agreement 6 reads:

"GENERAL AGREEMENT
KNOW ALL MEN BY THESE PRESENTS:

This Agreement entered into this 28th day of December, 1993, by and between

The Republic of the Philippines, through the Presidential Commission on Good Government (PCGG), a
governmental agency vested with authority defined under Executive Orders Nos. 1, 2 and 14, with offices
at the Philcomcen Building, Pasig, Metro Manila, represented by its Chairman referred to as the FIRST
PARTY,

and

Estate of Ferdinand E. Marcos, represented by Imelda Romualdez Marcos and Ferdinand R. Marcos, Jr.,
all of legal age, and with address at c/o No. 154 Lopez Rizal St., Mandaluyong, Metro Manila, and Imelda
Romualdez Marcos, Imee Marcos Manotoc, Ferdinand E. Marcos, Jr., and Irene Marcos Araneta,
hereinafter collectively referred to as the PRIVATE PARTY.

WITNESSETH:

WHEREAS, the PRIVATE PARTY has been impelled by their sense of nationalism and love of country and of
the entire Filipino people, and their desire to set up a foundation and finance impact projects like
installation of power plants in selected rural areas and initiation of other community projects for the
empowerment of the people;

WHEREAS, the FIRST PARTY has obtained a judgment from the Swiss Federal Tribunal of December 21,
1990, that the $356 million belongs in principle to the Republic of the Philippines provided certain
conditionalities are met, but even after 7 years, the FIRST PARTY has not been able to procure a final
judgment of conviction against the PRIVATE PARTY;

WHEREAS, the FIRST PARTY is desirous of avoiding a long-drawn out litigation which, as proven by the
past 7 years, is consuming money, time and effort, and is counter-productive and ties up assets which the
FIRST PARTY could otherwise utilize for its Comprehensive Agrarian Reform Program, and other urgent
needs;

WHEREAS, His Excellency, President Fidel V. Ramos, has adopted a policy of unity and reconciliation in
order to bind the nation's wounds and start the process of rebuilding this nation as it goes on to the
twenty-first century;

WHEREAS, this Agreement settles all claims and counterclaims which the parties may have against one
another, whether past, present, or future, matured or inchoate.

NOW, THEREFORE, for and in consideration of the mutual covenants set forth herein, the parties agree as
follows:

1.The parties will collate all assets presumed to be owned by, or held by other parties for the benefit of,
the PRIVATE PARTY for purposes of determining the totality of the assets covered by the settlement. The
subject assets shall be classified by the nature thereof, namely: (a) real estate; (b) jewelry; (c) paintings
and other works of art; (d) securities; (e) funds on deposit; (f) precious metals, if any, and (g) miscellaneous
assets or assets which could not appropriately fall under any of the preceding classification. The list shall
be based on the full disclosure of the PRIVATE PARTY to insure its accuracy.
2.Based on the inventory, the FIRST PARTY shall determine which shall be ceded to the FIRST PARTY, and
which shall be assigned to/retained by the PRIVATE PARTY. The assets of the PRIVATE PARTY shall be net
of and exempt from, any form of taxes due the Republic of the Philippines. However, considering the
unavailability of all pertinent and relevant documents and information as to balances and ownership, the
actual specification of assets to be retained by the PRIVATE PARTY shall be covered by supplemental
agreements which shall form part of this Agreement.

3.Foreign assets which the PRIVATE PARTY shall fully disclose but which are held by trustees, nominees,
agents or foundations are hereby waived over by the PRIVATE-PARTY in favor of the FIRST PARTY. For this
purpose, the parties shall cooperate in taking the appropriate action judicial and/or extrajudicial, to
recover the same for the FIRST PARTY.

4.All disclosures of assets made by the PRIVATE PARTY shall not be used as evidence by the FIRST PARTY
in any criminal, civil, tax or administrative case, but shall be valid and binding against said PARTY for use
by the FIRST PARTY in withdrawing any account and/or recovering any asset. The PRIVATE PARTY
withdraws any objection to the withdrawal by and/or release to the FIRST PARTY by the Swiss banks
and/or Swiss authorities of the $356 million, its accrued interests, and/or any other account; over which
the PRIVATE PARTY waives any right, interest or participation in favor of the FIRST PARTY. However, any
withdrawal or release of any account aforementioned by the FIRST PARTY shall be made in the presence
of any authorized representative of the PRIVATE PARTY.

5.The trustees, custodians, safekeepers, depositaries, agents, nominees, administrators, lawyers, or any
other party acting in similar capacity in behalf of the PRIVATE PARTY are hereby informed through this
General Agreement to insure that it is fully implemented and this shall serve as absolute authority from
both parties for full disclosure to the FIRST PARTY of said assets and for the FIRST PARTY to withdraw said
account and/or assets and any other assets which the FIRST PARTY on its own or through the help of the
PRIVATE PARTY/their trustees, etc., may discover.

6.Any asset which may be discovered in the future as belonging to the PRIVATE PARTY or is being held by
another for the benefit of the PRIVATE PARTY and which is not included in the list per No. 1 for whatever
reason shall automatically belong to the FIRST PARTY, and the PRIVATE PARTY in accordance with No. 4
above, waives any right thereto.

7.This Agreement shall be binding on, and inure to the benefit of, the parties and their respective legal
representatives, successors and assigns and shall supersede any other prior agreement.

8.The PARTIES shall submit this and any other implementing Agreements to the President of the
Philippines for approval. In the same manner, the PRIVATE PARTY shall provide the FIRST PARTY assistance
by way of testimony or deposition on any information it may have that could shed light on the cases being
pursued by the FIRST PARTY against other parties. The FIRST PARTY shall desist from instituting new suits
already subject of this Agreement against the PRIVATE PARTY and cause the dismissal of all other cases
pending in the Sandiganbayan and in other courts.

9.In case of violation by the PRIVATE PARTY of any of the conditions herein contained, the PARTIES shall
be restored automatically to the status quo ante the signing of this Agreement.
For purposes of this Agreement, the PRIVATE PARTY shall be represented by Atty. Simeon M. Mesina, Jr.,
as their only Attorney-in-Fact.

IN WITNESS WHEREOF, the parties have signed this instrument this 28th day of December, 1993, in
Makati, Metro Manila.

PRESIDENTIAL COMMISSION ON

GOOD GOVERNMENT

By:

[Sgd.] MAGTANGGOL C. GUNIGUNDO

Chairman

ESTATE OF FERDINAND E. MARCOS, IMELDA R. MARCOS, MA. IMELDA MARCOS-MANOTOC, FERDINAND

R. MARCOS, JR., & IRENE MARCOS ARANETA

By:

[Sgd.] IMELDA ROMUALDEZ-MARCOS

[Sgd.] MA. IMELDA MARCOS-MANOTOC

FERDINAND R. MARCOS, JR. 7

[Sgd.] IRENE MARCOS-ARANETA

Assisted by:

[Sgd.] ATTY. SIMEON M. MESINA, JR.

Counsel & Attorney-in-Fact"

Petitioner also denounces this supplement to the above Agreement: 8

"SUPPLEMENTAL AGREEMENT

This Agreement entered into this 28th day of December, 1993, by and between

The Republic of the Philippines, through the Presidential Commission on Good Government (PCGG), a
governmental agency vested with authority defined under Executive Orders Nos. 1, 2 and 14, with offices
at the Philcomcen Building, Pasig, Metro Manila, represented by its Chairman Magtanggol C. Gunigundo,
hereinafter referred to as the FIRST PARTY,

and

Estate of Ferdinand E. Marcos, represented by Imelda Romualdez Marcos and Ferdinand R. Marcos, Jr.,
all of legal age, and with address at c/o No. 154 Lopez Rizal St., Mandaluyong, Metro Manila, and Imelda
Romualdez Marcos, Imee Marcos Manotoc, Ferdinand E. Marcos, Jr., and Irene Marcos Araneta,
hereinafter collectively referred to as the PRIVATE PARTY.

WITNESSETH:
The parties in this case entered into a General Agreement dated Dec. 28, 1993;

The PRIVATE PARTY expressly reserve their right to pursue their interest and/or sue over local assets
located in the Philippines against parties other than the FIRST PARTY.

The parties hereby agree that all expenses related to the recovery and/or withdrawal of all assets including
lawyers' fees, agents' fees, nominees' service fees, bank charges, traveling expenses and all other
expenses related thereto shall be for the account of the PRIVATE PARTY.

In consideration of the foregoing, the parties hereby agree that the PRIVATE PARTY shall be entitled to
the equivalent of 25% of the amount that may be eventually withdrawn from said $356 million Swiss
deposits.

IN WITNESS WHEREOF, the parties have signed this instrument this 28th day of December, 1993, in
Makati, Metro Manila.

PRESIDENTIAL COMMISSION ON

GOOD GOVERNMENT

By:

[Sgd.] MAGTANGGOL G. GUNIGUNDO

Chairman

ESTATE OF FERDINAND E. MARCOS, IMELDA R. MARCOS, MA. IMELDA MARCOS-MANOTOC, FERDINAND

R. MARCOS, JR., & IRENE MARCOS-ARANETA

By:

[Sgd.] IMELDA ROMUALDEZ-MARCOS

[Sgd.] MA. IMELDA MARCOS-MANOTOC

FERDINAND R. MARCOS, JR. 9

[Sgd] IRENE MARCOS-ARANETA

Assisted by:

[Sgd.] ATTY. SIMEON M. MESINA, JR.

Counsel & Attorney-in-Fact"

Acting on a motion of petitioner, the Court issued a Temporary Restraining Order 10 dated March 23,
1998, enjoining respondents, their agents and/or representatives from "entering into, or perfecting
and/or executing any agreement with the heirs of the late President Ferdinand E. Marcos relating to and
concerning their ill-gotten wealth."

Issues

The Oral Argument, held on March 16, 1998, focused on the following issues: Cdpr
"(a)Procedural:

(1)Whether or not the petitioner has the personality or legal standing to file the instant petition; and

(2)Whether or not this Court is the proper court before which this action may be filed.

(b)Substantive:

(1)Whether or not this Court could require the PCGG to disclose to the public the details of any agreement,
perfected or not, with the Marcoses; and

(2)Whether or not there exist any legal restraints against a compromise agreement between the Marcoses
and the PCGG relative to the Marcoses' ill-gotten wealth." 11

After their oral presentations, the parties filed their respective memoranda.

On August 19, 1998, Gloria, Celnan, Scarlet and Teresa, all surnamed Jopson, filed before the Court a
Motion for Intervention, attaching thereto their Petition in Intervention. They aver that they are "among
the 10,000 claimants whose right to claim from the Marcos Family and/or the Marcos Estate is recognized
by the decision in In re Estate of Ferdinand Marcos, Human Rights Litigation, Maximo Hilao, et al., Class
Plaintiffs No. 92-15526, U .S. Court of Appeals for the 9th Circuit US App. Lexis 14796, June 16, 1994 and
the Decision of the Swiss Supreme Court of December 10, 1997." As such, they claim to have personal and
direct interest in the subject matter of the instant case, since a distribution or disposition of the Marcos
properties may adversely affect their legitimate claims. In a minute Resolution issued on August 24, 1998,
the Court granted their motion to intervene and required the respondents to comment thereon. The
September 25, 1998 Comment 12 of the solicitor general on said motion merely reiterated his aforecited
arguments against the main petition. 13

The Court's Ruling

The petition is imbued with merit.

First Procedural Issue:

Petitioner's Standing

Petitioner, on the one hand, explains that as a taxpayer and citizen, he has the legal personality to file the
instant petition. He submits that since ill-gotten wealth "belongs to the Filipino people and [is], in truth
and in fact, part of the public treasury," any compromise in relation to it would constitute a diminution of
the public funds, which can be enjoined by a taxpayer whose interest is for a full, if not substantial,
recovery of such assets.

Besides, petitioner emphasizes, the matter of recovering the ill-gotten wealth of the Marcoses is an issue
"of transcendental importance to the public." He asserts that ordinary taxpayers have a right to initiate
and prosecute actions questioning the validity of acts or orders of government agencies or
instrumentalities, if the issues raised are "of paramount public interest;" and if they "immeasurably affect
the social, economic, and moral well-being of the people."

Moreover, the mere fact that he is a citizen satisfies the requirement of personal interest, when the
proceeding involves the assertion of a public right, 14 such as in this case. He invokes several decisions
in 15 of this Court which have set aside the procedural matter of locus standi, when the subject of the
case involved public interest.

On the other hand, the solicitor general, on behalf of respondents, contends that petitioner has no
standing to institute the present action, because no expenditure of public funds is involved and said
petitioner has no actual interest in the alleged agreement. Respondents further insist that the instant
petition is premature, since there is no showing that petitioner has requested PCGG to disclose any such
negotiations and agreements; or that, if he has, the Commission has refused to do so.

Indeed, the arguments cited by petitioner constitute the controlling decisional rule as regards his legal
standing to institute the instant petition. Access to public documents and records is a public right, and the
real parties in interest are the people themselves. 16

In Taada v. Tuvera, 17 the Court asserted that when the issue concerns a public right and the object of
mandamus is to obtain the enforcement of a public duty, the people are regarded as the real parties in
interest; and because it is sufficient that petitioner is a citizen and as such is interested in the execution
of the laws, he need not show that he has any legal or special interest in the result of the action. 18 In the
aforesaid case, the petitioners sought to enforce their right to be informed on matters of public concern,
a right then recognized in Section 6, Article IV of the 1973 Constitution, 19 in connection with the rule
that laws in order to be valid and enforceable must be published in the Official Gazette or otherwise
effectively promulgated. In ruling for the petitioners' legal standing, the Court declared that the right they
sought to be enforced "is a public right recognized by no less than the fundamental law of the land."

Legaspi v. Civil Service Commission, 20 while reiterating Taada, further declared that "when a
mandamus proceeding involves the assertion of a public right, the requirement of personal interest is
satisfied by the mere fact that petitioner is a citizen and, therefore, part of the general 'public' which
possesses the right." 21

Further, in Albano v. Reyes, 22 we said that while expenditure of public funds may not have been involved
under the questioned contract for the development, the management and the operation of the Manila
International Container Terminal, "public interest [was] definitely involved considering the important role
[of the subject contract] . . . in the economic development of the country and the magnitude of the
financial consideration involved." We concluded that, as a consequence, the disclosure provision in the
Constitution would constitute sufficient authority for upholding the petitioner's standing.

Similarly, the instant petition is anchored on the right of the people to information and access to official
records, documents and papers a right guaranteed under Section 7, Article III of the 1987 Constitution.
Petitioner, a former solicitor general, is a Filipino citizen. Because of the satisfaction of the two basic
requisites laid down by decisional law to sustain petitioner's legal standing, i.e. (1) the enforcement of a
public right (2) espoused by a Filipino citizen, we rule that the petition at bar should be allowed.

In any event, the question on the standing of Petitioner Chavez is rendered moot by the intervention of
the Jopsons, who are among the legitimate claimants to the Marcos wealth. The standing of the Jopsons
is not seriously contested by the solicitor general. Indeed, said petitioners-intervenors have a legal interest
in the subject matter of the instant case, since a distribution or disposition of the Marcoses' ill-gotten
properties may adversely affect the satisfaction of their claims.
Second Procedural Issue:

The Court's Jurisdiction

Petitioner asserts that because this petition is an original action for mandamus and one that is not
intended to delay any proceeding in the Sandiganbayan, its having been filed before this Court was proper.
He invokes Section 5, Article VIII of the Constitution, which confers upon the Supreme Court original
jurisdiction over petitions for prohibition and mandamus.

The solicitor general, on the other hand, argues that the petition has been erroneously brought before
this Court, since there is neither a justiciable controversy nor a violation of petitioner's rights by the PCGG.
He alleges that the assailed agreements are already the very lis mota in Sandiganbayan Civil Case No.
0141, which has yet to dispose of the issue; thus, this petition is premature. Furthermore, respondents
themselves have opposed the Marcos heirs' motion, filed in the graft court, for the approval of the subject
Agreements. Such opposition belies petitioner's claim that the government, through respondents, has
concluded a settlement with the Marcoses as regards their alleged ill-gotten assets.

In Taada and Legaspi, we upheld therein petitioners' resort to a mandamus proceeding, seeking to
enforce a public right as well as to compel performance of a public duty mandated by no less than the
fundamental law. 23 Further, Section 5, Article VIII of the Constitution, expressly confers upon the
Supreme Court originaljurisdiction over petitions for certiorari, prohibition, mandamus, quo warranto and
habeas corpus.

Respondents argue that petitioner should have properly sought relief before the Sandiganbayan,
particularly in Civil Case No. 0141, in which the enforcement of the compromise Agreements is pending
resolution. There may seem to be some merit in such argument; if petitioner is merely seeking to enjoin
the enforcement of the compromise and/or to compel the PCGG to disclose to the public the terms
contained in said Agreements. However, petitioner is here seeking the public disclosure of "all
negotiations and agreement, be they ongoing or perfected, and documents related to or relating to such
negotiations and agreement between the PCGG and the Marcos heirs."

In other words, this petition is not confined to the Agreements that have already been drawn, but likewise
to any other ongoing or future undertaking towards any settlement on the alleged Marcos loot.
Ineluctably, the core issue boils down to the precise interpretation, in terms of scope, of the twin
constitutional provisions on "public transactions." This broad and prospective relief sought by the instant
petition brings it out of the realm of Civil Case No. 0141.

First Substantive Issue:

Public Disclosure of Terms of Any Agreement, Perfected or Not

In seeking the public disclosure of negotiations and agreements pertaining to a compromise settlement
with the Marcoses as regards their alleged ill-gotten wealth, petitioner invokes the following provisions
of the Constitution:

"Sec. 7[Article III]. 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."
"Sec. 28[Article II]. 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."

Respondents' opposite view is that the above constitutional provisions refer to completed and operative
official acts, not to those still being considered. As regards the assailed Agreements entered into by the
PCGG with the Marcoses, there is yet no right of action that has accrued, because said Agreements have
not been approved by the President, and the Marcos heirs have failed to fulfill their express undertaking
therein. Thus, the Agreements have not become effective. Respondents add that they are not aware of
any ongoing negotiation for another compromise with the Marcoses regarding their alleged ill-gotten
assets.

The "information" and the "transactions" referred to in the subject provisions of the Constitution have as
yet no defined scope and extent. There are no specific laws prescribing the exact limitations within which
the right may be exercised or the correlative state duty may be obliged. However, the following are some
of the recognized restrictions: (1) national security matters and intelligence information, (7) trade secrets
and banking transactions, (3) criminal matters, and (4) other confidential information.

Limitations to the Right:

(1)National Security Matters

At the very least, this jurisdiction recognizes the common law holding that there is a governmental
privilege against public disclosure with respect to state secrets regarding military, diplomatic and other
national security matters. 24 But where there is no need to protect such state secrets, the privilege may
not be invoked to withhold documents and other information, 25 provided that they are examined "in
strict confidence" and given "scrupulous protection."

Likewise, 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. 26

(2)Trade Secrets and Banking Transactions

The drafters of the Constitution also unequivocally affirmed that, aside from national security matters and
intelligence information, trade or industrial secrets (pursuant to the Intellectual Property Code 27 and
other related laws) as well as banking transactions (pursuant to the Secrecy of Bank Deposits Act 28 ) are
also exempted from compulsory disclosure. 29

(3)Criminal Matters

Also excluded are classified law enforcement matters, such as those relating to the apprehension, the
prosecution and the detention of criminals, 30 which courts may not inquire into prior to such arrest,
detention and prosecution. Efforts at effective law enforcement would be seriously jeopardized by free
public access to, for example, police information regarding rescue operations, the whereabouts of
fugitives, or leads an covert criminal activities. cdrep

(4)Other Confidential Information

The Ethical Standards Act 31 further prohibits public officials and employees from using or divulging
"confidential or classified information officially known to them by reason of their office and not made
available to the public." 32
Other acknowledged limitations to information access include diplomatic correspondence, closed door
Cabinet meetings and executive sessions of either house of Congress, as well as the internal deliberations
of the Supreme Court. 33

Scope: Matters of Public Concern and

Transactions Involving Public Interest

In Valmonte v. Belmonte Jr., 34 the Court emphasized that the information sought must be "matters of
public concern," access to which may be limited by law. Similarly, the state policy of full public disclosure
extends only to "transactions involving public interest" and may also be "subject to reasonable conditions
prescribed by law." As to the meanings of the terms "public interest" and "public concern," the Court,
in Legaspiv. Civil Service Commission, 35 elucidated:

"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."

Considered a public concern in the above-mentioned case was the "legitimate concern of citizens to
ensure that government positions requiring civil service eligibility are occupied only by persons who are
eligibles." So was the need to give the general public adequate notification of various laws that regulate
and affect the actions and conduct of citizens, as held in Taada. Likewise did the "public nature of the
loanable funds of the GSIS and the public office held by the alleged borrowers (members of the defunct
Batasang Pambansa)" qualify the information sought in Valmonte as matters of public interest and
concern. In Aquino-Sarmiento v. Morato, 36 the Court also held that official acts of public officers done in
pursuit of their official functions are public in character; hence, the records pertaining to such official acts
and decisions are within the ambit of the constitutional right of access to public records.

Under Republic Act No. 6713, public officials and employees are mandated to "provide information on
their policies and procedures in clear and understandable language, [and] ensure openness of
information, public consultations and hearings whenever appropriate . . .," except when "otherwise
provided by law or when required by the public interest." In particular, the law mandates free public
access, at reasonable hours, to the annual performance reports of offices and agencies of government
and government-owned or controlled corporations; and the statements of assets, liabilities and financial
disclosures of all public officials and employees. 37

In general, writings coming into the hands of public officers in connection with their official functions must
be accessible to the public, consistent with the policy of transparency of governmental affairs. This
principle is aimed at affording the people an opportunity to determine whether those to whom they have
entrusted the affairs of the government are honestly, faithfully and competently performing their
functions as public servants. 38 Undeniably, the essence of democracy lies in the free flow of
thought; 39 but thoughts and ideas must be well-informed so that the public would gain a better
perspective of vital issues confronting them and, thus, be able to criticize as well as participate in the
affairs of the government in a responsible, reasonable and effective manner. Certainly, 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. 40

The Nature of the Marcoses'

Alleged Ill-Gotten Wealth

We now come to the immediate matter under consideration.

Upon the departure from the country of the Marcos family and their cronies in February 1986, the new
government headed by President Corazon C. Aquino was specifically mandated to "[r]ecover ill-gotten
properties amassed by the leaders and supporters of the previous regime and [to] protect the interest of
the people through orders of sequestration or freezing of assets or accounts." 41 Thus, President Aquino's
very first executive orders (which partook of the nature of legislative enactments) dealt with the recovery
of these alleged ill-gotten properties.

EXECUTIVE ORDER NO. 1, promulgated on February 28, 1986, only two (2) days after the Marcoses fled
the country, created the PCGG which was primarily tasked to assist the President in the recovery of vast
government resources allegedly amassed by former President Marcos, his immediate family, relatives and
close associates both here and abroad.

Under Executive Order No. 2, issued twelve (12) days later, all persons and entities who had knowledge
or possession of ill-gotten assets and properties were warned and, under pain of penalties prescribed by
law, prohibited from concealing, transferring or dissipating them or from otherwise frustrating or
obstructing the recovery efforts of the government.

On May 7, 1986, another directive (EO No. 14) was issued giving additional powers to the PCGG which,
taking into account the overriding considerations of national interest and national survival, required it to
achieve expeditiously and effectively its vital task of recovering ill-gotten wealth.

With such pronouncements of our government, whose authority emanates from the people, there is no
doubt that the recovery of the Marcoses' alleged ill-gotten wealth is a matter of public concern and
imbued with public interest. 42 We may also add that "ill-gotten wealth," by its very nature, assumes a
public character. Based on the aforementioned Executive Orders, "ill-gotten wealth" refers to assets and
properties purportedly acquired, directly or indirectly, by former President Marcos, his immediate family,
relatives and close associates through or as a result of their improper or illegal use of government funds
or properties; or their having taken undue advantage of their public office; or their use of powers,
influences or relationships, "resulting in their unjust enrichment and causing grave damage and prejudice
to the Filipino people and the Republic of the Philippines." Clearly, the assets and properties referred to
supposedly originated from the government itself. To all intents and purposes, therefore, they belong to
the people. As such, upon reconveyance they will be returned to the public treasury, subject only to the
satisfaction of positive claims of certain persons as may be adjudged by competent courts. Another
declared overriding consideration for the expeditious recovery of ill-gotten wealth is that it may be used
for national economic recovery.
We believe the foregoing disquisition settles the question of whether petitioner has a right to
respondents' disclosure of any agreement that may be arrived at concerning the Marcoses' purported ill-
gotten wealth.

Access to Information on Negotiating Terms

But does the constitutional provision likewise guarantee access to information

regarding ongoing negotiations or proposals prior to the final agreement? This same clarification was
sought and clearly addressed by the constitutional commissioners during their deliberations, which we
quote hereunder: 43

"MR. SUAREZ.

And when we say 'transactions' which should be distinguished from contracts, agreements, or treaties or
whatever, does the Gentleman refer to the steps leading to the consummation of the contract, or does
he refer to the contract itself?

"MR. OPLE.

The 'transactions' used here, I suppose, is generic and, therefore, it can cover both steps leading to a
contract, and already a consummated contract, Mr. Presiding. Officer.

"MR. SUAREZ.

This contemplates inclusion of negotiations leading to the consummation of the transaction?

"MR. OPLE.

Yes, subject to reasonable safeguards on the national interest."

Considering the intent of the framers of the Constitution, we believe that it is incumbent upon the PCGG
and its officers, as well as other government representatives, to disclose sufficient public information on
any proposed settlement they have decided to take up with the ostensible owners and holders of ill-
gotten wealth. Such information, though, must pertain to definite propositions of the government, not
necessarily to intra-agency or inter-agency recommendations or communications 44 during the stage
when common assertions are still in the process of being formulated or are in the "exploratory" stage.
There is a need, of course, to observe the same restrictions on disclosure of information in general, as
discussed earlier such as on matters involving national security, diplomatic or foreign relations,
intelligence and other classified information.

Second Substantive Issue:

Legal Restraints on a Marcos-PCGG Compromise

Petitioner lastly contends that any compromise agreement between the government and the Marcoses
will be a virtual condonation of all the alleged wrongs done by them, as well as an unwarranted permission
to commit graft and corruption.

Respondents, for their part, assert that there is no legal restraint on entering into a compromise with the
Marcos heirs, provided the agreement does not violate any law. cda
Prohibited Compromises

In general, the law encourages compromises in civil cases, except with regard to the following matters:
(1) the civil status of persons, (2) the validity of a marriage or a legal separation, (3) any ground for legal
separation, (4) future support, (5) the jurisdiction of courts, and (6) future legitime. 45 And like any other
contract, the terms and conditions of a compromise must not be contrary to law, morals, good customs,
public policy or public order. 46 A compromise is binding and has the force of law between the
parties, 47 unless the consent of a party is vitiated such as by mistake, fraud, violence, intimidation or
undue influence or when there is forgery, or if the terms of the settlement are so palpably
unconscionable. In the latter instances, the agreement may be invalidated by the courts. 48

Effect of Compromise

on Civil Actions

One of the consequences of a compromise, and usually its primary object, is to avoid or to end a
litigation. 49 In fact, the law urges courts to persuade the parties in a civil case to agree to a fair
settlement. 50 As an incentive, a court may mitigate damages to be paid by a losing party who shows a
sincere desire to compromise. 51

In Republic & Campos Jr. v. Sandiganbayan, 52 which affirmed the grant by the PCGG of civil and criminal
immunity to Jose Y. Campos and family, the Court held that in the absence of an express prohibition, the
rule on compromises in civil actions under the Civil Code is applicable to PCGG cases. Such principle is
pursuant to the objectives of EO No. 14, particularly the just and expeditious recovery of ill-gotten wealth,
so that it may be used to hasten economic recovery. The same principle was upheld in Benedicto v. Board
of Administrators of Television Stations RPN, BBC and IBC 53 and Republic v. Benedicto, 54 which ruled in
favor of the validity of the PCGG compromise agreement with Roberto S. Benedicto.

Immunity from

Criminal Prosecution

However, any compromise relating to the civil liability arising from an offense does not automatically
terminate the criminal proceeding against or extinguish the criminal liability of the malefactor. 55 While
a compromise in civil suits is expressly authorized by law, there is no similar general sanction as regards
criminal liability. The authority must be specifically conferred. In the present case, the power to grant
criminal immunity was conferred on PCGG by Section 5 of EO No. 14, as amended by EO No. 14-A, which
provides:

"SEC. 5.The Presidential Commission on Good Government is authorized to grant immunity from criminal
prosecution to any person who provides information or testifies in any investigation conducted by such
Commission to establish the unlawful manner in which any respondent, defendant or accused has
acquired or accumulated the property or properties in question in any case where such information or
testimony is necessary to ascertain or prove the latter's guilt or his civil liability. The immunity thereby
granted shall be continued to protect the witness who repeats such testimony before the Sandiganbayan
when required to do so by the latter or by the Commission."
The above provision specifies that the PCGG may exercise such authority under these conditions: (1) the
person to whom criminal immunity is granted provides information or testifies in an investigation
conducted by the Commission; (2) the information or testimony pertains to the unlawful manner in which
the respondent, defendant or accused acquired or accumulated ill-gotten property; and (3) such
information or testimony is necessary to ascertain or prove guilt or civil liability of such individual. From
the wording of the law, it can be easily deduced that the person referred to is a witness in the proceeding,
not the principal respondent, defendant or accused.

Thus, in the case of Jose Y. Campos, the grant of both civil and criminal immunity to him and his family
was "[i]n consideration of the full cooperation of Mr. Jose Y. Campos [with] this Commission, his voluntary
surrender of the properties and assets [] disclosed and declared by him to belong to deposed President
Ferdinand E. Marcos [] to the Government of the Republic of the Philippines[;] his full, complete and
truthful disclosures[;] and his commitment to pay a sum of money as determined by the Philippine
Government." 56 Moreover, the grant of criminal immunity to the Camposes and the Benedictos was
limited to acts and omissions prior to February 25, 1996. At the time such immunity was granted, no
criminal eases have yet been filed against them before the competent courts.

Validity of the PCGG-Marcos

Compromise Agreements

Going now to the subject General and Supplemental Agreements between the PCGG and the Marcos
heirs, a cursory perusal thereof reveals serious legal flaws.First, the Agreements do not conform to the
above requirements of EO Nos. 14 and 14-A. We believe that criminal immunity under Section 5 cannot
be granted to the Marcoses, who are the principal defendants in the spate of ill-gotten wealth cases now
pending before the Sandiganbayan. As stated earlier, the provision is applicable mainly to witnesses who
provide information or testify against a respondent, defendant or accused in an ill-gotten wealth case.

While the General Agreement states that the Marcoses "shall provide the [government] assistance by way
of testimony or deposition on any information [they] may have that could shed light on the cases being
pursued by the [government] against other parties," 57 the clause does not fully comply with the law. Its
inclusion in the Agreement may have been only an afterthought, conceived in pro forma compliance with
Section 5 of EO No. 14, as amended. There is no indication whatsoever that any of the Marcos heirs has
indeed provided vital information against any respondent or defendant as to the manner in which the
latter may have unlawfully acquired public property.

Second, under Item No. 2 of the General Agreement, the PCGG commits to exempt from all forms of taxes
the properties to be retained by the Marcos heirs. This is a clear violation of the Constitution. The power
to tax and to grant tax exemptions is vested in the Congress and, to a certain extent, in the local legislative
bodies. 58 Section 28 (4), Article VI of the Constitution, specifically provides: "No law granting any tax
exemption shall be passed without the concurrence of a majority of all the Members of the Congress." The
PCGG has absolutely no power to grant tax exemptions, even under the cover of its authority to
compromise ill-gotten wealth cases.

Even granting that Congress enacts a law exempting the Marcoses from paying taxes on their properties,
such law will definitely not pass the test of the equal protection clause under the Bill of Rights. Any special
grant of tax exemption in favor only of the Marcos heirs will constitute class legislation. It will also violate
the constitutional rule that "taxation shall be uniform and equitable." 59

Neither can the stipulation be construed to fall within the power of the commissioner of internal revenue
to compromise taxes. Such authority may be exercised only when (1) there is reasonable doubt as to the
validity of the claim against the taxpayer, and (2) the taxpayer's financial position demonstrates a clear
inalibity to pay. 60 Definitely, neither requisite is present in the case of the Marcoses, because under the
Agreement they are effectively conceding the validity of the claims against their properties, part of which
they will be allowed to retain. Nor can the PCGG grant of tax exemption fall within the power of the
commissioner to abate or cancel a tax liability. This power can be exercised only when (1) the tax appears
to be unjustly or excessively assessed, or (2) the administration and collection costs involved do not justify
the collection of the tax due. 61 In this instance, the cancellation of tax liability is done even before the
determination of the amount due. In any event, criminal violations of the Tax Code, for which legal actions
have been filed in court or in which fraud is involved, cannot be compromised.62

Third, the government binds itself to cause the dismissal of all cases against the Marcos heirs, pending
before the Sandiganbayan and other courts. 63 This is a direct encroachment on judicial powers,
particularly in regard to criminal jurisdiction. Well-settled is the doctrine that once a case has been filed
before a court of competent jurisdiction, the matter of its dismissal or pursuance lies within the full
discretion and control of the judge. In a criminal case, the manner in which the prosecution is handled,
including the matter of whom to present as witnesses, may lie within the sound discretion of the
government prosecutor; 64 but the court decides, based on the evidence proffered, in what manner it
will dispose of the case. Jurisdiction, once acquired by the trial court, is not lost despite a resolution, even
by the justice secretary, to withdraw the information or to dismiss the complaint. 65 The prosecution's
motion to withdraw or to dismiss is not the least binding upon the court. On the contrary, decisional rules
require the trial court to make its own evaluation of the merits of the case, because granting such motion
is equivalent to effecting a disposition of the case itself. 66

Thus, the PCGG, as the government prosecutor of ill-gotten wealth cases, cannot guarantee the dismissal
of all such criminal cases against the Marcoses pending in the courts, for said dismissal is not within its
sole power and discretion.

Fourth, the government also waives all claims and counterclaims, "whether past, present, or future,
matured or inchoate," against the Marcoses. 67 Again, this all-encompassing stipulation is contrary to law.
Under the Civil Code, an action for future fraud may not be waived. 68 The stipulation in the Agreement
does not specify the exact scope of future claims against the Marcoses that the government thereby
relinquishes. Such vague and broad statement may well be interpreted to include all future illegal acts of
any of the Marcos heirs, practically giving them a license to perpetrate fraud against the government
without any liability at all. This is a palpable violation of the due process and equal protection guarantees
of the Constitution. It effectively ensconces the Marcoses beyond the reach of the law. It also sets a
dangerous precedent for public accountability. It is a virtual warrant for public officials to amass public
funds illegally, since there is an open option to compromise their liability in exchange for only a portion
of their ill-gotten wealth.

Fifth, the Agreements do not provide for a definite or determinable period within which the parties shall
fulfill their respective prestations. It may take a lifetime before the Marcoses submit an inventory of their
total assets.
Sixth, the Agreements do not state with specificity the standards for determining which assets shall be
forfeited by the government and which shall be retained by the Marcoses. While the Supplemental
Agreement provides that the Marcoses shall be entitled to 25 per cent of the $356 million Swiss deposits
(less government recovery expenses), such sharing arrangement pertains only to the said deposits. No
similar splitting scheme is defined with respect to the other properties. Neither is there, anywhere in the
Agreements, a statement of the basis for the 25-75 percent sharing ratio. Public officers entering into an
arrangement appearing to be manifestly and grossly disadvantageous to the government, in violation of
the Anti-Graft and Corrupt Practices Act, 69 invite their indictment of corruption under the said law.

Finally, the absence of then President Ramos' approval of the principal Agreement, and express condition
therein, renders the compromise incomplete and unenforceable. Nevertheless, as detailed above, even if
such approval were obtained, the Agreements would still not be valid. cdasia

From the foregoing disquisition, it is crystal clear to the Court that the General and Supplemental
Agreements, both dated December 28, 1993, which the PCGG entered into with the Marcos heirs, are
violative of the Constitution and the laws aforementioned.

WHEREFORE, the petition is GRANTED. The General and Supplemental Agreements dated December 28,
1993, which PCGG and the Marcos heirs entered into are hereby declared NULL AND VOID for being
contrary to law and the Constitution. Respondent PCGG, its officers and all government functionaries and
officials who are or may be directly or indirectly involved in the recovery of the alleged ill-gotten wealth
of the Marcoses and their associates are DIRECTED to disclose to the public the terms of any proposed
compromise settlement, as well as the final agreement, relating to such alleged ill-gotten wealth, in
accordance with the discussions embodied in this Decision. No pronouncement as to costs.

SO ORDERED.

Davide, Jr., C .J ., Melo and Quisumbing, JJ ., concur.

||| (Chavez v. PCGG, G.R. No. 130716, December 09, 1998)

[NOTICE. February 14, 2012.]

Sirs/Mesdames:

Please take notice that the Court en banc issued a Resolution dated FEBRUARY 14, 2012, which reads as
follows:

"In Re: Production of Court Records and Documents and the Attendance of Court officials and employees
as witnesses under the subpoenas of February 10, 2012 and the various letters for the Impeachment
Prosecution Panel dated January 19 and 25, 2012.

RESOLUTION

PER CURIAM p:

Before us are the letters of Hon. Joseph Emilio A. Abaya, Congressman and Impeachment Prosecution
Panel Manager, in behalf of the House Impeachment Panel, requesting for the actions described below.
These letters are:
(1)LETTER dated January 19, 2012 of Hon. Joseph Emilio A. Abaya, Congressman, 1st District, Cavite;
Chairman, Committee on Appropriations; and Impeachment Prosecution Panel Manager,
writing in behalf of the House Impeachment Panel, requesting that the Public Prosecutors, as well as the
Private Prosecutors, be permitted to examine, among others, the rollo of Flight Attendants and Stewards
Association of the Philippines (FASAP) v. Philippine Airlines, Inc. (PAL), et al., G.R. No. 178083;

LETTER dated January 25, 2012 of Hon. Irvin M. Alcala for Hon. Joseph Emilio A. Abaya, in behalf of the
House Impeachment Panel, requesting for certified true copiesof the Agenda and Minutes of the
Deliberations of, among others, the case of FASAP v. PAL, et al., G.R. No. 178083.

(2)LETTER dated January 19, 2012 of Hon. Joseph Emilio A. Abaya, Congressman, 1st District, Cavite;
Chairman, Committee on Appropriations; and Impeachment Prosecution Panel Manager,
writing in behalf of the House Impeachment Panel, requesting that the Public Prosecutors, as well as the
Private Prosecutors, be permitted to examine, among others, the rollo of Navarro v. Ermita, G.R. No.
180050, April 12, 2011.

(3)LETTER dated January 25, 2012 of Hon. Irvin M. Alcala for Hon. Joseph Emilio A. Abaya, Congressman,
1st District, Cavite; Chairman, Committee on Appropriations; and Impeachment Prosecution Panel
Manager, in behalf of the House Impeachment Panel, requesting that the Public Prosecutors, as well as
the Private Prosecutors, be permitted to examine the rollo of the case of Ma. Merceditas N. Gutierrez v.
The House of Representatives Committee on Justice, et al.,G.R. No. 193459. EICSTa

(4)LETTER dated January 19, 2012 of Hon. Joseph Emilio A. Abaya, Congressman, 1st District, Cavite;
Chairman, Committee on Appropriations; and Impeachment Prosecution Panel Manager,
writing in behalf of the House Impeachment Panel, requesting that the Public Prosecutors, as well as the
Private Prosecutors, be permitted to examine, among others, the rollo of League of Cities v.
COMELEC, G.R. Nos. 176951, 177499 and 178056.

In an intervening development, the Hon. Impeachment Court directed the attendance of witnesses
Clerk of Court Enriqueta E. Vidal and Deputy Clerk of Court Felipa Anama, and
the production of documents per the subpoena ad testificandum et duces tecum dated February 9,
2012 in the case of FASAP v. PAL:

1.Records/Logbook of the Raffle Committee showing the assignment of the FASAP case;

2.Letter of Atty. Estelito Mendoza addressed to the Clerk of Court dated September 13, 2011 (copy
furnished: The Hon. Chief Justice Renato C. Corona), inconnection with the FASAP case;

3.Letter of Atty. Estelito Mendoza addressed to the Clerk of Court dated September 20, 2011 (copy
furnished: The Hon. Chief Justice Renato C. Corona), inconnection with the FASAP case;

4.Letter of Atty. Estelito Mendoza addressed to the Clerk of Court dated September 22, 2011 (copy
furnished: The Hon. Chief Justice Renato C. Corona), inconnection with the FASAP case;

5.Letter of Atty. Estelito Mendoza addressed to the Clerk of Court dated September 16, 2011 (copy
furnished: The Hon. Chief Justice Renato C. Corona; Hon. Arturo D. Brion, Hon. Jose P. Perez, Hon. Lucas
P. Bersamin and Hon. Jose C. Mendoza), in connection with the FASAP case.
Another subpoena ad testificandum dated February 10, 2012 directs Clerk of Court Vidal, in the
case of former President Gloria Macapagal-Arroyo (G.R. No. 199034) and former First Gentleman Jose
Miguel Arroyo (G.R. No. 199046) to bring with her, for submission to the Impeachment Court, the
following:

1.Supreme Court received (with time and date stamp) Petition for Special Civil Actions for Certiorari and
Prohibition with Prayer for the Issuance of a Temporary Restraining Order (TRO) and/or
Writ of Preliminary Injunction filed by Gloria Macapagal Arroyo (G.R. No. 199034) (GMA TRO Petition),
including the Annexes thereto;

2.Supreme Court received (with time and date stamp) Petition for Special Civil Actions for Certiorari and
Prohibition with Prayer for the Issuance of a TRO and/or Writ of Preliminary Injunction docketed as G.R.
No. 199046 (Mike Arroyo TRO Petition), including the Annexes thereto;

3.Respondent Corona's travel order or leave applied for within the month of November 2011;

4.Minutes of the Supreme Court Raffle Committee which handled the GMA and Mike Arroyo TRO
Petitions;

5.Appointment or Assignment of the Member-in-Charge of the GMA and Mike Arroyo TRO Petitions;

6.Resolution dated November 15, 2011 in the GMA and Mike Arroyo TRO Petitions;

7.TRO dated November 15, 2011 issued in the GMA and Mike Arroyo TRO Petitions;

8.Logbook or receiving copy showing the time the TRO was issued to the counsel of GMA and Mike Arroyo,
as well as the date and time the TRO was received by the Sheriff for service to the parties;

9.Special Power of Attorney dated November 15, 2011 submitted by GMA and Mike
Arroyo in favor of Atty. Ferdinand Topacio and Anacleto M. Diaz, incompliance with the TRO dated
November 15, 2011;

10.Official Receipt No. 00300227-SC-EP dated November 15, 2011 issued by the Supreme Court for the
Two Million Pesos Cash Bond of GMA and Mike Arroyo, with the official date and time stamp; TcHDIA

11.November 15 and 16, 2011 Sheriff's Return for service of the GMA and Mike Arroyo TRO dated
November 15, 2011, upon the Department of Justice and the Office of the Solicitor General;

12.Certification from the Fiscal Management and Budget Office of the Supreme Court dated November
15, 2011, with the date and time it was received by the Supreme Court Clerk of Court showing it to be
November 16, 2011 at 8:55 a.m.;

13.Resolution dated November 18, 2011 issued in the GMA and Mike Arroyo TRO Petitions;

14.Resolution dated November 22, 2011 on the GMA and Mike Arroyo TRO Petitions;

15.Logbook showing the date and time Justice Sereno's dissent to the November 22, 2011 Resolution was
received by the Clerk of Court En Banc;

16.Dissenting Opinions dated November 13 and 18, 2011, and December 13, 2011 of Justice Sereno on
the GMA and Mike Arroyo TRO Petitions;
17.Dissenting Opinions dated November 15, 2011 and December 13, 2011 of Justice Carpio on the GMA
and Mike Arroyo TRO Petitions;

18.Separate Opinion dated December 13, 2011 of Justice Velasco on the GMA and Mike Arroyo TRO
Petitions;

19.Concurring Opinion dated December 13, 2011 of Justice Abad on the GMA and Mike Arroyo TRO
Petitions;

20.Official Appointment of Respondent Corona as Associate Justice of the Supreme Court; and

21.Official Appointment of Respondent Corona as Chief Justice.

A Brief Statement of Relevant Background Facts and Developments

During the impeachment proceedings against Chief Justice Corona, the Prosecution Panel manifested in a
COMPLIANCE dated January 27, 2012 that it would present about 100 witnesses and almost a thousand
documents, to be secured from both private and public offices. The list of proposed witnesses included
Justices of the Supreme Court, and Court officials and employees who will testify on matters,
many of which are, internal to the Court.

It was at about this time that the letters, now before us, were sent. The letters asked for the
examination of records, and the issuance of certified true copies of therollos and the Agenda and
Minutes of the Deliberations, as above described, for purposes of Articles 3 and 7 of the Impeachment
Complaint. These letters specifically focused on the following:

a.with respect to the Flight Attendants and Stewards Association of the Philippines v. Philippine Airlines,
Inc. case 1 (presently pending on the merits), the examination of the rollo of the case and the
issuance of certified true copies of the Agenda and the Minutes of the case;

b.with respect to Navarro v. Ermita 2 or the Dinagat case (still pending on the merits), the
examination of the rollo of the case;

c.with respect to Ma. Merceditas N. Gutierrez v. The House of Representatives Committee on Justice, et
al. 3 (a closed and terminated case), the examination of therollo of the case; and

d.with respect to League of Cities of the Philippines (LCP) v. COMELEC, 4 (a closed and terminated case)
the examination of the rollo of the case.

Per its MANIFESTATION in open court in the impeachment trial of February 7 and 8, 2012, the House
Impeachment Panel requested the Impeachment Court for the issuance of subpoena duces tecum and ad
testificandum for the production of records of cases, and the attendance of Justices, officials and
employees of the SupremeCourt, to testify on these records and on the various cases mentioned
above. aATHIE

Instead of issuing subpoenas as requested, the Hon. Presiding Senator-Judge Juan Ponce Enrile, on
February 8, 2012, issued an Order denying the Prosecution Panel's request for subpoena ad
testificandum to JJ. Villarama, Sereno, Reyes and Velasco (In re: Impeachment Trial of Hon. Chief Justice
Renato C. Corona, Case No. 002-2011).Thus, the attendance of Supreme Court Justices under compulsory
process now appears to be moot and academic. If they are included at all in the discussions below,
reference to them is for purposes only of a holistic presentation and as basic premises that serve as the
bases for the disqualification of Court officials and employees, and the exclusion of privileged and
confidential documents and information.

On February 10, 2012, Atty. Vidal, Clerk of the Supreme Court, brought to our attention the Subpoena Ad
Testificandum et Duces Tecum and Subpoena Ad Testificandum she received, commanding her to appear
at 10:00 in the morning of the 13th of February 2012 with the original and certified true copies of the
documents listed above, and to likewise appear in the afternoon at 2:00 of the same day and everyday
thereafter, to produce the above listed documents and to testify.

In light of the subpoenas served, the urgent need for a court ruling and based on the Constitution, the
pertinent laws and of the Court's rules and policies, we shall now determine how the Court will comply
with the subpoenas and the letters of the Prosecution Impeachment Panel.

Prefatory Statement

The Court states at the outset that this Resolution is issued not to favor or prejudice the Chief Justice
whose impeachment gave rise to the letters and the subpoenas under consideration, but to simply
consider the requests and the subpoenas in light of what the Constitution, the laws, and our rules and
policies mandate and allow.

From the constitutional perspective, a necessary starting vantage point in this consideration is
the principle of separation of powers through the recognition of theindependence of each
branch of government and through the protection of privileged and confidential documents and
processes, as recognized by law, by the rules and by Court policies.

The Independence of the Judiciary

The doctrine of separation of powers is an essential component of our democratic and republican
system of government. The doctrine inures not by express provisionof the Constitution, but as an
underlying principle that constitutes the bedrock of our system of checks and
balances in government. 5 It divides the government into three branches, each with well-defined
powers. In its most basic concept, the doctrine declares that the legislature enacts the law, the executive
implements it, and the judiciary interprets it.

Each branch is considered separate, co-equal, coordinate and supreme within its own sphere, under
the legal and political reality of one overarchingConstitution that governs one government and one
nation for whose benefit all the three separate branches must act with unity. Necessarily under this legal
and political reality, the mandate for each branch is to ensure that its assigned constitutional duties are
duly performed, all for the one nation that the three branches are sworn to serve, obey and protect,
among others, by keeping the government stable and running. The Court's mandate, in so far as these
constitutional principles are concerned, is to keep the different branches within the exercise of their
respective assigned powers and prerogatives through the Rule of Law. 6

A lesser known but no less important aspect of the principle of separation of powers deemed written
into the rules by established practice and rendered imperative by the departments' inter-dependence and
need for cooperation among themselves is the principle of comity or the practice of voluntarily
observing inter-departmental courtesy in undertaking their assigned constitutional duties for the
harmonious working of government.

The Judiciary applies the principle of comity at the first instance in its interpretation and
application of laws. In appreciating the areas wholly assigned to a particular branch for its sole and
supreme exercise of discretion (i.e., on political questions where the courts can intervene only when the
assigned branch acts with grave abuse ofdiscretion), the courts tread carefully; they exercise restraint and
intervene only when the grave abuse of discretion is clear and even then must act with carefully calibrated
steps, safely and surely made within constitutional bounds. The two other branches, for their part, may
also observe the principle of comity by voluntarily and temporarily refraining from continuing with the
acts questioned before the courts. Where doubt exists, no hard and fast rule obtains on how due respect
should be shown to each other; largely, it is a weighing of the public interests involved, as against
guaranteed individual rights and the attendant larger public interests, and it is the latter consideration
that ultimately prevails. DSEIcT

A case in point is on the matter of impeachment whose trial has been specifically assigned by the
Constitution to the Senate. Where doubt exists in an impeachment case, a standard that should not be
forgotten is the need to preserve the structure of a democratic and republican government, particularly
the check and balance that should prevail.

Access to court records: general rule

a policy of transparency

Underlying every request for information is the constitutional right to information (a right granted to the
people) that Article III, Section 7 of the Constitution provides:

Section 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 officials 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. [emphases ours]

The right to information, by its very nature and by the Constitution's own terms, is not absolute. On the
part of private individuals, the right to privacy, similarly inviolable, exists. Institutions also enjoy their own
right to confidentiality, that, for governmental departments and agencies, is expressed in terms of their
need to protect the integrity of their mandated tasks under the Constitution and the laws; these tasks, to
state the obvious, are their reasons for their being.

In line with the public's constitutional right to information, the Court has adopted a policy of transparency
with respect to documents in its possession or custody, necessary to maintain the integrity of its sworn
duty to adjudicate justiciable disputes. 7 This policy, in terms of Court Rules, is embodied in Section 11,
Rule 136 of the Rules of Court, 8 which states:

Section 11.Certified copies. The clerk shall prepare, for any person demanding the same, a copy
certified under the seal of the court of any paper, record, order, judgment, or entry in his office, proper
to be certified, for the fees prescribed by these rules. [emphases ours]

Notably, the rule grants access to court records to any person, subject to payment of fees and compliance
with rules; it is not necessary that the request be made by a party to the case. This grant, however, is not
as open nor as broad as its plain terms appear to project, as it is subject to the limitations the laws and
theCourt's own rules provide. As heretofore stated, for the Court and the Judiciary, a basic underlying
limitation is the need to preserve and protect the integrity of their main adjudicative function.

When Court Records are considered

Confidential

In the Judiciary, privileges against disclosure of official records "create a hierarchy of rights that protect
certain confidential relationships over and above the public's evidentiary need" or "right to every man's
evidence." 9 Accordingly, certain informations contained in the records of cases before the
Supreme Court are considered confidential and are exempt from disclosure. To reiterate, the need arises
from the dictates of the integrity of the Court's decision-making function which may be affected by the
disclosure of information.

Specifically, the Internal Rules of the Supreme Court (IRSC) prohibits the disclosure of (1) the
result of the raffle of cases, (2) the actions taken by the Court on each case included in the
agenda of the Court's session, and (3) the deliberations of the Members in court sessions on cases and
matters pending before it.

Rule 7, Section 3 of the IRSC 10 declares that the results of the raffle of cases shall only be available to the
parties and their counsels, unless the cases involve bar matters, administrative cases and criminal cases
involving the penalty of life imprisonment, which are treated with strict confidentiality and where the
raffle results are not disclosed even to the parties themselves. 11

Rule 10, Section 2 of the IRSC provides that the actions taken in each case in the Court's agenda, which
are noted by the Chief Justice or the Division Chairman, are also to be treated with strict confidentiality.
Only after the official release of the resolution embodying the Court action may that action be made
available to the public.12 A resolution is considered officially released once the envelope containing its
final copy, addressed to the parties, has been transmitted to the process server for personal service or to
the mailing section of the Judicial Records Office.

Court deliberations are traditionally recognized as privileged communication. Section 2, Rule 10 of the
IRSC provides:

Section 2.Confidentiality of court sessions. Court sessions are executive in character, with only the
Members of the Court present. Court deliberations are confidential and shall not be disclosed to outside
parties, except as may be provided herein or as authorized by the Court. [emphasis ours] ACaDTH

Justice Abad discussed the rationale for the rule in his concurring opinion to
the Court Resolution in Arroyo v. De Lima 13 (TRO on Watch List Order case): the rules on confidentiality
will enable the Members of the Court to "freely discuss the issues without fear of criticism for holding
unpopular positions" or fear of humiliation for one's comments. 14 The privilege against
disclosure of these kinds of information/communication is known as deliberative process privilege,
involving as it does the deliberative process of reaching a decision. "Written advice from a
variety of individuals is an important element of the government's decision-making process and that the
interchange of advice could be stifled if courts forced the government to disclose those
recommendations;"15 the privilege is intended "to prevent the 'chilling' ofdeliberative
communications." 16
The privilege is not exclusive to the Judiciary. We have in passing recognized the claim of this privilege by
the two other branches of government in Chavez v. Public Estates Authority 17 (speaking through J.
Carpio) when the Court declared that

[t]he information . . . like internal deliberations of the Supreme Court and other collegiate courts, or
executive sessions of either house of Congress, are recognized as confidential. This kind of information
cannot be pried open by a co-equal branch of government. 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. 18 (emphases ours)

Justice Brion noted this fact in his Separate Concurring Opinion in Neri v. Senate Committee on
Accountability of Public Officers and Investigations: 19

Significantly, this type of privilege is not for the Executive to enjoy alone. All the great
branches of government are entitled to this treatment for their own decision and policy making
conversations and correspondence. It is unthinkable that the disclosure of internal debates and
deliberations of the Supreme Court or the executive sessions of either Houses of Congress can be
compelled at will by outside parties. [emphasis ours]

Thus, a Senator may invoke legislative privilege when he or she is questioned outside the Senate about
information gathered during an executive session of the Senate's legislative
inquiry in aid of legislation. In the same manner, a justice of the court or a judge may invoke judicial
privilege in the Senate sitting as an Impeachment Court, for proceedings in the performance of his or her
own judicial functions. What applies to magistrates applies with equal force to courtofficials and
employees who are privy to these deliberations. They may likewise claim exemption when asked about
this privileged information.

While Section 2, Rule 10 of the IRSC cited above speaks only of the confidentiality of court deliberations,
it is understood that the rule extends to documents and other communications which are part of or are
related to the deliberative process. 20 The deliberative process privilege protects from disclosure
documents reflecting advisory opinions, recommendations and deliberations that are component
parts of the process for formulating governmental decisions and policies. Obviously, the privilege may also
be claimed by other court officials and employees when asked to act on these documents and other
communications.

The Code of Conduct for Court Personnel in fact provides that access shall be denied with respect to
information or records relating to drafts of decisions, rulings, orders, or internal memoranda or internal
reports. In the 2007 Resolution on Access to Justice for the Poor Project, 21 the Court excluded the same
information andrecords from the public by classifying them as confidential:

Article 1.Definition of Terms.

2.Confidential information generally refers to information not yet made a matter of public record relating
to pending cases, such as notes, drafts, research papers, internal discussion, internal
memoranda, records of internal deliberations, and similar papers. Even after the decision, resolution, or
order is made public, such information that a justice or judge uses in preparing a decision, resolution, or
order shall remain confidential. [emphases ours]
To qualify for protection under the deliberative process privilege, the agency must show that the
document is both (1) predecisional and (2) deliberative. 22

A document is "predecisional" under the deliberative process privilege if it precedes, in temporal

sequence, the decision to which it relates. 23 In other words,communications are considered
predecisional if they were made in the attempt to reach a final conclusion. 24 HTCaAD

A material is "deliberative," on the other hand, if it reflects the give-and-take of the consultative
process. 25 The key question in determining whether the material is deliberative in nature is whether
disclosure of the information would discourage candid discussion within the agency. 26 If the
disclosure of the information would expose the government's decision-making process in a way that
discourages candid discussion among the decision-makers (thereby undermining the courts' ability to
perform their functions), the information is deemed privileged.

Court records which are "predecisional" and "deliberative" in nature are thus protected and cannot be
the subject of a subpoena if judicial privilege is to be preserved. The privilege in general insulates the
Judiciary from an improper intrusion into the functions of the judicial branch and shields justices, judges,
and courtofficials and employees from public scrutiny or the pressure of public opinion that would impair
a judge's ability to render impartial decisions. 27 The deliberative process can be impaired by undue
exposure of the decision-making process to public scrutiny before or even after the decision is made, as
discussed below.

Additionally, two other grounds may be cited for denying access to court records, as well as preventing
members of the bench, from being subjected to compulsory process: (1) the disqualification by
reason of privileged communication and (2) the pendency of an action or matter.

The prohibition against disclosure of confidential information is required to be observed by

members of the Court under the New Code of Judicial Conduct for the Philippine Judiciary. Section 9,
Canon 4 (Propriety) states:

Section 9.Confidential information acquired by judges in their judicial capacity shall not be used or
disclosed for any other purpose related to their judicial duties. [emphasis ours]

This rule of judicial ethics complements the rule of evidence that disqualifies public officials from
testifying on information they acquire in confidence in the course oftheir duties:

Rules of Court, Rule 130, Section 24.Disqualification by reason of privileged communication. The
following persons cannot testify as to matters learned inconfidence in the following cases:

xxx xxx xxx

(e)A public officer cannot be examined during his term of office or afterwards, as to communications
made to him in official confidence, when the court finds that the public interest would suffer by the
disclosure. [emphasis ours]

To ensure the observance of these rules, the improper disclosure of confidential information
learned in official capacity is made criminally punishable under Article 229of the Revised Penal
Code, 28 Section 3 (k) of Republic Act No. 3019, or the Anti-Graft and Corrupt Practices Act, 29 and Sec.
7 of Republic Act No. 6713, or the Codeof Conduct and Ethical Standards for Public Officials and
Employees. 30 Under existing laws, neither the Impeachment Court nor the Senate has the power to grant
immunity from criminal prosecution for revealing confidential information.

Under the law, therefore, the Members of the Court may not be compelled to testify in the impeachment
proceedings against the Chief Justice or other Members of theCourt about information they
acquired in the performance of their official function of adjudication, such as information on how
deliberations were conducted or the material inputs that the justices used in decision-making, because
the end-result would be the disclosure of confidential information that could subject them to criminal
prosecution. Such act violates judicial privilege (or the equivalent of executive privilege) as it pertains to
the exercise of the constitutional mandate of adjudication.

Jurisprudence implies that justices and judges may not be subject to any compulsory process in relation
to the performance of their adjudicatory functions. In Senate ofthe Philippines v. Exec. Sec.
Ermita, 31 the Court declared that members of the Supreme Court are also exempt from [the Congress']
power of inquiry [in aid oflegislation]. Unlike the Presidency, judicial power is vested in a collegial body;
hence, each member thereof is exempt on the basis not only of separation of powers but also on the fiscal
autonomy and the constitutional independence of the judiciary.

This ruling was dictated in no small measure by the principle of comity mentioned above. Inter-
departmental courtesy demands that the highest levels of each department be exempt from the
compulsory processes of the other departments on matters related to the functions and duties of their
office.

With respect to Court officials and employees, the same rules on confidentiality that apply to justices and
judges apply to them. They are barred from disclosing (1) the result of the raffle of cases, (2) the actions
taken by the Court on each case included in the agenda of the Court's session, and (3) the
deliberations of the Members incourt sessions on cases and matters pending before it. They are subject
as well to the disqualification by reason of privileged communication and the sub judice rule. As stated
above, these rules extend to documents and other communications which cannot be disclosed.

These privileges, incidentally, belong to the Judiciary and are for the Supreme Court (as the representative
and entity speaking for the Judiciary), and not for the individual justice, judge, or court official or
employees to waive. Thus, every proposed waiver must be referred to the Supreme Court for its
consideration and approval.SEAHcT

In fine, there are Philippine laws, rules and jurisprudence prohibiting the revelation of confidential or
"secret" information that causes damage to public interest even injudicial and other proceedings such as
the sui generis impeachment trial. As far as the Court is concerned, its Members and officials
involved in all proceedings are duty-bound to observe the privileged communication and confidentiality
rules if the integrity of the administration of justice were to be preserved i.e., not even
Membersof the Court, on their own and without the consent of the Supreme Court, can testify on matters
covered by the prohibitions and exclusions, particularly with respect to matters pending resolution before
the Supreme Court.

To state the rule differently, Justices of the Court cannot be compelled to testify on matters relating to
the internal deliberations and actions of the Court, in the exercise of their adjudicatory functions and
duties. This is to be differentiated from a situation where the testimony is on a matter which is external to
their adjudicatory functions and duties.

For example, where the ground cited in an impeachment complaint is bribery, a Justice may be called as
a witness in the impeachment of another Justice, as bribery is a matter external to or is not connected
with the adjudicatory functions and duties of a magistrate. A Justice, however, may not be called to testify
on the arguments the accused Justice presented in the internal debates as these constitute details of the
deliberative process.

Public interest, among others, demands that justices, judges and judicial proceedings must not only be,
but must appear to be impartial since an impartial tribunal is a component of the right to due process that
the Constitution guarantees to every individual. Section 4, Canon 3 of the New Code of Judicial Conduct
for the Philippine Judiciary requires that

Section 4.Judges shall not knowingly, while a proceeding is before or could come before them, make any
comment that might reasonably be expected to affect the outcome of such proceeding or impair the
manifest fairness of the process. Nor shall judges make any comment in public or otherwise that might
affect the fair trial ofany person or issue.

As a penultimate point, witnesses need not be summoned to testify on matters of public record. These
are the records that a government unit is required by law to keep or which it is compelled to keep in the
discharge of duties imposed by law. A record is a public record within the purview of a statute providing
that books andrecords required by law to be kept by a clerk may be received in evidence in any court if it
is a record which a public officer is required to keep and if it is filled in such a manner that it is subject to
public inspection. 32 Under the Rules of Court, the rule on public records is embodied in Section 44, Rule
130 which provides:

Section 44.Entries in official records. Entries in official records made in the performance of his duty by
a public officer of the Philippines, or by a person in the performance of a duty specially enjoined by law,
are prima facie evidence of the facts therein stated.

To restate the rule, entries in official records may be presented without the
necessity of presenting in court the officer or person who made the entries. 33 Entries inpublic or official
books or records may be proved by the production of the books or records themselves or by a copy
certified by the legal keeper thereof. 34 Theserecords, however, may be presented and
marked in evidence only where they are not excluded by reasons of privilege and the other reasons
discussed above.

The reasons for this rule are necessity and trustworthiness.

Necessity consists in the inconvenience and difficulty of requiring the official's attendance as a witness to
testify to the innumerable transactions in the course of his duty. A public officer is excused from
appearing in court in order that public business may not be interrupted, hampered or delayed. Where
there is no exception for official statements, hosts of officials would be found devoting the greater
part of their time attending as witnesses in court, delivering their deposition before an officer. 35

Trustworthiness is a reason because of the presumption of regularity of performance of official duty. The
law reposes a particular confidence in public officers that it presumes that they will discharge their several
trusts with accuracy and fidelity; and therefore, whatever acts they do in the discharge of their public duty
may be given in evidence and shall be taken to be true under such a degree of caution as the nature and
circumstances of each case may appear to require.36 Thus, "[t]he trustworthiness of public documents
and the value given to the entries made therein could be grounded on: 1) the sense of official duty in the
preparation of the statement made, 2) the penalty which is usually affixed to a breach of that duty, 3) the
routine and disinterested origin of most such statements, and 4) the publicity of record which makes
more likely the prior exposure of such errors as might have occurred." 37 CIaDTE

As a last point and mainly for purposes of stress, the privileges discussed above that apply to justices and
judges apply mutatis mutandis to court officials and employees with respect to their official functions. If
the intent only is for them to identify and certify to the existence and genuineness of documents within
their custody or control that are not otherwise confidential or privileged under the above discussed rules,
their presence before the Impeachment Court can be and should be excused where certified
copies of these non-privileged and non-confidential documents can be provided.

In sum, Philippine law, rules and jurisprudence prohibit the disclosure of confidential or privileged
information under well-defined rules. At the most basic level and subject to the principle of comity,
Members of the Court, and Court officials and employees may not be compelled to testify on matters that
are part of the internal deliberations and actions of the Court in the exercise of their adjudicatory
functions and duties, while testimony on matters external to their adjudicatory functions and duties may
be compelled by compulsory processes.

To summarize these rules, the following are privileged documents or communications, and are not subject
to disclosure:

(1)Court actions such as the result of the raffle of cases and the actions taken by the Court on each case
included in the agenda of the Court's session on acts done material to pending cases, except where a
party litigant requests information on the result of the raffle of the case, pursuant to Rule 7, Section
3 of the IRSC;

(2)Court deliberations or the deliberations of the Members in court sessions on cases and matters
pending before the Court;

(3)Court records which are "predecisional" and "deliberative" in nature, in particular, documents and
other communications which are part of or related to the deliberative process, i.e., notes, drafts, research
papers, internal discussions, internal memoranda, records of internal deliberations, and similar papers.

(4)Confidential Information secured by justices, judges, court officials and employees in the
course of their official functions, mentioned in (2) and (3) above, are privileged even after their
term of office.

(5)Records of cases that are still pending for decision are privileged materials that cannot be disclosed,
except only for pleadings, orders and resolutions that have been made available by the court to the
general public.

(6)The principle of comity or inter-departmental courtesy demands that the highest officials of each
department be exempt from the compulsory processes of the other departments.
(7)These privileges belong to the Supreme Court as an institution, not to any justice or judge in his or her
individual capacity. Since the Court is higher than the individual justices or judges, no sitting or retired
justice or judge, not even the Chief Justice, may claim exception without the consent of the Court.

WHEREFORE, on the basis of the above-cited laws, rules, jurisprudence and principles, the Court resolves
the matter of the House Impeachment Panel's letters through as follows:

A. 1.On the letters dated January 19 and 25, 2012 sent in behalf of the House Impeachment Panel,
the Court cannot grant the requested examination ofthe FASAP v. PAL 38 rollo as this is still a pending
case and the rollo contains privileged and confidential materials. The Court, however, can issue certified
true copies of the Decisions, Orders and Resolutions it issued in the case and which have been released
to the parties, and certified copiesof the parties' pleadings and the letters of Atty. Estelito Mendoza.

2.On the letter of January 25, 2012, regarding the examination of the rollo of Navarro v.
Ermita 39 (Dinagat case), the Court although the Dinagat case is closed and terminated cannot grant
the requested examination as the rollo contains privileged and confidential information. The Court,
however, can issue certified true copies of the Decisions, Orders and Resolutions it issued in the case and
which have been released to the parties, and certified copies of the parties' pleadings.

3.On the letter of January 25, 2012, regarding the examination of the rollo of the case of Ma. Merceditas
N. Gutierrez v. The House of Representatives Committee on Justice, 40 this is a closed and terminated
case. However, the court cannot still allow examination of the rollo as it contains materials that are still
covered by privilege or are still considered confidential. The Court, however, if requested by the
Prosecution Panel, can issue certified true copies of the Decisions, Orders and Resolutions that are now
matters of public record, as well as certified copies of the parties' pleadings. SCHTac

4.On the letter of January 19, 2012 in behalf of the Prosecution Panel in the case of League of Cities v.
COMELEC, 41 this is still a pending case and the Courtcannot allow the examination of the rollo.
The Court, if requested by the Prosecution Panel, can provide certified true copies of its Decisions, Orders
and Resolutions that have been furnished the parties, and certified copies of the parties' pleadings.

B.On the subpoena duces tecum et ad testificandum in the FASAP v. PAL case that is the
subject of the subpoena, the case is still pending. Therefore, all the requested documents cannot be
produced as discussed above.

The witness can consequently provide certified true copies to the Impeachment Court of the Decisions,
Orders and Resolutions furnished to the parties, as well as certified copies of the parties' pleadings and
the letters of Atty. Estelito Mendoza.

The Court cannot as well waive the privileges attendant to the proposed
testimony of Clerk of Court Enriqueta E. Vidal and of the other Court officials and employees on matters
covered by privilege and confidentiality.

The documents directed to be produced by the subpoena duces tecum in the GMA and Arroyo cases (G.R.
Nos. 199034 and 199046) are listed in the attached Annex "A" hereof, and are resolved in accordance with
this listing. The witness can only testify on the documents or records allowed under this listing.

C.The Clerk of Court is hereby DIRECTED:

1.to PHOTOCOPY the non-confidential documents and records requested in the letters of the House
Impeachment Panel, if requested by the Prosecution Panel. She shall as well provide these certified copies
to the Impeachment Court pursuant to the subpoena duces tecum, but shall exclude therefrom the
documents and records considered as confidential or privileged;

2.to SERVE a copy of this Resolution immediately to the House Impeachment Panel and to the
Impeachment Court;

3.to REPORT to the Court the results of its actions, under (1) and (2) above, as soon as they are completed
and no later than the deadline imposed by the Impeachment Court.

D.The Court's Internal Rules and Revision of Rules Committees shall forthwith meet for the
alignment of the above discussed laws, rules and policies with the Internal Rules of the
Supreme Court and the Rules of Court, and to further discuss these rules and policies to the end that the
needs of transparency can fully meet, and be harmonized with, the requirements of confidentiality."

Given by the Supreme Court of the Philippines, this 14th day of February 2012. JJ. Leonardo-De Castro,
Brion, Peralta, Bersamin, Del Castillo, Abad, Villarama, Jr., Perez,
Mendoza and Reyes, concurring; Presiding Officer Carpio and J. Sereno, concurring under Separate
Opinions; Chief Justice Corona, inhibiting; JJ. Velasco, Jr. and Perlas-Bernabe, on official
leave of absence." TIaCcD

Very truly yours,

ENRIQUETA E. VIDAL

Clerk of Court

ANNEX A

1. Supreme Court-received (with time andMatter of Public Record Certified

date stamp) Petition for Specialcopy can be provided by the witness to
Civil Actions for Certiorari andthe Impeachment Court, as directed.
Prohibition with Prayer for the
Issuance of a Temporary Restraining
Order (TRO) and/or Writ of
Preliminary Injunction filed by
Gloria Macapagal Arroyo (G.R. No.
199034) [GMA TRO Petition],
including the Annexes thereto
2. Supreme Court received (with timeMatter of Public Record Certified
and date stamp) Petition for Specialcopy can be provided by the witness to
Civil Actions for Certiorari andthe Impeachment Court, as directed.
Prohibition with Prayer for the
Issuance of a Temporary Restraining
Order and/or Writ of Preliminary
Injunction docketed as (G.R. No.
199046) [Mike Arroyo TRO
Petition], including the Annexes
thereto

3. Official Leave of RespondentNot Confidential matter of Public

Corona's travel order or leaverecord. The witness can provide
applied for days within the monthcertified copy to the Impeachment
of November 2011 Court, as directed.

4. Minutes of the Supreme CourtPrivileged and Confidential because

Raffle Committee which handledthis is a pending case expressly
the GMA and Mike Arroyoprohibited under the IRSC. The
TRO Petition parties, however, may request for a
copy of the Minutes. with portions
relating to other cases deleted.

5. Appointment or Assignment of thePrivileged and Confidential because

Member-in-Charge of the GMAthis is a pending case; expressly
and Mike Arroyo TRO Petition prohibited under the IRSC. The
parties, however, may request for a
copy of this record, with portions
relating to other cases deleted.

6. Resolution dated 15 November 2011Matter of Public Record. Certified

on the GMA and Mike Arroyo TROcopy can be provided by the witness to
Petition, as published the Impeachment Court, as directed.

7. Logbook or receiving copy showingPrivileged and Confidential because

the time the TRO was issued to thethis is a pending case; expressly
counsel for GMA and Mike Arroyoprohibited under the IRSC. The
as well as the date and time the TROparties, however, may request for a
was received by the sheriff forcopy of this record, with portions
service to the parties relating to other cases deleted.
8. Temporary Restraining Order datedMatter of Public Record. Certified
15 November 2011 issued in thecopy can be provided by the witness to
GMA and Mike Arroyo TROthe Impeachment Court as directed.
Petition

9. Special Power of Attorney dated 15Privileged and Confidential because

November 2011 submitted by GMAthis is a pending case; expressly
and Mike Arroyo in favor of Atty.prohibited under the IRSC. Parties can
Ferdinand Topacio appointing himrequest for a copy.
"to produce summons or receive
documentary evidence" with the
official date and time stamp of the
Supreme Court

10. Official Receipt No. 00300227-SC-Part of public record and certified

EP dated 15 November 2011 issuedcopy can be provided to the
by the Supreme Court for the TwoImpeachment Court.
Million Pesos Cash Bond of GMA
and Mike Arroyo with the official
date and time stamp CTSAaH

11. November 15 and 16, 2011 Sheriff'sPrivileged and Confidential because

Return of service of the GMA andthis is a pending case; expressly
Mike Arroyo TRO dated 15prohibited under the IRSC. Parties can
November 2011 upon therequest for a copy of this record.
Department of Justice and the
Office of the Solicitor General

12. Certification from the FiscalPrivileged and Confidential because

Management and Budget Officethis is a pending case; expressly
of the Supreme Court datedprohibited under the IRSC and
November 15, 2011 with thedeliberative process. The requested
date and time it was received bycertification refers to the time the bond
the Supreme Court Clerk of Courtwas received by the Court.
showing it to be November 16, 2011
at 8:55am

13. Resolution dated 18 November 2011Matter of Public Record. Certified

issued on the GMA and Mikecopy can be provided by the witness to
Arroyo TRO Petition, as published the Impeachment Court, as directed.
14. Resolution dated 22 November 2011Matter of Public Record. Certified
on the GMA and Mike Arroyo TROcopy can be provided by the witness to
Petition the Impeachment Court, as directed.

15. Logbook showing the date and timePrivileged and Confidential because
Justice Sereno's dissent to the 22this is a pending case; expressly
November 2011 Resolution wasprohibited under the IRSC.
received by the Clerk of Court En
Banc

16. Dissenting Opinion of JusticeThe Dissenting Opinion refers to the

Sereno in G.R. No. 199034 andpersonal opinion of the writer who has
199046 as published on 15the constitutional duty to explain her
November 2011, 18 NovemberDissent, and is a matter of public
2011 and 13 December 2011 record after this was published. The
Court, however, as the institution
entitled to the deliberative process
privilege, cannot waive the
confidentiality of certain portions of
this Dissent for being part of the
privilege.
The Court shall allow the witness to
issue a certified true copy of this
Dissent, subject to its reservation.

17. Dissenting Opinion of Justice CarpioThe Dissenting Opinion refers to the

dated 15 November 2011 and 13personal opinion of the writer who has
December 2011 in G.R. No. 199034the constitutional duty to explain his
and 199046 as published Dissent, and is a matter of public
record after this was published. The
Court, however, as the institution
entitled to the deliberative process
privilege, cannot waive the
confidentiality of certain portions of
this Dissent for being part of the
privilege.
The Court shall allow the witness to
issue a certified true copy of the
Dissent, subject to its reservation.
18. Separate Opinion of Justice VelascoThe Separate Opinion refers to the
dated 13 November 2011 in G.R.personal opinion of the writer and is a
Nos. 199034 and 199046 matter of public record after this was
published. The Court, however, as the
institution entitled to the deliberative
process privilege, cannot waive the
confidentiality of certain portions of
this Separate Opinion for being partof
the privilege.
The Court shall allow the witness to
issue a certified true copy of this
Separate Opinion, subject to its
reservation.

19. Concurring Opinion of Justice AbadThe Concurring Opinion refers to the

dated 13 December 2011 in G.R.personal opinion of the writer and is a
Nos. 199034 and 199046 matter of public record after this was
published. The Court, however, as the
institution entitled to the deliberative
process privilege, cannot waive the
confidentiality of certain portions of
this Concurring Opinion for being part
of the privilege.
The Court shall allows the witness to
issue a certified true copy of this
Concurring Opinion, subject to its
reservation. aIHSEc

20. Official Appointment of RespondentMatter of Public Record. The witness

Corona as Associate Justice of thecan provide certified copy to the
Supreme Court Impeachment Court, as directed.

21. Official Appointment of RespondentMatter of Public Record. The witness

Corona as Chief Justice can provide certified copy to the
Impeachment Court, as directed.

To complete the records of the Impeachment Court, a certified copy of the Separate Opinion of Justice
Arturo D. Brion dated December 13, 2011 on the same issue in the case can also be provided, subject to
the same conditions made in item nos. 16, 17, 18 and 19.

||| (In re Production of Court Records and Documents and the Attendance of Court Officials & Employees,
NOTICE, February 14, 2012)