PIL - 110417
B. Treaties
Constitution, Article VII, Section 20 & 21
Section 20. The President may contract or guarantee foreign loans on behalf of the
Republic of the Philippines with the prior concurrence of the Monetary Board, and subject
to such limitations as may be provided by law. The Monetary Board shall, within thirty
days from the end of every quarter of the calendar year, submit to the Congress a complete
report of its decision on applications for loans to be contracted or guaranteed by the
Government or government-owned and controlled corporations which would have the
effect of increasing the foreign debt, and containing other matters as may be provided by
law.
Section 21. No treaty or international agreement shall be valid and effective unless
concurred in by at least two-thirds of all the Members of the Senate.
Constitution, Article XVIII, Section 25
Section 25. After the expiration in 1991 of the Agreement between the Republic of the
Philippines and the United States of America concerning military bases, foreign military
bases, troops, or facilities shall not be allowed in the Philippines except under a treaty
duly concurred in by the Senate and, when the Congress so requires, ratified by a majority
of the votes cast by the people in a national referendum held for that purpose, and
recognized as a treaty by the other contracting State.
Executive Order 459 PROVIDING FOR THE GUIDELINES IN THE
NEGOTIATION OF INTERNATIONAL AGREEMENTS AND ITS
RATIFICATION
WHEREAS, the negotiations of international agreements are made in pursuance of the
foreign policy of the country;
WHEREAS, Executive Order No. 292, otherwise known as the Administrative Code of
1987, provides that the Department of Foreign Affairs shall be the lead agency that shall
advise and assist the President in planning, organizing, directing, coordinating and
evaluating the total national effort in the field of foreign relations;
WHEREAS, Executive Order No. 292 further provides that the Department of Foreign
Affairs shall negotiate treaties and other agreements pursuant to the instructions of the
President, and in coordination with other government agencies;
WHEREAS, there is a need to establish guidelines to govern the negotiation and
ratification of international agreements by the different agencies of the government;
NOW, THEREFORE, I, FIDEL V. RAMOS, President of the Philippines, by virtue of
the powers vested in me by the Constitution, do hereby order:
SECTION 1. Declaration of Policy. It is hereby declared the policy of the State that the
negotiations of all treaties and executive agreements, or any amendment thereto, shall be
coordinated with, and made only with the participation of, the Department of Foreign
Affairs in accordance with Executive Order No. 292. It is also declared the policy of the
State that the composition of any Philippine negotiation panel and the designation of the
chairman thereof shall be made in coordination with the Department of Foreign Affairs.
SEC. 2. Definition of Terms.
a. International agreement shall refer to a contract or understanding, regardless of
nomenclature, entered into between the Philippines and another government in written
form and governed by international law, whether embodied in a single instrument or in
two or more related instruments.
b. Treaties international agreements entered into by the Philippines which require
legislative concurrence after executive ratification. This term may include compacts like
conventions, declarations, covenants and acts.
c. Executive Agreements similar to treaties except that they do not require legislative
concurrence.
d. Full Powers authority granted by a Head of State or Government to a delegation head
enabling the latter to bind his country to the commitments made in the negotiations to be
pursued.
e. National Interest advantage or enhanced prestige or benefit to the country as defined
by its political and/or administrative leadership.
f. Provisional Effect recognition by one or both sides of the negotiation process that an
agreement be considered in force pending compliance with domestic requirements for the
effectivity of the agreement.
SEC. 3. Authority to Negotiate. Prior to any international meeting or negotiation of a
treaty or executive agreement, authorization must be secured by the lead agency from the
President through the Secretary of Foreign Affairs. The request for authorization shall be
in writing, proposing the composition of the Philippine delegation and recommending the
range of positions to be taken by that delegation. In case of negotiations of agreements,
changes of national policy or those involving international arrangements of a permanent
character entered into in the name of the Government of the Republic of the Philippines,
the authorization shall be in the form of Full Powers and formal instructions. In cases of
other agreements, a written authorization from the President shall be sufficient.
SEC. 4. Full Powers. The issuance of Full Powers shall be made by the President of the
Philippines who may delegate this function to the Secretary of Foreign Affairs.
The following persons, however, shall not require Full Powers prior to negotiating or
signing a treaty or an executive agreement, or any amendment thereto, by virtue of the
nature of their functions:
a. Secretary of Foreign Affairs;
b. Heads of Philippine diplomatic missions, for the purpose of adopting the text of a treaty
or an agreement between the Philippines and the State to which they are accredited;
1
c. Representatives accredited by the Philippines to an international conference or to an
international organization or one of its organs, for the purpose of adopting the text of a
treaty in that conference, organization or organ.
SEC. 5. Negotiations.
a. In cases involving negotiations of agreements, the composition of the Philippine panel
or delegation shall be determined by the President upon the recommendation of the
Secretary of Foreign Affairs and the lead agency if it is not the Department of Foreign
Affairs.
b. The lead agency in the negotiation of a treaty or an executive agreement, or any
amendment thereto, shall convene a meeting of the panel members prior to the
commencement of any negotiations for the purpose of establishing the parameters of the
negotiating position of the panel. No deviation from the agreed parameters shall be made
without prior consultations with the members of the negotiating panel.
SEC. 6. Entry into Force and Provisional Application of Treaties and Executive
Agreements.
a. A treaty or an executive agreement enters into force upon compliance with the domestic
requirements stated in this Order.
b. No treaty or executive agreement shall be given provisional effect unless it is shown
that a pressing national interest will be upheld thereby. The Department of Foreign
Affairs, in consultation with the concerned agencies, shall determine whether a treaty or
an executive agreement, or any amendment thereto, shall be given provisional effect.
SEC. 7. Domestic Requirements for the Entry into Force of a Treaty or an Executive
Agreement. The domestic requirements for the entry into force of a treaty or an
executive agreement, or any amendment thereto, shall be as follows:
A. Executive Agreements.
i. All executive agreements shall be transmitted to the Department of Foreign Affairs
after their signing for the preparation of the ratification papers. The transmittal shall
include the highlights of the agreements and the benefits which will accrue to the
Philippines arising from them.
ii. The Department of Foreign Affairs, pursuant to the endorsement by the concerned
agency, shall transmit the agreements to the President of the Philippines for his
ratification. The original signed instrument of ratification shall then be returned to the
Department of Foreign Affairs for appropriate action.
B. Treaties.
i. All treaties, regardless of their designation, shall comply with the requirements
provided in sub-paragraph 1 and 2, item A (Executive Agreements) of this Section. In
addition, the Department of Foreign Affairs shall submit the treaties to the Senate of the
Philippines for concurrence in the ratification by the President. A certified true copy of
the treaties, in such numbers as may be required by the Senate, together with a certified
true copy of the ratification instrument, shall accompany the submission of the treaties to
the Senate.
ii. Upon receipt of the concurrence by the Senate, the Department of Foreign Affairs shall
comply with the provision of the treaties in effecting their entry into force.
SEC. 8. Notice to Concerned Agencies. The Department of Foreign Affairs shall inform
the concerned agencies of the entry into force of the agreement.
SEC. 9. Determination of the Nature of the Agreement. The Department of Foreign
Affairs shall determine whether an agreement is an executive agreement or a treaty.
SEC. 10. Separability Clause. If, for any reason, any part or provision of this Order
shall be held unconstitutional or invalid, other parts or provisions hereof which are not
affected thereby shall continue to be in full force and effect.
SEC. 11. Repealing Clause. All executive orders, proclamations, memorandum orders
or memorandum circulars inconsistent herewith are hereby repealed or modified
accordingly.
SEC. 12. Effectivity. This Executive Order shall take effect immediately upon its
approval.
BAYAN vs ZAMORA
EN BANC [G.R. No. 138570. October 10, 2000]
DECISION
BUENA, J.:
Confronting the Court for resolution in the instant consolidated petitions for certiorari
and prohibition are issues relating to, and borne by, an agreement forged in the turn of
the last century between the Republic of the Philippines and the United States of America
-the Visiting Forces Agreement.
The antecedents unfold.
On March 14, 1947, the Philippines and the United States of America forged a Military
Bases Agreement which formalized, among others, the use of installations in the
Philippine territory by United States military personnel. To further strengthen their
defense and security relationship, the Philippines and the United States entered into a
Mutual Defense Treaty on August 30, 1951. Under the treaty, the parties agreed to
respond to any external armed attack on their territory, armed forces, public vessels, and
aircraft.[1]
In view of the impending expiration of the RP-US Military Bases Agreement in 1991, the
Philippines and the United States negotiated for a possible extension of the military bases
PIL - 110417
agreement. On September 16, 1991, the Philippine Senate rejected the proposed RP-US
Treaty of Friendship, Cooperation and Security which, in effect, would have extended
the presence of US military bases in the Philippines.[2] With the expiration of the RP-US
Military Bases Agreement, the periodic military exercises conducted between the two
countries were held in abeyance. Notwithstanding, the defense and security relationship
between the Philippines and the United States of America continued pursuant to the
Mutual Defense Treaty.
On July 18, 1997, the United States panel, headed by US Defense Deputy Assistant
Secretary for Asia Pacific Kurt Campbell, met with the Philippine panel, headed by
Foreign Affairs Undersecretary Rodolfo Severino Jr., to exchange notes on the
complementing strategic interests of the United States and the Philippines in the Asia-
Pacific region. Both sides discussed, among other things, the possible elements of the
Visiting Forces Agreement (VFA for brevity). Negotiations by both panels on the VFA
led to a consolidated draft text, which in turn resulted to a final series of conferences and
negotiations[3] that culminated in Manila on January 12 and 13, 1998. Thereafter, then
President Fidel V. Ramos approved the VFA, which was respectively signed by public
respondent Secretary Siazon and Unites States Ambassador Thomas Hubbard on
February 10, 1998.
On October 5, 1998, President Joseph E. Estrada, through respondent Secretary of
Foreign Affairs, ratified the VFA.[4]
On October 6, 1998, the President, acting through respondent Executive Secretary
Ronaldo Zamora, officially transmitted to the Senate of the Philippines,[5] the Instrument
of Ratification, the letter of the President[6] and the VFA, for concurrence pursuant to
Section 21, Article VII of the 1987 Constitution. The Senate, in turn, referred the VFA to
its Committee on Foreign Relations, chaired by Senator Blas F. Ople, and its Committee
on National Defense and Security, chaired by Senator Rodolfo G. Biazon, for their joint
consideration and recommendation. Thereafter, joint public hearings were held by the
two Committees.[7]
On May 3, 1999, the Committees submitted Proposed Senate Resolution No. 443[8]
recommending the concurrence of the Senate to the VFA and the creation of a Legislative
Oversight Committee to oversee its implementation. Debates then ensued.
On May 27, 1999, Proposed Senate Resolution No. 443 was approved by the Senate, by
a two-thirds (2/3) vote[9] of its members. Senate Resolution No. 443 was then re-
numbered as Senate Resolution No. 18.[10]
On June 1, 1999, the VFA officially entered into force after an Exchange of Notes
between respondent Secretary Siazon and United States Ambassador Hubbard.
The VFA, which consists of a Preamble and nine (9) Articles, provides for the mechanism
for regulating the circumstances and conditions under which US Armed Forces and
defense personnel may be present in the Philippines, and is quoted in its full text,
hereunder:
Article I
Definitions
As used in this Agreement, United States personnel means United States military and
civilian personnel temporarily in the Philippines in connection with activities approved
by the Philippine Government.
Within this definition:
1. The term military personnel refers to military members of the United States Army,
Navy, Marine Corps, Air Force, and Coast Guard.
2. The term civilian personnel refers to individuals who are neither nationals of, nor
ordinary residents in the Philippines and who are employed by the United States armed
forces or who are accompanying the United States armed forces, such as employees of
the American Red Cross and the United Services Organization.
Article II
Respect for Law
It is the duty of the United States personnel to respect the laws of the Republic of the
Philippines and to abstain from any activity inconsistent with the spirit of this agreement,
and, in particular, from any political activity in the Philippines. The Government of the
United States shall take all measures within its authority to ensure that this is done.
Article III
Entry and Departure
1. The Government of the Philippines shall facilitate the admission of United States
personnel and their departure from the Philippines in connection with activities covered
by this agreement.
2. United States military personnel shall be exempt from passport and visa regulations
upon entering and departing the Philippines.
3. The following documents only, which shall be presented on demand, shall be required
in respect of United States military personnel who enter the Philippines:
(a) personal identity card issued by the appropriate United States authority showing full
name, date of birth, rank or grade and service number (if any), branch of service and
photograph;
(b) individual or collective document issued by the appropriate United States authority,
authorizing the travel or visit and identifying the individual or group as United States
military personnel; and
(c) the commanding officer of a military aircraft or vessel shall present a declaration of
health, and when required by the cognizant representative of the Government of the
Philippines, shall conduct a quarantine inspection and will certify that the aircraft or
vessel is free from quarantinable diseases. Any quarantine inspection of United States
aircraft or United States vessels or cargoes thereon shall be conducted by the United
States commanding officer in accordance with the international health regulations as
promulgated by the World Health Organization, and mutually agreed procedures.
2
4. United States civilian personnel shall be exempt from visa requirements but shall
present, upon demand, valid passports upon entry and departure of the Philippines.
5. If the Government of the Philippines has requested the removal of any United States
personnel from its territory, the United States authorities shall be responsible for
receiving the person concerned within its own territory or otherwise disposing of said
person outside of the Philippines.
Article IV
Driving and Vehicle Registration
1. Philippine authorities shall accept as valid, without test or fee, a driving permit or
license issued by the appropriate United States authority to United States personnel for
the operation of military or official vehicles.
2. Vehicles owned by the Government of the United States need not be registered, but
shall have appropriate markings.
Article V
Criminal Jurisdiction
1. Subject to the provisions of this article:
(a) Philippine authorities shall have jurisdiction over United States personnel with respect
to offenses committed within the Philippines and punishable under the law of the
Philippines.
(b) United States military authorities shall have the right to exercise within the Philippines
all criminal and disciplinary jurisdiction conferred on them by the military law of the
United States over United States personnel in the Philippines.
2. (a) Philippine authorities exercise exclusive jurisdiction over United States personnel
with respect to offenses, including offenses relating to the security of the Philippines,
punishable under the laws of the Philippines, but not under the laws of the United States.
(b) United States authorities exercise exclusive jurisdiction over United States personnel
with respect to offenses, including offenses relating to the security of the United States,
punishable under the laws of the United States, but not under the laws of the Philippines.
(c) For the purposes of this paragraph and paragraph 3 of this article, an offense relating
to security means:
(1) treason;
(2) sabotage, espionage or violation of any law relating to national defense.
3. In cases where the right to exercise jurisdiction is concurrent, the following rules shall
apply:
(a) Philippine authorities shall have the primary right to exercise jurisdiction over all
offenses committed by United States personnel, except in cases provided for in
paragraphs 1(b), 2 (b), and 3 (b) of this Article.
(b) United States military authorities shall have the primary right to exercise jurisdiction
over United States personnel subject to the military law of the United States in relation
to.
(1) offenses solely against the property or security of the United States or offenses solely
against the property or person of United States personnel; and
(2) offenses arising out of any act or omission done in performance of official duty.
(c) The authorities of either government may request the authorities of the other
government to waive their primary right to exercise jurisdiction in a particular case.
(d) Recognizing the responsibility of the United States military authorities to maintain
good order and discipline among their forces, Philippine authorities will, upon request by
the United States, waive their primary right to exercise jurisdiction except in cases of
particular importance to the Philippines. If the Government of the Philippines determines
that the case is of particular importance, it shall communicate such determination to the
United States authorities within twenty (20) days after the Philippine authorities receive
the United States request.
(e) When the United States military commander determines that an offense charged by
authorities of the Philippines against United states personnel arises out of an act or
omission done in the performance of official duty, the commander will issue a certificate
setting forth such determination. This certificate will be transmitted to the appropriate
authorities of the Philippines and will constitute sufficient proof of performance of
official duty for the purposes of paragraph 3(b)(2) of this Article. In those cases where
the Government of the Philippines believes the circumstances of the case require a review
of the duty certificate, United States military authorities and Philippine authorities shall
consult immediately. Philippine authorities at the highest levels may also present any
information bearing on its validity. United States military authorities shall take full
account of the Philippine position. Where appropriate, United States military authorities
will take disciplinary or other action against offenders in official duty cases, and notify
the Government of the Philippines of the actions taken.
(f) If the government having the primary right does not exercise jurisdiction, it shall notify
the authorities of the other government as soon as possible.
(g) The authorities of the Philippines and the United States shall notify each other of the
disposition of all cases in which both the authorities of the Philippines and the United
States have the right to exercise jurisdiction.
4. Within the scope of their legal competence, the authorities of the Philippines and
United States shall assist each other in the arrest of United States personnel in the
Philippines and in handling them over to authorities who are to exercise jurisdiction in
accordance with the provisions of this article.
5. United States military authorities shall promptly notify Philippine authorities of the
arrest or detention of United States personnel who are subject of Philippine primary or
exclusive jurisdiction. Philippine authorities shall promptly notify United States military
authorities of the arrest or detention of any United States personnel.
PIL - 110417
6. The custody of any United States personnel over whom the Philippines is to exercise
jurisdiction shall immediately reside with United States military authorities, if they so
request, from the commission of the offense until completion of all judicial proceedings.
United States military authorities shall, upon formal notification by the Philippine
authorities and without delay, make such personnel available to those authorities in time
for any investigative or judicial proceedings relating to the offense with which the person
has been charged in extraordinary cases, the Philippine Government shall present its
position to the United States Government regarding custody, which the United States
Government shall take into full account. In the event Philippine judicial proceedings are
not completed within one year, the United States shall be relieved of any obligations
under this paragraph. The one-year period will not include the time necessary to appeal.
Also, the one-year period will not include any time during which scheduled trial
procedures are delayed because United States authorities, after timely notification by
Philippine authorities to arrange for the presence of the accused, fail to do so.
7. Within the scope of their legal authority, United States and Philippine authorities shall
assist each other in the carrying out of all necessary investigation into offenses and shall
cooperate in providing for the attendance of witnesses and in the collection and
production of evidence, including seizure and, in proper cases, the delivery of objects
connected with an offense.
8. When United States personnel have been tried in accordance with the provisions of
this Article and have been acquitted or have been convicted and are serving, or have
served their sentence, or have had their sentence remitted or suspended, or have been
pardoned, they may not be tried again for the same offense in the Philippines. Nothing in
this paragraph, however, shall prevent United States military authorities from trying
United States personnel for any violation of rules of discipline arising from the act or
omission which constituted an offense for which they were tried by Philippine authorities.
9. When United States personnel are detained, taken into custody, or prosecuted by
Philippine authorities, they shall be accorded all procedural safeguards established by the
law of the Philippines. At the minimum, United States personnel shall be entitled:
(a) To a prompt and speedy trial;
(b) To be informed in advance of trial of the specific charge or charges made against them
and to have reasonable time to prepare a defense;
(c) To be confronted with witnesses against them and to cross examine such witnesses;
(d) To present evidence in their defense and to have compulsory process for obtaining
witnesses;
(e) To have free and assisted legal representation of their own choice on the same basis
as nationals of the Philippines;
(f) To have the service of a competent interpreter; and
(g) To communicate promptly with and to be visited regularly by United States
authorities, and to have such authorities present at all judicial proceedings. These
proceedings shall be public unless the court, in accordance with Philippine laws, excludes
persons who have no role in the proceedings.
10. The confinement or detention by Philippine authorities of United States personnel
shall be carried out in facilities agreed on by appropriate Philippine and United States
authorities. United States Personnel serving sentences in the Philippines shall have the
right to visits and material assistance.
11. United States personnel shall be subject to trial only in Philippine courts of ordinary
jurisdiction, and shall not be subject to the jurisdiction of Philippine military or religious
courts.
Article VI
Claims
1. Except for contractual arrangements, including United States foreign military sales
letters of offer and acceptance and leases of military equipment, both governments waive
any and all claims against each other for damage, loss or destruction to property of each
others armed forces or for death or injury to their military and civilian personnel arising
from activities to which this agreement applies.
2. For claims against the United States, other than contractual claims and those to which
paragraph 1 applies, the United States Government, in accordance with United States law
regarding foreign claims, will pay just and reasonable compensation in settlement of
meritorious claims for damage, loss, personal injury or death, caused by acts or omissions
of United States personnel, or otherwise incident to the non-combat activities of the
United States forces.
Article VII
Importation and Exportation
1. United States Government equipment, materials, supplies, and other property imported
into or acquired in the Philippines by or on behalf of the United States armed forces in
connection with activities to which this agreement applies, shall be free of all Philippine
duties, taxes and other similar charges. Title to such property shall remain with the United
States, which may remove such property from the Philippines at any time, free from
export duties, taxes, and other similar charges. The exemptions provided in this paragraph
shall also extend to any duty, tax, or other similar charges which would otherwise be
assessed upon such property after importation into, or acquisition within, the Philippines.
Such property may be removed from the Philippines, or disposed of therein, provided that
disposition of such property in the Philippines to persons or entities not entitled to
exemption from applicable taxes and duties shall be subject to payment of such taxes,
and duties and prior approval of the Philippine Government.
2. Reasonable quantities of personal baggage, personal effects, and other property for the
personal use of United States personnel may be imported into and used in the Philippines
free of all duties, taxes and other similar charges during the period of their temporary stay
in the Philippines. Transfers to persons or entities in the Philippines not entitled to import
privileges may only be made upon prior approval of the appropriate Philippine authorities
including payment by the recipient of applicable duties and taxes imposed in accordance
with the laws of the Philippines. The exportation of such property and of property
3
acquired in the Philippines by United States personnel shall be free of all Philippine
duties, taxes, and other similar charges.
Article VIII
Movement of Vessels and Aircraft
1. Aircraft operated by or for the United States armed forces may enter the Philippines
upon approval of the Government of the Philippines in accordance with procedures
stipulated in implementing arrangements.
2. Vessels operated by or for the United States armed forces may enter the Philippines
upon approval of the Government of the Philippines. The movement of vessels shall be
in accordance with international custom and practice governing such vessels, and such
agreed implementing arrangements as necessary.
3. Vehicles, vessels, and aircraft operated by or for the United States armed forces shall
not be subject to the payment of landing or port fees, navigation or over flight charges,
or tolls or other use charges, including light and harbor dues, while in the Philippines.
Aircraft operated by or for the United States armed forces shall observe local air traffic
control regulations while in the Philippines. Vessels owned or operated by the United
States solely on United States Government non-commercial service shall not be subject
to compulsory pilotage at Philippine ports.
Article IX
Duration and Termination
This agreement shall enter into force on the date on which the parties have notified each
other in writing through the diplomatic channel that they have completed their
constitutional requirements for entry into force. This agreement shall remain in force until
the expiration of 180 days from the date on which either party gives the other party notice
in writing that it desires to terminate the agreement.
Via these consolidated[11] petitions for certiorari and prohibition, petitioners - as
legislators, non-governmental organizations, citizens and taxpayers - assail the
constitutionality of the VFA and impute to herein respondents grave abuse of discretion
in ratifying the agreement.
We have simplified the issues raised by the petitioners into the following:
I
Do petitioners have legal standing as concerned citizens, taxpayers, or legislators to
question the constitutionality of the VFA?
II
Is the VFA governed by the provisions of Section 21, Article VII or of Section 25, Article
XVIII of the Constitution?
III
Does the VFA constitute an abdication of Philippine sovereignty?
a. Are Philippine courts deprived of their jurisdiction to hear and try offenses committed
by US military personnel?
b. Is the Supreme Court deprived of its jurisdiction over offenses punishable by reclusion
perpetua or higher?
IV
Does the VFA violate:
a. the equal protection clause under Section 1, Article III of the Constitution?
b. the Prohibition against nuclear weapons under Article II, Section 8?
c. Section 28 (4), Article VI of the Constitution granting the exemption from taxes and
duties for the equipment, materials supplies and other properties imported into or
acquired in the Philippines by, or on behalf, of the US Armed Forces?
LOCUS STANDI
At the outset, respondents challenge petitioners standing to sue, on the ground that the
latter have not shown any interest in the case, and that petitioners failed to substantiate
that they have sustained, or will sustain direct injury as a result of the operation of the
VFA.[12] Petitioners, on the other hand, counter that the validity or invalidity of the VFA
is a matter of transcendental importance which justifies their standing.[13]
A party bringing a suit challenging the constitutionality of a law, act, or statute must show
not only that the law is invalid, but also that he has sustained or in is in immediate, or
imminent danger of sustaining some direct injury as a result of its enforcement, and not
merely that he suffers thereby in some indefinite way. He must show that he has been, or
is about to be, denied some right or privilege to which he is lawfully entitled, or that he
is about to be subjected to some burdens or penalties by reason of the statute complained
of.[14]
In the case before us, petitioners failed to show, to the satisfaction of this Court, that they
have sustained, or are in danger of sustaining any direct injury as a result of the
enforcement of the VFA. As taxpayers, petitioners have not established that the VFA
involves the exercise by Congress of its taxing or spending powers.[15] On this point, it
bears stressing that a taxpayers suit refers to a case where the act complained of directly
involves the illegal disbursement of public funds derived from taxation.[16] Thus, in
Bugnay Const. & Development Corp. vs. Laron[17], we held:
x x x it is exigent that the taxpayer-plaintiff sufficiently show that he would be benefited
or injured by the judgment or entitled to the avails of the suit as a real party in interest.
Before he can invoke the power of judicial review, he must specifically prove that he has
sufficient interest in preventing the illegal expenditure of money raised by taxation and
that he will sustain a direct injury as a result of the enforcement of the questioned statute
or contract. It is not sufficient that he has merely a general interest common to all
members of the public.
PIL - 110417
Clearly, inasmuch as no public funds raised by taxation are involved in this case, and in
the absence of any allegation by petitioners that public funds are being misspent or
illegally expended, petitioners, as taxpayers, have no legal standing to assail the legality
of the VFA.
Similarly, Representatives Wigberto Taada, Agapito Aquino and Joker Arroyo, as
petitioners-legislators, do not possess the requisite locus standi to maintain the present
suit. While this Court, in Phil. Constitution Association vs. Hon. Salvador Enriquez,[18]
sustained the legal standing of a member of the Senate and the House of Representatives
to question the validity of a presidential veto or a condition imposed on an item in an
appropriation bull, we cannot, at this instance, similarly uphold petitioners standing as
members of Congress, in the absence of a clear showing of any direct injury to their
person or to the institution to which they belong.
Beyond this, the allegations of impairment of legislative power, such as the delegation of
the power of Congress to grant tax exemptions, are more apparent than real. While it may
be true that petitioners pointed to provisions of the VFA which allegedly impair their
legislative powers, petitioners failed however to sufficiently show that they have in fact
suffered direct injury.
In the same vein, petitioner Integrated Bar of the Philippines (IBP) is stripped of standing
in these cases. As aptly observed by the Solicitor General, the IBP lacks the legal capacity
to bring this suit in the absence of a board resolution from its Board of Governors
authorizing its National President to commence the present action.[19]
Notwithstanding, in view of the paramount importance and the constitutional significance
of the issues raised in the petitions, this Court, in the exercise of its sound discretion,
brushes aside the procedural barrier and takes cognizance of the petitions, as we have
done in the early Emergency Powers Cases,[20] where we had occasion to rule:
x x x ordinary citizens and taxpayers were allowed to question the constitutionality of
several executive orders issued by President Quirino although they were involving only
an indirect and general interest shared in common with the public. The Court dismissed
the objection that they were not proper parties and ruled that transcendental importance
to the public of these cases demands that they be settled promptly and definitely, brushing
aside, if we must, technicalities of procedure. We have since then applied the exception
in many other cases. (Association of Small Landowners in the Philippines, Inc. v. Sec. of
Agrarian Reform, 175 SCRA 343). (Underscoring Supplied)
This principle was reiterated in the subsequent cases of Gonzales vs. COMELEC,[21]
Daza vs. Singson,[22] and Basco vs. Phil. Amusement and Gaming Corporation,[23]
where we emphatically held:
Considering however the importance to the public of the case at bar, and in keeping with
the Courts duty, under the 1987 Constitution, to determine whether or not the other
branches of the government have kept themselves within the limits of the Constitution
and the laws and that they have not abused the discretion given to them, the Court has
brushed aside technicalities of procedure and has taken cognizance of this petition. x x x
Again, in the more recent case of Kilosbayan vs. Guingona, Jr.,[24] thisCourt ruled that
in cases of transcendental importance, the Court may relax the standing requirements and
allow a suit to prosper even where there is no direct injury to the party claiming the right
of judicial review.
Although courts generally avoid having to decide a constitutional question based on the
doctrine of separation of powers, which enjoins upon the departments of the government
a becoming respect for each others acts,[25] this Court nevertheless resolves to take
cognizance of the instant petitions.
APPLICABLE CONSTITUTIONAL PROVISION
One focal point of inquiry in this controversy is the determination of which provision of
the Constitution applies, with regard to the exercise by the senate of its constitutional
power to concur with the VFA. Petitioners argue that Section 25, Article XVIII is
applicable considering that the VFA has for its subject the presence of foreign military
troops in the Philippines. Respondents, on the contrary, maintain that Section 21, Article
VII should apply inasmuch as the VFA is not a basing arrangement but an agreement
which involves merely the temporary visits of United States personnel engaged in joint
military exercises.
The 1987 Philippine Constitution contains two provisions requiring the concurrence of
the Senate on treaties or international agreements. Section 21, Article VII, which herein
respondents invoke, reads:
No treaty or international agreement shall be valid and effective unless concurred in by
at least two-thirds of all the Members of the Senate.
Section 25, Article XVIII, provides:
After the expiration in 1991 of the Agreement between the Republic of the Philippines
and the United States of America concerning Military Bases, foreign military bases,
troops, or facilities shall not be allowed in the Philippines except under a treaty duly
concurred in by the senate and, when the Congress so requires, ratified by a majority of
the votes cast by the people in a national referendum held for that purpose, and recognized
as a treaty by the other contracting State.
Section 21, Article VII deals with treatise or international agreements in general, in which
case, the concurrence of at least two-thirds (2/3) of all the Members of the Senate is
required to make the subject treaty, or international agreement, valid and binding on the
part of the Philippines. This provision lays down the general rule on treatise or
international agreements and applies to any form of treaty with a wide variety of subject
matter, such as, but not limited to, extradition or tax treatise or those economic in nature.
All treaties or international agreements entered into by the Philippines, regardless of
subject matter, coverage, or particular designation or appellation, requires the
concurrence of the Senate to be valid and effective.
In contrast, Section 25, Article XVIII is a special provision that applies to treaties which
involve the presence of foreign military bases, troops or facilities in the Philippines.
Under this provision, the concurrence of the Senate is only one of the requisites to render
compliance with the constitutional requirements and to consider the agreement binding
on the Philippines. Section 25, Article XVIII further requires that foreign military bases,
troops, or facilities may be allowed in the Philippines only by virtue of a treaty duly
concurred in by the Senate, ratified by a majority of the votes cast in a national
4
referendum held for that purpose if so required by Congress, and recognized as such by
the other contracting state.
It is our considered view that both constitutional provisions, far from contradicting each
other, actually share some common ground. These constitutional provisions both embody
phrases in the negative and thus, are deemed prohibitory in mandate and character. In
particular, Section 21 opens with the clause No treaty x x x, and Section 25 contains the
phrase shall not be allowed. Additionally, in both instances, the concurrence of the Senate
is indispensable to render the treaty or international agreement valid and effective.
To our mind, the fact that the President referred the VFA to the Senate under Section 21,
Article VII, and that the Senate extended its concurrence under the same provision, is
immaterial. For in either case, whether under Section 21, Article VII or Section 25,
Article XVIII, the fundamental law is crystalline that the concurrence of the Senate is
mandatory to comply with the strict constitutional requirements.
On the whole, the VFA is an agreement which defines the treatment of United States
troops and personnel visiting the Philippines. It provides for the guidelines to govern such
visits of military personnel, and further defines the rights of the United States and the
Philippine government in the matter of criminal jurisdiction, movement of vessel and
aircraft, importation and exportation of equipment, materials and supplies.
Undoubtedly, Section 25, Article XVIII, which specifically deals with treaties involving
foreign military bases, troops, or facilities, should apply in the instant case. To a certain
extent and in a limited sense, however, the provisions of section 21, Article VII will find
applicability with regard to the issue and for the sole purpose of determining the number
of votes required to obtain the valid concurrence of the Senate, as will be further discussed
hereunder.
It is a finely-imbedded principle in statutory construction that a special provision or law
prevails over a general one. Lex specialis derogat generali. Thus, where there is in the
same statute a particular enactment and also a general one which, in its most
comprehensive sense, would include what is embraced in the former, the particular
enactment must be operative, and the general enactment must be taken to affect only such
cases within its general language which are not within the provision of the particular
enactment.[26]
In Leveriza vs. Intermediate Appellate Court,[27] we enunciated:
x x x that another basic principle of statutory construction mandates that general
legislation must give way to a special legislation on the same subject, and generally be
so interpreted as to embrace only cases in which the special provisions are not applicable
(Sto. Domingo vs. de los Angeles, 96 SCRA 139), that a specific statute prevails over a
general statute (De Jesus vs. People, 120 SCRA 760) and that where two statutes are of
equal theoretical application to a particular case, the one designed therefor specially
should prevail (Wil Wilhensen Inc. vs. Baluyot, 83 SCRA 38).
Moreover, it is specious to argue that Section 25, Article XVIII is inapplicable to mere
transient agreements for the reason that there is no permanent placing of structure for the
establishment of a military base. On this score, the Constitution makes no distinction
between transient and permanent. Certainly, we find nothing in Section 25, Article XVIII
that requires foreign troops or facilities to be stationed or placed permanently in the
Philippines.
It is a rudiment in legal hermenuetics that when no distinction is made by law, the Court
should not distinguish- Ubi lex non distinguit nec nos distinguire debemos.
In like manner, we do not subscribe to the argument that Section 25, Article XVIII is not
controlling since no foreign military bases, but merely foreign troops and facilities, are
involved in the VFA. Notably, a perusal of said constitutional provision reveals that the
proscription covers foreign military bases, troops, or facilities. Stated differently, this
prohibition is not limited to the entry of troops and facilities without any foreign bases
being established. The clause does not refer to foreign military bases, troops, or facilities
collectively but treats them as separate and independent subjects. The use of comma and
the disjunctive word or clearly signifies disassociation and independence of one thing
from the others included in the enumeration,[28] such that, the provision contemplates
three different situations - a military treaty the subject of which could be either (a) foreign
bases, (b) foreign troops, or (c) foreign facilities - any of the three standing alone places
it under the coverage of Section 25, Article XVIII.
To this end, the intention of the framers of the Charter, as manifested during the
deliberations of the 1986 Constitutional Commission, is consistent with this
interpretation:
MR. MAAMBONG. I just want to address a question or two to Commissioner Bernas.
This formulation speaks of three things: foreign military bases, troops or facilities. My
first question is: If the country does enter into such kind of a treaty, must it cover the
three-bases, troops or facilities-or could the treaty entered into cover only one or two?
FR. BERNAS. Definitely, it can cover only one. Whether it covers only one or it covers
three, the requirement will be the same.
MR. MAAMBONG. In other words, the Philippine government can enter into a treaty
covering not bases but merely troops?
FR. BERNAS. Yes.
MR. MAAMBONG. I cannot find any reason why the government can enter into a treaty
covering only troops.
FR. BERNAS. Why not? Probably if we stretch our imagination a little bit more, we will
find some. We just want to cover everything.[29] (Underscoring Supplied)
Moreover, military bases established within the territory of another state is no longer
viable because of the alternatives offered by new means and weapons of warfare such as
nuclear weapons, guided missiles as well as huge sea vessels that can stay afloat in the
sea even for months and years without returning to their home country. These military
warships are actually used as substitutes for a land-home base not only of military aircraft
but also of military personnel and facilities. Besides, vessels are mobile as compared to a
land-based military headquarters.
PIL - 110417
At this juncture, we shall then resolve the issue of whether or not the requirements of
Section 25 were complied with when the Senate gave its concurrence to the VFA.
Section 25, Article XVIII disallows foreign military bases, troops, or facilities in the
country, unless the following conditions are sufficiently met, viz: (a) it must be under a
treaty; (b) the treaty must be duly concurred in by the Senate and, when so required by
congress, ratified by a majority of the votes cast by the people in a national referendum;
and (c) recognized as a treaty by the other contracting state.
There is no dispute as to the presence of the first two requisites in the case of the VFA.
The concurrence handed by the Senate through Resolution No. 18 is in accordance with
the provisions of the Constitution, whether under the general requirement in Section 21,
Article VII, or the specific mandate mentioned in Section 25, Article XVIII, the provision
in the latter article requiring ratification by a majority of the votes cast in a national
referendum being unnecessary since Congress has not required it.
As to the matter of voting, Section 21, Article VII particularly requires that a treaty or
international agreement, to be valid and effective, must be concurred in by at least two-
thirds of all the members of the Senate. On the other hand, Section 25, Article XVIII
simply provides that the treaty be duly concurred in by the Senate.
Applying the foregoing constitutional provisions, a two-thirds vote of all the members of
the Senate is clearly required so that the concurrence contemplated by law may be validly
obtained and deemed present. While it is true that Section 25, Article XVIII requires,
among other things, that the treaty-the VFA, in the instant case-be duly concurred in by
the Senate, it is very true however that said provision must be related and viewed in light
of the clear mandate embodied in Section 21, Article VII, which in more specific terms,
requires that the concurrence of a treaty, or international agreement, be made by a two -
thirds vote of all the members of the Senate. Indeed, Section 25, Article XVIII must not
be treated in isolation to section 21, Article, VII.
As noted, the concurrence requirement under Section 25, Article XVIII must be construed
in relation to the provisions of Section 21, Article VII. In a more particular language, the
concurrence of the Senate contemplated under Section 25, Article XVIII means that at
least two-thirds of all the members of the Senate favorably vote to concur with the treaty-
the VFA in the instant case.
Under these circumstances, the charter provides that the Senate shall be composed of
twenty-four (24) Senators.[30] Without a tinge of doubt, two-thirds (2/3) of this figure,
or not less than sixteen (16) members, favorably acting on the proposal is an
unquestionable compliance with the requisite number of votes mentioned in Section 21
of Article VII. The fact that there were actually twenty-three (23) incumbent Senators at
the time the voting was made,[31] will not alter in any significant way the circumstance
that more than two-thirds of the members of the Senate concurred with the proposed
VFA, even if the two-thirds vote requirement is based on this figure of actual members
(23). In this regard, the fundamental law is clear that two-thirds of the 24 Senators, or at
least 16 favorable votes, suffice so as to render compliance with the strict constitutional
mandate of giving concurrence to the subject treaty.
Having resolved that the first two requisites prescribed in Section 25, Article XVIII are
present, we shall now pass upon and delve on the requirement that the VFA should be
recognized as a treaty by the United States of America.
Petitioners content that the phrase recognized as a treaty, embodied in section 25, Article
XVIII, means that the VFA should have the advice and consent of the United States
Senate pursuant to its own constitutional process, and that it should not be considered
merely an executive agreement by the United States.
In opposition, respondents argue that the letter of United States Ambassador Hubbard
stating that the VFA is binding on the United States Government is conclusive, on the
point that the VFA is recognized as a treaty by the United States of America. According
to respondents, the VFA, to be binding, must only be accepted as a treaty by the United
States.
This Court is of the firm view that the phrase recognized as a treaty means that the other
contracting party accepts or acknowledges the agreement as a treaty.[32] To require the
other contracting state, the United States of America in this case, to submit the VFA to
the United States Senate for concurrence pursuant to its Constitution,[33] is to accord
strict meaning to the phrase.
Well-entrenched is the principle that the words used in the Constitution are to be given
their ordinary meaning except where technical terms are employed, in which case the
significance thus attached to them prevails. Its language should be understood in the sense
they have in common use.[34]
Moreover, it is inconsequential whether the United States treats the VFA only as an
executive agreement because, under international law, an executive agreement is as
binding as a treaty.[35] To be sure, as long as the VFA possesses the elements of an
agreement under international law, the said agreement is to be taken equally as a treaty.
A treaty, as defined by the Vienna Convention on the Law of Treaties, is an international
instrument concluded between States in written form and governed by international law,
whether embodied in a single instrument or in two or more related instruments, and
whatever its particular designation.[36] There are many other terms used for a treaty or
international agreement, some of which are: act, protocol, agreement, compromis d
arbitrage, concordat, convention, declaration, exchange of notes, pact, statute, charter and
modus vivendi. All writers, from Hugo Grotius onward, have pointed out that the names
or titles of international agreements included under the general term treaty have little or
no legal significance. Certain terms are useful, but they furnish little more than mere
description.[37]
Article 2(2) of the Vienna Convention provides that the provisions of paragraph 1
regarding the use of terms in the present Convention are without prejudice to the use of
those terms, or to the meanings which may be given to them in the internal law of the
State.
Thus, in international law, there is no difference between treaties and executive
agreements in their binding effect upon states concerned, as long as the negotiating
functionaries have remained within their powers.[38] International law continues to make
no distinction between treaties and executive agreements: they are equally binding
obligations upon nations.[39]
5
In our jurisdiction, we have recognized the binding effect of executive agreements even
without the concurrence of the Senate or Congress. In Commissioner of Customs vs.
Eastern Sea Trading,[40] we had occasion to pronounce:
x x x the right of the Executive to enter into binding agreements without the necessity of
subsequent congressional approval has been confirmed by long usage. From the earliest
days of our history we have entered into executive agreements covering such subjects as
commercial and consular relations, most-favored-nation rights, patent rights, trademark
and copyright protection, postal and navigation arrangements and the settlement of
claims. The validity of these has never been seriously questioned by our courts.
xxxxxxxxx
Furthermore, the United States Supreme Court has expressly recognized the validity and
constitutionality of executive agreements entered into without Senate approval. (39
Columbia Law Review, pp. 753-754) (See, also, U.S. vs. Curtis Wright Export
Corporation, 299 U.S. 304, 81 L. ed. 255; U.S. vs. Belmont, 301 U.S. 324, 81 L. ed. 1134;
U.S. vs. Pink, 315 U.S. 203, 86 L. ed. 796; Ozanic vs. U.S. 188 F. 2d. 288; Yale Law
Journal, Vol. 15 pp. 1905-1906; California Law Review, Vol. 25, pp. 670-675; Hyde on
International Law [revised Edition], Vol. 2, pp. 1405, 1416-1418; willoughby on the U.S.
Constitution Law, Vol. I [2d ed.], pp. 537-540; Moore, International Law Digest, Vol. V,
pp. 210-218; Hackworth, International Law Digest, Vol. V, pp. 390-407). (Italics
Supplied) (Emphasis Ours)
The deliberations of the Constitutional Commission which drafted the 1987 Constitution
is enlightening and highly-instructive:
MR. MAAMBONG. Of course it goes without saying that as far as ratification of the
other state is concerned, that is entirely their concern under their own laws.
FR. BERNAS. Yes, but we will accept whatever they say. If they say that we have done
everything to make it a treaty, then as far as we are concerned, we will accept it as a
treaty.[41]
The records reveal that the United States Government, through Ambassador Thomas C.
Hubbard, has stated that the United States government has fully committed to living up
to the terms of the VFA.[42] For as long as the united States of America accepts or
acknowledges the VFA as a treaty, and binds itself further to comply with its obligations
under the treaty, there is indeed marked compliance with the mandate of the Constitution.
Worth stressing too, is that the ratification, by the President, of the VFA and the
concurrence of the Senate should be taken as a clear an unequivocal expression of our
nations consent to be bound by said treaty, with the concomitant duty to uphold the
obligations and responsibilities embodied thereunder.
Ratification is generally held to be an executive act, undertaken by the head of the state
or of the government, as the case may be, through which the formal acceptance of the
treaty is proclaimed.[43] A State may provide in its domestic legislation the process of
ratification of a treaty. The consent of the State to be bound by a treaty is expressed by
ratification when: (a) the treaty provides for such ratification, (b) it is otherwise
established that the negotiating States agreed that ratification should be required, (c) the
representative of the State has signed the treaty subject to ratification, or (d) the intention
of the State to sign the treaty subject to ratification appears from the full powers of its
representative, or was expressed during the negotiation.[44]
In our jurisdiction, the power to ratify is vested in the President and not, as commonly
believed, in the legislature. The role of the Senate is limited only to giving or withholding
its consent, or concurrence, to the ratification.[45]
With the ratification of the VFA, which is equivalent to final acceptance, and with the
exchange of notes between the Philippines and the United States of America, it now
becomes obligatory and incumbent on our part, under the principles of international law,
to be bound by the terms of the agreement. Thus, no less than Section 2, Article II of the
Constitution,[46] declares that the Philippines adopts the generally accepted principles of
international law as part of the law of the land and adheres to the policy of peace, equality,
justice, freedom, cooperation and amity with all nations.
As a member of the family of nations, the Philippines agrees to be bound by generally
accepted rules for the conduct of its international relations. While the international
obligation devolves upon the state and not upon any particular branch, institution, or
individual member of its government, the Philippines is nonetheless responsible for
violations committed by any branch or subdivision of its government or any official
thereof. As an integral part of the community of nations, we are responsible to assure that
our government, Constitution and laws will carry out our international obligation.[47]
Hence, we cannot readily plead the Constitution as a convenient excuse for non-
compliance with our obligations, duties and responsibilities under international law.
Beyond this, Article 13 of the Declaration of Rights and Duties of States adopted by the
International Law Commission in 1949 provides: Every State has the duty to carry out in
good faith its obligations arising from treaties and other sources of international law, and
it may not invoke provisions in its constitution or its laws as an excuse for failure to
perform this duty.[48]
Equally important is Article 26 of the convention which provides that Every treaty in
force is binding upon the parties to it and must be performed by them in good faith. This
is known as the principle of pacta sunt servanda which preserves the sanctity of treaties
and have been one of the most fundamental principles of positive international law,
supported by the jurisprudence of international tribunals.[49]
NO GRAVE ABUSE OF DISCRETION
In the instant controversy, the President, in effect, is heavily faulted for exercising a
power and performing a task conferred upon him by the Constitution-the power to enter
into and ratify treaties. Through the expediency of Rule 65 of the Rules of Court,
petitioners in these consolidated cases impute grave abuse of discretion on the part of the
chief Executive in ratifying the VFA, and referring the same to the Senate pursuant to the
provisions of Section 21, Article VII of the Constitution.
On this particular matter, grave abuse of discretion implies such capricious and whimsical
exercise of judgment as is equivalent to lack of jurisdiction, or, when the power is
exercised in an arbitrary or despotic manner by reason of passion or personal hostility,
and it must be so patent and gross as to amount to an evasion of positive duty enjoined or
to act at all in contemplation of law.[50]
PIL - 110417
By constitutional fiat and by the intrinsic nature of his office, the President, as head of
State, is the sole organ and authority in the external affairs of the country. In many ways,
the President is the chief architect of the nations foreign policy; his dominance in the field
of foreign relations is (then) conceded.[51] Wielding vast powers an influence, his
conduct in the external affairs of the nation, as Jefferson describes, is executive
altogether."[52]
As regards the power to enter into treaties or international agreements, the Constitution
vests the same in the President, subject only to the concurrence of at least two-thirds vote
of all the members of the Senate. In this light, the negotiation of the VFA and the
subsequent ratification of the agreement are exclusive acts which pertain solely to the
President, in the lawful exercise of his vast executive and diplomatic powers granted him
no less than by the fundamental law itself. Into the field of negotiation the Senate cannot
intrude, and Congress itself is powerless to invade it.[53] Consequently, the acts or
judgment calls of the President involving the VFA-specifically the acts of ratification and
entering into a treaty and those necessary or incidental to the exercise of such principal
acts - squarely fall within the sphere of his constitutional powers and thus, may not be
validly struck down, much less calibrated by this Court, in the absence of clear showing
of grave abuse of power or discretion.
It is the Courts considered view that the President, in ratifying the VFA and in submitting
the same to the Senate for concurrence, acted within the confines and limits of the powers
vested in him by the Constitution. It is of no moment that the President, in the exercise
of his wide latitude of discretion and in the honest belief that the VFA falls within the
ambit of Section 21, Article VII of the Constitution, referred the VFA to the Senate for
concurrence under the aforementioned provision. Certainly, no abuse of discretion, much
less a grave, patent and whimsical abuse of judgment, may be imputed to the President
in his act of ratifying the VFA and referring the same to the Senate for the purpose of
complying with the concurrence requirement embodied in the fundamental law. In doing
so, the President merely performed a constitutional task and exercised a prerogative that
chiefly pertains to the functions of his office. Even if he erred in submitting the VFA to
the Senate for concurrence under the provisions of Section 21 of Article VII, instead of
Section 25 of Article XVIII of the Constitution, still, the President may not be faulted or
scarred, much less be adjudged guilty of committing an abuse of discretion in some
patent, gross, and capricious manner.
For while it is conceded that Article VIII, Section 1, of the Constitution has broadened
the scope of judicial inquiry into areas normally left to the political departments to decide,
such as those relating to national security, it has not altogether done away with political
questions such as those which arise in the field of foreign relations.[54] The High
Tribunals function, as sanctioned by Article VIII, Section 1, is merely (to) check whether
or not the governmental branch or agency has gone beyond the constitutional limits of its
jurisdiction, not that it erred or has a different view. In the absence of a showing (of)
grave abuse of discretion amounting to lack of jurisdiction, there is no occasion for the
Court to exercise its corrective powerIt has no power to look into what it thinks is
apparent error.[55]
As to the power to concur with treaties, the constitution lodges the same with the Senate
alone. Thus, once the Senate[56] performs that power, or exercises its prerogative within
the boundaries prescribed by the Constitution, the concurrence cannot, in like manner, be
viewed to constitute an abuse of power, much less grave abuse thereof. Corollarily, the
Senate, in the exercise of its discretion and acting within the limits of such power, may
not be similarly faulted for having simply performed a task conferred and sanctioned by
no less than the fundamental law.
For the role of the Senate in relation to treaties is essentially legislative in character;[57]
the Senate, as an independent body possessed of its own erudite mind, has the prerogative
to either accept or reject the proposed agreement, and whatever action it takes in the
exercise of its wide latitude of discretion, pertains to the wisdom rather than the legality
of the act. In this sense, the Senate partakes a principal, yet delicate, role in keeping the
principles of separation of powers and of checks and balances alive and vigilantly ensures
that these cherished rudiments remain true to their form in a democratic government such
as ours. The Constitution thus animates, through this treaty-concurring power of the
Senate, a healthy system of checks and balances indispensable toward our nations pursuit
of political maturity and growth. True enough, rudimentary is the principle that matters
pertaining to the wisdom of a legislative act are beyond the ambit and province of the
courts to inquire.
In fine, absent any clear showing of grave abuse of discretion on the part of respondents,
this Court- as the final arbiter of legal controversies and staunch sentinel of the rights of
the people - is then without power to conduct an incursion and meddle with such affairs
purely executive and legislative in character and nature. For the Constitution no less,
maps out the distinct boundaries and limits the metes and bounds within which each of
the three political branches of government may exercise the powers exclusively and
essentially conferred to it by law.
WHEREFORE, in light of the foregoing disquisitions, the instant petitions are hereby
DISMISSED.
SO ORDERED.
PHARMACEUTICAL vs DOH
GR 173034, October 09, 2007
DECISION
AUSTRIA-MARTINEZ, J.:
The Court and all parties involved are in agreement that the best nourishment for an infant
is mother's milk. There is nothing greater than for a mother to nurture her beloved child
straight from her bosom. The ideal is, of course, for each and every Filipino child to enjoy
the unequaled benefits of breastmilk. But how should this end be attained?
Before the Court is a petition for certiorari under Rule 65 of the Rules of Court, seeking
to nullify Administrative Order (A.O.) No. 2006-0012 entitled, Revised Implementing
Rules and Regulations of Executive Order No. 51, Otherwise Known as The Milk Code,
Relevant International Agreements, Penalizing Violations Thereof, and for Other
Purposes (RIRR). Petitioner posits that the RIRR is not valid as it contains provisions that
are not constitutional and go beyond the law it is supposed to implement.
Named as respondents are the Health Secretary, Undersecretaries, and Assistant
Secretaries of the Department of Health (DOH). For purposes of herein petition, the DOH
is deemed impleaded as a co-respondent since respondents issued the questioned RIRR
in their capacity as officials of said executive agency.[1]
6
Executive Order No. 51 (Milk Code) was issued by President Corazon Aquino on October
28, 1986 by virtue of the legislative powers granted to the president under the Freedom
Constitution. One of the preambular clauses of the Milk Code states that the law seeks to
give effect to Article 11[2] of the International Code of Marketing of Breastmilk
Substitutes (ICMBS), a code adopted by the World Health Assembly (WHA) in 1981.
From 1982 to 2006, the WHA adopted several Resolutions to the effect that breastfeeding
should be supported, promoted and protected, hence, it should be ensured that nutrition
and health claims are not permitted for breastmilk substitutes.
In 1990, the Philippines ratified the International Convention on the Rights of the Child.
Article 24 of said instrument provides that State Parties should take appropriate measures
to diminish infant and child mortality, and ensure that all segments of society, specially
parents and children, are informed of the advantages of breastfeeding.
On May 15, 2006, the DOH issued herein assailed RIRR which was to take effect on July
7, 2006.
However, on June 28, 2006, petitioner, representing its members that are manufacturers
of breastmilk substitutes, filed the present Petition for Certiorari and Prohibition with
Prayer for the Issuance of a Temporary Restraining Order (TRO) or Writ of Preliminary
Injunction.
The main issue raised in the petition is whether respondents officers of the DOH acted
without or in excess of jurisdiction, or with grave abuse of discretion amounting to lack
or excess of jurisdiction, and in violation of the provisions of the Constitution in
promulgating the RIRR.[3]
On August 15, 2006, the Court issued a Resolution granting a TRO enjoining respondents
from implementing the questioned RIRR.
After the Comment and Reply had been filed, the Court set the case for oral arguments
on June 19, 2007. The Court issued an Advisory (Guidance for Oral Arguments) dated
June 5, 2007, to wit:
The Court hereby sets the following issues:
1. Whether or not petitioner is a real party-in-interest;
2. Whether Administrative Order No. 2006-0012 or the Revised Implementing Rules
and Regulations (RIRR) issued by the Department of Health (DOH) is not constitutional;
2.1 Whether the RIRR is in accord with the provisions of Executive Order No. 51 (Milk
Code);
2.2 Whether pertinent international agreements1 entered into by the Philippines are part
of the law of the land and may be implemented by the DOH through the RIRR; If in the
affirmative, whether the RIRR is in accord with the international agreements;
2.3 Whether Sections 4, 5(w), 22, 32, 47, and 52 of the RIRR violate the due process
clause and are in restraint of trade; and
2.4 Whether Section 13 of the RIRR on Total Effect provides sufficient standards.
_____________
1 (1) United Nations Convention on the Rights of the Child; (2) the WHO and Unicef
2002 Global Strategy on Infant and Young Child Feeding; and (3) various World Health
Assembly (WHA) Resolutions.
The parties filed their respective memoranda.
The petition is partly imbued with merit.
On the issue of petitioner's standing
With regard to the issue of whether petitioner may prosecute this case as the real party-
in-interest, the Court adopts the view enunciated in Executive Secretary v. Court of
Appeals,[4] to wit:
The modern view is that an association has standing to complain of injuries to its
members. This view fuses the legal identity of an association with that of its members.
An association has standing to file suit for its workers despite its lack of direct interest if
its members are affected by the action. An organization has standing to assert the concerns
of its constituents.
xxxx
x x x We note that, under its Articles of Incorporation, the respondent was organized x x
x to act as the representative of any individual, company, entity or association on matters
related to the manpower recruitment industry, and to perform other acts and activities
necessary to accomplish the purposes embodied therein. The respondent is, thus, the
appropriate party to assert the rights of its members, because it and its members are in
every practical sense identical. x x x The respondent [association] is but the medium
through which its individual members seek to make more effective the expression of their
voices and the redress of their grievances. [5] (Emphasis supplied)
which was reasserted in Purok Bagong Silang Association, Inc. v. Yuipco,[6] where the
Court ruled that an association has the legal personality to represent its members because
the results of the case will affect their vital interests.[7]
Herein petitioner's Amended Articles of Incorporation contains a similar provision just
like in Executive Secretary, that the association is formed to represent directly or through
approved representatives the pharmaceutical and health care industry before the
Philippine Government and any of its agencies, the medical professions and the general
public.[8] Thus, as an organization, petitioner definitely has an interest in fulfilling its
avowed purpose of representing members who are part of the pharmaceutical and health
care industry. Petitioner is duly authorized[9] to take the appropriate course of action to
bring to the attention of government agencies and the courts any grievance suffered by
its members which are directly affected by the RIRR. Petitioner, which is mandated by
its Amended Articles of Incorporation to represent the entire industry, would be remiss
in its duties if it fails to act on governmental action that would affect any of its industry
members, no matter how few or numerous they are. Hence, petitioner, whose legal
identity is deemed fused with its members, should be considered as a real party-in-interest
which stands to be benefited or injured by any judgment in the present action.
On the constitutionality of the provisions of the RIRR
First, the Court will determine if pertinent international instruments adverted to by
respondents are part of the law of the land.
PIL - 110417
Petitioner assails the RIRR for allegedly going beyond the provisions of the Milk Code,
thereby amending and expanding the coverage of said law. The defense of the DOH is
that the RIRR implements not only the Milk Code but also various international
instruments[10] regarding infant and young child nutrition. It is respondents' position that
said international instruments are deemed part of the law of the land and therefore the
DOH may implement them through the RIRR.
The Court notes that the following international instruments invoked by respondents,
namely: (1) The United Nations Convention on the Rights of the Child; (2) The
International Covenant on Economic, Social and Cultural Rights; and (3) the Convention
on the Elimination of All Forms of Discrimination Against Women, only provide in
general terms that steps must be taken by State Parties to diminish infant and child
mortality and inform society of the advantages of breastfeeding, ensure the health and
well-being of families, and ensure that women are provided with services and nutrition
in connection with pregnancy and lactation. Said instruments do not contain specific
provisions regarding the use or marketing of breastmilk substitutes.
The international instruments that do have specific provisions regarding breastmilk
substitutes are the ICMBS and various WHA Resolutions.
Under the 1987 Constitution, international law can become part of the sphere of domestic
law either by transformation or incorporation.[11] The transformation method requires
that an international law be transformed into a domestic law through a constitutional
mechanism such as local legislation. The incorporation method applies when, by mere
constitutional declaration, international law is deemed to have the force of domestic
law.[12]
Treaties become part of the law of the land through transformation pursuant to Article
VII, Section 21 of the Constitution which provides that [n]o treaty or international
agreement shall be valid and effective unless concurred in by at least two-thirds of all the
members of the Senate. Thus, treaties or conventional international law must go through
a process prescribed by the Constitution for it to be transformed into municipal law that
can be applied to domestic conflicts.[13]
The ICMBS and WHA Resolutions are not treaties as they have not been concurred in by
at least two-thirds of all members of the Senate as required under Section 21, Article VII
of the 1987 Constitution.
However, the ICMBS which was adopted by the WHA in 1981 had been transformed
into domestic law through local legislation, the Milk Code. Consequently, it is the Milk
Code that has the force and effect of law in this jurisdiction and not the ICMBS per se.
The Milk Code is almost a verbatim reproduction of the ICMBS, but it is well to
emphasize at this point that the Code did not adopt the provision in the ICMBS absolutely
prohibiting advertising or other forms of promotion to the general public of products
within the scope of the ICMBS. Instead, the Milk Code expressly provides that
advertising, promotion, or other marketing materials may be allowed if such materials are
duly authorized and approved by the Inter-Agency Committee (IAC).
On the other hand, Section 2, Article II of the 1987 Constitution, to wit:
SECTION 2. The Philippines renounces war as an instrument of national policy, adopts
the generally accepted principles of international law as part of the law of the land and
adheres to the policy of peace, equality, justice, freedom, cooperation and amity with all
nations. (Emphasis supplied)
embodies the incorporation method.[14]
In Mijares v. Ranada,[15] the Court held thus:
[G]enerally accepted principles of international law, by virtue of the incorporation clause
of the Constitution, form part of the laws of the land even if they do not derive from treaty
obligations. The classical formulation in international law sees those customary rules
accepted as binding result from the combination [of] two elements: the established,
widespread, and consistent practice on the part of States; and a psychological element
known as the opinion juris sive necessitates (opinion as to law or necessity). Implicit in
the latter element is a belief that the practice in question is rendered obligatory by the
existence of a rule of law requiring it.[16] (Emphasis supplied)
Generally accepted principles of international law refers to norms of general or customary
international law which are binding on all states,[17] i.e., renunciation of war as an
instrument of national policy, the principle of sovereign immunity,[18] a person's right
to life, liberty and due process,[19] and pacta sunt servanda,[20] among others. The
concept of generally accepted principles of law has also been depicted in this wise:
Some legal scholars and judges look upon certain general principles of law as a primary
source of international law because they have the character of jus rationale and are valid
through all kinds of human societies. (Judge Tanaka in his dissenting opinion in the 1966
South West Africa Case, 1966 I.C.J. 296). O'Connell holds that certain priniciples are
part of international law because they are basic to legal systems generally and hence part
of the jus gentium. These principles, he believes, are established by a process of reasoning
based on the common identity of all legal systems. If there should be doubt or
disagreement, one must look to state practice and determine whether the municipal law
principle provides a just and acceptable solution. x x x [21] (Emphasis supplied)
Fr. Joaquin G. Bernas defines customary international law as follows:
Custom or customary international law means a general and consistent practice of states
followed by them from a sense of legal obligation [opinio juris]. (Restatement) This
statement contains the two basic elements of custom: the material factor, that is, how
states behave, and the psychological or subjective factor, that is, why they behave the
way they do.
xxxx
The initial factor for determining the existence of custom is the actual behavior of states.
This includes several elements: duration, consistency, and generality of the practice of
states.
The required duration can be either short or long. x x x
7
xxxx
Duration therefore is not the most important element. More important is the consistency
and the generality of the practice. x x x
xxxx
Once the existence of state practice has been established, it becomes necessary to
determine why states behave the way they do. Do states behave the way they do because
they consider it obligatory to behave thus or do they do it only as a matter of courtesy?
Opinio juris, or the belief that a certain form of behavior is obligatory, is what makes
practice an international rule. Without it, practice is not law.[22] (Underscoring and
Emphasis supplied)
Clearly, customary international law is deemed incorporated into our domestic
system.[23]
WHA Resolutions have not been embodied in any local legislation. Have they attained
the status of customary law and should they then be deemed incorporated as part of the
law of the land?
The World Health Organization (WHO) is one of the international specialized agencies
allied with the United Nations (UN) by virtue of Article 57,[24] in relation to Article
63[25] of the UN Charter. Under the 1946 WHO Constitution, it is the WHA which
determines the policies of the WHO,[26] and has the power to adopt regulations
concerning advertising and labeling of biological, pharmaceutical and similar products
moving in international commerce,[27] and to make recommendations to members with
respect to any matter within the competence of the Organization.[28] The legal effect of
its regulations, as opposed to recommendations, is quite different.
Regulations, along with conventions and agreements, duly adopted by the WHA bind
member states thus:
Article 19. The Health Assembly shall have authority to adopt conventions or agreements
with respect to any matter within the competence of the Organization. A two-thirds vote
of the Health Assembly shall be required for the adoption of such conventions or
agreements, which shall come into force for each Member when accepted by it in
accordance with its constitutional processes.
Article 20. Each Member undertakes that it will, within eighteen months after the
adoption by the Health Assembly of a convention or agreement, take action relative to
the acceptance of such convention or agreement. Each Member shall notify the Director-
General of the action taken, and if it does not accept such convention or agreement within
the time limit, it will furnish a statement of the reasons for non-acceptance. In case of
acceptance, each Member agrees to make an annual report to the Director-General in
accordance with Chapter XIV.
Article 21. The Health Assembly shall have authority to adopt regulations concerning:
(a) sanitary and quarantine requirements and other procedures designed to prevent the
international spread of disease; (b) nomenclatures with respect to diseases, causes of
death and public health practices; (c) standards with respect to diagnostic procedures for
international use; (d) standards with respect to the safety, purity and potency of
biological, pharmaceutical and similar products moving in international commerce; (e)
advertising and labeling of biological, pharmaceutical and similar products moving in
international commerce.
Article 22. Regulations adopted pursuant to Article 21 shall come into force for all
Members after due notice has been given of their adoption by the Health Assembly except
for such Members as may notify the Director-General of rejection or reservations within
the period stated in the notice. (Emphasis supplied)
On the other hand, under Article 23, recommendations of the WHA do not come into
force for members, in the same way that conventions or agreements under Article 19 and
regulations under Article 21 come into force. Article 23 of the WHO Constitution reads:
Article 23. The Health Assembly shall have authority to make recommendations to
Members with respect to any matter within the competence of the Organization.
(Emphasis supplied)
The absence of a provision in Article 23 of any mechanism by which the recommendation
would come into force for member states is conspicuous.
The former Senior Legal Officer of WHO, Sami Shubber, stated that WHA
recommendations are generally not binding, but they carry moral and political weight, as
they constitute the judgment on a health issue of the collective membership of the highest
international body in the field of health.[29] Even the ICMBS itself was adopted as a
mere recommendation, as WHA Resolution No. 34.22 states:
The Thirty-Fourth World Health Assembly x x x adopts, in the sense of Article 23 of the
Constitution, the International Code of Marketing of Breastmilk Substitutes annexed to
the present resolution. (Emphasis supplied)
The Introduction to the ICMBS also reads as follows:
In January 1981, the Executive Board of the World Health Organization at its sixty-
seventh session, considered the fourth draft of the code, endorsed it, and unanimously
recommended to the Thirty-fourth World Health Assembly the text of a resolution by
which it would adopt the code in the form of a recommendation rather than a regulation.
x x x (Emphasis supplied)
The legal value of WHA Resolutions as recommendations is summarized in Article 62 of
the WHO Constitution, to wit:
Art. 62. Each member shall report annually on the action taken with respect to
recommendations made to it by the Organization, and with respect to conventions,
agreements and regulations.
PIL - 110417
Apparently, the WHA Resolution adopting the ICMBS and subsequent WHA
Resolutions urging member states to implement the ICMBS are merely recommendatory
and legally non-binding. Thus, unlike what has been done with the ICMBS whereby the
legislature enacted most of the provisions into law which is the Milk Code, the subsequent
WHA Resolutions,[30] specifically providing for exclusive breastfeeding from 0-6
months, continued breastfeeding up to 24 months, and absolutely prohibiting
advertisements and promotions of breastmilk substitutes, have not been adopted as a
domestic law.
It is propounded that WHA Resolutions may constitute soft law or non-binding norms,
principles and practices that influence state behavior.[31]
8
difficult circumstances. Indeed, the primacy of breastfeeding for children is emphasized
as a national health policy. However, nowhere in A.O. No. 2005-0014 is it declared that
as part of such health policy, the advertisement or promotion of breastmilk substitutes
should be absolutely prohibited.
The national policy of protection, promotion and support of breastfeeding cannot
automatically be equated with a total ban on advertising for breastmilk substitutes.
In view of the enactment of the Milk Code which does not contain a total ban on the
advertising and promotion of breastmilk substitutes, but instead, specifically creates an
IAC which will regulate said advertising and promotion, it follows that a total ban policy
could be implemented only pursuant to a law amending the Milk Code passed by the
constitutionally authorized branch of government, the legislature.

Thus, only the provisions of the Milk Code, but not those of subsequent WHA
Soft law does not fall into any of the categories of international law set forth in Article Resolutions, can be validly implemented by the DOH through the subject RIRR.
38, Chapter III of the 1946 Statute of the International Court of Justice.[32] It is, however,
an expression of non-binding norms, principles, and practices that influence state Third, the Court will now determine whether the provisions of the RIRR are in
behavior.[33] Certain declarations and resolutions of the UN General Assembly fall under accordance with those of the Milk Code.
this category.[34] The most notable is the UN Declaration of Human Rights, which this
Court has enforced in various cases, specifically, Government of Hongkong Special In support of its claim that the RIRR is inconsistent with the Milk Code, petitioner alleges
Administrative Region v. Olalia,[35] Mejoff v. Director of Prisons,[36] Mijares v. the following:
Raada[37] and Shangri-la International Hotel Management, Ltd. v. Developers Group of
Companies, Inc..[38] 1. The Milk Code limits its coverage to children 0-12 months old, but the RIRR
extended its coverage to young children or those from ages two years old and beyond:
The World Intellectual Property Organization (WIPO), a specialized agency attached to
MILK CODE RIRR
the UN with the mandate to promote and protect intellectual property worldwide, has
resorted to soft law as a rapid means of norm creation, in order to reflect and respond to WHEREAS, in order to ensure that safe Section 2. Purpose These Revised Rules
the changing needs and demands of its constituents.[39] Other international organizations and adequate nutrition for infants is and Regulations are hereby promulgated
which have resorted to soft law include the International Labor Organization and the Food provided, there is a need to protect and to ensure the provision of safe and
and Agriculture Organization (in the form of the Codex Alimentarius).[40] promote breastfeeding and to inform the adequate nutrition for infants and young
public about the proper use of breastmilk children by the promotion, protection and
WHO has resorted to soft law. This was most evident at the time of the Severe Acute substitutes and supplements and related support of breastfeeding and by ensuring
Respiratory Syndrome (SARS) and Avian flu outbreaks. products through adequate, consistent the proper use of breastmilk substitutes,
and objective information and breastmilk supplements and related
Although the IHR Resolution does not create new international law binding on WHO appropriate regulation of the marketing products when these are medically
member states, it provides an excellent example of the power of "soft law" in international and distribution of the said substitutes, indicated and only when necessary, on
relations. International lawyers typically distinguish binding rules of international law- supplements and related products; the basis of adequate information and
"hard law"-from non-binding norms, principles, and practices that influence state through appropriate marketing and
behavior-"soft law." WHO has during its existence generated many soft law norms, distribution.
creating a "soft law regime" in international governance for public health. SECTION 4(e). Infant means a person
The "soft law" SARS and IHR Resolutions represent significant steps in laying the falling within the age bracket of 0-12
political groundwork for improved international cooperation on infectious diseases. months. Section 5(ff). Young Child means a
These resolutions clearly define WHO member states' normative duty to cooperate fully person from the age of more than twelve
with other countries and with WHO in connection with infectious disease surveillance (12) months up to the age of three (3)
and response to outbreaks. years (36 months).

This duty is neither binding nor enforceable, but, in the wake of the SARS epidemic, the
duty is powerful politically for two reasons. First, the SARS outbreak has taught the
lesson that participating in, and enhancing, international cooperation on infectious 2. The Milk Code recognizes that infant formula may be a proper and possible substitute
disease controls is in a country's self-interest x x x if this warning is heeded, the "soft for breastmilk in certain instances; but the RIRR provides exclusive breastfeeding for
law" in the SARS and IHR Resolution could inform the development of general and infants from 0-6 months and declares that there is no substitute nor replacement for
consistent state practice on infectious disease surveillance and outbreak response, perhaps breastmilk:
crystallizing eventually into customary international law on infectious disease prevention
and control.[41]
MILK CODE RIRR
In the Philippines, the executive department implemented certain measures
recommended by WHO to address the outbreaks of SARS and Avian flu by issuing WHEREAS, in order to ensure that safe Section 4. Declaration of Principles The
Executive Order (E.O.) No. 201 on April 26, 2003 and E.O. No. 280 on February 2, 2004, and adequate nutrition for infants is following are the underlying principles
delegating to various departments broad powers to close down schools/establishments, provided, there is a need to protect and from which the revised rules and
conduct health surveillance and monitoring, and ban importation of poultry and promote breastfeeding and to inform the regulations are premised upon:
agricultural products. public about the proper use of breastmilk
substitutes and supplements and related a. Exclusive breastfeeding is for infants
products through adequate, consistent from 0 to six (6) months.
It must be emphasized that even under such an international emergency, the duty of a and objective information and
state to implement the IHR Resolution was still considered not binding or enforceable, appropriate regulation of the marketing
b. There is no substitute or replacement
although said resolutions had great political influence. and distribution of the said substitutes,
for breastmilk.
supplements and related products;
As previously discussed, for an international rule to be considered as customary law, it
must be established that such rule is being followed by states because they consider it
obligatory to comply with such rules (opinio juris). Respondents have not presented any
evidence to prove that the WHA Resolutions, although signed by most of the member 3. The Milk Code only regulates and does not impose unreasonable requirements for
states, were in fact enforced or practiced by at least a majority of the member states; advertising and promotion; RIRR imposes an absolute ban on such activities for
neither have respondents proven that any compliance by member states with said WHA breastmilk substitutes intended for infants from 0-24 months old or beyond, and forbids
Resolutions was obligatory in nature. the use of health and nutritional claims. Section 13 of the RIRR, which provides for a
total effect in the promotion of products within the scope of the Code, is vague:
Respondents failed to establish that the provisions of pertinent WHA Resolutions are MILK CODE RIRR
customary international law that may be deemed part of the law of the land.

Consequently, legislation is necessary to transform the provisions of the WHA

Resolutions into domestic law. The provisions of the WHA Resolutions cannot be
considered as part of the law of the land that can be implemented by executive agencies
without the need of a law enacted by the legislature.

Second, the Court will determine whether the DOH may implement the provisions of the
WHA Resolutions by virtue of its powers and functions under the Revised Administrative
Code even in the absence of a domestic law.

Section 3, Chapter 1, Title IX of the Revised Administrative Code of 1987 provides that
the DOH shall define the national health policy and implement a national health plan
within the framework of the government's general policies and plans, and issue orders
and regulations concerning the implementation of established health policies.

It is crucial to ascertain whether the absolute prohibition on advertising and other forms
of promotion of breastmilk substitutes provided in some WHA Resolutions has been
adopted as part of the national health policy.

Respondents submit that the national policy on infant and young child feeding is
embodied in A.O. No. 2005-0014, dated May 23, 2005. Basically, the Administrative
Order declared the following policy guidelines: (1) ideal breastfeeding practices, such as
early initiation of breastfeeding, exclusive breastfeeding for the first six months, extended
breastfeeding up to two years and beyond; (2) appropriate complementary feeding, which
is to start at age six months; (3) micronutrient supplementation; (4) universal salt
iodization; (5) the exercise of other feeding options; and (6) feeding in exceptionally
PIL - 110417
SECTION 6. The General Public and
Mothers.
(a) No advertising, promotion or other
marketing materials, whether written,
audio or visual, for products within the
scope of this Code shall be printed,
published, distributed, exhibited and
broadcast unless such materials are duly
authorized and approved by an inter-
agency committee created herein
pursuant to the applicable standards
provided for in this Code.
4. The RIRR imposes additional labeling requirements not found in the Milk Code:
MILK CODE
Section 4. Declaration of Principles The
following are the underlying principles
from which the revised rules and
regulations are premised upon:
xxxx
f. Advertising, promotions, or sponsor-
ships of infant formula, breastmilk
substitutes and other related products are
prohibited.
Section 11. Prohibition No advertising,
promotions, sponsorships, or marketing
materials and activities for breastmilk
substitutes intended for infants and
young children up to twenty-four (24)
months, shall be allowed, because they
tend to convey or give subliminal
messages or impressions that undermine
breastmilk and breastfeeding or
otherwise exaggerate breastmilk
substitutes and/or replacements, as well
as related products covered within the
scope of this Code.
Section 13. Total Effect - Promotion of
products within the scope of this Code
must be objective and should not equate
or make the product appear to be as good
or equal to breastmilk or breastfeeding in
the advertising concept. It must not in
any case undermine breastmilk or
breastfeeding. The total effect should not
directly or indirectly suggest that buying
their product would produce better
individuals, or resulting in greater love,
intelligence, ability, harmony or in any
manner bring better health to the baby or
other such exaggerated and
unsubstantiated claim.
Section 15. Content of Materials. - The
following shall not be included in
advertising, promotional and marketing
materials:
a. Texts, pictures, illustrations or
information which discourage or tend to
undermine the benefits or superiority of
breastfeeding or which idealize the use of
breastmilk substitutes and milk
supplements. In this connection, no
pictures of babies and children together
with their mothers, fathers, siblings,
grandparents, other relatives or
caregivers (or yayas) shall be used in any
advertisements for infant formula and
breastmilk supplements;
b. The term humanized, maternalized,
close to mother's milk or similar words in
describing breastmilk substitutes or milk
supplements;
c. Pictures or texts that idealize the use of
infant and milk formula.
Section 16. All health and nutrition
claims for products within the scope of
the Code are absolutely prohibited. For
this purpose, any phrase or words that
connotes to increase emotional,
intellectual abilities of the infant and
young child and other like phrases shall
not be allowed.
RIRR
SECTION 10. Containers/Label.
(a) Containers and/or labels shall be
designed to provide the necessary
information about the appropriate use of
the products, and in such a way as not to
discourage breastfeeding.
(b) Each container shall have a clear,
conspicuous and easily readable and
understandable message in Pilipino or
English printed on it, or on a label, which
message can not readily become
separated from it, and which shall
include the following points:
(i) the words Important Notice or their
equivalent;
(ii) a statement of the superiority of
breastfeeding;
(iii) a statement that the product shall be
used only on the advice of a health
worker as to the need for its use and the
proper methods of use; and
(iv) instructions for appropriate
preparation, and a warning against the
health hazards of inappropriate
preparation.
5. The Milk Code allows dissemination of information on infant formula to health
professionals; the RIRR totally prohibits such activity:
MILK CODE
SECTION 7. Health Care System.
(b) No facility of the health care system
shall be used for the purpose of
promoting infant formula or other
products within the scope of this Code.
This Code does not, however, preclude
the dissemination of information to
health professionals as provided in
Section 8(b).
SECTION 8. Health Workers. -
(b) Information provided by
manufacturers and distributors to health
professionals regarding products within
the scope of this Code shall be restricted
to scientific and factual matters and such
information shall not imply or create a
belief that bottle-feeding is equivalent or
superior to breastfeeding. It shall also
include the information specified in
Section 5(b).
6. The Milk Code permits milk manufacturers and distributors to extend assistance in
research and continuing education of health professionals; RIRR absolutely forbids the
same.
MILK CODE
SECTION 8. Health Workers
(e) Manufacturers and distributors of
products within the scope of this Code
may assist in the research, scholarships
and continuing education, of health
professionals, in accordance with the
rules and regulations promulgated by the
Ministry of Health.
7. The Milk Code regulates the giving of donations; RIRR absolutely prohibits it.
MILK CODE
9
Section 26. Content Each container/label
shall contain such message, in both
Filipino and English languages, and
which message cannot be readily
separated therefrom, relative the
following points:
(a) The words or phrase Important Notice
or Government Warning or their
equivalent;
(b) A statement of the superiority of
breastfeeding;
(c) A statement that there is no substitute
for breastmilk;
(d) A statement that the product shall be
used only on the advice of a health
worker as to the need for its use and the
proper methods of use;
(e) Instructions for appropriate prepara-
tion, and a warning against the health
hazards of inappropriate preparation; and
(f) The health hazards of unnecessary or
improper use of infant formula and other
related products including information
that powdered infant formula may
contain pathogenic microorganisms and
must be prepared and used appropriately.
RIRR
Section 22. No manufacturer, distributor,
or representatives of products covered by
the Code shall be allowed to conduct or
be involved in any activity on
breastfeeding promotion, education and
production of Information, Education
and Communication (IEC) materials on
breastfeeding, holding of or participating
as speakers in classes or seminars for
women and children activities and to
avoid the use of these venues to market
their brands or company names.
SECTION 16. All health and nutrition
claims for products within the scope of
the Code are absolutely prohibited. For
this purpose, any phrase or words that
connotes to increase emotional,
intellectual abilities of the infant and
young child and other like phrases shall
not be allowed.
RIRR
Section 4. Declaration of Principles
The following are the underlying
principles from which the revised rules
and regulations are premised upon:
i. Milk companies, and their
representatives, should not form part of
any policymaking body or entity in
relation to the advancement of
breasfeeding.
SECTION 22. No manufacturer,
distributor, or representatives of products
covered by the Code shall be allowed to
conduct or be involved in any activity on
breastfeeding promotion, education and
production of Information, Education
and Communication (IEC) materials on
breastfeeding, holding of or participating
as speakers in classes or seminars for
women and children activities and to
avoid the use of these venues to market
their brands or company names.
SECTION 32. Primary Responsibility of
Health Workers - It is the primary
responsibility of the health workers to
promote, protect and support
breastfeeding and appropriate infant and
young child feeding. Part of this
responsibility is to continuously update
their knowledge and skills on
breastfeeding. No assistance, support,
logistics or training from milk companies
shall be permitted.
RIRR
PIL - 110417
SECTION 6. The General Public and
Mothers.
(f) Nothing herein contained shall
prevent donations from manufacturers
and distributors of products within the
scope of this Code upon request by or
with the approval of the Ministry of
Health.
Section 51. Donations Within the Scope
of This Code - Donations of products,
materials, defined and covered under the
Milk Code and these implementing rules
and regulations, shall be strictly
prohibited.
Section 52. Other Donations By Milk
Companies Not Covered by this Code. -
Donations of products, equipments, and
the like, not otherwise falling within the
scope of this Code or these Rules, given
by milk companies and their agents,
representatives, whether in kind or in
cash, may only be coursed through the
Inter Agency Committee (IAC), which
shall determine whether such donation be
accepted or otherwise.
10
Section 4(h) of the Milk Code defines infant formula as a breastmilk substitute x x x to
satisfy the normal nutritional requirements of infants up to between four to six months of
age, and adapted to their physiological characteristics; while under Section 4(b), bottle-
fed complementary food refers to any food, whether manufactured or locally prepared,
suitable as a complement to breastmilk or infant formula, when either becomes
insufficient to satisfy the nutritional requirements of the infant. An infant under Section
4(e) is a person falling within the age bracket 0-12 months. It is the nourishment of this
group of infants or children aged 0-12 months that is sought to be promoted and protected
by the Milk Code.
But there is another target group. Breastmilk substitute is defined under Section 4(a) as
any food being marketed or otherwise presented as a partial or total replacement for
breastmilk, whether or not suitable for that purpose. This section conspicuously lacks
reference to any particular age-group of children. Hence, the provision of the Milk Code
cannot be considered exclusive for children aged 0-12 months. In other words, breastmilk
substitutes may also be intended for young children more than 12 months of age.
Therefore, by regulating breastmilk substitutes, the Milk Code also intends to protect and
promote the nourishment of children more than 12 months old.

Evidently, as long as what is being marketed falls within the scope of the Milk Code as
8. The RIRR provides for administrative sanctions not imposed by the Milk Code. provided in Section 3, then it can be subject to regulation pursuant to said law, even if the
product is to be used by children aged over 12 months.
MILK CODE RIRR
There is, therefore, nothing objectionable with Sections 2[42] and 5(ff)[43] of the RIRR.
Section 46. Administrative Sanctions.
The following administrative sanctions
2. It is also incorrect for petitioner to say that the RIRR, unlike the Milk Code,
shall be imposed upon any person,
does not recognize that breastmilk substitutes may be a proper and possible substitute for
juridical or natural, found to have
breastmilk.
violated the provisions of the Code and
its implementing Rules and Regulations:
The entirety of the RIRR, not merely truncated portions thereof, must be considered and
a) 1st violation Warning;
construed together. As held in De Luna v. Pascual,[44] [t]he particular words, clauses
b) 2nd violation Administrative fine of a
and phrases in the Rule should not be studied as detached and isolated expressions, but
minimum of Ten Thousand (P10,000.00)
the whole and every part thereof must be considered in fixing the meaning of any of its
to Fifty Thousand (P50,000.00) Pesos,
parts and in order to produce a harmonious whole.
depending on the gravity and extent of
Section 7 of the RIRR provides that when medically indicated and only when necessary,
the violation, including the recall of the
the use of breastmilk substitutes is proper if based on complete and updated information.
offending product;
Section 8 of the RIRR also states that information and educational materials should
c) 3rd violation Administrative Fine of a
include information on the proper use of infant formula when the use thereof is needed.
minimum of Sixty Thousand
(P60,000.00) to One Hundred Fifty
Hence, the RIRR, just like the Milk Code, also recognizes that in certain cases, the use of
Thousand (P150,000.00) Pesos,
breastmilk substitutes may be proper.
depending on the gravity and extent of
the violation, and in addition thereto, the
3. The Court shall ascertain the merits of allegations 3[45] and 4[46] together
recall of the offending product, and
as they are interlinked with each other.
suspension of the Certificate of Product
Registration (CPR);
To resolve the question of whether the labeling requirements and advertising regulations
d) 4th violation Administrative Fine of a
under the RIRR are valid, it is important to deal first with the nature, purpose, and depth
minimum of Two Hundred Thousand
of the regulatory powers of the DOH, as defined in general under the 1987 Administrative
(P200,000.00) to Five Hundred
Code,[47] and as delegated in particular under the Milk Code.
(P500,000.00) Thousand Pesos,
depending on the gravity and extent of
Health is a legitimate subject matter for regulation by the DOH (and certain other
the violation; and in addition thereto, the
administrative agencies) in exercise of police powers delegated to it. The sheer span of
recall of the product, revocation of the
jurisprudence on that matter precludes the need to further discuss it..[48] However, health
CPR, suspension of the License to
information, particularly advertising materials on apparently non-toxic products like
Operate (LTO) for one year;
breastmilk substitutes and supplements, is a relatively new area for regulation by the
e) 5th and succeeding repeated violations
DOH.[49]
Administrative Fine of One Million
As early as the 1917 Revised Administrative Code of the Philippine Islands,[50] health
(P1,000,000.00) Pesos, the recall of the
information was already within the ambit of the regulatory powers of the predecessor of
offending product, cancellation of the
DOH.[51] Section 938 thereof charged it with the duty to protect the health of the people,
CPR, revocation of the License to
and vested it with such powers as (g) the dissemination of hygienic information among
Operate (LTO) of the company
the people and especially the inculcation of knowledge as to the proper care of infants
concerned, including the blacklisting of
and the methods of preventing and combating dangerous communicable diseases.
the company to be furnished the
Department of Budget and Management
Seventy years later, the 1987 Administrative Code tasked respondent DOH to carry out
(DBM) and the Department of Trade and
the state policy pronounced under Section 15, Article II of the 1987 Constitution, which
Industry (DTI);
is to protect and promote the right to health of the people and instill health consciousness
f) An additional penalty of Two Thou-
among them.[52] To that end, it was granted under Section 3 of the Administrative Code
sand Five Hundred (P2,500.00) Pesos per
the power to (6) propagate health information and educate the population on important
day shall be made for every day the
health, medical and environmental matters which have health implications.[53]
violation continues after having received
the order from the IAC or other such
When it comes to information regarding nutrition of infants and young children, however,
appropriate body, notifying and
the Milk Code specifically delegated to the Ministry of Health (hereinafter referred to as
penalizing the company for the
DOH) the power to ensure that there is adequate, consistent and objective information on
infraction.
breastfeeding and use of breastmilk substitutes, supplements and related products; and
For purposes of determining whether or
the power to control such information. These are expressly provided for in Sections 12
not there is repeated violation, each
and 5(a), to wit:
product violation belonging or owned by
a company, including those of their
subsidiaries, are deemed to be violations
SECTION 12. Implementation and Monitoring
of the concerned milk company and shall
xxxx
not be based on the specific violating
product alone.
(b) The Ministry of Health shall be principally responsible for the implementation and
enforcement of the provisions of this Code. For this purpose, the Ministry of Health shall
have the following powers and functions:
9. The RIRR provides for repeal of existing laws to the contrary.
(1) To promulgate such rules and regulations as are necessary or proper for the
The Court shall resolve the merits of the allegations of petitioner seriatim. implementation of this Code and the accomplishment of its purposes and objectives.

1. Petitioner is mistaken in its claim that the Milk Code's coverage is limited xxxx
only to children 0-12 months old. Section 3 of the Milk Code states:
(4) To exercise such other powers and functions as may be necessary for or incidental to
SECTION 3. Scope of the Code The Code applies to the marketing, and practices related the attainment of the purposes and objectives of this Code.
thereto, of the following products: breastmilk substitutes, including infant formula; other
milk products, foods and beverages, including bottle-fed complementary foods, when SECTION 5. Information and Education
marketed or otherwise represented to be suitable, with or without modification, for use as
a partial or total replacement of breastmilk; feeding bottles and teats. It also applies to (a) The government shall ensure that objective and consistent information is provided on
their quality and availability, and to information concerning their use. infant feeding, for use by families and those involved in the field of infant nutrition. This
responsibility shall cover the planning, provision, design and dissemination of
Clearly, the coverage of the Milk Code is not dependent on the age of the child but on the information, and the control thereof, on infant nutrition. (Emphasis supplied)
kind of product being marketed to the public. The law treats infant formula, bottle-fed
complementary food, and breastmilk substitute as separate and distinct product
categories.
PIL - 110417
Further, DOH is authorized by the Milk Code to control the content of any information
on breastmilk vis--vis breastmilk substitutes, supplement and related products, in the
following manner:
SECTION 5. x x x
(b) Informational and educational materials, whether written, audio, or visual, dealing
with the feeding of infants and intended to reach pregnant women and mothers of infants,
shall include clear information on all the following points: (1) the benefits and superiority
of breastfeeding; (2) maternal nutrition, and the preparation for and maintenance of
breastfeeding; (3) the negative effect on breastfeeding of introducing partial
bottlefeeding; (4) the difficulty of reversing the decision not to breastfeed; and (5) where
needed, the proper use of infant formula, whether manufactured industrially or home-
prepared. When such materials contain information about the use of infant formula, they
shall include the social and financial implications of its use; the health hazards of
inappropriate foods or feeding methods; and, in particular, the health hazards of
unnecessary or improper use of infant formula and other breastmilk substitutes. Such
materials shall not use any picture or text which may idealize the use of breastmilk
substitutes.
SECTION 8. Health Workers
xxxx
(b) Information provided by manufacturers and distributors to health professionals
regarding products within the scope of this Code shall be restricted to scientific and
factual matters, and such information shall not imply or create a belief that bottlefeeding
is equivalent or superior to breastfeeding. It shall also include the information specified
in Section 5(b).
SECTION 10. Containers/Label
(a) Containers and/or labels shall be designed to provide the necessary information about
the appropriate use of the products, and in such a way as not to discourage breastfeeding.
xxxx
(d) The term humanized, maternalized or similar terms shall not be used. (Emphasis
supplied)
The DOH is also authorized to control the purpose of the information and to whom such
information may be disseminated under Sections 6 through 9 of the Milk Code[54] to
ensure that the information that would reach pregnant women, mothers of infants, and
health professionals and workers in the health care system is restricted to scientific and
factual matters and shall not imply or create a belief that bottlefeeding is equivalent or
superior to breastfeeding.
It bears emphasis, however, that the DOH's power under the Milk Code to control
information regarding breastmilk vis-a-vis breastmilk substitutes is not absolute as the
power to control does not encompass the power to absolutely prohibit the advertising,
marketing, and promotion of breastmilk substitutes.
The following are the provisions of the Milk Code that unequivocally indicate that the
control over information given to the DOH is not absolute and that absolute prohibition
is not contemplated by the Code:
a) Section 2 which requires adequate information and appropriate marketing and
distribution of breastmilk substitutes, to wit:
SECTION 2. Aim of the Code The aim of the Code is to contribute to the provision of
safe and adequate nutrition for infants by the protection and promotion of breastfeeding
and by ensuring the proper use of breastmilk substitutes and breastmilk supplements
when these are necessary, on the basis of adequate information and through appropriate
marketing and distribution.
b) Section 3 which specifically states that the Code applies to the marketing of and
practices related to breastmilk substitutes, including infant formula, and to information
concerning their use;
c) Section 5(a) which provides that the government shall ensure that objective and
consistent information is provided on infant feeding;
d) Section 5(b) which provides that written, audio or visual informational and educational
materials shall not use any picture or text which may idealize the use of breastmilk
substitutes and should include information on the health hazards of unnecessary or
improper use of said product;
e) Section 6(a) in relation to Section 12(a) which creates and empowers the IAC to review
and examine advertising, promotion, and other marketing materials;
f) Section 8(b) which states that milk companies may provide information to health
professionals but such information should be restricted to factual and scientific matters
and shall not imply or create a belief that bottlefeeding is equivalent or superior to
breastfeeding; and
g) Section 10 which provides that containers or labels should not contain information that
would discourage breastfeeding and idealize the use of infant formula.
It is in this context that the Court now examines the assailed provisions of the RIRR
regarding labeling and advertising.
Sections 13[55] on total effect and 26[56] of Rule VII of the RIRR contain some labeling
requirements, specifically: a) that there be a statement that there is no substitute to
breastmilk; and b) that there be a statement that powdered infant formula may contain
pathogenic microorganisms and must be prepared and used appropriately. Section 16[57]
of the RIRR prohibits all health and nutrition claims for products within the scope of the
Milk Code, such as claims of increased emotional and intellectual abilities of the infant
and young child.
These requirements and limitations are consistent with the provisions of Section 8 of the
Milk Code, to wit:
SECTION 8. Health workers -
11
xxxx
(b) Information provided by manufacturers and distributors to health professionals
regarding products within the scope of this Code shall be restricted to scientific and
factual matters, and such information shall not imply or create a belief that bottlefeeding
is equivalent or superior to breastfeeding. It shall also include the information specified
in Section 5.[58] (Emphasis supplied)
and Section 10(d)[59] which bars the use on containers and labels of the terms
humanized, maternalized, or similar terms.
These provisions of the Milk Code expressly forbid information that would imply or
create a belief that there is any milk product equivalent to breastmilk or which is
humanized or maternalized, as such information would be inconsistent with the
superiority of breastfeeding.
It may be argued that Section 8 of the Milk Code refers only to information given to
health workers regarding breastmilk substitutes, not to containers and labels thereof.
However, such restrictive application of Section 8(b) will result in the absurd situation in
which milk companies and distributors are forbidden to claim to health workers that their
products are substitutes or equivalents of breastmilk, and yet be allowed to display on the
containers and labels of their products the exact opposite message. That askewed
interpretation of the Milk Code is precisely what Section 5(a) thereof seeks to avoid by
mandating that all information regarding breastmilk vis-a-vis breastmilk substitutes be
consistent, at the same time giving the government control over planning, provision,
design, and dissemination of information on infant feeding.
Thus, Section 26(c) of the RIRR which requires containers and labels to state that the
product offered is not a substitute for breastmilk, is a reasonable means of enforcing
Section 8(b) of the Milk Code and deterring circumvention of the protection and
promotion of breastfeeding as embodied in Section 2[60] of the Milk Code.
Section 26(f)[61] of the RIRR is an equally reasonable labeling requirement. It
implements Section 5(b) of the Milk Code which reads:
SECTION 5. x x x
xxxx
(b) Informational and educational materials, whether written, audio, or visual, dealing
with the feeding of infants and intended to reach pregnant women and mothers of infants,
shall include clear information on all the following points: x x x (5) where needed, the
proper use of infant formula, whether manufactured industrially or home-prepared. When
such materials contain information about the use of infant formula, they shall include the
social and financial implications of its use; the health hazards of inappropriate foods or
feeding methods; and, in particular, the health hazards of unnecessary or improper use of
infant formula and other breastmilk substitutes. Such materials shall not use any picture
or text which may idealize the use of breastmilk substitutes. (Emphasis supplied)
The label of a product contains information about said product intended for the buyers
thereof. The buyers of breastmilk substitutes are mothers of infants, and Section 26 of the
RIRR merely adds a fair warning about the likelihood of pathogenic microorganisms
being present in infant formula and other related products when these are prepared and
used inappropriately.
Petitioners counsel has admitted during the hearing on June 19, 2007 that formula milk
is prone to contaminations and there is as yet no technology that allows production of
powdered infant formula that eliminates all forms of contamination.[62]
Ineluctably, the requirement under Section 26(f) of the RIRR for the label to contain the
message regarding health hazards including the possibility of contamination with
pathogenic microorganisms is in accordance with Section 5(b) of the Milk Code.
The authority of DOH to control information regarding breastmilk vis-a-vis breastmilk
substitutes and supplements and related products cannot be questioned. It is its
intervention into the area of advertising, promotion, and marketing that is being assailed
by petitioner.
In furtherance of Section 6(a) of the Milk Code, to wit:
SECTION 6. The General Public and Mothers.
(a) No advertising, promotion or other marketing materials, whether written, audio or
visual, for products within the scope of this Code shall be printed, published, distributed,
exhibited and broadcast unless such materials are duly authorized and approved by an
inter-agency committee created herein pursuant to the applicable standards provided for
in this Code.
the Milk Code invested regulatory authority over advertising, promotional and marketing
materials to an IAC, thus:
SECTION 12. Implementation and Monitoring -
(a) For purposes of Section 6(a) of this Code, an inter-agency committee composed of
the following members is hereby created:
Minister of Health -------------------------------------------- Chairman
Minister of Trade and Industry ---------------------------- Member
Minister of Justice -------------------------------------------- Member
Minister of Social Services and Development ----------- Member
The members may designate their duly authorized representative to every meeting of the
Committee.
The Committee shall have the following powers and functions:
(1) To review and examine all advertising. promotion or other marketing materials,
whether written, audio or visual, on products within the scope of this Code;
(2) To approve or disapprove, delete objectionable portions from and prohibit the
printing, publication, distribution, exhibition and broadcast of, all advertising promotion
or other marketing materials, whether written, audio or visual, on products within the
scope of this Code;
(3) To prescribe the internal and operational procedure for the exercise of its powers and
functions as well as the performance of its duties and responsibilities; and
PIL - 110417
(4) To promulgate such rules and regulations as are necessary or proper for the
implementation of Section 6(a) of this Code. x x x (Emphasis supplied)
However, Section 11 of the RIRR, to wit:
SECTION 11. Prohibition No advertising, promotions, sponsorships, or marketing
materials and activities for breastmilk substitutes intended for infants and young children
up to twenty-four (24) months, shall be allowed, because they tend to convey or give
subliminal messages or impressions that undermine breastmilk and breastfeeding or
otherwise exaggerate breastmilk substitutes and/or replacements, as well as related
products covered within the scope of this Code.
prohibits advertising, promotions, sponsorships or marketing materials and activities for
breastmilk substitutes in line with the RIRRs declaration of principle under Section 4(f),
to wit:
SECTION 4. Declaration of Principles
xxxx
(f) Advertising, promotions, or sponsorships of infant formula, breastmilk substitutes and
other related products are prohibited.
The DOH, through its co-respondents, evidently arrogated to itself not only the regulatory
authority given to the IAC but also imposed absolute prohibition on advertising,
promotion, and marketing.
Yet, oddly enough, Section 12 of the RIRR reiterated the requirement of the Milk Code
in Section 6 thereof for prior approval by IAC of all advertising, marketing and
promotional materials prior to dissemination.
Even respondents, through the OSG, acknowledged the authority of IAC, and repeatedly
insisted, during the oral arguments on June 19, 2007, that the prohibition under Section
11 is not actually operational, viz:
SOLICITOR GENERAL DEVANADERA:
xxxx
x x x Now, the crux of the matter that is being questioned by Petitioner is whether or not
there is an absolute prohibition on advertising making AO 2006-12 unconstitutional. We
maintained that what AO 2006-12 provides is not an absolute prohibition because Section
11 while it states and it is entitled prohibition it states that no advertising, promotion,
sponsorship or marketing materials and activities for breast milk substitutes intended for
infants and young children up to 24 months shall be allowed because this is the standard
they tend to convey or give subliminal messages or impression undermine that breastmilk
or breastfeeding x x x.
We have to read Section 11 together with the other Sections because the other Section,
Section 12, provides for the inter agency committee that is empowered to process and
evaluate all the advertising and promotion materials.
xxxx
What AO 2006-12, what it does, it does not prohibit the sale and manufacture, it simply
regulates the advertisement and the promotions of breastfeeding milk substitutes.
xxxx
Now, the prohibition on advertising, Your Honor, must be taken together with the
provision on the Inter-Agency Committee that processes and evaluates because there may
be some information dissemination that are straight forward information dissemination.
What the AO 2006 is trying to prevent is any material that will undermine the practice of
breastfeeding, Your Honor.
xxxx
ASSOCIATE JUSTICE SANTIAGO:
Madam Solicitor General, under the Milk Code, which body has authority or power to
promulgate Rules and Regulations regarding the Advertising, Promotion and Marketing
of Breastmilk Substitutes?
SOLICITOR GENERAL DEVANADERA:
Your Honor, please, it is provided that the Inter-Agency Committee, Your Honor.
xxxx
ASSOCIATE JUSTICE SANTIAGO:
x x x Don't you think that the Department of Health overstepped its rule making authority
when it totally banned advertising and promotion under Section 11 prescribed the total
effect rule as well as the content of materials under Section 13 and 15 of the rules and
regulations?
SOLICITOR GENERAL DEVANADERA:
Your Honor, please, first we would like to stress that there is no total absolute ban.
Second, the Inter-Agency Committee is under the Department of Health, Your Honor.
xxxx
ASSOCIATE JUSTICE NAZARIO:
x x x Did I hear you correctly, Madam Solicitor, that there is no absolute ban on
advertising of breastmilk substitutes in the Revised Rules?
SOLICITOR GENERAL DEVANADERA:
Yes, your Honor.
12
ASSOCIATE JUSTICE NAZARIO:
But, would you nevertheless agree that there is an absolute ban on advertising of
breastmilk substitutes intended for children two (2) years old and younger?
SOLICITOR GENERAL DEVANADERA:
It's not an absolute ban, Your Honor, because we have the Inter-Agency Committee that
can evaluate some advertising and promotional materials, subject to the standards that we
have stated earlier, which are- they should not undermine breastfeeding, Your Honor.
xxxx
x x x Section 11, while it is titled Prohibition, it must be taken in relation with the other
Sections, particularly 12 and 13 and 15, Your Honor, because it is recognized that the
Inter-Agency Committee has that power to evaluate promotional materials, Your Honor.
ASSOCIATE JUSTICE NAZARIO:
So in short, will you please clarify there's no absolute ban on advertisement regarding
milk substitute regarding infants two (2) years below?
SOLICITOR GENERAL DEVANADERA:
We can proudly say that the general rule is that there is a prohibition, however, we take
exceptions and standards have been set. One of which is that, the Inter-Agency
Committee can allow if the advertising and promotions will not undermine breastmilk
and breastfeeding, Your Honor.[63]
Sections 11 and 4(f) of the RIRR are clearly violative of the Milk Code.
However, although it is the IAC which is authorized to promulgate rules and regulations
for the approval or rejection of advertising, promotional, or other marketing materials
under Section 12(a) of the Milk Code, said provision must be related to Section 6 thereof
which in turn provides that the rules and regulations must be pursuant to the applicable
standards provided for in this Code. Said standards are set forth in Sections 5(b), 8(b),
and 10 of the Code, which, at the risk of being repetitious, and for easy reference, are
quoted hereunder:
SECTION 5. Information and Education
xxxx
(b) Informational and educational materials, whether written, audio, or visual, dealing
with the feeding of infants and intended to reach pregnant women and mothers of infants,
shall include clear information on all the following points: (1) the benefits and superiority
of breastfeeding; (2) maternal nutrition, and the preparation for and maintenance of
breastfeeding; (3) the negative effect on breastfeeding of introducing partial
bottlefeeding; (4) the difficulty of reversing the decision not to breastfeed; and (5) where
needed, the proper use of infant formula, whether manufactured industrially or home-
prepared. When such materials contain information about the use of infant formula, they
shall include the social and financial implications of its use; the health hazards of
inappropriate foods of feeding methods; and, in particular, the health hazards of
unnecessary or improper use of infant formula and other breastmilk substitutes. Such
materials shall not use any picture or text which may idealize the use of breastmilk
substitutes.
xxxx
SECTION 8. Health Workers.
xxxx
(b) Information provided by manufacturers and distributors to health professionals
regarding products within the scope of this Code shall be restricted to scientific and
factual matters and such information shall not imply or create a belief that bottle feeding
is equivalent or superior to breastfeeding. It shall also include the information specified
in Section 5(b).
xxxx
SECTION 10. Containers/Label
(a) Containers and/or labels shall be designed to provide the necessary information about
the appropriate use of the products, and in such a way as not to discourage breastfeeding.
(b) Each container shall have a clear, conspicuous and easily readable and understandable
message in Pilipino or English printed on it, or on a label, which message can not readily
become separated from it, and which shall include the following points:
(i) the words Important Notice or their equivalent;
(ii) a statement of the superiority of breastfeeding;
(iii) a statement that the product shall be used only on the advice of a health worker as to
the need for its use and the proper methods of use; and
(iv) instructions for appropriate preparation, and a warning against the health hazards of
inappropriate preparation.
Section 12(b) of the Milk Code designates the DOH as the principal implementing agency
for the enforcement of the provisions of the Code. In relation to such responsibility of the
DOH, Section 5(a) of the Milk Code states that:
SECTION 5. Information and Education
(a) The government shall ensure that objective and consistent information is provided on
infant feeding, for use by families and those involved in the field of infant nutrition. This
responsibility shall cover the planning, provision, design and dissemination of
information, and the control thereof, on infant nutrition. (Emphasis supplied)
Thus, the DOH has the significant responsibility to translate into operational terms the
standards set forth in Sections 5, 8, and 10 of the Milk Code, by which the IAC shall
screen advertising, promotional, or other marketing materials.
It is pursuant to such responsibility that the DOH correctly provided for Section 13 in the
RIRR which reads as follows:
PIL - 110417
SECTION 13. Total Effect - Promotion of products within the scope of this Code must
be objective and should not equate or make the product appear to be as good or equal to
breastmilk or breastfeeding in the advertising concept. It must not in any case undermine
breastmilk or breastfeeding. The total effect should not directly or indirectly suggest that
buying their product would produce better individuals, or resulting in greater love,
intelligence, ability, harmony or in any manner bring better health to the baby or other
such exaggerated and unsubstantiated claim.
Such standards bind the IAC in formulating its rules and regulations on advertising,
promotion, and marketing. Through that single provision, the DOH exercises control over
the information content of advertising, promotional and marketing materials on
breastmilk vis-a-vis breastmilk substitutes, supplements and other related products. It
also sets a viable standard against which the IAC may screen such materials before they
are made public.
In Equi-Asia Placement, Inc. vs. Department of Foreign Affairs,[64] the Court held:
x x x [T]his Court had, in the past, accepted as sufficient standards the following: public
interest, justice and equity, public convenience and welfare, and simplicity, economy and
welfare.[65]
In this case, correct information as to infant feeding and nutrition is infused with public
interest and welfare.
4. With regard to activities for dissemination of information to health professionals, the
Court also finds that there is no inconsistency between the provisions of the Milk Code
and the RIRR. Section 7(b)[66] of the Milk Code, in relation to Section 8(b)[67] of the
same Code, allows dissemination of information to health professionals but such
information is restricted to scientific and factual matters.
Contrary to petitioner's claim, Section 22 of the RIRR does not prohibit the giving of
information to health professionals on scientific and factual matters. What it prohibits is
the involvement of the manufacturer and distributor of the products covered by the Code
in activities for the promotion, education and production of Information, Education and
Communication (IEC) materials regarding breastfeeding that are intended for women and
children. Said provision cannot be construed to encompass even the dissemination of
information to health professionals, as restricted by the Milk Code.
5. Next, petitioner alleges that Section 8(e)[68] of the Milk Code permits milk
manufacturers and distributors to extend assistance in research and in the continuing
education of health professionals, while Sections 22 and 32 of the RIRR absolutely forbid
the same. Petitioner also assails Section 4(i)[69] of the RIRR prohibiting milk
manufacturers' and distributors' participation in any policymaking body in relation to the
advancement of breastfeeding.
Section 4(i) of the RIRR provides that milk companies and their representatives should
not form part of any policymaking body or entity in relation to the advancement of
breastfeeding. The Court finds nothing in said provisions which contravenes the Milk
Code. Note that under Section 12(b) of the Milk Code, it is the DOH which shall be
principally responsible for the implementation and enforcement of the provisions of said
Code. It is entirely up to the DOH to decide which entities to call upon or allow to be part
of policymaking bodies on breastfeeding. Therefore, the RIRR's prohibition on milk
companies participation in any policymaking body in relation to the advancement of
breastfeeding is in accord with the Milk Code.
Petitioner is also mistaken in arguing that Section 22 of the RIRR prohibits milk
companies from giving reasearch assistance and continuing education to health
professionals. Section 22[70] of the RIRR does not pertain to research assistance to or
the continuing education of health professionals; rather, it deals with breastfeeding
promotion and education for women and children. Nothing in Section 22 of the RIRR
prohibits milk companies from giving assistance for research or continuing education to
health professionals; hence, petitioner's argument against this particular provision must
be struck down.
It is Sections 9[71] and 10[72] of the RIRR which govern research assistance. Said
sections of the RIRR provide that research assistance for health workers and researchers
may be allowed upon approval of an ethics committee, and with certain disclosure
requirements imposed on the milk company and on the recipient of the research award.
The Milk Code endows the DOH with the power to determine how such research or
educational assistance may be given by milk companies or under what conditions health
workers may accept the assistance. Thus, Sections 9 and 10 of the RIRR imposing
limitations on the kind of research done or extent of assistance given by milk companies
are completely in accord with the Milk Code.
Petitioner complains that Section 32[73] of the RIRR prohibits milk companies from
giving assistance, support, logistics or training to health workers. This provision is within
the prerogative given to the DOH under Section 8(e)[74] of the Milk Code, which
provides that manufacturers and distributors of breastmilk substitutes may assist in
researches, scholarships and the continuing education, of health professionals in
accordance with the rules and regulations promulgated by the Ministry of Health, now
DOH.
6. As to the RIRR's prohibition on donations, said provisions are also consistent with the
Milk Code. Section 6(f) of the Milk Code provides that donations may be made by
manufacturers and distributors of breastmilk substitutes upon the request or with the
approval of the DOH. The law does not proscribe the refusal of donations. The Milk Code
leaves it purely to the discretion of the DOH whether to request or accept such donations.
The DOH then appropriately exercised its discretion through Section 51[75] of the RIRR
which sets forth its policy not to request or approve donations from manufacturers and
distributors of breastmilk substitutes.
It was within the discretion of the DOH when it provided in Section 52 of the RIRR that
any donation from milk companies not covered by the Code should be coursed through
the IAC which shall determine whether such donation should be accepted or refused. As
reasoned out by respondents, the DOH is not mandated by the Milk Code to accept
donations. For that matter, no person or entity can be forced to accept a donation. There
is, therefore, no real inconsistency between the RIRR and the law because the Milk Code
does not prohibit the DOH from refusing donations.
7. With regard to Section 46 of the RIRR providing for administrative sanctions that are
not found in the Milk Code, the Court upholds petitioner's objection thereto.
13
Respondent's reliance on Civil Aeronautics Board v. Philippine Air Lines, Inc.[76] is
misplaced. The glaring difference in said case and the present case before the Court is
that, in the Civil Aeronautics Board, the Civil Aeronautics Administration (CAA) was
expressly granted by the law (R.A. No. 776) the power to impose fines and civil penalties,
while the Civil Aeronautics Board (CAB) was granted by the same law the power to
review on appeal the order or decision of the CAA and to determine whether to impose,
remit, mitigate, increase or compromise such fine and civil penalties. Thus, the Court
upheld the CAB's Resolution imposing administrative fines.
In a more recent case, Perez v. LPG Refillers Association of the Philippines, Inc.,[77] the
Court upheld the Department of Energy (DOE) Circular No. 2000-06-10 implementing
Batas Pambansa (B.P.) Blg. 33. The circular provided for fines for the commission of
prohibited acts. The Court found that nothing in the circular contravened the law because
the DOE was expressly authorized by B.P. Blg. 33 and R.A. No. 7638 to impose fines or
penalties.
In the present case, neither the Milk Code nor the Revised Administrative Code grants
the DOH the authority to fix or impose administrative fines. Thus, without any express
grant of power to fix or impose such fines, the DOH cannot provide for those fines in the
RIRR. In this regard, the DOH again exceeded its authority by providing for such fines
or sanctions in Section 46 of the RIRR. Said provision is, therefore, null and void.
The DOH is not left without any means to enforce its rules and regulations. Section 12(b)
(3) of the Milk Code authorizes the DOH to cause the prosecution of the violators of this
Code and other pertinent laws on products covered by this Code. Section 13 of the Milk
Code provides for the penalties to be imposed on violators of the provision of the Milk
Code or the rules and regulations issued pursuant to it, to wit:
SECTION 13. Sanctions
(a) Any person who violates the provisions of this Code or the rules and regulations issued
pursuant to this Code shall, upon conviction, be punished by a penalty of two (2) months
to one (1) year imprisonment or a fine of not less than One Thousand Pesos (P1,000.00)
nor more than Thirty Thousand Pesos (P30,000.00) or both. Should the offense be
committed by a juridical person, the chairman of the Board of Directors, the president,
general manager, or the partners and/or the persons directly responsible therefor, shall be
penalized.
(b) Any license, permit or authority issued by any government agency to any health
worker, distributor, manufacturer, or marketing firm or personnel for the practice of their
profession or occupation, or for the pursuit of their business, may, upon recommendation
of the Ministry of Health, be suspended or revoked in the event of repeated violations of
this Code, or of the rules and regulations issued pursuant to this Code. (Emphasis
supplied)
8. Petitioners claim that Section 57 of the RIRR repeals existing laws that are contrary to
the RIRR is frivolous.
Section 57 reads:
SECTION 57. Repealing Clause - All orders, issuances, and rules and regulations or parts
thereof inconsistent with these revised rules and implementing regulations are hereby
repealed or modified accordingly.
Section 57 of the RIRR does not provide for the repeal of laws but only orders, issuances
and rules and regulations. Thus, said provision is valid as it is within the DOH's rule-
making power.
An administrative agency like respondent possesses quasi-legislative or rule-making
power or the power to make rules and regulations which results in delegated legislation
that is within the confines of the granting statute and the Constitution, and subject to the
doctrine of non-delegability and separability of powers.[78] Such express grant of rule-
making power necessarily includes the power to amend, revise, alter, or repeal the
same.[79] This is to allow administrative agencies flexibility in formulating and adjusting
the details and manner by which they are to implement the provisions of a law,[80] in
order to make it more responsive to the times. Hence, it is a standard provision in
administrative rules that prior issuances of administrative agencies that are inconsistent
therewith are declared repealed or modified.
In fine, only Sections 4(f), 11 and 46 are ultra vires, beyond the authority of the DOH to
promulgate and in contravention of the Milk Code and, therefore, null and void. The rest
of the provisions of the RIRR are in consonance with the Milk Code.
Lastly, petitioner makes a catch-all allegation that:
x x x [T]he questioned RIRR sought to be implemented by the Respondents is
unnecessary and oppressive, and is offensive to the due process clause of the Constitution,
insofar as the same is in restraint of trade and because a provision therein is inadequate
to provide the public with a comprehensible basis to determine whether or not they have
committed a violation.[81] (Emphasis supplied)
Petitioner refers to Sections 4(f),[82] 4(i),[83] 5(w),[84] 11,[85] 22,[86] 32,[87] 46,[88]
and 52[89] as the provisions that suppress the trade of milk and, thus, violate the due
process clause of the Constitution.
The framers of the constitution were well aware that trade must be subjected to some
form of regulation for the public good. Public interest must be upheld over business
interests.[90] In Pest Management Association of the Philippines v. Fertilizer and
Pesticide Authority,[91] it was held thus:
x x x Furthermore, as held in Association of Philippine Coconut Desiccators v. Philippine
Coconut Authority, despite the fact that our present Constitution enshrines free enterprise
as a policy, it nonetheless reserves to the government the power to intervene whenever
necessary to promote the general welfare. There can be no question that the unregulated
use or proliferation of pesticides would be hazardous to our environment. Thus, in the
aforecited case, the Court declared that free enterprise does not call for removal of
protective regulations. x x x It must be clearly explained and proven by competent
evidence just exactly how such protective regulation would result in the restraint of trade.
[Emphasis and underscoring supplied]
In this case, petitioner failed to show that the proscription of milk manufacturers
participation in any policymaking body (Section 4(i)), classes and seminars for women
and children (Section 22); the giving of assistance, support and logistics or training
(Section 32); and the giving of donations (Section 52) would unreasonably hamper the
trade of breastmilk substitutes. Petitioner has not established that the proscribed activities
PIL - 110417
are indispensable to the trade of breastmilk substitutes. Petitioner failed to demonstrate
that the aforementioned provisions of the RIRR are unreasonable and oppressive for
being in restraint of trade.
Petitioner also failed to convince the Court that Section 5(w) of the RIRR is unreasonable
and oppressive. Said section provides for the definition of the term milk company, to wit:
SECTION 5 x x x. (w) Milk Company shall refer to the owner, manufacturer, distributor
of infant formula, follow-up milk, milk formula, milk supplement, breastmilk substitute
or replacement, or by any other description of such nature, including their representatives
who promote or otherwise advance their commercial interests in marketing those
products;
On the other hand, Section 4 of the Milk Code provides:
(d) Distributor means a person, corporation or any other entity in the public or private
sector engaged in the business (whether directly or indirectly) of marketing at the
wholesale or retail level a product within the scope of this Code. A primary distributor is
a manufacturer's sales agent, representative, national distributor or broker.
xxxx
(j) Manufacturer means a corporation or other entity in the public or private sector
engaged in the business or function (whether directly or indirectly or through an agent or
and entity controlled by or under contract with it) of manufacturing a products within the
scope of this Code.
Notably, the definition in the RIRR merely merged together under the term milk company
the entities defined separately under the Milk Code as distributor and manufacturer. The
RIRR also enumerated in Section 5(w) the products manufactured or distributed by an
entity that would qualify it as a milk company, whereas in the Milk Code, what is used is
the phrase products within the scope of this Code. Those are the only differences between
the definitions given in the Milk Code and the definition as re-stated in the RIRR.
Since all the regulatory provisions under the Milk Code apply equally to both
manufacturers and distributors, the Court sees no harm in the RIRR providing for just
one term to encompass both entities. The definition of milk company in the RIRR and
the definitions of distributor and manufacturer provided for under the Milk Code are
practically the same.
The Court is not convinced that the definition of milk company provided in the RIRR
would bring about any change in the treatment or regulation of distributors and
manufacturers of breastmilk substitutes, as defined under the Milk Code.
Except Sections 4(f), 11 and 46, the rest of the provisions of the RIRR are in consonance
with the objective, purpose and intent of the Milk Code, constituting reasonable
regulation of an industry which affects public health and welfare and, as such, the rest of
the RIRR do not constitute illegal restraint of trade nor are they violative of the due
process clause of the Constitution.
WHEREFORE, the petition is PARTIALLY GRANTED. Sections 4(f), 11 and 46 of
Administrative Order No. 2006-0012 dated May 12, 2006 are declared NULL and VOID
for being ultra vires. The Department of Health and respondents are PROHIBITED from
implementing said provisions.
The Temporary Restraining Order issued on August 15, 2006 is LIFTED insofar as the
rest of the provisions of Administrative Order No. 2006-0012 is concerned.
SO ORDERED.
THE PROVINCE OF NORTH COTABATO vs GRP PEACE PANEL
GR 183591, October 14, 2008
DECISION
CARPIO MORALES, J.:
Subject of these consolidated cases is the extent of the powers of the President in pursuing
the peace process. While the facts surrounding this controversy center on the armed
conflict in Mindanao between the government and the Moro Islamic Liberation Front
(MILF), the legal issue involved has a bearing on all areas in the country where there has
been a long-standing armed conflict. Yet again, the Court is tasked to perform a delicate
balancing act. It must uncompromisingly delineate the bounds within which the President
may lawfully exercise her discretion, but it must do so in strict adherence to the
Constitution, lest its ruling unduly restricts the freedom of action vested by that same
Constitution in the Chief Executive precisely to enable her to pursue the peace process
effectively.
I. FACTUAL ANTECEDENTS OF THE PETITIONS
On August 5, 2008, the Government of the Republic of the Philippines (GRP) and the
MILF, through the Chairpersons of their respective peace negotiating panels, were
scheduled to sign a Memorandum of Agreement on the Ancestral Domain (MOA-AD)
Aspect of the GRP-MILF Tripoli Agreement on Peace of 2001 in Kuala Lumpur,
Malaysia.
The MILF is a rebel group which was established in March 1984 when, under the
leadership of the late Salamat Hashim, it splintered from the Moro National Liberation
Front (MNLF) then headed by Nur Misuari, on the ground, among others, of what
Salamat perceived to be the manipulation of the MNLF away from an Islamic basis
towards Marxist-Maoist orientations.[1]
The signing of the MOA-AD between the GRP and the MILF was not to materialize,
however, for upon motion of petitioners, specifically those who filed their cases before
the scheduled signing of the MOA-AD, this Court issued a Temporary Restraining Order
enjoining the GRP from signing the same.
The MOA-AD was preceded by a long process of negotiation and the concluding of
several prior agreements between the two parties beginning in 1996, when the GRP-
MILF peace negotiations began. On July 18, 1997, the GRP and MILF Peace Panels
signed the Agreement on General Cessation of Hostilities. The following year, they
signed the General Framework of Agreement of Intent on August 27, 1998.
14
The Solicitor General, who represents respondents, summarizes the MOA-AD by stating
that the same contained, among others, the commitment of the parties to pursue peace
negotiations, protect and respect human rights, negotiate with sincerity in the resolution
and pacific settlement of the conflict, and refrain from the use of threat or force to attain
undue advantage while the peace negotiations on the substantive agenda are on-going.[2]
Early on, however, it was evident that there was not going to be any smooth sailing in the
GRP-MILF peace process. Towards the end of 1999 up to early 2000, the MILF attacked
a number of municipalities in Central Mindanao and, in March 2000, it took control of
the town hall of Kauswagan, Lanao del Norte.[3] In response, then President Joseph
Estrada declared and carried out an all-out-war against the MILF.
When President Gloria Macapagal-Arroyo assumed office, the military offensive against
the MILF was suspended and the government sought a resumption of the peace talks. The
MILF, according to a leading MILF member, initially responded with deep reservation,
but when President Arroyo asked the Government of Malaysia through Prime Minister
Mahathir Mohammad to help convince the MILF to return to the negotiating table, the
MILF convened its Central Committee to seriously discuss the matter and, eventually,
decided to meet with the GRP.[4]
The parties met in Kuala Lumpur on March 24, 2001, with the talks being facilitated by
the Malaysian government, the parties signing on the same date the Agreement on the
General Framework for the Resumption of Peace Talks Between the GRP and the MILF.
The MILF thereafter suspended all its military actions.[5]
Formal peace talks between the parties were held in Tripoli, Libya from June 20-22, 2001,
the outcome of which was the GRP-MILF Tripoli Agreement on Peace (Tripoli
Agreement 2001) containing the basic principles and agenda on the following aspects of
the negotiation: Security Aspect, Rehabilitation Aspect, and Ancestral Domain Aspect.
With regard to the Ancestral Domain Aspect, the parties in Tripoli Agreement 2001
simply agreed that the same be discussed further by the Parties in their next meeting.
A second round of peace talks was held in Cyberjaya, Malaysia on August 5-7, 2001
which ended with the signing of the Implementing Guidelines on the Security Aspect of
the Tripoli Agreement 2001 leading to a ceasefire status between the parties. This was
followed by the Implementing Guidelines on the Humanitarian Rehabilitation and
Development Aspects of the Tripoli Agreement 2001, which was signed on May 7, 2002
at Putrajaya, Malaysia. Nonetheless, there were many incidence of violence between
government forces and the MILF from 2002 to 2003.
Meanwhile, then MILF Chairman Salamat Hashim passed away on July 13, 2003 and he
was replaced by Al Haj Murad, who was then the chief peace negotiator of the MILF.
Murads position as chief peace negotiator was taken over by Mohagher Iqbal.[6]
In 2005, several exploratory talks were held between the parties in Kuala Lumpur,
eventually leading to the crafting of the draft MOA-AD in its final form, which, as
mentioned, was set to be signed last August 5, 2008.
II. STATEMENT OF THE PROCEEDINGS
Before the Court is what is perhaps the most contentious consensus ever embodied in an
instrument the MOA-AD which is assailed principally by the present petitions bearing
docket numbers 183591, 183752, 183893, 183951 and 183962.
Commonly impleaded as respondents are the GRP Peace Panel on Ancestral Domain[7]
and the Presidential Adviser on the Peace Process (PAPP) Hermogenes Esperon, Jr.
On July 23, 2008, the Province of North Cotabato[8] and Vice-Governor Emmanuel Piol
filed a petition, docketed as G.R. No. 183591, for Mandamus and Prohibition with Prayer
for the Issuance of Writ of Preliminary Injunction and Temporary Restraining Order.[9]
Invoking the right to information on matters of public concern, petitioners seek to compel
respondents to disclose and furnish them the complete and official copies of the MOA-
AD including its attachments, and to prohibit the slated signing of the MOA-AD, pending
the disclosure of the contents of the MOA-AD and the holding of a public consultation
thereon. Supplementarily, petitioners pray that the MOA-AD be declared
unconstitutional.[10]
This initial petition was followed by another one, docketed as G.R. No. 183752, also for
Mandamus and Prohibition[11] filed by the City of Zamboanga,[12] Mayor Celso
Lobregat, Rep. Ma. Isabelle Climaco and Rep. Erico Basilio Fabian who likewise pray
for similar injunctive reliefs. Petitioners herein moreover pray that the City of Zamboanga
be excluded from the Bangsamoro Homeland and/or Bangsamoro Juridical Entity and, in
the alternative, that the MOA-AD be declared null and void.
By Resolution of August 4, 2008, the Court issued a Temporary Restraining Order
commanding and directing public respondents and their agents to cease and desist from
formally signing the MOA-AD.[13] The Court also required the Solicitor General to
submit to the Court and petitioners the official copy of the final draft of the MOA-
AD,[14] to which she complied.[15]
Meanwhile, the City of Iligan[16] filed a petition for Injunction and/or Declaratory Relief,
docketed as G.R. No. 183893, praying that respondents be enjoined from signing the
MOA-AD or, if the same had already been signed, from implementing the same, and that
the MOA-AD be declared unconstitutional. Petitioners herein additionally implead
Executive Secretary Eduardo Ermita as respondent.
The Province of Zamboanga del Norte,[17] Governor Rolando Yebes, Vice-Governor
Francis Olvis, Rep. Cecilia Jalosjos-Carreon, Rep. Cesar Jalosjos, and the members[18]
of the Sangguniang Panlalawigan of Zamboanga del Norte filed on August 15, 2008 a
petition for Certiorari, Mandamus and Prohibition,[19] docketed as G.R. No. 183951.
They pray, inter alia, that the MOA-AD be declared null and void and without operative
effect, and that respondents be enjoined from executing the MOA-AD.
On August 19, 2008, Ernesto Maceda, Jejomar Binay, and Aquilino Pimentel III filed a
petition for Prohibition,[20] docketed as G.R. No. 183962, praying for a judgment
prohibiting and permanently enjoining respondents from formally signing and executing
the MOA-AD and or any other agreement derived therefrom or similar thereto, and
nullifying the MOA-AD for being unconstitutional and illegal. Petitioners herein
additionally implead as respondent the MILF Peace Negotiating Panel represented by its
Chairman Mohagher Iqbal.
Various parties moved to intervene and were granted leave of court to file their petitions-
/comments-in-intervention. Petitioners-in-Intervention include Senator Manuel A.
PIL - 110417
Roxas, former Senate President Franklin Drilon and Atty. Adel Tamano, the City of
Isabela[21] and Mayor Cherrylyn Santos-Akbar, the Province of Sultan Kudarat[22] and
Gov. Suharto Mangudadatu, the Municipality of Linamon in Lanao del Norte,[23] Ruy
Elias Lopez of Davao City and of the Bagobo tribe, Sangguniang Panlungsod member
Marino Ridao and businessman Kisin Buxani, both of Cotabato City; and lawyers Carlo
Gomez, Gerardo Dilig, Nesario Awat, Joselito Alisuag, Richalex Jagmis, all of Palawan
City. The Muslim Legal Assistance Foundation, Inc. (Muslaf) and the Muslim Multi-
Sectoral Movement for Peace and Development (MMMPD) filed their respective
Comments-in-Intervention.
By subsequent Resolutions, the Court ordered the consolidation of the petitions.
Respondents filed Comments on the petitions, while some of petitioners submitted their
respective Replies.
Respondents, by Manifestation and Motion of August 19, 2008, stated that the Executive
Department shall thoroughly review the MOA-AD and pursue further negotiations to
address the issues hurled against it, and thus moved to dismiss the cases. In the succeeding
exchange of pleadings, respondents motion was met with vigorous opposition from
petitioners.
The cases were heard on oral argument on August 15, 22 and 29, 2008 that tackled the
following principal issues:
1. Whether the petitions have become moot and academic
(i) insofar as the mandamus aspect is concerned, in view of the disclosure of official
copies of the final draft of the Memorandum of Agreement (MOA); and
(ii) insofar as the prohibition aspect involving the Local Government Units is concerned,
if it is considered that consultation has become fait accompli with the finalization of the
draft;
2. Whether the constitutionality and the legality of the MOA is ripe for adjudication;
3. Whether respondent Government of the Republic of the Philippines Peace Panel
committed grave abuse of discretion amounting to lack or excess of jurisdiction when it
negotiated and initiated the MOA vis--vis ISSUES Nos. 4 and 5;
4. Whether there is a violation of the peoples right to information on matters of public
concern (1987 Constitution, Article III, Sec. 7) under a state policy of full disclosure of
all its transactions involving public interest (1987 Constitution, Article II, Sec. 28)
including public consultation under Republic Act No. 7160 (LOCAL GOVERNMENT
CODE OF 1991)[;]
If it is in the affirmative, whether prohibition under Rule 65 of the 1997 Rules of Civil
Procedure is an appropriate remedy;
5. Whether by signing the MOA, the Government of the Republic of the Philippines
would be BINDING itself
a) to create and recognize the Bangsamoro Juridical Entity (BJE) as a separate state, or a
juridical, territorial or political subdivision not recognized by law;
b) to revise or amend the Constitution and existing laws to conform to the MOA;
c) to concede to or recognize the claim of the Moro Islamic Liberation Front for ancestral
domain in violation of Republic Act No. 8371 (THE INDIGENOUS PEOPLES RIGHTS
ACT OF 1997), particularly Section 3(g) & Chapter VII (DELINEATION,
RECOGNITION OF ANCESTRAL DOMAINS)[;]
If in the affirmative, whether the Executive Branch has the authority to so bind the
Government of the Republic of the Philippines;
6. Whether the inclusion/exclusion of the Province of North Cotabato, Cities of
Zamboanga, Iligan and Isabela, and the Municipality of Linamon, Lanao del Norte
in/from the areas covered by the projected Bangsamoro Homeland is a justiciable
question; and
7. Whether desistance from signing the MOA derogates any prior valid commitments of
the Government of the Republic of the Philippines.[24]
The Court, thereafter, ordered the parties to submit their respective Memoranda. Most of
the parties submitted their memoranda on time.
III. OVERVIEW OF THE MOA-AD
As a necessary backdrop to the consideration of the objections raised in the subject five
petitions and six petitions-in-intervention against the MOA-AD, as well as the two
comments-in-intervention in favor of the MOA-AD, the Court takes an overview of the
MOA.
The MOA-AD identifies the Parties to it as the GRP and the MILF.
Under the heading Terms of Reference (TOR), the MOA-AD includes not only four
earlier agreements between the GRP and MILF, but also two agreements between the
GRP and the MNLF: the 1976 Tripoli Agreement, and the Final Peace Agreement on the
Implementation of the 1976 Tripoli Agreement, signed on September 2, 1996 during the
administration of President Fidel Ramos.
The MOA-AD also identifies as TOR two local statutes the organic act for the
Autonomous Region in Muslim Mindanao (ARMM)[25] and the Indigenous Peoples
Rights Act (IPRA),[26] and several international law instruments the ILO Convention
No. 169 Concerning Indigenous and Tribal Peoples in Independent Countries in relation
to the UN Declaration on the Rights of the Indigenous Peoples, and the UN Charter,
among others.
The MOA-AD includes as a final TOR the generic category of compact rights
entrenchment emanating from the regime of dar-ul-muahada (or territory under compact)
and dar-ul-sulh (or territory under peace agreement) that partakes the nature of a treaty
device.
During the height of the Muslim Empire, early Muslim jurists tended to see the world
through a simple dichotomy: there was the dar-ul-Islam (the Abode of Islam) and dar-ul-
15
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-muahada (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-muahada and dar-ul-sulh simply refers to all other agreements between the MILF and
the Philippine government the Philippines being the land of compact and peace agreement
that partake of the nature of a treaty device, treaty being broadly defined as any solemn
agreement in writing that sets out understandings, obligations, and benefits for both
parties which provides for a framework that elaborates the principles declared in the
[MOA-AD].[29]
The MOA-AD states that the Parties HAVE AGREED AND ACKNOWLEDGED AS
FOLLOWS, and starts with its main body.
The main body of the MOA-AD is divided into four strands, namely, Concepts and
Principles, Territory, Resources, and Governance.
A. CONCEPTS AND PRINCIPLES
This strand begins with the statement that it is the birthright of all Moros and all
Indigenous peoples of Mindanao to identify themselves and be accepted as Bangsamoros.
It defines Bangsamoro people as the natives or original inhabitants of Mindanao and its
adjacent islands including Palawan and the Sulu archipelago at the time of conquest or
colonization, and their descendants whether mixed or of full blood, including their
spouses.[30]
Thus, the concept of Bangsamoro, as defined in this strand of the MOA-AD, includes not
only Moros as traditionally understood even by Muslims,[31] but all indigenous peoples
of Mindanao and its adjacent islands. The MOA-AD adds that the freedom of choice of
indigenous peoples shall be respected. What this freedom of choice consists in has not
been specifically defined.
The MOA-AD proceeds to refer to the Bangsamoro homeland, the ownership of which
is vested exclusively in the Bangsamoro people by virtue of their prior rights of
occupation.[32] Both parties to the MOA-AD acknowledge that ancestral domain does
not form part of the public domain.[33]
The Bangsamoro people are acknowledged as having the right to self-governance, which
right is said to be rooted on ancestral territoriality exercised originally under the suzerain
authority of their sultanates and the Pat a Pangampong ku Ranaw. The sultanates were
described as states or karajaan/kadatuan resembling a body politic endowed with all the
elements of a nation-state in the modern sense.[34]
The MOA-AD thus grounds the right to self-governance of the Bangsamoro people on
the past suzerain authority of the sultanates. As gathered, the territory defined as the
Bangsamoro homeland was ruled by several sultanates and, specifically in the case of the
Maranao, by the Pat a Pangampong ku Ranaw, a confederation of independent
principalities (pangampong) each ruled by datus and sultans, none of whom was supreme
over the others.[35]
The MOA-AD goes on to describe the Bangsamoro people as the First Nation with
defined territory and with a system of government having entered into treaties of amity
and commerce with foreign nations.
The term First Nation is of Canadian origin referring to the indigenous peoples of that
territory, particularly those known as Indians. In Canada, each of these indigenous
peoples is equally entitled to be called First Nation, hence, all of them are usually
described collectively by the plural First Nations.[36] To that extent, the MOA-AD, by
identifying the Bangsamoro people as the First Nation suggesting its exclusive
entitlement to that designation departs from the Canadian usage of the term.
The MOA-AD then mentions for the first time the Bangsamoro Juridical Entity (BJE) to
which it grants the authority and jurisdiction over the Ancestral Domain and Ancestral
Lands of the Bangsamoro.[37]
B. TERRITORY
The territory of the Bangsamoro homeland is described as the land mass as well as the
maritime, terrestrial, fluvial and alluvial domains, including the aerial domain and the
atmospheric space above it, embracing the Mindanao-Sulu-Palawan geographic
region.[38]
More specifically, the core of the BJE is defined as the present geographic area of the
ARMM thus constituting the following areas: Lanao del Sur, Maguindanao, Sulu, Tawi-
Tawi, Basilan, and Marawi City. Significantly, this core also includes certain
municipalities of Lanao del Norte that voted for inclusion in the ARMM in the 2001
plebiscite.[39]
Outside of this core, the BJE is to cover other provinces, cities, municipalities and
barangays, which are grouped into two categories, Category A and Category B. Each of
these areas is to be subjected to a plebiscite to be held on different dates, years apart from
each other. Thus, Category A areas are to be subjected to a plebiscite not later than twelve
(12) months following the signing of the MOA-AD.[40] Category B areas, also called
Special Intervention Areas, on the other hand, are to be subjected to a plebiscite twenty-
five (25) years from the signing of a separate agreement the Comprehensive
Compact.[41]
The Parties to the MOA-AD stipulate that the BJE shall have jurisdiction over all natural
resources within its internal waters, defined as extending fifteen (15) kilometers from the
PIL - 110417
coastline of the BJE area;[42] that the BJE shall also have territorial waters, which shall
stretch beyond the BJE internal waters up to the baselines of the Republic of the
Philippines (RP) south east and south west of mainland Mindanao; and that within these
territorial waters, the BJE and the Central Government (used interchangeably with RP)
shall exercise joint jurisdiction, authority and management over all natural resources.[43]
Notably, the jurisdiction over the internal waters is not similarly described as joint.
The MOA-AD further provides for the sharing of minerals on the territorial waters
between the Central Government and the BJE, in favor of the latter, through production
sharing and economic cooperation agreement.[44] The activities which the Parties are
allowed to conduct on the territorial waters are enumerated, among which are the
exploration and utilization of natural resources, regulation of shipping and fishing
activities, and the enforcement of police and safety measures.[45] There is no similar
provision on the sharing of minerals and allowed activities with respect to the internal
waters of the BJE.
C. RESOURCES
The MOA-AD states that the BJE is free to enter into any economic cooperation and trade
relations with foreign countries and shall have the option to establish trade missions in
those countries. Such relationships and understandings, however, are not to include
aggression against the GRP. The BJE may also enter into environmental cooperation
agreements.[46]
The external defense of the BJE is to remain the duty and obligation of the Central
Government. The Central Government is also bound to take necessary steps to ensure the
BJEs participation in international meetings and events like those of the ASEAN and the
specialized agencies of the UN. The BJE is to be entitled to participate in Philippine
official missions and delegations for the negotiation of border agreements or protocols
for environmental protection and equitable sharing of incomes and revenues involving
the bodies of water adjacent to or between the islands forming part of the ancestral
domain.[47]
With regard to the right of exploring for, producing, and obtaining all potential sources
of energy, petroleum, fossil fuel, mineral oil and natural gas, the jurisdiction and control
thereon is to be vested in the BJE as the party having control within its territorial
jurisdiction. This right carries the proviso that, in times of national emergency, when
public interest so requires, the Central Government may, for a fixed period and under
reasonable terms as may be agreed upon by both Parties, assume or direct the operation
of such resources.[48]
The sharing between the Central Government and the BJE of total production pertaining
to natural resources is to be 75:25 in favor of the BJE.[49]
The MOA-AD provides that legitimate grievances of the Bangsamoro people arising
from any unjust dispossession of their territorial and proprietary rights, customary land
tenures, or their marginalization shall be acknowledged. Whenever restoration is no
longer possible, reparation is to be in such form as mutually determined by the
Parties.[50]
The BJE may modify or cancel the forest concessions, timber licenses, contracts or
agreements, mining concessions, Mineral Production and Sharing Agreements (MPSA),
Industrial Forest Management Agreements (IFMA), and other land tenure instruments
granted by the Philippine Government, including those issued by the present ARMM.[51]
D. GOVERNANCE
The MOA-AD binds the Parties to invite a multinational third-party to observe and
monitor the implementation of the Comprehensive Compact. This compact is to embody
the details for the effective enforcement and the mechanisms and modalities for the actual
implementation of the MOA-AD. The MOA-AD explicitly provides that the participation
of the third party shall not in any way affect the status of the relationship between the
Central Government and the BJE.[52]
The associative relationship
between the Central Government
and the BJE
The MOA-AD describes the relationship of the Central Government and the BJE as
associative, characterized by shared authority and responsibility. And it states that the
structure of governance is to be based on executive, legislative, judicial, and
administrative institutions with defined powers and functions in the Comprehensive
Compact.
The MOA-AD provides that its provisions requiring amendments to the existing legal
framework shall take effect upon signing of the Comprehensive Compact and upon
effecting the aforesaid amendments, with due regard to the non-derogation of prior
agreements and within the stipulated timeframe to be contained in the Comprehensive
Compact. As will be discussed later, much of the present controversy hangs on the
legality of this provision.
The BJE is granted the power to build, develop and maintain its own institutions inclusive
of civil service, electoral, financial and banking, education, legislation, legal, economic,
police and internal security force, judicial system and correctional institutions, the details
of which shall be discussed in the negotiation of the comprehensive compact.
As stated early on, the MOA-AD was set to be signed on August 5, 2008 by Rodolfo
Garcia and Mohagher Iqbal, Chairpersons of the Peace Negotiating Panels of the GRP
and the MILF, respectively. Notably, the penultimate paragraph of the MOA-AD
identifies the signatories as the representatives of the Parties, meaning the GRP and MILF
themselves, and not merely of the negotiating panels.[53] In addition, the signature page
of the MOA-AD states that it is WITNESSED BY Datuk Othman Bin Abd Razak, Special
Adviser to the Prime Minister of Malaysia, ENDORSED BY Ambassador Sayed
Elmasry, Adviser to Organization of the Islamic Conference (OIC) Secretary General and
Special Envoy for Peace Process in Southern Philippines, and SIGNED IN THE
PRESENCE OF Dr. Albert G. Romulo, Secretary of Foreign Affairs of RP and Dato Seri
Utama Dr. Rais Bin Yatim, Minister of Foreign Affairs, Malaysia, all of whom were
scheduled to sign the Agreement last August 5, 2008.
Annexed to the MOA-AD are two documents containing the respective lists cum maps
of the provinces, municipalities, and barangays under Categories A and B earlier
mentioned in the discussion on the strand on TERRITORY.
IV. PROCEDURAL ISSUES
16
A. RIPENESS
The power of judicial review is limited to actual cases or controversies.[54] Courts
decline to issue advisory opinions or to resolve hypothetical or feigned problems, or mere
academic questions.[55] The limitation of the power of judicial review to actual cases
and controversies defines the role assigned to the judiciary in a tripartite allocation of
power, to assure that the courts will not intrude into areas committed to the other branches
of government.[56]
An actual case or controversy involves a conflict of legal rights, an assertion of opposite
legal claims, susceptible of judicial resolution as distinguished from a hypothetical or
abstract difference or dispute. There must be a contrariety of legal rights that can be
interpreted and enforced on the basis of existing law and jurisprudence.[57] The Court
can decide the constitutionality of an act or treaty only when a proper case between
opposing parties is submitted for judicial determination.[58]
Related to the requirement of an actual case or controversy is the requirement of ripeness.
A question is ripe for adjudication when the act being challenged has had a direct adverse
effect on the individual challenging it.[59] For a case to be considered ripe for
adjudication, it is a prerequisite that something had then been accomplished or performed
by either branch before a court may come into the picture,[60] and the petitioner must
allege the existence of an immediate or threatened injury to itself as a result of the
challenged action.[61] He must show that he has sustained or is immediately in danger of
sustaining some direct injury as a result of the act complained of.[62]
The Solicitor General argues that there is no justiciable controversy that is ripe for judicial
review in the present petitions, reasoning that
The unsigned MOA-AD is simply a list of consensus points subject to further negotiations
and legislative enactments as well as constitutional processes aimed at attaining a final
peaceful agreement. Simply put, the MOA-AD remains to be a proposal that does not
automatically create legally demandable rights and obligations until the list of operative
acts required have been duly complied with. x x x
xxxx
In the cases at bar, it is respectfully submitted that this Honorable Court has no authority
to pass upon issues based on hypothetical or feigned constitutional problems or interests
with no concrete bases. Considering the preliminary character of the MOA-AD, there are
no concrete acts that could possibly violate petitioners and intervenors rights since the
acts complained of are mere contemplated steps toward the formulation of a final peace
agreement. Plainly, petitioners and intervenors perceived injury, if at all, is merely
imaginary and illusory apart from being unfounded and based on mere conjectures.
(Underscoring supplied)
The Solicitor General cites[63] the following provisions of the MOA-AD:
TERRITORY
xxxx
2. Toward this end, the Parties enter into the following stipulations:
xxxx
d. Without derogating from the requirements of prior agreements, the Government
stipulates to conduct and deliver, using all possible legal measures, within twelve (12)
months following the signing of the MOA-AD, a plebiscite covering the areas as
enumerated in the list and depicted in the map as Category A attached herein (the Annex).
The Annex constitutes an integral part of this framework agreement. Toward this end, the
Parties shall endeavor to complete the negotiations and resolve all outstanding issues on
the Comprehensive Compact within fifteen (15) months from the signing of the MOA-
AD.
xxxx
GOVERNANCE
xxxx
7. The Parties agree that mechanisms and modalities for the actual implementation of this
MOA-AD shall be spelt out in the Comprehensive Compact to mutually take such steps
to enable it to occur effectively.
Any provisions of the MOA-AD requiring amendments to the existing legal framework
shall come into force upon the signing of a Comprehensive Compact and upon effecting
the necessary changes to the legal framework with due regard to non-derogation of prior
agreements and within the stipulated timeframe to be contained in the Comprehensive
Compact.[64] (Underscoring supplied)
The Solicitor Generals arguments fail to persuade.
Concrete acts under the MOA-AD are not necessary to render the present controversy
ripe. In Pimentel, Jr. v. Aguirre,[65] this Court held:
x x x [B]y the mere enactment of the questioned law or the approval of the challenged
action, the dispute is said to have ripened into a judicial controversy even without any
other overt act. Indeed, even a singular violation of the Constitution and/or the law is
enough to awaken judicial duty.
xxxx
By the same token, when an act of the President, who in our constitutional scheme is a
coequal of Congress, is seriously alleged to have infringed the Constitution and the laws
x x x settling the dispute becomes the duty and the responsibility of the courts.[66]
In Santa Fe Independent School District v. Doe,[67] the United States Supreme Court
held that the challenge to the constitutionality of the schools policy allowing student-led
prayers and speeches before games was ripe for adjudication, even if no public prayer
PIL - 110417
had yet been led under the policy, because the policy was being challenged as
unconstitutional on its face.[68]
That the law or act in question is not yet effective does not negate ripeness. For example,
in New York v. United States,[69] decided in 1992, the United States Supreme Court held
that the action by the State of New York challenging the provisions of the Low-Level
Radioactive Waste Policy Act was ripe for adjudication even if the questioned provision
was not to take effect until January 1, 1996, because the parties agreed that New York
had to take immediate action to avoid the provision's consequences.[70]
The present petitions pray for Certiorari,[71] Prohibition, and Mandamus. Certiorari and
Prohibition are remedies granted by law when any tribunal, board or officer has acted, in
the case of certiorari, or is proceeding, in the case of prohibition, without or in excess of
its jurisdiction or with grave abuse of discretion amounting to lack or excess of
jurisdiction.[72] Mandamus is a remedy granted by law when any tribunal, corporation,
board, officer or person unlawfully neglects the performance of an act which the law
specifically enjoins as a duty resulting from an office, trust, or station, or unlawfully
excludes another from the use or enjoyment of a right or office to which such other is
entitled.[73] Certiorari, Mandamus and Prohibition are appropriate remedies to raise
constitutional issues and to review and/or prohibit/nullify, when proper, acts of legislative
and executive officials.[74]
The authority of the GRP Negotiating Panel is defined by Executive Order No. 3 (E.O.
No. 3), issued on February 28, 2001.[75] The said executive order requires that [t]he
government's policy framework for peace, including the systematic approach and the
administrative structure for carrying out the comprehensive peace process x x x be
governed by this Executive Order.[76]
The present petitions allege that respondents GRP Panel and PAPP Esperon drafted the
terms of the MOA-AD without consulting the local government units or communities
affected, nor informing them of the proceedings. As will be discussed in greater detail
later, such omission, by itself, constitutes a departure by respondents from their mandate
under E.O. No. 3.
Furthermore, the petitions allege that the provisions of the MOA-AD violate the
Constitution. The MOA-AD provides that any provisions of the MOA-AD requiring
amendments to the existing legal framework shall come into force upon the signing of a
Comprehensive Compact and upon effecting the necessary changes to the legal
framework, implying an amendment of the Constitution to accommodate the MOA-AD.
This stipulation, in effect, guaranteed to the MILF the amendment of the Constitution.
Such act constitutes another violation of its authority. Again, these points will be
discussed in more detail later.
As the petitions allege acts or omissions on the part of respondent that exceed their
authority, by violating their duties under E.O. No. 3 and the provisions of the Constitution
and statutes, the petitions make a prima facie case for Certiorari, Prohibition, and
Mandamus, and an actual case or controversy ripe for adjudication exists. When an act
of a branch of government is seriously alleged to have infringed the Constitution, it
becomes not only the right but in fact the duty of the judiciary to settle the dispute.[77]
B. LOCUS STANDI
For a party to have locus standi, one must allege such a personal stake in the outcome of
the controversy as to assure that concrete adverseness which sharpens the presentation of
issues upon which the court so largely depends for illumination of difficult constitutional
questions.[78]
Because constitutional cases are often public actions in which the relief sought is likely
to affect other persons, a preliminary question frequently arises as to this interest in the
constitutional question raised.[79]
When suing as a citizen, the person complaining must allege that he has been or is about
to be denied some right or privilege to which he is lawfully entitled or that he is about to
be subjected to some burdens or penalties by reason of the statute or act complained
of.[80] When the issue concerns a public right, it is sufficient that the petitioner is a citizen
and has an interest in the execution of the laws.[81]
For a taxpayer, one is allowed to sue where there is an assertion that public funds are
illegally disbursed or deflected to an illegal purpose, or that there is a wastage of public
funds through the enforcement of an invalid or unconstitutional law.[82] The Court
retains discretion whether or not to allow a taxpayers 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 Courts 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]
17
In the petitions at bar, petitioners Province of North Cotabato (G.R. No. 183591) Province
of Zamboanga del Norte (G.R. No. 183951), City of Iligan (G.R. No. 183893) and City
of Zamboanga (G.R. No. 183752) and petitioners-in-intervention Province of Sultan
Kudarat, City of Isabela and Municipality of Linamon have locus standi in view of the
direct and substantial injury that they, as LGUs, would suffer as their territories, whether
in whole or in part, are to be included in the intended domain of the BJE. These petitioners
allege that they did not vote for their inclusion in the ARMM which would be expanded
to form the BJE territory. Petitioners legal standing is thus beyond doubt.
In G.R. No. 183962, petitioners Ernesto Maceda, Jejomar Binay and Aquilino Pimentel
III would have no standing as citizens and taxpayers for their failure to specify that they
would be denied some right or privilege or there would be wastage of public funds. The
fact that they are a former Senator, an incumbent mayor of Makati City, and a resident of
Cagayan de Oro, respectively, is of no consequence. Considering their invocation of the
transcendental importance of the issues at hand, however, the Court grants them standing.
Intervenors Franklin Drilon and Adel Tamano, in alleging their standing as taxpayers,
assert that government funds would be expended for the conduct of an illegal and
unconstitutional plebiscite to delineate the BJE territory. On that score alone, they can be
given legal standing. Their allegation that the issues involved in these petitions are of
undeniable transcendental importance clothes them with added basis for their personality
to intervene in these petitions.
With regard to Senator Manuel Roxas, his standing is premised on his being a member
of the Senate and a citizen to enforce compliance by respondents of the publics
constitutional right to be informed of the MOA-AD, as well as on a genuine legal interest
in the matter in litigation, or in the success or failure of either of the parties. He thus
possesses the requisite standing as an intervenor.
With respect to Intervenors Ruy Elias Lopez, as a former congressman of the 3rd district
of Davao City, a taxpayer and a member of the Bagobo tribe; Carlo B. Gomez, et al., as
members of the IBP Palawan chapter, citizens and taxpayers; Marino Ridao, as taxpayer,
resident and member of the Sangguniang Panlungsod of Cotabato City; and Kisin Buxani,
as taxpayer, they failed to allege any proper legal interest in the present petitions. Just the
same, the Court exercises its discretion to relax the procedural technicality on locus standi
given the paramount public interest in the issues at hand.
Intervening respondents Muslim Multi-Sectoral Movement for Peace and Development,
an advocacy group for justice and the attainment of peace and prosperity in Muslim
Mindanao; and Muslim Legal Assistance Foundation Inc., a non-government
organization of Muslim lawyers, allege that they stand to be benefited or prejudiced, as
the case may be, in the resolution of the petitions concerning the MOA-AD, and prays
for the denial of the petitions on the grounds therein stated. Such legal interest suffices to
clothe them with standing.
B. MOOTNESS
Respondents insist that the present petitions have been rendered moot with the
satisfaction of all the reliefs prayed for by petitioners and the subsequent pronouncement
of the Executive Secretary that [n]o matter what the Supreme Court ultimately decides[,]
the government will not sign the MOA.[92]
In lending credence to this policy decision, the Solicitor General points out that the
President had already disbanded the GRP Peace Panel.[93]
In David v. Macapagal-Arroyo,[94] this Court held that the moot and academic principle
not being a magical formula that automatically dissuades courts in resolving a case, it
will decide cases, otherwise moot and academic, if it finds that (a) there is a grave
violation of the Constitution;[95] (b) the situation is of exceptional character and
paramount public interest is involved;[96] (c) the constitutional issue raised requires
formulation of controlling principles to guide the bench, the bar, and the public;[97] and
(d) the case is capable of repetition yet evading review.[98]
Another exclusionary circumstance that may be considered is where there is a voluntary
cessation of the activity complained of by the defendant or doer. Thus, once a suit is filed
and the doer voluntarily ceases the challenged conduct, it does not automatically deprive
the tribunal of power to hear and determine the case and does not render the case moot
especially when the plaintiff seeks damages or prays for injunctive relief against the
possible recurrence of the violation.[99]
The present petitions fall squarely into these exceptions to thus thrust them into the
domain of judicial review. The grounds cited above in David are just as applicable in the
present cases as they were, not only in David, but also in Province of Batangas v.
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 Courts
issuance of a Temporary Restraining Order.
Contrary too to respondents position, the MOA-AD cannot be considered a mere list of
consensus points, especially given its nomenclature, the need to have it signed or initialed
by all the parties concerned on August 5, 2008, and the far-reaching Constitutional
implications of these consensus points, foremost of which is the creation of the BJE.
In fact, as what will, in the main, be discussed, there is a commitment on the part of
respondents to amend and effect necessary changes to the existing legal framework for
certain provisions of the MOA-AD to take effect. Consequently, the present petitions are
not confined to the terms and provisions of the MOA-AD, but to other on-going and
future negotiations and agreements necessary for its realization. The petitions have not,
therefore, been rendered moot and academic simply by the public disclosure of the MOA-
AD,[102] the manifestation that it will not be signed as well as the disbanding of the GRP
Panel not withstanding.
Petitions are imbued with paramount public interest
PIL - 110417
There is no gainsaying that the petitions are imbued with paramount public interest,
involving a significant part of the countrys 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 partiesthe government and a private foreign corporation. As the issues
therein involved specific government procurement policies and standard principles on
contracts, the majority opinion in Suplico found nothing exceptional therein, the factual
circumstances being peculiar only to the transactions and parties involved in the
controversy.
The MOA-AD is part of a series of agreements
In the present controversy, the MOA-AD is a significant part of a series of agreements
necessary to carry out the Tripoli Agreement 2001. The MOA-AD which dwells on the
Ancestral Domain Aspect of said Tripoli Agreement is the third such component to be
undertaken following the implementation of the Security Aspect in August 2001 and the
Humanitarian, Rehabilitation and Development Aspect in May 2002.
Accordingly, even if the Executive Secretary, in his Memorandum of August 28, 2008 to
the Solicitor General, has stated that no matter what the Supreme Court ultimately
decides[,] the government will not sign the MOA[-AD], mootness will not set in in light
of the terms of the Tripoli Agreement 2001.
Need to formulate principles-guidelines
Surely, the present MOA-AD can be renegotiated or another one will be drawn up to
carry out the Ancestral Domain Aspect of the Tripoli Agreement 2001, in another or in
any form, which could contain similar or significantly drastic provisions. While the Court
notes the word of the Executive Secretary that the government is committed to securing
an agreement that is both constitutional and equitable because that is the only way that
long-lasting peace can be assured, it is minded to render a decision on the merits in the
present petitions to formulate controlling principles to guide the bench, the bar, the public
and, most especially, the government in negotiating with the MILF regarding Ancestral
Domain.
Respondents invite the Courts attention to the separate opinion of then Chief Justice
Artemio Panganiban in Sanlakas v. Reyes[104] in which he stated that the doctrine of
capable of repetition yet evading review can override mootness, provided the party
raising it in a proper case has been and/or continue to be prejudiced or damaged as a direct
result of their issuance. They contend that the Court must have jurisdiction over the
subject matter for the doctrine to be invoked.
The present petitions all contain prayers for Prohibition over which this Court exercises
original jurisdiction. While G.R. No. 183893 (City of Iligan v. GRP) is a petition for
Injunction and Declaratory Relief, the Court will treat it as one for Prohibition as it has
far reaching implications and raises questions that need to be resolved.[105] At all events,
the Court has jurisdiction over most if not the rest of the petitions.
Indeed, the present petitions afford a proper venue for the Court to again apply the
doctrine immediately referred to as what it had done in a number of landmark cases.[106]
There is a reasonable expectation that petitioners, particularly the Provinces of North
Cotabato, Zamboanga del Norte and Sultan Kudarat, the Cities of Zamboanga, Iligan and
Isabela, and the Municipality of Linamon, will again be subjected to the same problem in
the future as respondents actions are capable of repetition, in another or any form.
It is with respect to the prayers for Mandamus that the petitions have become moot,
respondents having, by Compliance of August 7, 2008, provided this Court and
petitioners with official copies of the final draft of the MOA-AD and its annexes. Too,
intervenors have been furnished, or have procured for themselves, copies of the MOA-
AD.
V. SUBSTANTIVE ISSUES
As culled from the Petitions and Petitions-in-Intervention, there are basically two
SUBSTANTIVE issues to be resolved, one relating to the manner in which the MOA-
AD was negotiated and finalized, the other relating to its provisions, viz:
1. Did respondents violate constitutional and statutory provisions on public consultation
and the right to information when they negotiated and later initialed the MOA-AD?
2. Do the contents of the MOA-AD violate the Constitution and the laws?
ON THE FIRST SUBSTANTIVE ISSUE
Petitioners invoke their constitutional right to information on matters of public concern,
as provided in Section 7, Article III on the Bill of Rights:
Sec. 7. The right of the people to information on matters of public concern shall be
recognized. Access to official records, and to documents, and papers pertaining to official
acts, transactions, or decisions, as well as to government research data used as basis for
policy development, shall be afforded the citizen, subject to such limitations as may be
provided by law.[107]
As early as 1948, in Subido v. Ozaeta,[108] the Court has recognized the statutory right
to examine and inspect public records, a right which was eventually accorded
constitutional status.
The right of access to public documents, as enshrined in both the 1973 Constitution and
the 1987 Constitution, has been recognized as a self-executory constitutional right.[109]
In the 1976 case of Baldoza v. Hon. Judge Dimaano,[110] the Court ruled that access to
public records is predicated on the right of the people to acquire information on matters
of public concern since, undoubtedly, in a democracy, the pubic has a legitimate interest
in matters of social and political significance.
18
x x x The incorporation of this right in the Constitution is a recognition of the fundamental
role of free exchange of information in a democracy. There can be no realistic perception
by the public of the nations problems, nor a meaningful democratic decision-making if
they are denied access to information of general interest. Information is needed to enable
the members of society to cope with the exigencies of the times. As has been aptly
observed: Maintaining the flow of such information depends on protection for both its
acquisition and its dissemination since, if either process is interrupted, the flow inevitably
ceases. x x x[111]
In the same way that free discussion enables members of society to cope with the
exigencies of their time, access to information of general interest aids the people in
democratic decision-making by giving them a better perspective of the vital issues
confronting the nation[112] so that they may be able to criticize and participate in the
affairs of the government in a responsible, reasonable and effective manner. It is by
ensuring an unfettered and uninhibited exchange of ideas among a well-informed public
that a government remains responsive to the changes desired by the people.[113]
The MOA-AD is a matter of public concern
That the subject of the information sought in the present cases is a matter of public
concern[114] faces no serious challenge. In fact, respondents admit that the MOA-AD is
indeed of public concern.[115] In previous cases, the Court found that the regularity of
real estate transactions entered in the Register of Deeds,[116] the need for adequate notice
to the public of the various laws,[117] the civil service eligibility of a public
employee,[118] the proper management of GSIS funds allegedly used to grant loans to
public officials,[119] the recovery of the Marcoses alleged ill-gotten wealth,[120] and the
identity of party-list nominees,[121] among others, are matters of public concern.
Undoubtedly, the MOA-AD subject of the present cases is of public concern, involving
as it does the sovereignty and territorial integrity of the State, which directly affects the
lives of the public at large.
Matters of public concern covered by the right to information include steps and
negotiations leading to the consummation of the contract. In not distinguishing as to the
executory nature or commercial character of agreements, the Court has categorically
ruled:
x x x [T]he right to information contemplates inclusion of negotiations leading to the
consummation of the transaction. Certainly, a consummated contract is not a requirement
for the exercise of the right to information. Otherwise, the people can never exercise the
right if no contract is consummated, and if one is consummated, it may be too late for the
public to expose its defects.
Requiring a consummated contract will keep the public in the dark until the contract,
which may be grossly disadvantageous to the government or even illegal, becomes fait
accompli. This negates the State policy of full transparency on matters of public concern,
a situation which the framers of the Constitution could not have intended. Such a
requirement will prevent the citizenry from participating in the public discussion of any
proposed contract, effectively truncating a basic right enshrined in the Bill of Rights. We
can allow neither an emasculation of a constitutional right, nor a retreat by the State of
its avowed policy of full disclosure of all its transactions involving public interest.[122]
(Emphasis and italics in the original)
Intended as a splendid symmetry[123] to the right to information under the Bill of Rights
is the policy of public disclosure under Section 28, Article II of the Constitution reading:
Sec. 28. Subject to reasonable conditions prescribed by law, the State adopts and
implements a policy of full public disclosure of all its transactions involving public
interest.[124]
The policy of full public disclosure enunciated in above-quoted Section 28 complements
the right of access to information on matters of public concern found in the Bill of Rights.
The right to information guarantees the right of the people to demand information, while
Section 28 recognizes the duty of officialdom to give information even if nobody
demands.[125]
The policy of public disclosure establishes a concrete ethical principle for the conduct of
public affairs in a genuinely open democracy, with the peoples right to know as the
centerpiece. It is a mandate of the State to be accountable by following such policy.[126]
These provisions are vital to the exercise of the freedom of expression and essential to
hold public officials at all times accountable to the people.[127]
Whether Section 28 is self-executory, the records of the deliberations of the
Constitutional Commission so disclose:
MR. SUAREZ. And since this is not self-executory, this policy will not be enunciated or
will not be in force and effect until after Congress shall have provided it.
MR. OPLE. I expect it to influence the climate of public ethics immediately but, of
course, the implementing law will have to be enacted by Congress, Mr. Presiding
Officer.[128]
The following discourse, after Commissioner Hilario Davide, Jr., sought clarification on
the issue, is enlightening.
MR. DAVIDE. I would like to get some clarifications on this. Mr. Presiding Officer, did
I get the Gentleman correctly as having said that this is not a self-executing provision? It
would require a legislation by Congress to implement?
MR. OPLE. Yes. Originally, it was going to be self-executing, but I accepted an
amendment from Commissioner Regalado, so that the safeguards on national interest are
modified by the clause as may be provided by law
MR. DAVIDE. But as worded, does it not mean that this will immediately take effect and
Congress may provide for reasonable safeguards on the sole ground national interest?
MR. OPLE. Yes. I think so, Mr. Presiding Officer, I said earlier that it should immediately
influence the climate of the conduct of public affairs but, of course, Congress here may
no longer pass a law revoking it, or if this is approved, revoking this principle, which is
inconsistent with this policy.[129] (Emphasis supplied)
PIL - 110417
Indubitably, the effectivity of the policy of public disclosure need not await the passing
of a statute. As Congress cannot revoke this principle, it is merely directed to provide for
reasonable safeguards. The complete and effective exercise of the right to information
necessitates that its complementary provision on public disclosure derive the same self-
executory nature. Since both provisions go hand-in-hand, it is absurd to say that the
broader[130] right to information on matters of public concern is already enforceable
while the correlative duty of the State to disclose its transactions involving public interest
is not enforceable until there is an enabling law. Respondents cannot thus point to the
absence of an implementing legislation as an excuse in not effecting such policy.
An essential element of these freedoms is to keep open a continuing dialogue or process
of communication between the government and the people. It is in the interest of the State
that the channels for free political discussion be maintained to the end that the government
may perceive and be responsive to the peoples will.[131] Envisioned to be corollary to
the twin rights to information and disclosure is the design for feedback mechanisms.
MS. ROSARIO BRAID. Yes. And lastly, Mr. Presiding Officer, will the people be able
to participate? Will the government provide feedback mechanisms so that the people can
participate and can react where the existing media facilities are not able to provide full
feedback mechanisms to the government? I suppose this will be part of the government
implementing operational mechanisms.
MR. OPLE. Yes. I think through their elected representatives and that is how these
courses take place. There is a message and a feedback, both ways.
xxxx
MS. ROSARIO BRAID. Mr. Presiding Officer, may I just make one last sentence?
I think when we talk about the feedback network, we are not talking about public officials
but also network of private business o[r] community-based organizations that will be
reacting. As a matter of fact, we will put more credence or credibility on the private
network of volunteers and voluntary community-based organizations. So I do not think
we are afraid that there will be another OMA in the making.[132] (Emphasis supplied)
The imperative of a public consultation, as a species of the right to information, is evident
in the marching orders to respondents. The mechanics for the duty to disclose information
and to conduct public consultation regarding the peace agenda and process is manifestly
provided by E.O. No. 3.[133] The preambulatory clause of E.O. No. 3 declares that there
is a need to further enhance the contribution of civil society to the comprehensive peace
process by institutionalizing the peoples participation.
One of the three underlying principles of the comprehensive peace process is that it
should be community-based, reflecting the sentiments, values and principles important to
all Filipinos and shall be defined not by the government alone, nor by the different
contending groups only, but by all Filipinos as one community.[134] Included as a
component of the comprehensive peace process is consensus-building and empowerment
for peace, which includes continuing consultations on both national and local levels to
build consensus for a peace agenda and process, and the mobilization and facilitation of
peoples participation in the peace process.[135]
Clearly, E.O. No. 3 contemplates not just the conduct of a plebiscite to effectuate
continuing consultations, contrary to respondents position that plebiscite is more than
sufficient consultation.[136]
Further, E.O. No. 3 enumerates the functions and responsibilities of the PAPP, one of
which is to [c]onduct regular dialogues with the National Peace Forum (NPF) and other
peace partners to seek relevant information, comments, recommendations as well as to
render appropriate and timely reports on the progress of the comprehensive peace
process.[137] E.O. No. 3 mandates the establishment of the NPF to be the principal forum
for the PAPP to consult with and seek advi[c]e from the peace advocates, peace partners
and concerned sectors of society on both national and local levels, on the implementation
of the comprehensive peace process, as well as for government[-]civil society dialogue
and consensus-building on peace agenda and initiatives.[138]
In fine, E.O. No. 3 establishes petitioners right to be consulted on the peace agenda, as a
corollary to the constitutional right to information and disclosure.
PAPP Esperon committed grave abuse of discretion
The PAPP committed grave abuse of discretion when he failed to carry out the pertinent
consultation. The furtive process by which the MOA-AD was designed and crafted runs
contrary to and in excess of the legal authority, and amounts to a whimsical, capricious,
oppressive, arbitrary and despotic exercise thereof.
The Court may not, of course, require the PAPP to conduct the consultation in a particular
way or manner. It may, however, require him to comply with the law and discharge the
functions within the authority granted by the President.[139]
Petitioners are not claiming a seat at the negotiating table, contrary to respondents retort
in justifying the denial of petitioners right to be consulted. Respondents stance manifests
the manner by which they treat the salient provisions of E.O. No. 3 on peoples
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. 3s
explicit provisions on continuing consultation and dialogue on both national and local
levels. The executive order even recognizes the exercise of the publics right even before
the GRP makes its official recommendations or before the government proffers its
definite propositions.[141] It bear emphasis that E.O. No. 3 seeks to elicit relevant advice,
information, comments and recommendations from the people through dialogue.
AT ALL EVENTS, respondents effectively waived the defense of executive privilege in
view of their unqualified disclosure of the official copies of the final draft of the MOA-
AD. By unconditionally complying with the Courts August 4, 2008 Resolution, without
a prayer for the documents disclosure in camera, or without a manifestation that it was
complying therewith ex abundante ad cautelam.
19
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 detre of the MOA-AD,
without which all other stipulations or consensus points necessarily must fail. In
proceeding to make a sweeping declaration on ancestral domain, without complying with
the IPRA, which is cited as one of the TOR of the MOA-AD, respondents clearly
transcended the boundaries of their authority. As it seems, even the heart of the MOA-
AD is still subject to necessary changes to the legal framework. While paragraph 7 on
Governance suspends the effectivity of all provisions requiring changes to the legal
framework, such clause is itself invalid, as will be discussed in the following section.
Indeed, ours is an open society, with all the acts of the government subject to public
scrutiny and available always to public cognizance. This has to be so if the country is to
remain democratic, with sovereignty residing in the people and all government authority
emanating from them.[149]
ON THE SECOND SUBSTANTIVE ISSUE
With regard to the provisions of the MOA-AD, there can be no question that they cannot
all be accommodated under the present Constitution and laws. Respondents have
admitted as much in the oral arguments before this Court, and the MOA-AD itself
recognizes the need to amend the existing legal framework to render effective at least
some of its provisions. Respondents, nonetheless, counter that the MOA-AD is free of
any legal infirmity because any provisions therein which are inconsistent with the present
legal framework will not be effective until the necessary changes to that framework are
made. The validity of this argument will be considered later. For now, the Court shall
pass upon how
The MOA-AD is inconsistent with the Constitution and laws as presently worded.
In general, the objections against the MOA-AD center on the extent of the powers
conceded therein to the BJE. Petitioners assert that the powers granted to the BJE exceed
those granted to any local government under present laws, and even go beyond those of
the present ARMM. Before assessing some of the specific powers that would have been
vested in the BJE, however, it would be useful to turn first to a general idea that serves
as a unifying link to the different provisions of the MOA-AD, namely, the international
law concept of association. Significantly, the MOA-AD explicitly alludes to this concept,
indicating that the Parties actually framed its provisions with it in mind.
Association is referred to in paragraph 3 on TERRITORY, paragraph 11 on
RESOURCES, and paragraph 4 on GOVERNANCE. It is in the last mentioned provision,
however, that the MOA-AD most clearly uses it to describe the envisioned relationship
between the BJE and the Central Government.
4. The relationship between the Central Government and the Bangsamoro juridical entity
shall be associative characterized by shared authority and responsibility with a structure
of governance based on executive, legislative, judicial and administrative institutions
with defined powers and functions in the comprehensive compact. A period of transition
shall be established in a comprehensive peace compact specifying the relationship
between the Central Government and the BJE. (Emphasis and underscoring supplied)
The nature of the associative relationship may have been intended to be defined more
precisely in the still to be forged Comprehensive Compact. Nonetheless, given that there
is a concept of association in international law, and the MOA-AD by its inclusion of
international law instruments in its TOR placed itself in an international legal context,
that concept of association may be brought to bear in understanding the use of the term
associative in the MOA-AD.
Keitner and Reisman state that
[a]n association is formed when two states of unequal power voluntarily establish durable
links. In the basic model, one state, the associate, delegates certain responsibilities to the
other, the principal, while maintaining its international status as a state. Free associations
represent a middle ground between integration and independence. x x x[150] (Emphasis
and underscoring supplied)
For purposes of illustration, the Republic of the Marshall Islands and the Federated States
of Micronesia (FSM), formerly part of the U.S.-administered Trust Territory of the
PIL - 110417
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 nations national constitution,
and each party may terminate the association consistent with the right of independence.
It has been said that, with the admission of the U.S.-associated states to the UN in 1990,
the UN recognized that the American model of free association is actually based on an
underlying status of independence.[152]
In international practice, the associated state arrangement has usually been used as a
transitional device of former colonies on their way to full independence. Examples of
states that have passed through the status of associated states as a transitional phase are
Antigua, St. Kitts-Nevis-Anguilla, Dominica, St. Lucia, St. Vincent and Grenada. All
have since become independent states.[153]
Back to the MOA-AD, it contains many provisions which are consistent with the
international legal concept of association, specifically the following: the BJEs capacity
to enter into economic and trade relations with foreign countries, the commitment of the
Central Government to ensure the BJEs 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 BJEs right to participate in Philippine
official missions bearing on negotiation of border agreements, environmental protection,
and sharing of revenues pertaining to the bodies of water adjacent to or between the
islands forming part of the ancestral domain, resembles the right of the governments of
FSM and the Marshall Islands to be consulted by the U.S. government on any foreign
affairs matter affecting them.
These provisions of the MOA indicate, among other things, that the Parties aimed to vest
in the BJE the status of an associated state or, at any rate, a status closely approximating
it.
The concept of association is not recognized under the present Constitution
No province, city, or municipality, not even the ARMM, is recognized under our laws as
having an associative relationship with the national government. Indeed, the concept
implies powers that go beyond anything ever granted by the Constitution to any local or
regional government. It also implies the recognition of the associated entity as a state.
The Constitution, however, does not contemplate any state in this jurisdiction other than
the Philippine State, much less does it provide for a transitory status that aims to prepare
any part of Philippine territory for independence.
Even the mere concept animating many of the MOA-ADs provisions, therefore, already
requires for its validity the amendment of constitutional provisions, specifically the
following provisions of Article X:
SECTION 1. The territorial and political subdivisions of the Republic of the Philippines
are the provinces, cities, municipalities, and barangays. There shall be autonomous
regions in Muslim Mindanao and the Cordilleras as hereinafter provided.
SECTION 15. There shall be created autonomous regions in Muslim Mindanao and in
the Cordilleras consisting of provinces, cities, municipalities, and geographical areas
sharing common and distinctive historical and cultural heritage, economic and social
structures, and other relevant characteristics within the framework of this Constitution
and the national sovereignty as well as territorial integrity of the Republic of the
Philippines.
The BJE is a far more powerful
entity than the autonomous region
recognized in the Constitution
It is not merely an expanded version of the ARMM, the status of its relationship with the
national government being fundamentally different from that of the ARMM. Indeed, BJE
is a state in all but name as it meets the criteria of a state laid down in the Montevideo
Convention,[154] namely, a permanent population, a defined territory, a government, and
a capacity to enter into relations with other states.
Even assuming arguendo that the MOA-AD would not necessarily sever any portion of
Philippine territory, the spirit animating it which has betrayed itself by its use of the
concept of association runs counter to the national sovereignty and territorial integrity of
the Republic.
The defining concept underlying the relationship between the national government and
the BJE being itself contrary to the present Constitution, it is not surprising that many of
the specific provisions of the MOA-AD on the formation and powers of the BJE are in
conflict with the Constitution and the laws.
Article X, Section 18 of the Constitution provides that [t]he creation of the autonomous
region shall be effective when approved by a majority of the votes cast by the constituent
units in a plebiscite called for the purpose, provided that only provinces, cities, and
geographic areas voting favorably in such plebiscite shall be included in the autonomous
region. (Emphasis supplied)
20
As reflected above, the BJE is more of a state than an autonomous region. But even
assuming that it is covered by the term autonomous region in the constitutional provision
just quoted, the MOA-AD would still be in conflict with it. Under paragraph 2(c) on
TERRITORY in relation to 2(d) and 2(e), the present geographic area of the ARMM and,
in addition, the municipalities of Lanao del Norte which voted for inclusion in the ARMM
during the 2001 plebiscite Baloi, Munai, Nunungan, Pantar, Tagoloan and Tangkal are
automatically part of the BJE without need of another plebiscite, in contrast to the areas
under Categories A and B mentioned earlier in the overview. That the present components
of the ARMM and the above-mentioned municipalities voted for inclusion therein in
2001, however, does not render another plebiscite unnecessary under the Constitution,
precisely because what these areas voted for then was their inclusion in the ARMM, not
the BJE.
The MOA-AD, moreover, would not
comply with Article X, Section 20 of
the Constitution
since that provision defines the powers of autonomous regions as follows:
SECTION 20. Within its territorial jurisdiction and subject to the provisions of this
Constitution and national laws, the organic act of autonomous regions shall provide for
legislative powers over:
(1) Administrative organization;
(2) Creation of sources of revenues;
(3) Ancestral domain and natural resources;
(4) Personal, family, and property relations;
(5) Regional urban and rural planning development;
(6) Economic, social, and tourism development;
(7) Educational policies;
(8) Preservation and development of the cultural heritage; and
(9) Such other matters as may be authorized by law for the promotion of the general
welfare of the people of the region. (Underscoring supplied)
Again on the premise that the BJE may be regarded as an autonomous region, the MOA-
AD would require an amendment that would expand the above-quoted provision. The
mere passage of new legislation pursuant to sub-paragraph No. 9 of said constitutional
provision would not suffice, since any new law that might vest in the BJE the powers
found in the MOA-AD must, itself, comply with other provisions of the Constitution. It
would not do, for instance, to merely pass legislation vesting the BJE with treaty-making
power in order to accommodate paragraph 4 of the strand on RESOURCES which states:
The BJE is free to enter into any economic cooperation and trade relations with foreign
countries: provided, however, that such relationships and understandings do not include
aggression against the Government of the Republic of the Philippines x x x. Under our
constitutional system, it is only the President who has that power. Pimentel v. Executive
Secretary[155] instructs:
In our system of government, the President, being the head of state, is regarded as the
sole organ and authority in external relations and is the country's sole representative with
foreign nations. As the chief architect of foreign policy, the President acts as the country's
mouthpiece with respect to international affairs. Hence, the President is vested with the
authority to deal with foreign states and governments, extend or withhold recognition,
maintain diplomatic relations, enter into treaties, and otherwise transact the business of
foreign relations. In the realm of treaty-making, the President has the sole authority to
negotiate with other states. (Emphasis and underscoring supplied)
Article II, Section 22 of the Constitution must also be amended if the scheme envisioned
in the MOA-AD is to be effected. That constitutional provision states: The State
recognizes and promotes the rights of indigenous cultural communities within the
framework of national unity and development. (Underscoring supplied) An associative
arrangement does not uphold national unity. While there may be a semblance of unity
because of the associative ties between the BJE and the national government, the act of
placing a portion of Philippine territory in a status which, in international practice, has
generally been a preparation for independence, is certainly not conducive to national
unity.
Besides being irreconcilable with the Constitution, the MOA-AD is also inconsistent with
prevailing statutory law, among which are R.A. No. 9054[156] or the Organic Act of the
ARMM, and the IPRA.[157]
Article X, Section 3 of the Organic Act of the ARMM is a bar to the adoption of the
definition of Bangsamoro people used in the MOA-AD. Paragraph 1 on CONCEPTS
AND PRINCIPLES states:
1. It is the birthright of all Moros and all Indigenous peoples of Mindanao to identify
themselves and be accepted as Bangsamoros. The Bangsamoro people refers to those who
are natives or original inhabitants of Mindanao and its adjacent islands including Palawan
and the Sulu archipelago at the time of conquest or colonization of its descendants
whether mixed or of full blood. Spouses and their descendants are classified as
Bangsamoro. The freedom of choice of the Indigenous people shall be respected.
(Emphasis and underscoring supplied)
This use of the term Bangsamoro sharply contrasts with that found in the Article X,
Section 3 of the Organic Act, which, rather than lumping together the identities of the
Bangsamoro and other indigenous peoples living in Mindanao, clearly distinguishes
between Bangsamoro people and Tribal peoples, as follows:
As used in this Organic Act, the phrase indigenous cultural community refers to Filipino
citizens residing in the autonomous region who are:
(a) Tribal peoples. These are citizens whose social, cultural and economic conditions
distinguish them from other sectors of the national community; and
(b) Bangsa Moro people. These are citizens who are believers in Islam and who have
retained some or all of their own social, economic, cultural, and political institutions.
PIL - 110417
Respecting the IPRA, it lays down the prevailing procedure for the delineation and
recognition of ancestral domains. The MOA-ADs manner of delineating the ancestral
domain of the Bangsamoro people is a clear departure from that procedure. By paragraph
1 of TERRITORY, the Parties simply agree that, subject to the delimitations in the agreed
Schedules, [t]he Bangsamoro homeland and historic territory refer to the land mass as
well as the maritime, terrestrial, fluvial and alluvial domains, and the aerial domain, the
atmospheric space above it, embracing the Mindanao-Sulu-Palawan geographic region.
Chapter VIII of the IPRA, on the other hand, lays down a detailed procedure, as illustrated
in the following provisions thereof:
SECTION 52. Delineation Process. The identification and delineation of ancestral
domains shall be done in accordance with the following procedures:
xxxx
b) Petition for Delineation. The process of delineating a specific perimeter may be
initiated by the NCIP with the consent of the ICC/IP concerned, or through a Petition for
Delineation filed with the NCIP, by a majority of the members of the ICCs/IPs;
c) Delineation Proper. The official delineation of ancestral domain boundaries including
census of all community members therein, shall be immediately undertaken by the
Ancestral Domains Office upon filing of the application by the ICCs/IPs concerned.
Delineation will be done in coordination with the community concerned and shall at all
times include genuine involvement and participation by the members of the communities
concerned;
d) Proof Required. Proof of Ancestral Domain Claims shall include the testimony of
elders or community under oath, and other documents directly or indirectly attesting to
the possession or occupation of the area since time immemorial by such ICCs/IPs in the
concept of owners which shall be any one (1) of the following authentic documents:
1) Written accounts of the ICCs/IPs customs and traditions;
2) Written accounts of the ICCs/IPs political structure and institution;
3) Pictures showing long term occupation such as those of old improvements, burial
grounds, sacred places and old villages;
4) Historical accounts, including pacts and agreements concerning boundaries entered
into by the ICCs/IPs concerned with other ICCs/IPs;
5) Survey plans and sketch maps;
6) Anthropological data;
7) Genealogical surveys;
8) Pictures and descriptive histories of traditional communal forests and hunting grounds;
9) Pictures and descriptive histories of traditional landmarks such as mountains, rivers,
creeks, ridges, hills, terraces and the like; and
10) Write-ups of names and places derived from the native dialect of the community.
e) Preparation of Maps. On the basis of such investigation and the findings of fact based
thereon, the Ancestral Domains Office of the NCIP shall prepare a perimeter map,
complete with technical descriptions, and a description of the natural features and
landmarks embraced therein;
f) Report of Investigation and Other Documents. A complete copy of the preliminary
census and a report of investigation, shall be prepared by the Ancestral Domains Office
of the NCIP;
g) Notice and Publication. A copy of each document, including a translation in the native
language of the ICCs/IPs concerned shall be posted in a prominent place therein for at
least fifteen (15) days. A copy of the document shall also be posted at the local, provincial
and regional offices of the NCIP, and shall be published in a newspaper of general
circulation once a week for two (2) consecutive weeks to allow other claimants to file
opposition thereto within fifteen (15) days from date of such publication: Provided, That
in areas where no such newspaper exists, broadcasting in a radio station will be a valid
substitute: Provided, further, That mere posting shall be deemed sufficient if both
newspaper and radio station are not available;
h) Endorsement to NCIP. Within fifteen (15) days from publication, and of the inspection
process, the Ancestral Domains Office shall prepare a report to the NCIP endorsing a
favorable action upon a claim that is deemed to have sufficient proof. However, if the
proof is deemed insufficient, the Ancestral Domains Office shall require the submission
of additional evidence: Provided, That the Ancestral Domains Office shall reject any
claim that is deemed patently false or fraudulent after inspection and verification:
Provided, further, That in case of rejection, the Ancestral Domains Office shall give the
applicant due notice, copy furnished all concerned, containing the grounds for denial. The
denial shall be appealable to the NCIP: Provided, furthermore, That in cases where there
are conflicting claims among ICCs/IPs on the boundaries of ancestral domain claims, the
Ancestral Domains Office shall cause the contending parties to meet and assist them in
coming up with a preliminary resolution of the conflict, without prejudice to its full
adjudication according to the section below.
xxxx
To remove all doubts about the irreconcilability of the MOA-AD with the present legal
system, a discussion of not only the Constitution and domestic statutes, but also of
international law is in order, for
Article II, Section 2 of the Constitution states that the Philippines adopts the generally
accepted principles of international law as part of the law of the land.
Applying this provision of the Constitution, the Court, in Mejoff v. Director of
Prisons,[158] held that the Universal Declaration of Human Rights is part of the law of
the land on account of which it ordered the release on bail of a detained alien of Russian
descent whose deportation order had not been executed even after two years. Similarly,
the Court in Agustin v. Edu[159] applied the aforesaid constitutional provision to the
1968 Vienna Convention on Road Signs and Signals.
21
International law has long recognized the right to self-determination of peoples,
understood not merely as the entire population of a State but also a portion thereof. In
considering the question of whether the people of Quebec had a right to unilaterally
secede from Canada, the Canadian Supreme Court in REFERENCE RE SECESSION OF
QUEBEC[160] had occasion to acknowledge that the right of a people to self-
determination is now so widely recognized in international conventions that the principle
has acquired a status beyond convention and is considered a general principle of
international law.
Among the conventions referred to are the International Covenant on Civil and Political
Rights[161] and the International Covenant on Economic, Social and Cultural
Rights[162] which state, in Article 1 of both covenants, that all peoples, by virtue of the
right of self-determination, freely determine their political status and freely pursue their
economic, social, and cultural development.
The peoples 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
peoples pursuit of its political, economic, social and cultural development within the
framework of an existing state. A right to external self-determination (which in this case
potentially takes the form of the assertion of a right to unilateral secession) arises in only
the most extreme of cases and, even then, under carefully defined circumstances. x x x
External self-determination can be defined as in the following statement from the
Declaration on Friendly Relations, supra, as
The establishment of a sovereign and independent State, the free association or
integration with an independent State or the emergence into any other political status
freely determined by a people constitute modes of implementing the right of self-
determination by that people. (Emphasis added)
127. The international law principle of self-determination has evolved within a
framework of respect for the territorial integrity of existing states. The various
international documents that support the existence of a peoples 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 states territorial integrity
or the stability of relations between sovereign states.
x x x x (Emphasis, italics and underscoring supplied)
The Canadian Court went on to discuss the exceptional cases in which the right to external
self-determination can arise, namely, where a people is under colonial rule, is subject to
foreign domination or exploitation outside a colonial context, and less definitely but
asserted by a number of commentators is blocked from the meaningful exercise of its
right to internal self-determination. The Court ultimately held that the population of
Quebec had no right to secession, as the same is not under colonial rule or foreign
domination, nor is it being deprived of the freedom to make political choices and pursue
economic, social and cultural development, citing that Quebec is equitably represented
in legislative, executive and judicial institutions within Canada, even occupying
prominent positions therein.
The exceptional nature of the right of secession is further exemplified in the REPORT
OF THE INTERNATIONAL COMMITTEE OF JURISTS ON THE LEGAL ASPECTS
OF THE AALAND ISLANDS QUESTION.[163] There, Sweden presented to the
Council of the League of Nations the question of whether the inhabitants of the Aaland
Islands should be authorized to determine by plebiscite if the archipelago should remain
under Finnish sovereignty or be incorporated in the kingdom of Sweden. The Council,
before resolving the question, appointed an International Committee composed of three
jurists to submit an opinion on the preliminary issue of whether the dispute should, based
on international law, be entirely left to the domestic jurisdiction of Finland. The
Committee stated the rule as follows:
x x x [I]n the absence of express provisions in international treaties, the right of disposing
of national territory is essentially an attribute of the sovereignty of every State. Positive
International Law does not recognize the right of national groups, as such, to separate
themselves from the State of which they form part by the simple expression of a wish,
any more than it recognizes the right of other States to claim such a separation. Generally
speaking, the grant or refusal of the right to a portion of its population of determining its
own political fate by plebiscite or by some other method, is, exclusively, an attribute of
the sovereignty of every State which is definitively constituted. A dispute between two
States concerning such a question, under normal conditions therefore, bears upon a
question which International Law leaves entirely to the domestic jurisdiction of one of
the States concerned. Any other solution would amount to an infringement of sovereign
rights of a State and would involve the risk of creating difficulties and a lack of stability
which would not only be contrary to the very idea embodied in term State, but would also
endanger the interests of the international community. If this right is not possessed by a
large or small section of a nation, neither can it be held by the State to which the national
group wishes to be attached, nor by any other State. (Emphasis and underscoring
supplied)
The Committee held that the dispute concerning the Aaland Islands did not refer to a
question which is left by international law to the domestic jurisdiction of Finland, thereby
applying the exception rather than the rule elucidated above. Its ground for departing
from the general rule, however, was a very narrow one, namely, the Aaland Islands
agitation originated at a time when Finland was undergoing drastic political
transformation. The internal situation of Finland was, according to the Committee, so
abnormal that, for a considerable time, the conditions required for the formation of a
sovereign State did not exist. In the midst of revolution, anarchy, and civil war, the
legitimacy of the Finnish national government was disputed by a large section of the
people, and it had, in fact, been chased from the capital and forcibly prevented from
carrying out its duties. The armed camps and the police were divided into two opposing
forces. In light of these circumstances, Finland was not, during the relevant time period,
a definitively constituted sovereign state. The Committee, therefore, found that Finland
did not possess the right to withhold from a portion of its population the option to separate
PIL - 110417
itself a right which sovereign nations generally have with respect to their own
populations.
Turning now to the more specific category of indigenous peoples, this term has been used,
in scholarship as well as international, regional, and state practices, to refer to groups with
distinct cultures, histories, and connections to land (spiritual and otherwise) that have
been forcibly incorporated into a larger governing society. These groups are regarded as
indigenous since they are the living descendants of pre-invasion inhabitants of lands now
dominated by others. Otherwise stated, indigenous peoples, nations, or communities are
culturally distinctive groups that find themselves engulfed by settler societies born of the
forces of empire and conquest.[164] Examples of groups who have been regarded as
indigenous peoples are the Maori of New Zealand and the aboriginal peoples of Canada.
As with the broader category of peoples, indigenous peoples situated within states do not
have a general right to independence or secession from those states under international
law,[165] but they do have rights amounting to what was discussed above as the right to
internal self-determination.
In a historic development last September 13, 2007, the UN General Assembly adopted
the United Nations Declaration on the Rights of Indigenous Peoples (UN DRIP) through
General Assembly Resolution 61/295. The vote was 143 to 4, the Philippines being
included among those in favor, and the four voting against being Australia, Canada, New
Zealand, and the U.S. The Declaration clearly recognized the right of indigenous peoples
to self-determination, encompassing the right to autonomy or self-government, to wit:
Article 3
Indigenous peoples have the right to self-determination. By virtue of that right they freely
determine their political status and freely pursue their economic, social and cultural
development.
Article 4
Indigenous peoples, in exercising their right to self-determination, have the right to
autonomy or self-government in matters relating to their internal and local affairs, as well
as ways and means for financing their autonomous functions.
Article 5
Indigenous peoples have the right to maintain and strengthen their distinct political, legal,
economic, social and cultural institutions, while retaining their right to participate fully,
if they so choose, in the political, economic, social and cultural life of the State.
Self-government, as used in international legal discourse pertaining to indigenous
peoples, has been understood as equivalent to internal self-determination.[166] The
extent of self-determination provided for in the UN DRIP is more particularly defined in
its subsequent articles, some of which are quoted hereunder:
Article 8
1. Indigenous peoples and individuals have the right not to be subjected to forced
assimilation or destruction of their culture.
2. States shall provide effective mechanisms for prevention of, and redress for:
(a) Any action which has the aim or effect of depriving them of their integrity as distinct
peoples, or of their cultural values or ethnic identities;
(b) Any action which has the aim or effect of dispossessing them of their lands, territories
or resources;
(c) Any form of forced population transfer which has the aim or effect of violating or
undermining any of their rights;
(d) Any form of forced assimilation or integration;
(e) Any form of propaganda designed to promote or incite racial or ethnic discrimination
directed against them.
Article 21
1. Indigenous peoples have the right, without discrimination, to the improvement of their
economic and social conditions, including, inter alia, in the areas of education,
employment, vocational training and retraining, housing, sanitation, health and social
security.
2. States shall take effective measures and, where appropriate, special measures to ensure
continuing improvement of their economic and social conditions. Particular attention
shall be paid to the rights and special needs of indigenous elders, women, youth, children
and persons with disabilities.
Article 26
1. Indigenous peoples have the right to the lands, territories and resources which they
have traditionally owned, occupied or otherwise used or acquired.
2. Indigenous peoples have the right to own, use, develop and control the lands, territories
and resources that they possess by reason of traditional ownership or other traditional
occupation or use, as well as those which they have otherwise acquired.
3. States shall give legal recognition and protection to these lands, territories and
resources. Such recognition shall be conducted with due respect to the customs, traditions
and land tenure systems of the indigenous peoples concerned.
Article 30
1. Military activities shall not take place in the lands or territories of indigenous peoples,
unless justified by a relevant public interest or otherwise freely agreed with or requested
by the indigenous peoples concerned.
2. States shall undertake effective consultations with the indigenous peoples concerned,
through appropriate procedures and in particular through their representative institutions,
prior to using their lands or territories for military activities.
Article 32
1. Indigenous peoples have the right to determine and develop priorities and strategies
for the development or use of their lands or territories and other resources.
2. States shall consult and cooperate in good faith with the indigenous peoples concerned
through their own representative institutions in order to obtain their free and informed
consent prior to the approval of any project affecting their lands or territories and other
22
resources, particularly in connection with the development, utilization or exploitation of
mineral, water or other resources.
3. States shall provide effective mechanisms for just and fair redress for any such
activities, and appropriate measures shall be taken to mitigate adverse environmental,
economic, social, cultural or spiritual impact.
Article 37
1. Indigenous peoples have the right to the recognition, observance and enforcement of
treaties, agreements and other constructive arrangements concluded with States or their
successors and to have States honour and respect such treaties, agreements and other
constructive arrangements.
2. Nothing in this Declaration may be interpreted as diminishing or eliminating the rights
of indigenous peoples contained in treaties, agreements and other constructive
arrangements.
Article 38
States in consultation and cooperation with indigenous peoples, shall take the appropriate
measures, including legislative measures, to achieve the ends of this Declaration.
Assuming that the UN DRIP, like the Universal Declaration on Human Rights, must now
be regarded as embodying customary international law a question which the Court need
not definitively resolve here the obligations enumerated therein do not strictly require the
Republic to grant the Bangsamoro people, through the instrumentality of the BJE, the
particular rights and powers provided for in the MOA-AD. Even the more specific
provisions of the UN DRIP are general in scope, allowing for flexibility in its application
by the different States.
There is, for instance, no requirement in the UN DRIP that States now guarantee
indigenous peoples their own police and internal security force. Indeed, Article 8
presupposes that it is the State which will provide protection for indigenous peoples
against acts like the forced dispossession of their lands a function that is normally
performed by police officers. If the protection of a right so essential to indigenous peoples
identity is acknowledged to be the responsibility of the State, then surely the protection
of rights less significant to them as such peoples would also be the duty of States. Nor is
there in the UN DRIP an acknowledgement of the right of indigenous peoples to the aerial
domain and atmospheric space. What it upholds, in Article 26 thereof, is the right of
indigenous peoples to the lands, territories and resources which they have traditionally
owned, occupied or otherwise used or acquired.
Moreover, the UN DRIP, while upholding the right of indigenous peoples to autonomy,
does not obligate States to grant indigenous peoples the near-independent status of an
associated state. All the rights recognized in that document are qualified in Article 46 as
follows:
1. Nothing in this Declaration may be interpreted as implying for any State, people, group
or person any right to engage in any activity or to perform any act contrary to the Charter
of the United Nations or construed as authorizing or encouraging any action which would
dismember or impair, totally or in part, the territorial integrity or political unity of
sovereign and independent States.
Even if the UN DRIP were considered as part of the law of the land pursuant to Article
II, Section 2 of the Constitution, it would not suffice to uphold the validity of the MOA-
AD so as to render its compliance with other laws unnecessary.
It is, therefore, clear that the MOA-AD contains numerous provisions that cannot be
reconciled with the Constitution and the laws as presently worded. Respondents proffer,
however, that the signing of the MOA-AD alone would not have entailed any violation
of law or grave abuse of discretion on their part, precisely because it stipulates that the
provisions thereof inconsistent with the laws shall not take effect until these laws are
amended. They cite paragraph 7 of the MOA-AD strand on GOVERNANCE quoted
earlier, but which is reproduced below for convenience:
7. The Parties agree that the mechanisms and modalities for the actual implementation of
this MOA-AD shall be spelt out in the Comprehensive Compact to mutually take such
steps to enable it to occur effectively.
Any provisions of the MOA-AD requiring amendments to the existing legal framework
shall come into force upon signing of a Comprehensive Compact and upon effecting the
necessary changes to the legal framework with due regard to non derogation of prior
agreements and within the stipulated timeframe to be contained in the Comprehensive
Compact.
Indeed, the foregoing stipulation keeps many controversial provisions of the MOA-AD
from coming into force until the necessary changes to the legal framework are effected.
While the word Constitution is not mentioned in the provision now under consideration
or anywhere else in the MOA-AD, the term legal framework is certainly broad enough to
include the Constitution.
Notwithstanding the suspensive clause, however, respondents, by their mere act of
incorporating in the MOA-AD the provisions thereof regarding the associative
relationship between the BJE and the Central Government, have already violated the
Memorandum of Instructions From The President dated March 1, 2001, which states that
the negotiations shall be conducted in accordance with x x x the principles of the
sovereignty and territorial integrity of the Republic of the Philippines. (Emphasis
supplied) Establishing an associative relationship between the BJE and the Central
Government is, for the reasons already discussed, a preparation for independence, or
worse, an implicit acknowledgment of an independent status already prevailing.
Even apart from the above-mentioned Memorandum, however, the MOA-AD is defective
because the suspensive clause is invalid, as discussed below.
The authority of the GRP Peace Negotiating Panel to negotiate with the MILF is founded
on E.O. No. 3, Section 5(c), which states that there shall be established Government Peace
Negotiating Panels for negotiations with different rebel groups to be appointed by the
President as her official emissaries to conduct negotiations, dialogues, and face-to-face
discussions with rebel groups. These negotiating panels are to report to the President,
through the PAPP on the conduct and progress of the negotiations.
PIL - 110417
It bears noting that the GRP Peace Panel, in exploring lasting solutions to the Moro
Problem through its negotiations with the MILF, was not restricted by E.O. No. 3 only to
those options available under the laws as they presently stand. One of the components of
a comprehensive peace process, which E.O. No. 3 collectively refers to as the Paths to
Peace, is the pursuit of social, economic, and political reforms which may require new
legislation or even constitutional amendments. Sec. 4(a) of E.O. No. 3, which reiterates
Section 3(a), of E.O. No. 125,[167] states:
SECTION 4. The Six Paths to Peace. The components of the comprehensive peace
process comprise the processes known as the Paths to Peace. These component processes
are interrelated and not mutually exclusive, and must therefore be pursued simultaneously
in a coordinated and integrated fashion. They shall include, but may not be limited to, the
following:
a. PURSUIT OF SOCIAL, ECONOMIC AND POLITICAL REFORMS. This
component involves the vigorous implementation of various policies, reforms, programs
and projects aimed at addressing the root causes of internal armed conflicts and social
unrest. This may require administrative action, new legislation or even constitutional
amendments.
x x x x (Emphasis supplied)
The MOA-AD, therefore, may reasonably be perceived as an attempt of respondents to
address, pursuant to this provision of E.O. No. 3, the root causes of the armed conflict in
Mindanao. The E.O. authorized them to think outside the box, so to speak. Hence, they
negotiated and were set on signing the MOA-AD that included various social, economic,
and political reforms which cannot, however, all be accommodated within the present
legal framework, and which thus would require new legislation and constitutional
amendments.
The inquiry on the legality of the suspensive clause, however, cannot stop here, because
it must be asked
whether the President herself may exercise the power delegated to the GRP Peace Panel
under E.O. No. 3, Sec. 4(a).
The President cannot delegate a power that she herself does not possess. May the
President, in the course of peace negotiations, agree to pursue reforms that would require
new legislation and constitutional amendments, or should the reforms be restricted only
to those solutions which the present laws allow? The answer to this question requires a
discussion of
the extent of the Presidents power to conduct peace negotiations.
That the authority of the President to conduct peace negotiations with rebel groups is not
explicitly mentioned in the Constitution does not mean that she has no such authority. In
Sanlakas v. Executive Secretary,[168] in issue was the authority of the President to
declare a state of rebellion an authority which is not expressly provided for in the
Constitution. The Court held thus:
In her ponencia in Marcos v. Manglapus, Justice Cortes put her thesis into jurisprudence.
There, the Court, by a slim 8-7 margin, upheld the President's power to forbid the return
of her exiled predecessor. The rationale for the majority's ruling rested on the President's
. . . unstated residual powers which are implied from the grant of executive power and
which are necessary for her to comply with her duties under the Constitution. The powers
of the President are not limited to what are expressly enumerated in the article on the
Executive Department and in scattered provisions of the Constitution. This is so,
notwithstanding the avowed intent of the members of the Constitutional Commission of
1986 to limit the powers of the President as a reaction to the abuses under the regime of
Mr. Marcos, for the result was a limitation of specific powers of the President, particularly
those relating to the commander-in-chief clause, but not a diminution of the general grant
of executive power.
Thus, the President's authority to declare a state of rebellion springs in the main from her
powers as chief executive and, at the same time, draws strength from her Commander-
in-Chief powers. x x x (Emphasis and underscoring supplied)
Similarly, the Presidents 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 nations
constitutional structure is required. The observations of Dr. Kirsti Samuels are
enlightening, to wit:
x x x [T]he fact remains that a successful political and governance transition must form
the core of any post-conflict peace-building mission. As we have observed in Liberia and
Haiti over the last ten years, conflict cessation without modification of the political
environment, even where state-building is undertaken through technical electoral
assistance and institution- or capacity-building, is unlikely to succeed. On average, more
than 50 percent of states emerging from conflict return to conflict. Moreover, a substantial
proportion of transitions have resulted in weak or limited democracies.
The design of a constitution and its constitution-making process can play an important
role in the political and governance transition. Constitution-making after conflict is an
opportunity to create a common vision of the future of a state and a road map on how to
get there. The constitution can be partly a peace agreement and partly a framework setting
up the rules by which the new democracy will operate.[170]
In the same vein, Professor Christine Bell, in her article on the nature and legal status of
peace agreements, observed that the typical way that peace agreements establish or
confirm mechanisms for demilitarization and demobilization is by linking them to new
constitutional structures addressing governance, elections, and legal and human rights
institutions.[171]
In the Philippine experience, the link between peace agreements and constitution-making
has been recognized by no less than the framers of the Constitution. Behind the provisions
of the Constitution on autonomous regions[172] is the framers intention to implement a
particular peace agreement, namely, the Tripoli Agreement of 1976 between the GRP and
23
the MNLF, signed by then Undersecretary of National Defense Carmelo Z. Barbero and
then MNLF Chairman Nur Misuari.
MR. ROMULO. There are other speakers; so, although I have some more questions, I
will reserve my right to ask them if they are not covered by the other speakers. I have
only two questions.
I heard one of the Commissioners say that local autonomy already exists in the Muslim
region; it is working very well; it has, in fact, diminished a great deal of the problems.
So, my question is: since that already exists, why do we have to go into something new?
MR. OPLE. May I answer that on behalf of Chairman Nolledo. Commissioner Yusup
Abubakar is right that certain definite steps have been taken to implement the provisions
of the Tripoli Agreement with respect to an autonomous region in Mindanao. This is a
good first step, but there is no question that this is merely a partial response to the Tripoli
Agreement itself and to the fuller standard of regional autonomy contemplated in that
agreement, and now by state policy.[173] (Emphasis supplied)
The constitutional provisions on autonomy and the statutes enacted pursuant to them
have, to the credit of their drafters, been partly successful. Nonetheless, the Filipino
people are still faced with the reality of an on-going conflict between the Government
and the MILF. If the President is to be expected to find means for bringing this conflict
to an end and to achieve lasting peace in Mindanao, then she must be given the leeway to
explore, in the course of peace negotiations, solutions that may require changes to the
Constitution for their implementation. Being uniquely vested with the power to conduct
peace negotiations with rebel groups, the President is in a singular position to know the
precise nature of their grievances which, if resolved, may bring an end to hostilities.
The President may not, of course, unilaterally implement the solutions that she considers
viable, but she may not be prevented from submitting them as recommendations to
Congress, which could then, if it is minded, act upon them pursuant to the legal
procedures for constitutional amendment and revision. In particular, Congress would
have the option, pursuant to Article XVII, Sections 1 and 3 of the Constitution, to propose
the recommended amendments or revision to the people, call a constitutional convention,
or submit to the electorate the question of calling such a convention.
While the President does not possess constituent powers as those powers may be
exercised only by Congress, a Constitutional Convention, or the people through initiative
and referendum she may submit proposals for constitutional change to Congress in a
manner that does not involve the arrogation of constituent powers.
In Sanidad v. COMELEC,[174] in issue was the legality of then President Marcos act of
directly submitting proposals for constitutional amendments to a referendum, bypassing
the interim National Assembly which was the body vested by the 1973 Constitution with
the power to propose such amendments. President Marcos, it will be recalled, never
convened the interim National Assembly. The majority upheld the Presidents 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 Courts 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 Teehankees 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 Presidents 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 Presidents questioned
decrees proposing and submitting constitutional amendments directly to the people
(without the intervention of the interim National Assembly in whom the power is
expressly vested) are devoid of constitutional and legal basis.[176] (Emphasis supplied)
From the foregoing discussion, the principle may be inferred that the President in the
course of conducting peace negotiations may validly consider implementing even those
policies that require changes to the Constitution, but she may not unilaterally implement
them without the intervention of Congress, or act in any way as if the assent of that body
were assumed as a certainty.
Since, under the present Constitution, the people also have the power to directly propose
amendments through initiative and referendum, the President may also submit her
recommendations to the people, not as a formal proposal to be voted on in a plebiscite
similar to what President Marcos did in Sanidad, but for their independent consideration
of whether these recommendations merit being formally proposed through initiative.
These recommendations, however, may amount to nothing more than the Presidents
suggestions to the people, for any further involvement in the process of initiative by the
Chief Executive may vitiate its character as a genuine peoples initiative. The only
initiative recognized by the Constitution is that which truly proceeds from the people. As
the Court stated in Lambino v. COMELEC:[177]
The Lambino Group claims that their initiative is the people's voice. However, the
Lambino Group unabashedly states in ULAP Resolution No. 2006-02, in the verification
of their petition with the COMELEC, that ULAP maintains its unqualified support to the
agenda of Her Excellency President Gloria Macapagal-Arroyo for constitutional reforms.
The Lambino Group thus admits that their people's initiative is an unqualified support to
the agenda of the incumbent President to change the Constitution. This forewarns the
Court to be wary of incantations of people's voice or sovereign will in the present
initiative.
It will be observed that the President has authority, as stated in her oath of office,[178]
only to preserve and defend the Constitution. Such presidential power does not, however,
extend to allowing her to change the Constitution, but simply to recommend proposed
amendments or revision. As long as she limits herself to recommending these changes
and submits to the proper procedure for constitutional amendments and revision, her mere
recommendation need not be construed as an unconstitutional act.
The foregoing discussion focused on the Presidents authority to propose constitutional
amendments, since her authority to propose new legislation is not in controversy. It has
PIL - 110417
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 Presidents authority to propose constitutional
amendments, she cannot guarantee to any third party that the required amendments will
eventually be put in place, nor even be submitted to a plebiscite. The most she could do
is submit these proposals as recommendations either to Congress or the people, in whom
constituent powers are vested.
Paragraph 7 on Governance of the MOA-AD states, however, that all provisions thereof
which cannot be reconciled with the present Constitution and laws shall come into force
upon signing of a Comprehensive Compact and upon effecting the necessary changes to
the legal framework. This stipulation does not bear the marks of a suspensive condition
defined in civil law as a future and uncertain event but of a term. It is not a question of
whether the necessary changes to the legal framework will be effected, but when. That
there is no uncertainty being contemplated is plain from what follows, for the paragraph
goes on to state that the contemplated changes shall be with due regard to non derogation
of prior agreements and within the stipulated timeframe to be contained in the
Comprehensive Compact.
Pursuant to this stipulation, therefore, it is mandatory for the GRP to effect the changes
to the legal framework contemplated in the MOA-AD which changes would include
constitutional amendments, as discussed earlier. It bears noting that,
By the time these changes are put in place, the MOA-AD itself would be counted among
the prior agreements from which there could be no derogation.
What remains for discussion in the Comprehensive Compact would merely be the
implementing details for these consensus points and, notably, the deadline for effecting
the contemplated changes to the legal framework.
Plainly, stipulation-paragraph 7 on GOVERNANCE is inconsistent with the limits of the
Presidents authority to propose constitutional amendments, it being a virtual guarantee
that the Constitution and the laws of the Republic of the Philippines will certainly be
adjusted to conform to all the consensus points found in the MOA-AD. Hence, it must be
struck down as unconstitutional.
A comparison between the suspensive clause of the MOA-AD with a similar provision
appearing in the 1996 final peace agreement between the MNLF and the GRP is most
instructive.
As a backdrop, the parties to the 1996 Agreement stipulated that it would be implemented
in two phases. Phase I covered a three-year transitional period involving the putting up
of new administrative structures through Executive Order, such as the Special Zone of
Peace and Development (SZOPAD) and the Southern Philippines Council for Peace and
Development (SPCPD), while Phase II covered the establishment of the new regional
autonomous government through amendment or repeal of R.A. No. 6734, which was then
the Organic Act of the ARMM.
The stipulations on Phase II consisted of specific agreements on the structure of the
expanded autonomous region envisioned by the parties. To that extent, they are similar
to the provisions of the MOA-AD. There is, however, a crucial difference between the
two agreements. While the MOA-AD virtually guarantees that the necessary changes to
the legal framework will be put in place, the GRP-MNLF final peace agreement states
thus: Accordingly, these provisions [on Phase II] shall be recommended by the GRP to
Congress for incorporation in the amendatory or repealing law.
Concerns have been raised that the MOA-AD would have given rise to a binding
international law obligation on the part of the Philippines to change its Constitution in
conformity thereto, on the ground that it may be considered either as a binding agreement
under international law, or a unilateral declaration of the Philippine government to the
international community that it would grant to the Bangsamoro people all the concessions
therein stated. Neither ground finds sufficient support in international law, however.
The MOA-AD, as earlier mentioned in the overview thereof, would have included foreign
dignitaries as signatories. In addition, representatives of other nations were invited to
witness its signing in Kuala Lumpur. These circumstances readily lead one to surmise
that the MOA-AD would have had the status of a binding international agreement had it
been signed. An examination of the prevailing principles in international law, however,
leads to the contrary conclusion.
The Decision on CHALLENGE TO JURISDICTION: LOM ACCORD
AMNESTY[180] (the Lom Accord case) of the Special Court of Sierra Leone is
enlightening. The Lom Accord was a peace agreement signed on July 7, 1999 between
the Government of Sierra Leone and the Revolutionary United Front (RUF), a rebel group
with which the Sierra Leone Government had been in armed conflict for around eight
years at the time of signing. There were non-contracting signatories to the agreement,
among which were the Government of the Togolese Republic, the Economic Community
of West African States, and the UN.
On January 16, 2002, after a successful negotiation between the UN Secretary-General
and the Sierra Leone Government, another agreement was entered into by the UN and
that Government whereby the Special Court of Sierra Leone was established. The sole
purpose of the Special Court, an international court, was to try persons who bore the
greatest responsibility for serious violations of international humanitarian law and Sierra
Leonean law committed in the territory of Sierra Leone since November 30, 1996.
Among the stipulations of the Lom Accord was a provision for the full pardon of the
members of the RUF with respect to anything done by them in pursuit of their objectives
as members of that organization since the conflict began.
In the Lom Accord case, the Defence argued that the Accord created an internationally
binding obligation not to prosecute the beneficiaries of the amnesty provided therein,
citing, among other things, the participation of foreign dignitaries and international
organizations in the finalization of that agreement. The Special Court, however, rejected
this argument, ruling that the Lome Accord is not a treaty and that it can only create
binding obligations and rights between the parties in municipal law, not in international
24
law. Hence, the Special Court held, it is ineffective in depriving an international court
like it of jurisdiction.
37. In regard to the nature of a negotiated settlement of an internal armed conflict it is
easy to assume and to argue with some degree of plausibility, as Defence counsel for the
defendants seem to have done, that the mere fact that in addition to the parties to the
conflict, the document formalizing the settlement is signed by foreign heads of state or
their representatives and representatives of international organizations, means the
agreement of the parties is internationalized so as to create obligations in international
law.
xxxx
40. Almost every conflict resolution will involve the parties to the conflict and the
mediator or facilitator of the settlement, or persons or bodies under whose auspices the
settlement took place but who are not at all parties to the conflict, are not contracting
parties and who do not claim any obligation from the contracting parties or incur any
obligation from the settlement.
41. In this case, the parties to the conflict are the lawful authority of the State and the
RUF which has no status of statehood and is to all intents and purposes a faction within
the state. The non-contracting signatories of the Lom Agreement were moral guarantors
of the principle that, in the terms of Article XXXIV of the Agreement, this peace
agreement is implemented with integrity and in good faith by both parties. The moral
guarantors assumed no legal obligation. It is recalled that the UN by its representative
appended, presumably for avoidance of doubt, an understanding of the extent of the
agreement to be implemented as not including certain international crimes.
42. An international agreement in the nature of a treaty must create rights and obligations
regulated by international law so that a breach of its terms will be a breach determined
under international law which will also provide principle means of enforcement. The Lom
Agreement created neither rights nor obligations capable of being regulated by
international law. An agreement such as the Lom Agreement which brings to an end an
internal armed conflict no doubt creates a factual situation of restoration of peace that the
international community acting through the Security Council may take note of. That,
however, will not convert it to an international agreement which creates an obligation
enforceable in international, as distinguished from municipal, law. A breach of the terms
of such a peace agreement resulting in resumption of internal armed conflict or creating
a threat to peace in the determination of the Security Council may indicate a reversal of
the factual situation of peace to be visited with possible legal consequences arising from
the new situation of conflict created. Such consequences such as action by the Security
Council pursuant to Chapter VII arise from the situation and not from the agreement, nor
from the obligation imposed by it. Such action cannot be regarded as a remedy for the
breach. A peace agreement which settles an internal armed conflict cannot be ascribed
the same status as one which settles an international armed conflict which, essentially,
must be between two or more warring States. The Lom Agreement cannot be
characterised as an international instrument. x x x (Emphasis, italics and underscoring
supplied)
Similarly, that the MOA-AD would have been signed by representatives of States and
international organizations not parties to the Agreement would not have sufficed to vest
in it a binding character under international law.
In another vein, concern has been raised that the MOA-AD would amount to a unilateral
declaration of the Philippine State, binding under international law, that it would comply
with all the stipulations stated therein, with the result that it would have to amend its
Constitution accordingly regardless of the true will of the people. Cited as authority for
this view is Australia v. France,[181] also known as the Nuclear Tests Case, decided by
the International Court of Justice (ICJ).
In the Nuclear Tests Case, Australia challenged before the ICJ the legality of Frances
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 boundthe
intention is to be ascertained by interpretation of the act. When States make statements
by which their freedom of action is to be limited, a restrictive interpretation is called for.
xxxx
51. In announcing that the 1974 series of atmospheric tests would be the last, the French
Government conveyed to the world at large, including the Applicant, its intention
effectively to terminate these tests. It was bound to assume that other States might take
note of these statements and rely on their being effective. The validity of these statements
and their legal consequences must be considered within the general framework of the
security of international intercourse, and the confidence and trust which are so essential
in the relations among States. It is from the actual substance of these statements, and from
the circumstances attending their making, that the legal implications of the unilateral act
must be deduced. The objects of these statements are clear and they were addressed to
the international community as a whole, and the Court holds that they constitute an
undertaking possessing legal effect. The Court considers *270 that the President of the
Republic, in deciding upon the effective cessation of atmospheric tests, gave an
PIL - 110417
undertaking to the international community to which his words were addressed. x x x
(Emphasis and underscoring supplied)
As gathered from the above-quoted ruling of the ICJ, public statements of a state
representative may be construed as a unilateral declaration only when the following
conditions are present: the statements were clearly addressed to the international
community, the state intended to be bound to that community by its statements, and that
not to give legal effect to those statements would be detrimental to the security of
international intercourse. Plainly, unilateral declarations arise only in peculiar
circumstances.
The limited applicability of the Nuclear Tests Case ruling was recognized in a later case
decided by the ICJ entitled Burkina Faso v. Mali,[183] also known as the Case
Concerning the Frontier Dispute. The public declaration subject of that case was a
statement made by the President of Mali, in an interview by a foreign press agency, that
Mali would abide by the decision to be issued by a commission of the Organization of
African Unity on a frontier dispute then pending between Mali and Burkina Faso.
Unlike in the Nuclear Tests Case, the ICJ held that the statement of Malis President was
not a unilateral act with legal implications. It clarified that its ruling in the Nuclear Tests
case rested on the peculiar circumstances surrounding the French declaration subject
thereof, to wit:
40. In order to assess the intentions of the author of a unilateral act, account must be taken
of all the factual circumstances in which the act occurred. For example, in the Nuclear
Tests cases, the Court took the view that since the applicant States were not the only ones
concerned at the possible continuance of atmospheric testing by the French Government,
that Government's unilateral declarations had conveyed to the world at large, including
the Applicant, its intention effectively to terminate these tests (I.C.J. Reports 1974, p.
269, para. 51; p. 474, para. 53). In the particular circumstances of those cases, the French
Government could not express an intention to be bound otherwise than by unilateral
declarations. It is difficult to see how it could have accepted the terms of a negotiated
solution with each of the applicants without thereby jeopardizing its contention that its
conduct was lawful. The circumstances of the present case are radically different. Here,
there was nothing to hinder the Parties from manifesting an intention to accept the binding
character of the conclusions of the Organization of African Unity Mediation Commission
by the normal method: a formal agreement on the basis of reciprocity. Since no agreement
of this kind was concluded between the Parties, the Chamber finds that there are no
grounds to interpret the declaration made by Mali's head of State on 11 April 1975 as a
unilateral act with legal implications in regard to the present case. (Emphasis and
underscoring supplied)
Assessing the MOA-AD in light of the above criteria, it would not have amounted to a
unilateral declaration on the part of the Philippine State to the international community.
The Philippine panel did not draft the same with the clear intention of being bound
thereby to the international community as a whole or to any State, but only to the MILF.
While there were States and international organizations involved, one way or another, in
the negotiation and projected signing of the MOA-AD, they participated merely as
witnesses or, in the case of Malaysia, as facilitator. As held in the Lom Accord case, the
mere fact that in addition to the parties to the conflict, the peace settlement is signed by
representatives of states and international organizations does not mean that the agreement
is internationalized so as to create obligations in international law.
Since the commitments in the MOA-AD were not addressed to States, not to give legal
effect to such commitments would not be detrimental to the security of international
intercourse to the trust and confidence essential in the relations among States.
In one important respect, the circumstances surrounding the MOA-AD are closer to that
of Burkina Faso wherein, as already discussed, the Mali Presidents statement was not
held to be a binding unilateral declaration by the ICJ. As in that case, there was also
nothing to hinder the Philippine panel, had it really been its intention to be bound to other
States, to manifest that intention by formal agreement. Here, that formal agreement would
have come about by the inclusion in the MOA-AD of a clear commitment to be legally
bound to the international community, not just the MILF, and by an equally clear
indication that the signatures of the participating states-representatives would constitute
an acceptance of that commitment. Entering into such a formal agreement would not have
resulted in a loss of face for the Philippine government before the international
community, which was one of the difficulties that prevented the French Government from
entering into a formal agreement with other countries. That the Philippine panel did not
enter into such a formal agreement suggests that it had no intention to be bound to the
international community. On that ground, the MOA-AD may not be considered a
unilateral declaration under international law.
The MOA-AD not being a document that can bind the Philippines under international
law notwithstanding, respondents almost consummated act of guaranteeing amendments
to the legal framework is, by itself, sufficient to constitute grave abuse of discretion. The
grave abuse lies not in the fact that they considered, as a solution to the Moro Problem,
the creation of a state within a state, but in their brazen willingness to guarantee that
Congress and the sovereign Filipino people would give their imprimatur to their solution.
Upholding such an act would amount to authorizing a usurpation of the constituent
powers vested only in Congress, a Constitutional Convention, or the people themselves
through the process of initiative, for the only way that the Executive can ensure the
outcome of the amendment process is through an undue influence or interference with
that process.
The sovereign people may, if it so desired, go to the extent of giving up a portion of its
own territory to the Moros for the sake of peace, for it can change the Constitution in any
it wants, so long as the change is not inconsistent with what, in international law, is known
as Jus Cogens.[184] Respondents, however, may not preempt it in that decision.
SUMMARY
The petitions are ripe for adjudication. The failure of respondents to consult the local
government units or communities affected constitutes a departure by respondents from
their mandate under E.O. No. 3. Moreover, respondents exceeded their authority by the
mere act of guaranteeing amendments to the Constitution. Any alleged violation of the
Constitution by any branch of government is a proper matter for judicial review.
As the petitions involve constitutional issues which are of paramount public interest or of
transcendental importance, the Court grants the petitioners, petitioners-in-intervention
25
and intervening respondents the requisite locus standi in keeping with the liberal stance
adopted in David v. Macapagal-Arroyo.
Contrary to the assertion of respondents that the non-signing of the MOA-AD and the
eventual dissolution of the GRP Peace Panel mooted the present petitions, the Court finds
that the present petitions provide an exception to the moot and academic principle in view
of (a) the grave violation of the Constitution involved; (b) the exceptional character of
the situation and paramount public interest; (c) the need to formulate controlling
principles to guide the bench, the bar, and the public; and (d) the fact that the case is
capable of repetition yet evading review.
The MOA-AD is a significant part of a series of agreements necessary to carry out the
GRP-MILF Tripoli Agreement on Peace signed by the government and the MILF back
in June 2001. Hence, the present MOA-AD can be renegotiated or another one drawn up
that could contain similar or significantly dissimilar provisions compared to the original.
The Court, however, finds that the prayers for mandamus have been rendered moot in
view of the respondents action in providing the Court and the petitioners with the official
copy of the final draft of the MOA-AD and its annexes.
The peoples right to information on matters of public concern under Sec. 7, Article III of
the Constitution is in splendid symmetry with the state policy of full public disclosure of
all its transactions involving public interest under Sec. 28, Article II of the Constitution.
The right to information guarantees the right of the people to demand information, while
Section 28 recognizes the duty of officialdom to give information even if nobody
demands. The complete and effective exercise of the right to information necessitates that
its complementary provision on public disclosure derive the same self-executory nature,
subject only to reasonable safeguards or limitations as may be provided by law.
The contents of the MOA-AD is a matter of paramount public concern involving public
interest in the highest order. In declaring that the right to information contemplates steps
and negotiations leading to the consummation of the contract, jurisprudence finds no
distinction as to the executory nature or commercial character of the agreement.
An essential element of these twin freedoms is to keep a continuing dialogue or process
of communication between the government and the people. Corollary to these twin rights
is the design for feedback mechanisms. The right to public consultation was envisioned
to be a species of these public rights.
At least three pertinent laws animate these constitutional imperatives and justify the
exercise of the peoples right to be consulted on relevant matters relating to the peace
agenda.
One, E.O. No. 3 itself is replete with mechanics for continuing consultations on both
national and local levels and for a principal forum for consensus-building. In fact, it is
the duty of the Presidential Adviser on the Peace Process to conduct regular dialogues to
seek relevant information, comments, advice, and recommendations from peace partners
and concerned sectors of society.
Two, Republic Act No. 7160 or the Local Government Code of 1991 requires all national
offices to conduct consultations before any project or program critical to the environment
and human ecology including those that may call for the eviction of a particular group of
people residing in such locality, is implemented therein. The MOA-AD is one peculiar
program that unequivocally and unilaterally vests ownership of a vast territory to the
Bangsamoro people, which could pervasively and drastically result to the diaspora or
displacement of a great number of inhabitants from their total environment.
Three, Republic Act No. 8371 or the Indigenous Peoples Rights Act of 1997 provides for
clear-cut procedure for the recognition and delineation of ancestral domain, which entails,
among other things, the observance of the free and prior informed consent of the
Indigenous Cultural Communities/Indigenous Peoples. Notably, the statute does not grant
the Executive Department or any government agency the power to delineate and
recognize an ancestral domain claim by mere agreement or compromise.
The invocation of the doctrine of executive privilege as a defense to the general right to
information or the specific right to consultation is untenable. The various explicit legal
provisions fly in the face of executive secrecy. In any event, respondents effectively
waived such defense after it unconditionally disclosed the official copies of the final draft
of the MOA-AD, for judicial compliance and public scrutiny.
IN SUM, the Presidential Adviser on the Peace Process committed grave abuse of
discretion when he failed to carry out the pertinent consultation process, as mandated by
E.O. No. 3, Republic Act No. 7160, and Republic Act No. 8371. The furtive process by
which the MOA-AD was designed and crafted runs contrary to and in excess of the legal
authority, and amounts to a whimsical, capricious, oppressive, arbitrary and despotic
exercise thereof. It illustrates a gross evasion of positive duty and a virtual refusal to
perform the duty enjoined.
The MOA-AD cannot be reconciled with the present Constitution and laws. Not only its
specific provisions but the very concept underlying them, namely, the associative
relationship envisioned between the GRP and the BJE, are unconstitutional, for the
concept presupposes that the associated entity is a state and implies that the same is on
its way to independence.
While there is a clause in the MOA-AD stating that the provisions thereof inconsistent
with the present legal framework will not be effective until that framework is amended,
the same does not cure its defect. The inclusion of provisions in the MOA-AD
establishing an associative relationship between the BJE and the Central Government is,
itself, a violation of the Memorandum of Instructions From The President dated March
1, 2001, addressed to the government peace panel. Moreover, as the clause is worded, it
virtually guarantees that the necessary amendments to the Constitution and the laws will
eventually be put in place. Neither the GRP Peace Panel nor the President herself is
authorized to make such a guarantee. Upholding such an act would amount to authorizing
a usurpation of the constituent powers vested only in Congress, a Constitutional
Convention, or the people themselves through the process of initiative, for the only way
that the Executive can ensure the outcome of the amendment process is through an undue
influence or interference with that process.
While the MOA-AD would not amount to an international agreement or unilateral
declaration binding on the Philippines under international law, respondents act of
guaranteeing amendments is, by itself, already a constitutional violation that renders the
MOA-AD fatally defective.
WHEREFORE, respondents motion to dismiss is DENIED. The main and intervening
petitions are GIVEN DUE COURSE and hereby GRANTED.
PIL - 110417
The Memorandum of Agreement on the Ancestral Domain Aspect of the GRP-MILF
Tripoli Agreement on Peace of 2001 is declared CONTRARY TO LAW AND THE
CONSTITUTION.
SO ORDERED.
BAYAN vs ROMULO
G.R. No. 159618 February 1, 2011
DECISION
VELASCO, JR., J.:
The Case
This petition[1] for certiorari, mandamus and prohibition under Rule 65 assails and seeks
to nullify the Non-Surrender Agreement concluded by and between the Republic of the
Philippines (RP) and the United States of America (USA).
The Facts
Petitioner Bayan Muna is a duly registered party-list group established to represent the
marginalized sectors of society. Respondent Blas F. Ople, now deceased, was the
Secretary of Foreign Affairs during the period material to this case. Respondent Alberto
Romulo was impleaded in his capacity as then Executive Secretary.[2]
Rome Statute of the International Criminal Court
Having a key determinative bearing on this case is the Rome Statute[3] establishing the
International Criminal Court (ICC) with the power to exercise its jurisdiction over
persons for the most serious crimes of international concern x x x and shall be
complementary to the national criminal jurisdictions.[4] The serious crimes adverted to
cover those considered grave under international law, such as genocide, crimes against
humanity, war crimes, and crimes of aggression.[5]
On December 28, 2000, the RP, through Charge dAffaires Enrique A. Manalo, signed the
Rome Statute which, by its terms, is subject to ratification, acceptance or approval by the
signatory states.[6] As of the filing of the instant petition, only 92 out of the 139 signatory
countries appear to have completed the ratification, approval and concurrence process.
The Philippines is not among the 92.
RP-US Non-Surrender Agreement
On May 9, 2003, then Ambassador Francis J. Ricciardone sent US Embassy Note No.
0470 to the Department of Foreign Affairs (DFA) proposing the terms of the non-
surrender bilateral agreement (Agreement, hereinafter) between the USA and the RP.
Via Exchange of Notes No. BFO-028-03[7] dated May 13, 2003 (E/N BFO-028-03,
hereinafter), the RP, represented by then DFA Secretary Ople, agreed with and accepted
the US proposals embodied under the US Embassy Note adverted to and put in effect the
Agreement with the US government. In esse, the Agreement aims to protect what it refers
to and defines as persons of the RP and US from frivolous and harassment suits that might
be brought against them in international tribunals.[8] It is reflective of the increasing pace
of the strategic security and defense partnership between the two countries. As of May 2,
2003, similar bilateral agreements have been effected by and between the US and 33 other
countries.[9]
The Agreement pertinently provides as follows:
1. For purposes of this Agreement, persons are current or former Government officials,
employees (including contractors), or military personnel or nationals of one Party.
2. Persons of one Party present in the territory of the other shall not, absent the express
consent of the first Party,
(a) be surrendered or transferred by any means to any international tribunal for any
purpose, unless such tribunal has been established by the UN Security Council, or
(b) be surrendered or transferred by any means to any other entity or third country, or
expelled to a third country, for the purpose of surrender to or transfer to any international
tribunal, unless such tribunal has been established by the UN Security Council.
3. When the [US] extradites, surrenders, or otherwise transfers a person of the Philippines
to a third country, the [US] will not agree to the surrender or transfer of that person by
the third country to any international tribunal, unless such tribunal has been established
by the UN Security Council, absent the express consent of the Government of the
Republic of the Philippines [GRP].
4. When the [GRP] extradites, surrenders, or otherwise transfers a person of the [USA]
to a third country, the [GRP] will not agree to the surrender or transfer of that person by
the third country to any international tribunal, unless such tribunal has been established
by the UN Security Council, absent the express consent of the Government of the [US].
5. This Agreement shall remain in force until one year after the date on which one party
notifies the other of its intent to terminate the Agreement. The provisions of this
Agreement shall continue to apply with respect to any act occurring, or any allegation
arising, before the effective date of termination.
In response to a query of then Solicitor General Alfredo L. Benipayo on the status of the
non-surrender agreement, Ambassador Ricciardone replied in his letter of October 28,
2003 that the exchange of diplomatic notes constituted a legally binding agreement under
international law; and that, under US law, the said agreement did not require the advice
and consent of the US Senate.[10]
In this proceeding, petitioner imputes grave abuse of discretion to respondents in
concluding and ratifying the Agreement and prays that it be struck down as
unconstitutional, or at least declared as without force and effect.
For their part, respondents question petitioners standing to maintain a suit and counter
that the Agreement, being in the nature of an executive agreement, does not require
Senate concurrence for its efficacy. And for reasons detailed in their comment,
respondents assert the constitutionality of the Agreement.
26
The Issues
I. WHETHER THE [RP] PRESIDENT AND THE [DFA] SECRETARY x x x
GRAVELY ABUSED THEIR DISCRETION AMOUNTING TO LACK OR EXCESS
OF JURISDICTION FOR CONCLUDING THE RP-US NON SURRENDER
AGREEMENT BY MEANS OF [E/N] BFO-028-03 DATED 13 MAY 2003, WHEN
THE PHILIPPINE GOVERNMENT HAS ALREADY SIGNED THE ROME
STATUTE OF THE [ICC] ALTHOUGH THIS IS PENDING RATIFICATION BY THE
PHILIPPINE SENATE.
A. Whether by entering into the x x x Agreement Respondents gravely abused their
discretion when they capriciously abandoned, waived and relinquished our only
legitimate recourse through the Rome Statute of the [ICC] to prosecute and try persons
as defined in the x x x Agreement, x x x or literally any conduit of American interests,
who have committed crimes of genocide, crimes against humanity, war crimes and the
crime of aggression, thereby abdicating Philippine Sovereignty.
B. Whether after the signing and pending ratification of the Rome Statute of the [ICC]
the [RP] President and the [DFA] Secretary x x x are obliged by the principle of good
faith to refrain from doing all acts which would substantially impair the value of the
undertaking as signed.
C. Whether the x x x Agreement constitutes an act which defeats the object and purpose
of the Rome Statute of the International Criminal Court and contravenes the obligation
of good faith inherent in the signature of the President affixed on the Rome Statute of the
International Criminal Court, and if so whether the x x x Agreement is void and
unenforceable on this ground.
D. Whether the RP-US Non-Surrender Agreement is void and unenforceable for grave
abuse of discretion amounting to lack or excess of jurisdiction in connection with its
execution.
II. WHETHER THE RP-US NON SURRENDER AGREEMENT IS VOID AB INITIO
FOR CONTRACTING OBLIGATIONS THAT ARE EITHER IMMORAL OR
OTHERWISE AT VARIANCE WITH UNIVERSALLY RECOGNIZED PRINCIPLES
OF INTERNATIONAL LAW.
III. WHETHER THE x x x AGREEMENT IS VALID, BINDING AND EFFECTIVE
WITHOUT THE CONCURRENCE BY AT LEAST TWO-THIRDS (2/3) OF ALL THE
MEMBERS OF THE SENATE x x x.[11]
The foregoing issues may be summarized into two: first, whether or not the Agreement
was contracted validly, which resolves itself into the question of whether or not
respondents gravely abused their discretion in concluding it; and second, whether or not
the Agreement, which has not been submitted to the Senate for concurrence, contravenes
and undermines the Rome Statute and other treaties. But because respondents expectedly
raised it, we shall first tackle the issue of petitioners legal standing.
The Courts Ruling
This petition is bereft of merit.
Procedural Issue: Locus Standi of Petitioner
Petitioner, through its three party-list representatives, contends that the issue of the
validity or invalidity of the Agreement carries with it constitutional significance and is of
paramount importance that justifies its standing. Cited in this regard is what is usually
referred to as the emergency powers cases,[12] in which ordinary citizens and taxpayers
were accorded the personality to question the constitutionality of executive issuances.
Locus standi is a right of appearance in a court of justice on a given question.[13]
Specifically, it is a partys personal and substantial interest in a case where he has
sustained or will sustain direct injury as a result[14] of the act being challenged, and calls
for more than just a generalized grievance.[15] The term interest refers to material
interest, as distinguished from one that is merely incidental.[16] The rationale for
requiring a party who challenges the validity of a law or international agreement to allege
such a personal stake in the outcome of the controversy is to assure the concrete
adverseness which sharpens the presentation of issues upon which the court so largely
depends for illumination of difficult constitutional questions.[17]
Locus standi, however, is merely a matter of procedure and it has been recognized that,
in some cases, suits are not brought by parties who have been personally injured by the
operation of a law or any other government act, but by concerned citizens, taxpayers, or
voters who actually sue in the public interest.[18] Consequently, in a catena of cases,[19]
this Court has invariably adopted a liberal stance on locus standi.
Going by the petition, petitioners representatives pursue the instant suit primarily as
concerned citizens raising issues of transcendental importance, both for the Republic and
the citizenry as a whole.
When suing as a citizen to question the validity of a law or other government action, a
petitioner needs to meet certain specific requirements before he can be clothed with
standing. Francisco, Jr. v. Nagmamalasakit na mga Manananggol ng mga
Manggagawang Pilipino, Inc.[20] expounded on this requirement, thus:
In a long line of cases, however, concerned citizens, taxpayers and legislators when
specific requirements have been met have been given standing by this Court.
When suing as a citizen, the interest of the petitioner assailing the constitutionality of a
statute must be direct and personal. He must be able to show, not only that the law or any
government act is invalid, but also that he sustained or is in imminent danger of sustaining
some direct injury as a result of its enforcement, and not merely that he suffers thereby
in some indefinite way. It must appear that the person complaining has been or is about
to be denied some right or privilege to which he is lawfully entitled or that he is about to
be subjected to some burdens or penalties by reason of the statute or act complained of.
In fine, when the proceeding involves the assertion of a public right, the mere fact that he
is a citizen satisfies the requirement of personal interest.[21]
In the case at bar, petitioners representatives have complied with the qualifying
conditions or specific requirements exacted under the locus standi rule. As citizens, their
interest in the subject matter of the petition is direct and personal. At the very least, their
PIL - 110417
assertions questioning the Agreement are made of a public right, i.e., to ascertain that the
Agreement did not go against established national policies, practices, and obligations
bearing on the States obligation to the community of nations.
At any event, the primordial importance to Filipino citizens in general of the issue at hand
impels the Court to brush aside the procedural barrier posed by the traditional requirement
of locus standi, as we have done in a long line of earlier cases, notably in the old but oft-
cited emergency powers cases[22] and Kilosbayan v. Guingona, Jr.[23] In cases of
transcendental importance, we wrote again in Bayan v. Zamora,[24] The Court may relax
the standing requirements and allow a suit to prosper even where there is no direct injury
to the party claiming the right of judicial review.
Moreover, bearing in mind what the Court said in Taada v. Angara, that it will not shirk,
digress from or abandon its sacred duty and authority to uphold the Constitution in
matters that involve grave abuse of discretion brought before it in appropriate cases,
committed by any officer, agency, instrumentality or department of the government,[25]
we cannot but resolve head on the issues raised before us. Indeed, where an action of any
branch of government is seriously alleged to have infringed the Constitution or is done
with grave abuse of discretion, it becomes not only the right but in fact the duty of the
judiciary to settle it. As in this petition, issues are precisely raised putting to the fore the
propriety of the Agreement pending the ratification of the Rome Statute.
Validity of the RP-US Non-Surrender Agreement
Petitioners initial challenge against the Agreement relates to form, its threshold posture
being that E/N BFO-028-03 cannot be a valid medium for concluding the Agreement.
Petitioners contentionperhaps taken unaware of certain well-recognized international
doctrines, practices, and jargonsis untenable. One of these is the doctrine of incorporation,
as expressed in Section 2, Article II of the Constitution, wherein the Philippines adopts
the generally accepted principles of international law and international jurisprudence as
part of the law of the land and adheres to the policy of peace, cooperation, and amity with
all nations.[26] An exchange of notes falls into the category of inter-governmental
agreements,[27] which is an internationally accepted form of international agreement.
The United Nations Treaty Collections (Treaty Reference Guide) defines the term as
follows:
An exchange of notes is a record of a routine agreement, that has many similarities with
the private law contract. The agreement consists of the exchange of two documents, each
of the parties being in the possession of the one signed by the representative of the other.
Under the usual procedure, the accepting State repeats the text of the offering State to
record its assent. The signatories of the letters may be government Ministers, diplomats
or departmental heads. The technique of exchange of notes is frequently resorted to, either
because of its speedy procedure, or, sometimes, to avoid the process of legislative
approval.[28]
In another perspective, the terms exchange of notes and executive agreements have been
used interchangeably, exchange of notes being considered a form of executive agreement
that becomes binding through executive action.[29] On the other hand, executive
agreements concluded by the President sometimes take the form of exchange of notes
and at other times that of more formal documents denominated agreements or
protocols.[30] As former US High Commissioner to the Philippines Francis B. Sayre
observed in his work, The Constitutionality of Trade Agreement Acts:
The point where ordinary correspondence between this and other governments ends and
agreements whether denominated executive agreements or exchange of notes or
otherwise begin, may sometimes be difficult of ready ascertainment.[31] x x x
It is fairly clear from the foregoing disquisition that E/N BFO-028-03be it viewed as the
Non-Surrender Agreement itself, or as an integral instrument of acceptance thereof or as
consent to be boundis a recognized mode of concluding a legally binding international
written contract among nations.
Senate Concurrence Not Required
Article 2 of the Vienna Convention on the Law of Treaties defines a treaty as an
international agreement concluded between states in written form and governed by
international law, whether embodied in a single instrument or in two or more related
instruments and whatever its particular designation.[32] International agreements may be
in the form of (1) treaties that require legislative concurrence after executive ratification;
or (2) executive agreements that are similar to treaties, except that they do not require
legislative concurrence and are usually less formal and deal with a narrower range of
subject matters than treaties.[33]
Under international law, there is no difference between treaties and executive agreements
in terms of their binding effects on the contracting states concerned,[34] as long as the
negotiating functionaries have remained within their powers.[35] Neither, on the
domestic sphere, can one be held valid if it violates the Constitution.[36] Authorities are,
however, agreed that one is distinct from another for accepted reasons apart from the
concurrence-requirement aspect.[37] As has been observed by US constitutional scholars,
a treaty has greater dignity than an executive agreement, because its constitutional
efficacy is beyond doubt, a treaty having behind it the authority of the President, the
Senate, and the people;[38] a ratified treaty, unlike an executive agreement, takes
precedence over any prior statutory enactment.[39]
Petitioner parlays the notion that the Agreement is of dubious validity, partaking as it
does of the nature of a treaty; hence, it must be duly concurred in by the Senate. Petitioner
takes a cue from Commissioner of Customs v. Eastern Sea Trading, in which the Court
reproduced the following observations made by US legal scholars: [I]nternational
agreements involving political issues or changes of national policy and those involving
international arrangements of a permanent character usually take the form of treaties
[while] those embodying adjustments of detail carrying out well established national
policies and traditions and those involving arrangements of a more or less temporary
nature take the form of executive agreements. [40]
Pressing its point, petitioner submits that the subject of the Agreement does not fall under
any of the subject-categories that are enumerated in the Eastern Sea Trading case, and
that may be covered by an executive agreement, such as commercial/consular relations,
most-favored nation rights, patent rights, trademark and copyright protection, postal and
navigation arrangements and settlement of claims.
In addition, petitioner foists the applicability to the instant case of Adolfo v. CFI of
Zambales and Merchant,[41] holding that an executive agreement through an exchange
of notes cannot be used to amend a treaty.
27
We are not persuaded.
The categorization of subject matters that may be covered by international agreements
mentioned in Eastern Sea Trading is not cast in stone. There are no hard and fast rules on
the propriety of entering, on a given subject, into a treaty or an executive agreement as
an instrument of international relations. The primary consideration in the choice of the
form of agreement is the parties intent and desire to craft an international agreement in
the form they so wish to further their respective interests. Verily, the matter of form takes
a back seat when it comes to effectiveness and binding effect of the enforcement of a
treaty or an executive agreement, as the parties in either international agreement each
labor under the pacta sunt servanda[42] principle.
As may be noted, almost half a century has elapsed since the Court rendered its decision
in Eastern Sea Trading. Since then, the conduct of foreign affairs has become more
complex and the domain of international law wider, as to include such subjects as human
rights, the environment, and the sea. In fact, in the US alone, the executive agreements
executed by its President from 1980 to 2000 covered subjects such as defense, trade,
scientific cooperation, aviation, atomic energy, environmental cooperation, peace corps,
arms limitation, and nuclear safety, among others.[43] Surely, the enumeration in Eastern
Sea Trading cannot circumscribe the option of each state on the matter of which the
international agreement format would be convenient to serve its best interest. As Francis
Sayre said in his work referred to earlier:
x x x It would be useless to undertake to discuss here the large variety of executive
agreements as such concluded from time to time. Hundreds of executive agreements,
other than those entered into under the trade-agreement act, have been negotiated with
foreign governments. x x x They cover such subjects as the inspection of vessels,
navigation dues, income tax on shipping profits, the admission of civil air craft, custom
matters and commercial relations generally, international claims, postal matters, the
registration of trademarks and copyrights, etc. x x x
And lest it be overlooked, one type of executive agreement is a treaty-authorized[44] or
a treaty-implementing executive agreement,[45] which necessarily would cover the same
matters subject of the underlying treaty.
But over and above the foregoing considerations is the fact thatsave for the situation and
matters contemplated in Sec. 25, Art. XVIII of the Constitution[46]when a treaty is
required, the Constitution does not classify any subject, like that involving political
issues, to be in the form of, and ratified as, a treaty. What the Constitution merely
prescribes is that treaties need the concurrence of the Senate by a vote defined therein to
complete the ratification process.
Petitioners reliance on Adolfo[47] is misplaced, said case being inapplicable owing to
different factual milieus. There, the Court held that an executive agreement cannot be
used to amend a duly ratified and existing treaty, i.e., the Bases Treaty. Indeed, an
executive agreement that does not require the concurrence of the Senate for its ratification
may not be used to amend a treaty that, under the Constitution, is the product of the
ratifying acts of the Executive and the Senate. The presence of a treaty, purportedly being
subject to amendment by an executive agreement, does not obtain under the premises.
Considering the above discussion, the Court need not belabor at length the third main
issue raised, referring to the validity and effectivity of the Agreement without the
concurrence by at least two-thirds of all the members of the Senate. The Court has, in
Eastern Sea Trading,[48] as reiterated in Bayan,[49] given recognition to the obligatory
effect of executive agreements without the concurrence of the Senate:
x x x [T]he right of the Executive to enter into binding agreements without the necessity
of subsequent Congressional approval has been confirmed by long usage. From the
earliest days of our history, we have entered executive agreements covering such subjects
as commercial and consular relations, most favored-nation rights, patent rights, trademark
and copyright protection, postal and navigation arrangements and the settlement of
claims. The validity of these has never been seriously questioned by our courts.
The Agreement Not in Contravention of the Rome Statute
It is the petitioners next contention that the Agreement undermines the establishment of
the ICC and is null and void insofar as it unduly restricts the ICCs jurisdiction and
infringes upon the effectivity of the Rome Statute. Petitioner posits that the Agreement
was constituted solely for the purpose of providing individuals or groups of individuals
with immunity from the jurisdiction of the ICC; and such grant of immunity through non-
surrender agreements allegedly does not legitimately fall within the scope of Art. 98 of
the Rome Statute. It concludes that state parties with non-surrender agreements are
prevented from meeting their obligations under the Rome Statute, thereby constituting a
breach of Arts. 27,[50] 86,[51] 89[52] and 90[53] thereof.
Petitioner stresses that the overall object and purpose of the Rome Statute is to ensure
that those responsible for the worst possible crimes are brought to justice in all cases,
primarily by states, but as a last resort, by the ICC; thus, any agreementlike the non-
surrender agreementthat precludes the ICC from exercising its complementary function
of acting when a state is unable to or unwilling to do so, defeats the object and purpose
of the Rome Statute.
Petitioner would add that the President and the DFA Secretary, as representatives of a
signatory of the Rome Statute, are obliged by the imperatives of good faith to refrain from
performing acts that substantially devalue the purpose and object of the Statute, as signed.
Adding a nullifying ingredient to the Agreement, according to petitioner, is the fact that
it has an immoral purpose or is otherwise at variance with a priorly executed treaty.
Contrary to petitioners pretense, the Agreement does not contravene or undermine, nor
does it differ from, the Rome Statute. Far from going against each other, one
complements the other. As a matter of fact, the principle of complementarity underpins
the creation of the ICC. As aptly pointed out by respondents and admitted by petitioners,
the jurisdiction of the ICC is to be complementary to national criminal jurisdictions [of
the signatory states].[54] Art. 1 of the Rome Statute pertinently provides:
Article 1
The Court
An International Crimininal Court (the Court) is hereby established. It x x x shall have
the power to exercise its jurisdiction over persons for the most serious crimes of
PIL - 110417
international concern, as referred to in this Statute, and shall be complementary to
national criminal jurisdictions. The jurisdiction and functioning of the Court shall be
governed by the provisions of this Statute. (Emphasis ours.)
Significantly, the sixth preambular paragraph of the Rome Statute declares that it is the
duty of every State to exercise its criminal jurisdiction over those responsible for
international crimes. This provision indicates that primary jurisdiction over the so-called
international crimes rests, at the first instance, with the state where the crime was
committed; secondarily, with the ICC in appropriate situations contemplated under Art.
17, par. 1[55] of the Rome Statute.
Of particular note is the application of the principle of ne bis in idem[56] under par. 3 of
Art. 20, Rome Statute, which again underscores the primacy of the jurisdiction of a state
vis-a-vis that of the ICC. As far as relevant, the provision states that no person who has
been tried by another court for conduct x x x [constituting crimes within its jurisdiction]
shall be tried by the [International Criminal] Court with respect to the same conduct x x
x.
The foregoing provisions of the Rome Statute, taken collectively, argue against the idea
of jurisdictional conflict between the Philippines, as party to the non-surrender
agreement, and the ICC; or the idea of the Agreement substantially impairing the value
of the RPs undertaking under the Rome Statute. Ignoring for a while the fact that the RP
signed the Rome Statute ahead of the Agreement, it is abundantly clear to us that the
Rome Statute expressly recognizes the primary jurisdiction of states, like the RP, over
serious crimes committed within their respective borders, the complementary jurisdiction
of the ICC coming into play only when the signatory states are unwilling or unable to
prosecute.
Given the above consideration, petitioners suggestionthat the RP, by entering into the
Agreement, violated its duty required by the imperatives of good faith and breached its
commitment under the Vienna Convention[57] to refrain from performing any act tending
to impair the value of a treaty, e.g., the Rome Statutehas to be rejected outright. For
nothing in the provisions of the Agreement, in relation to the Rome Statute, tends to
diminish the efficacy of the Statute, let alone defeats the purpose of the ICC. Lest it be
overlooked, the Rome Statute contains a proviso that enjoins the ICC from seeking the
surrender of an erring person, should the process require the requested state to perform
an act that would violate some international agreement it has entered into. We refer to
Art. 98(2) of the Rome Statute, which reads:
Article 98
Cooperation with respect to waiver of immunity
and consent to surrender
xxxx
2. The Court may not proceed with a request for surrender which would require the
requested State to act inconsistently with its obligations under international agreements
pursuant to which the consent of a sending State is required to surrender a person of that
State to the Court, unless the Court can first obtain the cooperation of the sending State
for the giving of consent for the surrender.
Moreover, under international law, there is a considerable difference between a State-
Party and a signatory to a treaty. Under the Vienna Convention on the Law of Treaties, a
signatory state is only obliged to refrain from acts which would defeat the object and
purpose of a treaty;[58] whereas a State-Party, on the other hand, is legally obliged to
follow all the provisions of a treaty in good faith.
In the instant case, it bears stressing that the Philippines is only a signatory to the Rome
Statute and not a State-Party for lack of ratification by the Senate. Thus, it is only obliged
to refrain from acts which would defeat the object and purpose of the Rome Statute. Any
argument obliging the Philippines to follow any provision in the treaty would be
premature.
As a result, petitioners argument that State-Parties with non-surrender agreements are
prevented from meeting their obligations under the Rome Statute, specifically Arts. 27,
86, 89 and 90, must fail. These articles are only legally binding upon State-Parties, not
signatories.
Furthermore, a careful reading of said Art. 90 would show that the Agreement is not
incompatible with the Rome Statute. Specifically, Art. 90(4) provides that [i]f the
requesting State is a State not Party to this Statute the requested State, if it is not under
an international obligation to extradite the person to the requesting State, shall give
priority to the request for surrender from the Court. x x x In applying the provision, certain
undisputed facts should be pointed out: first, the US is neither a State-Party nor a
signatory to the Rome Statute; and second, there is an international agreement between
the US and the Philippines regarding extradition or surrender of persons, i.e., the
Agreement. Clearly, even assuming that the Philippines is a State-Party, the Rome Statute
still recognizes the primacy of international agreements entered into between States, even
when one of the States is not a State-Party to the Rome Statute.
Sovereignty Limited by International Agreements
Petitioner next argues that the RP has, through the Agreement, abdicated its sovereignty
by bargaining away the jurisdiction of the ICC to prosecute US nationals, government
officials/employees or military personnel who commit serious crimes of international
concerns in the Philippines. Formulating petitioners argument a bit differently, the RP,
by entering into the Agreement, does thereby abdicate its sovereignty, abdication being
done by its waiving or abandoning its right to seek recourse through the Rome Statute of
the ICC for erring Americans committing international crimes in the country.
We are not persuaded. As it were, the Agreement is but a form of affirmance and
confirmance of the Philippines national criminal jurisdiction. National criminal
jurisdiction being primary, as explained above, it is always the responsibility and within
the prerogative of the RP either to prosecute criminal offenses equally covered by the
Rome Statute or to accede to the jurisdiction of the ICC. Thus, the Philippines may decide
to try persons of the US, as the term is understood in the Agreement, under our national
criminal justice system. Or it may opt not to exercise its criminal jurisdiction over its
erring citizens or over US persons committing high crimes in the country and defer to the
secondary criminal jurisdiction of the ICC over them. As to persons of the US whom the
Philippines refuses to prosecute, the country would, in effect, accord discretion to the US
28
to exercise either its national criminal jurisdiction over the person concerned or to give
its consent to the referral of the matter to the ICC for trial. In the same breath, the US
must extend the same privilege to the Philippines with respect to persons of the RP
committing high crimes within US territorial jurisdiction.
In the context of the Constitution, there can be no serious objection to the Philippines
agreeing to undertake the things set forth in the Agreement. Surely, one State can agree
to waive jurisdictionto the extent agreed uponto subjects of another State due to the
recognition of the principle of extraterritorial immunity. What the Court wrote in Nicolas
v. Romulo[59]a case involving the implementation of the criminal jurisdiction provisions
of the RP-US Visiting Forces Agreementis apropos:
Nothing in the Constitution prohibits such agreements recognizing immunity from
jurisdiction or some aspects of jurisdiction (such as custody), in relation to long-
recognized subjects of such immunity like Heads of State, diplomats and members of the
armed forces contingents of a foreign State allowed to enter another States territory. x x
x
To be sure, the nullity of the subject non-surrender agreement cannot be predicated on
the postulate that some of its provisions constitute a virtual abdication of its sovereignty.
Almost every time a state enters into an international agreement, it voluntarily sheds off
part of its sovereignty. The Constitution, as drafted, did not envision a reclusive
Philippines isolated from the rest of the world. It even adheres, as earlier stated, to the
policy of cooperation and amity with all nations.[60]
By their nature, treaties and international agreements actually have a limiting effect on
the otherwise encompassing and absolute nature of sovereignty. By their voluntary act,
nations may decide to surrender or waive some aspects of their state power or agree to
limit the exercise of their otherwise exclusive and absolute jurisdiction. The usual
underlying consideration in this partial surrender may be the greater benefits derived from
a pact or a reciprocal undertaking of one contracting party to grant the same privileges or
immunities to the other. On the rationale that the Philippines has adopted the generally
accepted principles of international law as part of the law of the land, a portion of
sovereignty may be waived without violating the Constitution.[61] Such waiver does not
amount to an unconstitutional diminution or deprivation of jurisdiction of Philippine
courts.[62]
Agreement Not Immoral/Not at Variance
with Principles of International Law
Petitioner urges that the Agreement be struck down as void ab initio for imposing
immoral obligations and/or being at variance with allegedly universally recognized
principles of international law. The immoral aspect proceeds from the fact that the
Agreement, as petitioner would put it, leaves criminals immune from responsibility for
unimaginable atrocities that deeply shock the conscience of humanity; x x x it precludes
our country from delivering an American criminal to the [ICC] x x x.[63]
The above argument is a kind of recycling of petitioners earlier position, which, as already
discussed, contends that the RP, by entering into the Agreement, virtually abdicated its
sovereignty and in the process undermined its treaty obligations under the Rome Statute,
contrary to international law principles.[64]
The Court is not persuaded. Suffice it to state in this regard that the non-surrender
agreement, as aptly described by the Solicitor General, is an assertion by the Philippines
of its desire to try and punish crimes under its national law. x x x The agreement is a
recognition of the primacy and competence of the countrys judiciary to try offenses under
its national criminal laws and dispense justice fairly and judiciously.
Petitioner, we believe, labors under the erroneous impression that the Agreement would
allow Filipinos and Americans committing high crimes of international concern to escape
criminal trial and punishment. This is manifestly incorrect. Persons who may have
committed acts penalized under the Rome Statute can be prosecuted and punished in the
Philippines or in the US; or with the consent of the RP or the US, before the ICC,
assuming, for the nonce, that all the formalities necessary to bind both countries to the
Rome Statute have been met. For perspective, what the Agreement contextually prohibits
is the surrender by either party of individuals to international tribunals, like the ICC,
without the consent of the other party, which may desire to prosecute the crime under its
existing laws. With the view we take of things, there is nothing immoral or violative of
international law concepts in the act of the Philippines of assuming criminal jurisdiction
pursuant to the non-surrender agreement over an offense considered criminal by both
Philippine laws and the Rome Statute.
No Grave Abuse of Discretion
Petitioners final point revolves around the necessity of the Senates concurrence in the
Agreement. And without specifically saying so, petitioner would argue that the non-
surrender agreement was executed by the President, thru the DFA Secretary, in grave
abuse of discretion.
The Court need not delve on and belabor the first portion of the above posture of
petitioner, the same having been discussed at length earlier on. As to the second portion,
We wish to state that petitioner virtually faults the President for performing, through
respondents, a task conferred the President by the Constitutionthe power to enter into
international agreements.
By constitutional fiat and by the nature of his or her office, the President, as head of state
and government, is the sole organ and authority in the external affairs of the country.[65]
The Constitution vests in the President the power to enter into international agreements,
subject, in appropriate cases, to the required concurrence votes of the Senate. But as
earlier indicated, executive agreements may be validly entered into without such
concurrence. As the President wields vast powers and influence, her conduct in the
external affairs of the nation is, as Bayan would put it, executive altogether. The right of
the President to enter into or ratify binding executive agreements has been confirmed by
long practice.[66]
In thus agreeing to conclude the Agreement thru E/N BFO-028-03, then President Gloria
Macapagal-Arroyo, represented by the Secretary of Foreign Affairs, acted within the
scope of the authority and discretion vested in her by the Constitution. At the end of the
day, the Presidentby ratifying, thru her deputies, the non-surrender agreementdid nothing
more than discharge a constitutional duty and exercise a prerogative that pertains to her
office.
PIL - 110417
While the issue of ratification of the Rome Statute is not determinative of the other issues
raised herein, it may perhaps be pertinent to remind all and sundry that about the time
this petition was interposed, such issue of ratification was laid to rest in Pimentel, Jr. v.
Office of the Executive Secretary.[67] As the Court emphasized in said case, the power
to ratify a treaty, the Statute in that instance, rests with the President, subject to the
concurrence of the Senate, whose role relative to the ratification of a treaty is limited
merely to concurring in or withholding the ratification. And concomitant with this treaty-
making power of the President is his or her prerogative to refuse to submit a treaty to the
Senate; or having secured the latters consent to the ratification of the treaty, refuse to
ratify it.[68] This prerogative, the Court hastened to add, is the Presidents alone and
cannot be encroached upon via a writ of mandamus. Barring intervening events, then, the
Philippines remains to be just a signatory to the Rome Statute. Under Art. 125[69]
thereof, the final acts required to complete the treaty process and, thus, bring it into force,
insofar as the Philippines is concerned, have yet to be done.
Agreement Need Not Be in the Form of a Treaty
On December 11, 2009, then President Arroyo signed into law Republic Act No. (RA)
9851, otherwise known as the Philippine Act on Crimes Against International
Humanitarian Law, Genocide, and Other Crimes Against Humanity. Sec. 17 of RA 9851,
particularly the second paragraph thereof, provides:
Section 17. Jurisdiction. x x x x
In the interest of justice, the relevant Philippine authorities may dispense with the
investigation or prosecution of a crime punishable under this Act if another court or
international tribunal is already conducting the investigation or undertaking the
prosecution of such crime. Instead, the authorities may surrender or extradite suspected
or accused persons in the Philippines to the appropriate international court, if any, or to
another State pursuant to the applicable extradition laws and treaties. (Emphasis
supplied.)
A view is advanced that the Agreement amends existing municipal laws on the States
obligation in relation to grave crimes against the law of nations, i.e., genocide, crimes
against humanity and war crimes. Relying on the above-quoted statutory proviso, the
view posits that the Philippine is required to surrender to the proper international tribunal
those persons accused of the grave crimes defined under RA 9851, if it does not exercise
its primary jurisdiction to prosecute them.
The basic premise rests on the interpretation that if it does not decide to prosecute a
foreign national for violations of RA 9851, the Philippines has only two options, to wit:
(1) surrender the accused to the proper international tribunal; or (2) surrender the accused
to another State if such surrender is pursuant to the applicable extradition laws and
treaties. But the Philippines may exercise these options only in cases where another court
or international tribunal is already conducting the investigation or undertaking the
prosecution of such crime; otherwise, the Philippines must prosecute the crime before its
own courts pursuant to RA 9851.
Posing the situation of a US national under prosecution by an international tribunal for
any crime under RA 9851, the Philippines has the option to surrender such US national
to the international tribunal if it decides not to prosecute such US national here. The view
asserts that this option of the Philippines under Sec. 17 of RA 9851 is not subject to the
consent of the US, and any derogation of Sec. 17 of RA 9851, such as requiring the
consent of the US before the Philippines can exercise such option, requires an amendatory
law. In line with this scenario, the view strongly argues that the Agreement prevents the
Philippineswithout the consent of the USfrom surrendering to any international tribunal
US nationals accused of crimes covered by RA 9851, and, thus, in effect amends Sec. 17
of RA 9851. Consequently, the view is strongly impressed that the Agreement cannot be
embodied in a simple executive agreement in the form of an exchange of notes but must
be implemented through an extradition law or a treaty with the corresponding formalities.
Moreover, consonant with the foregoing view, citing Sec. 2, Art. II of the Constitution,
where the Philippines adopts, as a national policy, the generally accepted principles of
international law as part of the law of the land, the Court is further impressed to perceive
the Rome Statute as declaratory of customary international law. In other words, the
Statute embodies principles of law which constitute customary international law or
custom and for which reason it assumes the status of an enforceable domestic law in the
context of the aforecited constitutional provision. As a corollary, it is argued that any
derogation from the Rome Statute principles cannot be undertaken via a mere executive
agreement, which, as an exclusive act of the executive branch, can only implement, but
cannot amend or repeal, an existing law. The Agreement, so the argument goes, seeks to
frustrate the objects of the principles of law or alters customary rules embodied in the
Rome Statute.
Prescinding from the foregoing premises, the view thus advanced considers the
Agreement inefficacious, unless it is embodied in a treaty duly ratified with the
concurrence of the Senate, the theory being that a Senate- ratified treaty partakes of the
nature of a municipal law that can amend or supersede another law, in this instance Sec.
17 of RA 9851 and the status of the Rome Statute as constitutive of enforceable domestic
law under Sec. 2, Art. II of the Constitution.
We are unable to lend cogency to the view thus taken. For one, we find that the Agreement
does not amend or is repugnant to RA 9851. For another, the view does not clearly state
what precise principles of law, if any, the Agreement alters. And for a third, it does not
demonstrate in the concrete how the Agreement seeks to frustrate the objectives of the
principles of law subsumed in the Rome Statute.
Far from it, as earlier explained, the Agreement does not undermine the Rome Statute as
the former merely reinforces the primacy of the national jurisdiction of the US and the
Philippines in prosecuting criminal offenses committed by their respective citizens and
military personnel, among others. The jurisdiction of the ICC pursuant to the Rome
Statute over high crimes indicated thereat is clearly and unmistakably complementary to
the national criminal jurisdiction of the signatory states.
Moreover, RA 9851 clearly: (1) defines and establishes the crimes against international
humanitarian law, genocide and other crimes against humanity;[70] (2) provides penal
sanctions and criminal liability for their commission;[71] and (3) establishes special
courts for the prosecution of these crimes and for the State to exercise primary criminal
jurisdiction.[72] Nowhere in RA 9851 is there a proviso that goes against the tenor of the
Agreement.
The view makes much of the above quoted second par. of Sec. 17, RA 9851 as requiring
the Philippine State to surrender to the proper international tribunal those persons accused
29
of crimes sanctioned under said law if it does not exercise its primary jurisdiction to
prosecute such persons. This view is not entirely correct, for the above quoted proviso
clearly provides discretion to the Philippine State on whether to surrender or not a person
accused of the crimes under RA 9851. The statutory proviso uses the word may. It is
settled doctrine in statutory construction that the word may denotes discretion, and cannot
be construed as having mandatory effect.[73] Thus, the pertinent second pararagraph of
Sec. 17, RA 9851 is simply permissive on the part of the Philippine State.
Besides, even granting that the surrender of a person is mandatorily required when the
Philippines does not exercise its primary jurisdiction in cases where another court or
international tribunal is already conducting the investigation or undertaking the
prosecution of such crime, still, the tenor of the Agreement is not repugnant to Sec. 17 of
RA 9851. Said legal proviso aptly provides that the surrender may be made to another
State pursuant to the applicable extradition laws and treaties. The Agreement can already
be considered a treaty following this Courts decision in Nicolas v. Romulo[74] which
cited Weinberger v. Rossi.[75] In Nicolas, We held that an executive agreement is a treaty
within the meaning of that word in international law and constitutes enforceable domestic
law vis--vis the United States.[76]
Likewise, the Philippines and the US already have an existing extradition treaty, i.e., RP-
US Extradition Treaty, which was executed on November 13, 1994. The pertinent
Philippine law, on the other hand, is Presidential Decree No. 1069, issued on January 13,
1977. Thus, the Agreement, in conjunction with the RP-US Extradition Treaty, would
neither violate nor run counter to Sec. 17 of RA 9851.
The views reliance on Suplico v. Neda[77] is similarly improper. In that case, several
petitions were filed questioning the power of the President to enter into foreign loan
agreements. However, before the petitions could be resolved by the Court, the Office of
the Solicitor General filed a Manifestation and Motion averring that the Philippine
Government decided not to continue with the ZTE National Broadband Network Project,
thus rendering the petition moot. In resolving the case, the Court took judicial notice of
the act of the executive department of the Philippines (the President) and found the
petition to be indeed moot. Accordingly, it dismissed the petitions.
In his dissent in the abovementioned case, Justice Carpio discussed the legal implications
of an executive agreement. He stated that an executive agreement has the force and effect
of law x x x [it] cannot amend or repeal prior laws.[78] Hence, this argument finds no
application in this case seeing as RA 9851 is a subsequent law, not a prior one. Notably,
this argument cannot be found in the ratio decidendi of the case, but only in the dissenting
opinion.
The view further contends that the RP-US Extradition Treaty is inapplicable to RA 9851
for the reason that under par. 1, Art. 2 of the RP-US Extradition Treaty, [a]n offense shall
be an extraditable offense if it is punishable under the laws in both Contracting Parties x
x x,[79] and thereby concluding that while the Philippines has criminalized under RA
9851 the acts defined in the Rome Statute as war crimes, genocide and other crimes
against humanity, there is no similar legislation in the US. It is further argued that, citing
U.S. v. Coolidge, in the US, a person cannot be tried in the federal courts for an
international crime unless Congress adopts a law defining and punishing the offense.
This view must fail.
On the contrary, the US has already enacted legislation punishing the high crimes
mentioned earlier. In fact, as early as October 2006, the US enacted a law criminalizing
war crimes. Section 2441, Chapter 118, Part I, Title 18 of the United States Code
Annotated (USCA) provides for the criminal offense of war crimes which is similar to
the war crimes found in both the Rome Statute and RA 9851, thus:
(a) Offense Whoever, whether inside or outside the United States, commits a war crime,
in any of the circumstances described in subsection (b), shall be fined under this title or
imprisoned for life or any term of years, or both, and if death results to the victim, shall
also be subject to the penalty of death.
(b) Circumstances The circumstances referred to in subsection (a) are that the person
committing such war crime or the victim of such war crime is a member of the Armed
Forces of the United States or a national of the United States (as defined in Section 101
of the Immigration and Nationality Act).
(c) Definition As used in this Section the term war crime means any conduct
(1) Defined as a grave breach in any of the international conventions signed at Geneva
12 August 1949, or any protocol to such convention to which the United States is a party;
(2) Prohibited by Article 23, 25, 27 or 28 of the Annex to the Hague Convention IV,
Respecting the Laws and Customs of War on Land, signed 18 October 1907;
(3) Which constitutes a grave breach of common Article 3 (as defined in subsection [d])
when committed in the context of and in association with an armed conflict not of an
international character; or
(4) Of a person who, in relation to an armed conflict and contrary to the provisions of
the Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other
Devices as amended at Geneva on 3 May 1996 (Protocol II as amended on 3 May 1996),
when the United States is a party to such Protocol, willfully kills or causes serious injury
to civilians.[80]
Similarly, in December 2009, the US adopted a law that criminalized genocide, to wit:
1091. Genocide
(a) Basic Offense Whoever, whether in the time of peace or in time of war and
with specific intent to destroy, in whole or in substantial part, a national, ethnic, racial or
religious group as such
(1) kills members of that group;
(2) causes serious bodily injury to members of that group;
(3) causes the permanent impairment of the mental faculties of members of the group
through drugs, torture, or similar techniques;
(4) subjects the group to conditions of life that are intended to cause the physical
destruction of the group in whole or in part;
(5) imposes measures intended to prevent births within the group; or
(6) transfers by force children of the group to another group;
shall be punished as provided in subsection (b).[81]
Arguing further, another view has been advanced that the current US laws do not cover
every crime listed within the jurisdiction of the ICC and that there is a gap between the
definitions of the different crimes under the US laws versus the Rome Statute. The view
used a report written by Victoria K. Holt and Elisabeth W. Dallas, entitled On Trial: The
US Military and the International Criminal Court, as its basis.
PIL - 110417 30
At the outset, it should be pointed out that the report used may not have any weight or Nonetheless, despite the lack of actual domestic legislation, the US notably follows the
value under international law. Article 38 of the Statute of the International Court of doctrine of incorporation. As early as 1900, the esteemed Justice Gray in The Paquete
Justice (ICJ) lists the sources of international law, as follows: (1) international Habana[89] case already held international law as part of the law of the US, to wit:
conventions, whether general or particular, establishing rules expressly recognized by the
contesting states; (2) international custom, as evidence of a general practice accepted as International law is part of our law, and must be ascertained and administered by the
law; (3) the general principles of law recognized by civilized nations; and (4) subject to courts of justice of appropriate jurisdiction as often as questions of right depending upon
the provisions of Article 59, judicial decisions and the teachings of the most highly it are duly presented for their determination. For this purpose, where there is no treaty
qualified publicists of the various nations, as subsidiary means for the determination of and no controlling executive or legislative act or judicial decision, resort must be had to
rules of law. The report does not fall under any of the foregoing enumerated sources. It the customs and usages of civilized nations, and, as evidence of these, to the works of
cannot even be considered as the teachings of highly qualified publicists. A highly jurists and commentators who by years of labor, research, and experience have made
qualified publicist is a scholar of public international law and the term usually refers to themselves peculiarly well acquainted with the subjects of which they treat. Such works
legal scholars or academic writers.[82] It has not been shown that the authors[83] of this are resorted to by judicial tribunals, not for the speculations of their authors concerning
report are highly qualified publicists. what the law ought to be, but for the trustworthy evidence of what the law really is.[90]
(Emphasis supplied.)
Assuming arguendo that the report has weight, still, the perceived gaps in the definitions
of the crimes are nonexistent. To highlight, the table below shows the definitions of
genocide and war crimes under the Rome Statute vis--vis the definitions under US laws: Thus, a person can be tried in the US for an international crime despite the lack of
domestic legislation. The cited ruling in U.S. v. Coolidge,[91] which in turn is based on
the holding in U.S. v. Hudson,[92] only applies to common law and not to the law of
Rome Statute US Law
nations or international law.[93] Indeed, the Court in U.S. v. Hudson only considered the
Article 6 Genocide 1091. Genocide question, whether the Circuit Courts of the United States can exercise a common law
For the purpose of this Statute, genocide (a) Basic Offense Whoever, whether in jurisdiction in criminal cases.[94] Stated otherwise, there is no common law crime in the
means any of the following acts the time of peace or in time of war and US but this is considerably different from international law.
committed with intent to destroy, in with specific intent to destroy, in whole
whole or in part, a national, ethnical, or in substantial part, a national, ethnic, The US doubtless recognizes international law as part of the law of the land, necessarily
racial or religious group, as such: racial or religious group as such including international crimes, even without any local statute.[95] In fact, years later, US
(a) Killing members of the group; (1) kills members of that group; courts would apply international law as a source of criminal liability despite the lack of a
(b) Causing serious bodily or mental (2) causes serious bodily injury to local statute criminalizing it as such. So it was that in Ex Parte Quirin[96] the US Supreme
harm to members of the group; members of that group; Court noted that [f]rom the very beginning of its history this Court has recognized and
(c) Deliberately inflicting on the group (3) causes the permanent impairment of applied the law of war as including that part of the law of nations which prescribes, for
conditions of life calculated to bring the mental faculties of members of the the conduct of war, the status, rights and duties of enemy nations as well as of enemy
about its physical destruction in whole or group through drugs, torture, or similar individuals.[97] It went on further to explain that Congress had not undertaken the task
in part; techniques; of codifying the specific offenses covered in the law of war, thus:
(d) Imposing measures intended to (4) subjects the group to conditions of
prevent births within the group; life that are intended to cause the It is no objection that Congress in providing for the trial of such offenses has not itself
(e) Forcibly transferring children of the physical destruction of the group in undertaken to codify that branch of international law or to mark its precise boundaries, or
group to another group. whole or in part; to enumerate or define by statute all the acts which that law condemns. An Act of
(5) imposes measures intended to prevent Congress punishing the crime of piracy as defined by the law of nations is an appropriate
births within the group; or exercise of its constitutional authority, Art. I, s 8, cl. 10, to define and punish the offense
(6) transfers by force children of the since it has adopted by reference the sufficiently precise definition of international law.
group to another group; x x x Similarly by the reference in the 15th Article of War to offenders or offenses that x
shall be punished as provided in x x by the law of war may be triable by such military commissions. Congress has
subsection (b). incorporated by reference, as within the jurisdiction of military commissions, all offenses
which are defined as such by the law of war x x x, and which may constitutionally be
Article 8 War Crimes a) Definition As used in this Section included within that jurisdiction.[98] x x x (Emphasis supplied.)
2. For the purpose of this Statute, war the term war crime means any conduct
crimes means: (1) Defined as a grave breach in any of This rule finds an even stronger hold in the case of crimes against humanity. It has been
(a) Grave breaches of the Geneva the international conventions signed at held that genocide, war crimes and crimes against humanity have attained the status of
Conventions of 12 August 1949, namely, Geneva 12 August 1949, or any protocol customary international law. Some even go so far as to state that these crimes have
any of the following acts against persons to such convention to which the United attained the status of jus cogens.[99]
or property protected under the States is a party;
provisions of the relevant Geneva (2) Prohibited by Article 23, 25, 27 or Customary international law or international custom is a source of international law as
Convention: x x x[84] 28 of the Annex to the Hague stated in the Statute of the ICJ.[100] It is defined as the general and consistent practice of
(b) Other serious violations of the laws Convention IV, Respecting the Laws and states recognized and followed by them from a sense of legal obligation.[101] In order to
and customs applicable in international Customs of War on Land, signed 18 establish the customary status of a particular norm, two elements must concur: State
armed conflict, within the established October 1907; practice, the objective element; and opinio juris sive necessitates, the subjective
framework of international law, namely, (3) Which constitutes a grave breach of element.[102]
any of the following acts: common Article 3 (as defined in
xxxx subsection [d][85]) when committed in State practice refers to the continuous repetition of the same or similar kind of acts or
(c) In the case of an armed conflict not of the context of and in association with an norms by States.[103] It is demonstrated upon the existence of the following elements:
an international character, serious armed conflict not of an international (1) generality; (2) uniformity and consistency; and (3) duration.[104] While, opinio juris,
violations of article 3 common to the character; or the psychological element, requires that the state practice or norm be carried out in such
four Geneva Conventions of 12 August (4) Of a person who, in relation to an a way, as to be evidence of a belief that this practice is rendered obligatory by the
1949, namely, any of the following acts armed conflict and contrary to the existence of a rule of law requiring it.[105]
committed against persons taking no provisions of the Protocol on
active part in the hostilities, including Prohibitions or Restrictions on the Use of The term jus cogens means the compelling law.[106] Corollary, a jus cogens norm holds
members of armed forces who have laid Mines, Booby-Traps and Other Devices the highest hierarchical position among all other customary norms and principles.[107]
down their arms and those placed hors de as amended at Geneva on 3 May 1996 As a result, jus cogens norms are deemed peremptory and non-derogable.[108] When
combat by sickness, wounds, detention (Protocol II as amended on 3 May 1996), applied to international crimes, jus cogens crimes have been deemed so fundamental to
or any other cause: when the United States is a party to such the existence of a just international legal order that states cannot derogate from them,
xxxx Protocol, willfully kills or causes serious even by agreement.[109]
(d) Paragraph 2 (c) applies to armed injury to civilians.[86]
conflicts not of an international character These jus cogens crimes relate to the principle of universal jurisdiction, i.e., any state may
and thus does not apply to situations of exercise jurisdiction over an individual who commits certain heinous and widely
internal disturbances and tensions, such condemned offenses, even when no other recognized basis for jurisdiction exists.[110]
as riots, isolated and sporadic acts of The rationale behind this principle is that the crime committed is so egregious that it is
violence or other acts of a similar nature. considered to be committed against all members of the international community[111] and
(e) Other serious violations of the laws thus granting every State jurisdiction over the crime.[112]
and customs applicable in armed
conflicts not of an international Therefore, even with the current lack of domestic legislation on the part of the US, it still
character, within the established has both the doctrine of incorporation and universal jurisdiction to try these crimes.
framework of international law, namely,
any of the following acts: x x x. Consequently, no matter how hard one insists, the ICC, as an international tribunal, found
in the Rome Statute is not declaratory of customary international law.

Evidently, the gaps pointed out as to the definition of the crimes are not present. In fact,
the report itself stated as much, to wit:
Few believed there were wide differences between the crimes under the jurisdiction of
the Court and crimes within the Uniform Code of Military Justice that would expose US
personnel to the Court. Since US military lawyers were instrumental in drafting the
elements of crimes outlined in the Rome Statute, they ensured that most of the crimes
were consistent with those outlined in the UCMJ and gave strength to complementarity
for the US. Small areas of potential gaps between the UCMJ and the Rome Statute,
military experts argued, could be addressed through existing military laws.[87] x x x
The report went on further to say that [a]ccording to those involved, the elements of
crimes laid out in the Rome Statute have been part of US military doctrine for
decades.[88] Thus, the argument proffered cannot stand.
The first element of customary international law, i.e., established, widespread, and
consistent practice on the part of States,[113] does not, under the premises, appear to be
obtaining as reflected in this simple reality: As of October 12, 2010, only 114[114] States
have ratified the Rome Statute, subsequent to its coming into force eight (8) years earlier,
or on July 1, 2002. The fact that 114 States out of a total of 194[115] countries in the
world, or roughly 58.76%, have ratified the Rome Statute casts doubt on whether or not
the perceived principles contained in the Statute have attained the status of customary
law and should be deemed as obligatory international law. The numbers even tend to
argue against the urgency of establishing international criminal courts envisioned in the
Rome Statute. Lest it be overlooked, the Philippines, judging by the action or inaction of
its top officials, does not even feel bound by the Rome Statute. Res ipsa loquitur. More
than eight (8) years have elapsed since the Philippine representative signed the Statute,
but the treaty has not been transmitted to the Senate for the ratification process.
And this brings us to what Fr. Bernas, S.J. aptly said respecting the application of the
concurring elements, thus:
PIL - 110417 31
Custom or customary international law means a general and consistent practice of states
followed by them from a sense of legal obligation [opinio juris] x x x. This statement
contains the two basic elements of custom: the material factor, that is how the states
behave, and the psychological factor or subjective factor, that is, why they behave the
way they do.

xxxx

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

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

xxxx

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

xxxx

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

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

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

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

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

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

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

WHEREFORE, the petition for certiorari, mandamus and prohibition is hereby

DISMISSED for lack of merit. No costs.

SO ORDERED.