Filartiga v. Peña-Irala, 630 F.

2d 876
Brief Fact Summary. A suit against Pena-Irala (D) on the premise that he had
tortured to death the decedent of Filartiga (P), was filed by Filartiga (P).
Synopsis of Rule of Law. For purpose of the Allen Tort Statute, torture may be
considered to violate law of nations.
Facts. A suit claiming that Pena-Irala (D) had tortured Filartiga’s (P) decedent to
death while he was a police Inspector General, was brought by Filartiga (P). All parties
were Paraguayan citizens. Jurisdiction was based on the Allen Tort Statute, 28 U.S.C.
S 1350, which provided jurisdiction for tort committed in violation of “the law of
nations.” The case was dismissed by the district court for lack of jurisdiction to which
Filartiga (P) appealed.
Issue. For purpose of the Allen Tort Statute, may torture be considered as a violation
of the law of nations?
Held. (Judge not stated in casebook excerpt). Yes. For purpose of the Allen Tort
Statute, torture may be considered to violate law of nations. The prohibition against
torture has become part of customary international law. Various United Nations
declarations such as the Universal Declaration of Human Rights and the 1975
Declaration on the Protection of All Persons from Torture further portrays the fact that
prohibition against torture has become part of customary international law. Torture
has been officially renounced in the vast majority of nations and this is the reason why
this court concluded that torture violates the law of nations.
Discussion. It is not new for many members of the United Nations to make
pronouncements and not be pronouncements into action. It is no secret that torture is
still widely practiced if not by a majority of countries then in a significant manner.
Actual practice, and not U.N. declarations have been argued by commentators as
what constitute international law.

Case of the SS Lotus, PCIJ Ser. A., No. 10 (1927)

Citation. Permanent Court of Int’l Justice, P.C.I.J. (ser. A) No. 10 (1927)

Brief Fact Summary. Turkey’s (D) assertion of jurisdiction over a French citizen who
had been the first officer of a ship that collided with a Turkish ship on the high seas
was challenged by France (P) as a violation of international law.

Synopsis of Rule of Law. A rule of international law, which prohibits a state from
exercising criminal jurisdiction over a foreign national who commits acts outside of the
state’s national jurisdiction, does not exist.
Facts. A collision occurred shortly before midnight on the 2nd of August 1926
between the French (P) mail steamer Lotus and the Turkish (D) collier Boz-Kourt. The
French mail steamer was captained by a French citizen by the name Demons while
the Turkish collier Boz-Kourt was captained by Hassan Bey. The Turks lost eight men
after their ship cut into two and sank as a result of the collision.
Although the Lotus did all it could do within its power to help the ship wrecked persons,
it continued on its course to Constantinople, where it arrived on August 3. On the 5th
of August, Lieutenant Demons was asked by the Turkish (D) authority to go ashore
to give evidence. After Demons was examined, he was placed under arrest without
informing the French (P) Consul-General and Hassan Bey. Demons were convicted
by the Turkish (D) courts for negligence conduct in allowing the accident to occur.
This basis was contended by Demons on the ground that the court lacked jurisdiction
over him. With this, both countries agreed to submit to the Permanent Court of
International Justice, the question of whether the exercise of Turkish (D) criminal
jurisdiction over Demons for an incident that occurred on the high seas contravened
international law.
Issue. Issue: Does a rule of international law which prohibits a state from exercising
criminal jurisdiction over a foreign national who commits acts outside of the state’s
national jurisdiction exist?
Held. (Per curiam) No. A rule of international law, which prohibits a state from
exercising criminal jurisdiction over a foreign national who commits acts outside of the
state’s national jurisdiction, does not exist. Failing the existence of a permissive rule
to the contrary is the first and foremost restriction imposed by international law on a
state and it may not exercise its power in any form in the territory of another state.
This does not imply that international law prohibits a state from exercising jurisdiction
in its own territory, in respect of any case that relates to acts that have taken place
abroad which it cannot rely on some permissive rule of international law. In this
situation, it is impossible to hold that there is a rule of international law that prohibits
Turkey (D) from prosecuting Demons because he was aboard a French ship. This
stems from the fact that the effects of the alleged offense occurred on a Turkish
vessel.
Hence, both states here may exercise concurrent jurisdiction over this matter because
there is no rule of international law in regards to collision cases to the effect that
criminal proceedings are exclusively within the jurisdiction of the state whose flag is
flown.

Discussion. In 1975, France enacted a law regarding its criminal jurisdiction over
aliens because of this the situation surrounding this case. The law stipulates that
aliens who commit a crime outside the territory of the Republic may be prosecuted
and judged pursuant to French law, when the victim is of French nationality. This is
contained in 102 Journal Du Droit International 962 (Clunet 1975). Several eminent
scholars have criticized the holding in this case for seeming to imply that international
law permits all that it does not forbid.

LOTUS CASE (SUMMARY)

Permanent Court of International Justice, Contentious Case: The Lotus Case (France
vs Turkey);
Year of the decision: 1927.

Overview:

A collision occurred on the high seas between a French vessel and a Turkish vessel. Victims were Turkish
nationals and the alleged offender was French. Could Turkey exercise its jurisdiction over this French
national under international law?
Facts of the Case:
A collision occurred on the high seas between a French vessel – Lotus – and a Turkish vessel – Boz-
Kourt. The Boz-Kourt sank and killed eight Turkish nationals on board the Turkish vessel. The 10
survivors of the Boz-Kourt (including its captain) were taken to Turkey on board the Lotus. In Turkey,
the officer on watch of the Lotus (Demons), and the captain of the Turkish ship were charged with
manslaughter. Demons, a French national, was sentenced to 80 days of imprisonment and a fine. The
French government protested, demanding the release of Demons or the transfer of his case to the
French Courts. Turkey and France agreed to refer this dispute on the jurisdiction to the Permanent
Court of International Justice (PCIJ).
Questions before the Court:
Did Turkey violate international law when Turkish courts exercised jurisdiction over a crime committed
by a French national, outside Turkey? If yes, should Turkey pay compensation to France?
The Court’s Decision:
Turkey, by instituting criminal proceedings against Demons, did not violate international law.
Relevant Findings of the Court:
Establishing Jurisdiction: Does Turkey need to support its assertion of jurisdiction using an existing rule
of international law or is the mere absence of a prohibition preventing the exercise of
jurisdiction enough?
The first principle of the Lotus Case: A State cannot exercise its jurisdiction outside its territory unless
an international treaty or customary law permits it to do so. This is what we called the first principle of
the Lotus Case. The Court held that:
“Now the first and foremost restriction imposed by international law upon a State is that – failing the
existence of a permissive rule to the contrary – it may not exercise its power in any form in the territory
of another State. In this sense jurisdiction is certainly territorial; it cannot be exercised by a State outside
its territory except by virtue of a permissive rule derived from international custom or from a
convention.” (para 45)
The second principle of the Lotus Case: Within its territory, a State may exercise its jurisdiction, in any
matter, even if there is no specific rule of international law permitting it to do so. In these instances,
States have a wide measure of discretion, which is only limited by the prohibitive rules of
international law.The Court held that:
“It does not, however, follow that international law prohibits a State from exercising jurisdiction in its
own territory, in respect of any case which relates to acts which have taken place abroad, and in which
it cannot rely on some permissive rule of international law. Such a view would only be tenable if
international law contained a general prohibition to States to extend the application of their laws and
the jurisdiction of their courts to persons, property and acts outside their territory, and if, as an
exception to this general prohibition, it allowed States to do so in certain specific cases. But this is
certainly not the case under international law as it stands at present. Far from laying down a general
prohibition to the effect that States may not extend the application of their laws and the jurisdiction
of their courts to persons, property and acts outside their territory, it leaves them in this respect a wide
measure of discretion, which is only limited in certain cases by prohibitive rules; as regards other cases,
every State remains free to adopt the principles which it regards as best and most suitable. This
discretion left to States by international law explains the great variety of rules which they have been
able to adopt without objections or complaints on the part of other States …In these circumstances all
that can be required of a State is that it should not overstep the limits which international law places
upon its jurisdiction; within these limits, its title to exercise jurisdiction rests in its sovereignty.” (paras
46 and 47)
This applied to civil and criminal cases. If the existence of a specific rule was a pre-requisite to exercise
jurisdiction, the Court argued, then “it would…in many cases result in paralysing the action of the courts,
owing to the impossibility of citing a universally accepted rule on which to support the exercise of their
[States’] jurisdiction” (para 48).
The Court based this finding on the sovereign will of States. It held that:
“International law governs relations between independent States. The rules of law binding upon States
therefor emanate from their own free will as expressed in conventions or by usages generally accepted
as expressing principles of law and established in order to regulate the relations between these co-
existing independent communities or with a view to the achievement of common aims. Restrictions
upon the independence of States cannot therefore be presumed”
[Note: This was one of the more debated aspects of the judgement. Some argued that the Court placed
too much emphasis on sovereignty and consent of States (i.e. took a strong positivist view)].
Criminal Jurisdiction: Territorial Jurisdiction
France alleged that the flag State of a vessel has exclusive jurisdiction over offences committed on
board the ship in high seas. The Court disagreed. It held that France, as the flag State, did not enjoy
exclusive territorial jurisdiction in the high seas in respect of a collision with a vessel carrying the flag
of another State (paras 71 – 84). The Court held that Turkey and France both have jurisdiction in respect
of the whole incident: in other words, there was concurrent jurisdiction.
The Court held that a ship in the high seas is assimilated to the territory of the flag State. This State
may exercise its jurisdiction over the ship, in the same way as it exercises its jurisdiction over its land,
to the exclusion of all other States. In this case, the Court equated the Turkish vessel to Turkish territory.
The Court held that the “… offence produced its effects on the Turkish vessel and consequently in a
place assimilated to Turkish territory in which the application of Turkish criminal law cannot be
challenged, even in regard to offences committed there by foreigners.” The Court concluded that
Turkey had jurisdiction over this case. It further said:
“If, therefore, a guilty act committed on the high seas produces its effects on a vessel flying another
flag or in foreign territory, the same principles must be applied as if the territories of two different
States were concerned, and the conclusion must therefore be drawn that there is no rule of
international law prohibiting the State to which the ship on which the effects of the offence have taken
place belongs, from regarding the offence as having been committed in its territory and prosecuting,
accordingly, the delinquent.”
The Lotus Case is also significant in that the Court said that a State would have territorial jurisdiction,
even if the crime was committed outside its territory, so long as a constitutive element of the crime
was committed in that State. Today, we call this subjective territorial jurisdiction. In order for subjective
territorial jurisdiction to be established, one must prove that the element of the crime and the actual
crime are entirely inseparable: in other words, if the constituent element was absent – the crime would
not have happened. The Court said:
“The offence for which Lieutenant Demons appears to have been prosecuted was an act – of negligence
or imprudence – having its origin on board the Lotus, whilst its effects made themselves felt on board
the Boz-Kourt. These two elements are, legally, entirely inseparable, so much so that their separation
renders the offence non-existent… It is only natural that each should be able to exercise jurisdiction
and to do so in respect of the incident as a whole. It is therefore a case of concurrent jurisdiction.”
Customary International Law
The Lotus case gave an important dictum on creating customary international law. France had alleged
that jurisdictional questions on collision cases are rarely heard in criminal cases, because States tend
to prosecute only before the flag State. France argued that this absence of prosecutions points to a
positive rule in customary law on collisions.The Court disagreed and held that, this:
“…would merely show that States had often, in practice, abstained from instituting criminal
proceedings, and not that they recognized themselves as being obliged to do so; for only if such
abstention were based on their being conscious of having a duty to abstain would it be possible to
speak of an international custom. The alleged fact does not allow one to infer that States have been
conscious of having such a duty; on the other hand, as will presently be seen, there are other
circumstances calculated to show that the contrary is true.”
In other words, opinio juris is reflected not only in acts of States (Nicaragua Case), but also in omissions
when those omissions are made following a belief that the said State is obligated by law to refrain
from acting in a particular way. (For more on opinio juris click here)
Subsequent ICJ Decisions and Separate Opinions That Referred to Principles of the Lotus Case
Advisory Opinion on the Unilateral Declaration of Kosovo (2010)
In the Kosovo Advisory Opinion the Court had to decide if the unilateral declaration of Kosovo of
February 2008 was ‘in accordance with’ international law. The Court inquired and concluded that the
applicable international law did not prohibit an unilateral declaration of independence. Based on this
finding, the Court decided that ‘the adoption of the declaration of independence did not… violate any
applicable rule of international law’.
Judge Simma disagreed, inter alia, with Court’s methodology in arriving at this conclusion. He imputed
the method to the principle established in the Lotus case: that which is not prohibited is permitted
under international law. He criticized the Lotus dictum as an out dated, 19th century positivist
approach that is excessively differential towards State consent. He said that the Court should have
considered the possibility that international law can be deliberately neutral or silent on the international
lawfulness of certain acts. Instead of concluding that an the absence of prohibition ipso facto meant
that a unilateral declaration of independence is permitted under international law, the Court should
have inquired whether under certain conditions international law permits or tolerates unilateral
declarations of independence.

Fisheries Case (United Kingdom v. Norway), 1951 I.C.J. 116

Citation. I.C.J., 1973 I.C.J. 3

Brief Fact Summary. Because some circumstances changed, Iceland (D) claimed
that a fishing treaty it had with the United Kingdom (P) was no longer applicable.
Synopsis of Rule of Law. In order that a change of circumstances may give rise to
the premise calling for the termination of a treaty, it is necessary that it has resulted
in a radical transformation of the extent of the obligations still to be performed.
Facts. Iceland’s (D) claim to a 12-mile fisheries limit was recognized by the United
Kingdom (P) in 1961 in return for Iceland’s (D) agreement that any dispute concerning
Icelandic fisheries jurisdiction beyond the 12-mile limit be referred to the International
Court of Justice. An application was filed before the I.C.J. when Iceland (D) proposed
to extend its exclusive fisheries jurisdiction from 12 to 50 miles around its shores in
1972. By postulating that changes in circumstances since the 12-mile limit was now
generally recognized was the ground upon which Iceland (D) stood to argue that the
agreement was no longer valid. Iceland (D) also asserted that there would be a failure
of consideration for the 1961 agreement.
Issue. In order that a change of circumstances may give rise to a ground for invoking
the termination of a treaty, is it necessary that it has resulted in a radical
transformation of the extent of the obligation still to be performed?
Held. Yes. In order that a change of circumstances may give rise to the premise
calling for the termination of a treaty, it is necessary that it has resulted in a radical
transformation of the extent of the obligations still to be performed.
The change of circumstances alleged by Iceland (D) cannot be said to have
transformed radically the extent of the jurisdictional obligation that was imposed in the
1961 Exchange of Notes.
Discussion. Recourse to the I.C.J. in the event of a dispute was the original
agreement between the parties. The economy of Iceland (D) is dependent on fishing.
The merit of Iceland (D) argument was not reached by the Court in this case, however,
but rather dealt with the jurisdictional issues.

Nicaragua v. US

Mejoff vs Director of Prisons 90 Phil 70

Facts: Boris Mejoff, a Russian, was captured as a Japanese spy by the US Army Counter Intelligence
Corps on March 18, 1948. He was turned over to the Phil Commonwealth Government for
appropriate disposition. His case was decided on by the Board of Commissioners of Immigration who
declared him as an illegal alien. The Board ordered his immediate deportation. In the meantime, we
was placed in prison awaiting the ship that will take him back home to Russia. Two Russian boats have
been requested to bring him back to Russia but the masters refused as they had no authority to do
so. Two years passed and Mejoff is still under detention awaiting the ship that will take him home.
This case is a petition for habeas corpus. However, the respondent held that the Mejoff should stay
in temporary detention as it is a necessary step in the process of exclusion or expulsion of undesirable
aliens. It further states that is has the right to do so for a reasonable length of time.

Issue: Whether or not Mejoff should be released from prison awaiting his deportation.

Ruling: The Supreme Court decided that Mejoff be released from custody but be placed under
reasonable surveillance of the immigration authorities to insure that he keep peace and be available
when the Government is ready to deport him. In the doctrine of incorporation, the Philippines in its
constitution adops the generally accepted principles of international law as part of the law of Nations.
Also, the Philippines has joined the United Nations in its Resolution entitled “Universal Declaration of
Human Rights” in proclaiming that life and liberty and all other fundamental rights shall be applied to
all human beings. The contention that he remains a threat of to the security of the country is
unfounded as Japan and the US or the Phils are no longer at war.
 Haw Pia vs China Banking Corp.
G.R. No. L-554 April 9, 1948
Facts:
Plaintiff-appellant’s indebtedness to the defendant-appellee China Banking Corporation
in the sum of P5,103.35 by way of overdraft in current account payable on demand
together with its interests, has been completely paid, on different occasions to the
defendant Bank China Banking Corporation through the defendant Bank of Taiwan, Ltd.,
that was appointed by the Japanese Military authorities as liquidator of the China Banking
Corporation.
The trial court held that, as there was no evidence presented to show that the defendant
Bank had authorized the Bank of Taiwan, Ltd., to accept the payment of the plaintiff’s
debt to the said defendant, and said Bank of Taiwan, as an agency of the Japanese
invading army, was not authorized under the international law to liquidate the business of
the China Banking Corporation, the payment has not extinguished the indebtedness of
the plaintiff to the said defendant under Article 1162 of the Civil Code.
Issues:
1. Whether or not the Japanese Military Administration had authority to order the
liquidation or winding up of the business of defendant-appellee China Banking
Corporation, and to appoint the Bank of Taiwan liquidator authorized as such to accept
the payment by the plaintiff-appellant to said defendant-appellee; and
2. Whether or not such payment by the plaintiff-appellant has extinguished her obligation
to said defendant-appellee.
Ruling:
1. YES. The Japanese military authorities had power, under the international law, to order
the liquidation of the China Banking Corporation and to appoint and authorize the Bank
of Taiwan as liquidator to accept the payment in question, because such liquidation is not
confiscation of the properties of the bank appellee, but a mere sequestration of its assets
which required the liquidation or winding up of the business of said bank. The
sequestration or liquidation of enemy banks in occupied territories is authorized expressly
by the United States Army and Navy Manual of Military Government and Civil Affairs F.M.
2710 OPNAV 50-E-3.
2. YES. It having been shown above that the Japanese Military Forces had power to
sequestrate and impound the assets or funds of the China Banking Corporation, and for
that purpose to liquidate it by collecting the debts due to said bank from its debtors, and
paying its creditors, and therefore to appoint the Bank of Taiwan as liquidator with the
consequent authority to make the collection, it follows evidently that the payments by the
debtors to the Bank of Taiwan of their debts to the China Banking Corporation have
extinguished their obligation to the latter. Said payments were made to a person, the
Bank of Taiwan, authorized to receive them in the name of the bank creditor under article
1162, of the Civil Code. Because it is evident the words “a person authorized to receive
it,” as used therein, means not only a person authorized by the same creditor, but also a
person authorized by law to do so, such as guardian, executor or administrator of estate
of a deceased, and assignee or liquidator of a partnership or corporation, as well as any
other who may be authorized to do so by law (Manresa, Civil Code, 4th ed. p. 254.)
The fact that the money with which that debts have been paid were Japanese war notes
does not affect the validity of the payments. The power of the military governments
established in occupied enemy territory to issue military currency in the exercise of their
governmental power is based, not only on the occupant’s general power to maintain law
and order recognized in article 43 of the Hague Regulations (Feilchenfeld of Belligerent
Occupation, paragraph 6), but on military necessity as shown by the history of the use of
money or currency in wars.

GR No. 139325 - April 12, 2005

[G.R. No. 139325. April 12, 2005]
PRISCILLA C. MIJARES, LORETTA ANN P. ROSALES, HILDA B. NARCISO, SR.
MARIANI DIMARANAN, SFIC, and JOEL C. LAMANGAN in their behalf and on behalf
of the Class Plaintiffs in Class Action No. MDL 840, United States District Court of
Hawaii, petitioners, vs. HON. SANTIAGO JAVIER RANADA, in his capacity as
Presiding Judge of Branch 137, Regional Trial Court, Makati City, and the ESTATE OF
FERDINAND E. MARCOS, through its court appointed legal representatives in Class
Action MDL 840, United States District Court of Hawaii, namely: Imelda R. Marcos and
Ferdinand Marcos, Jr., respondents.
Facts:

Invoking the Alien Tort Act, petitioners Mijares, et al.*, all of whom suffered human rights
violations during the Marcos era, obtained a Final Judgment in their favor against the Estate
of the late Ferdinand Marcos amounting to roughly 1.9 Billion U.S. Dollars in compensatory
and exemplary damages for tortuous violations of international law in the US District Court of
Hawaii. This Final Judgment was affirmed by the US Court of Appeals.

As a consequence, Petitioners filed a Complaint with the Regional Trial Court of Makati for
the enforcement of the Final Judgment, paying Php 410.00 as docket and filing fees based
on Rule 141, Section 7(b) where the value of the subject matter is incapable of pecuniary
estimation. The Estate of Marcos however, filed a MTD alleging the non-payment of the
correct filing fees. The Regional Trial Court of Makati dismissed the Complaint stating that
the subject matter was capable of pecuniary estimation as it involved a judgment rendered
by a foreign court ordering the payment of a definite sum of money allowing for the easy
determination of the value of the foreign judgment. As such, the proper filing fee was 472
Million Philippine pesos, which Petitioners had not paid.

Issue:

Whether or not the amount paid by the Petitioners is the proper filing fee?

Ruling:

Yes, but on a different basis—amount merely corresponds to the same amount required for
“other actions not involving property”. The Regional Trial Court of Makati erred in concluding
that the filing fee should be computed on the basis of the total sum claimed or the stated value
of the property in litigation. The Petitioner’s Complaint was lodged against the Estate of
Marcos but it is clearly based on a judgment, the Final Judgment of the US District Court.
However, the Petitioners erred in stating that the Final Judgment is incapable of pecuniary
estimation because it is so capable. On this point, Petitioners state that this might lead to an
instance wherein a first level court (MTC, MeTC, etc.) would have jurisdiction to enforce a
foreign judgment. Under Batasang Pambansa 129, such courts are not vested with such
jurisdiction. Section 33 of Batasang Pambansa 129 refers to instances wherein the cause of
action or subject matter pertains to an assertion of rights over property or a sum of money.
But here, the subject matter is the foreign judgment itself. Section 16 of Batasang Pambansa
129 reveals that the complaint for enforcement of judgment even if capable of pecuniary
estimation would fall under the jurisdiction of the Regional Trial Courts. Thus, the Complaint
to enforce the US District Court judgment is one capable of pecuniary estimations but at the
same time, it is also an action based on judgment against an estate, thus placing it beyond
the ambit of Section 7(a) of Rule 141. What governs the proper computation of the filing fees
over Complaints for the enforcement of foreign judgments is Section7(b)(3), involving “other
actions not involving property.”

Bayan vs Zamora
G. R. No. 138570
October 10, 2000

Bayan vs Zamora

Facts:

The United States panel met with the Philippine panel to discussed, among others, the possible elements
of the Visiting Forces Agreement (VFA). This resulted to a series of conferences and negotiations which
culminated on January 12 and 13, 1998. Thereafter, President Fidel Ramos approved the VFA, which was
respectively signed by Secretary Siazon and United States Ambassador Thomas Hubbard.

Pres. Joseph Estrada ratified the VFA on October 5, 1998 and on May 27, 1999, the senate approved it by
(2/3) votes.

Cause of Action:

Petitioners, among others, assert that Sec. 25, Art XVIII of the 1987 constitution is applicable and not
Section 21, Article VII.

Following the argument of the petitioner, under they provision cited, the “foreign military bases, troops, or
facilities” may be allowed in the Philippines unless the following conditions are sufficiently met:
a) it must be a treaty,
b) it must be duly concurred in by the senate, ratified by a majority of the votes cast in a national
referendum held for that purpose if so required by congress, and
c) recognized as such by the other contracting state.

Respondents, on the other hand, argue that Section 21 Article VII is applicable so that, what is requires for
such treaty to be valid and effective is the concurrence in by at least two-thirds of all the members of the
senate.

ISSUE:

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

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.

The Constitution, makes no distinction between “transient” and “permanent.” 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 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.

Lim vs. Executive Secretary G.R. No. 151445 April

11, 2002
July 25, 2009 at 12:11 pm (1)

FACTS :
Beginning 2002, personnel from the armed forces of the United States started arriving in Mindanao,
to take part, in conjunction with the Philippine military, in “Balikatan 02-1”. In theory, they are a
simulation of joint military maneuvers pursuant to the Mutual Defense Treaty, a bilateral defense
agreement entered into by the Philippines and the United States in 1951.
On Feb. 2002, Lim filed this petition for certiorari and prohibition, praying that respondents be
restrained from proceeding with the so-called “Balikatan 02-1”, and that after due notice and hearing,
judgment be rendered issuing a permanent writ of injuction and/or prohibition against the
deployment of US troops in Basilan and Mindanao for being illegal and in violation of the Constitution.
Petitioners contend that the RP and the US signed the Mutual Defense Treaty to provide mutual
military assistance in accordance with the “constitutional processes” of each country only in the case
of a armed attack by an external aggressor, meaning a third country, against one of them. They
further argued that it cannot be said that the Abu Sayyaf in Basilan constitutes an external aggressor
to warrant US military assistance in accordance with MDT of 1951. Another contention was that the
VFA of 1999 does not authorize American soldiers to engage in combat operations in Philippine
territory.
ISSUE :
Whether or not the “Balikatan 02-1” activities are covered by the VFA.
RULING :
Petition is dismissed. The VFA itself permits US personnel to engage on an impermanent basis, in
“activities”, the exact meaning of which is left undefined. The sole encumbrance placed on its
definition is couched in the negative, in that the US personnel “must abstain from any activity
inconsistent with the spirit of this agreement, and in particular, from any political activity.”
Under these auspices, the VFA gives legitimacy to the current Balikatan exercises. It is only logical to
assume that “Balikatan 02-1” – a mutual anti terrorism advising assisting and training exercise falls
under the umbrella of sanctioned or allowable activities in the context of the agreement. Both the
history and intent of the Mutual Defense Treaty and the VFA support the conclusion that combat-
related activities – as opposed to combat itself – such as the one subject of the instant petition, are
indeed authorized.

PIMENTEL VS. EXECUTIVE SECRETARY

PIMENTEL VS. EXECUTIVE SECRETARY
462 SCRA 622
G.R. No. 158088 July 06, 2005

Facts:

On December 28, 2000, the Philippines through the Charge d’ Affairs Enrique A. Manalo
of the Philippine Mission to the United Nations, signed the Rome Statute which
established the International Criminal Court. Thus, herein petitioners filed the instant
petition to compel the respondents — the Office of the Executive Secretary and the
Department of Foreign Affairs — to transmit the signed text of the treaty to the Senate
of the Philippines for ratification.

Issue: Whether or not the Executive Secretary and the Department of Foreign Affairs
have a ministerial duty to transmit to the Senate for ratification the copy of the Rome
Statute signed by a member of the Philippine Mission to the United Nations even without
the signature of the President.

Held:

The Supreme Court rule in the negative.

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.

It should be emphasized that under the Constitution, the power to ratify is vested in the
President, subject to the concurrence of the Senate. The role of the Senate, however, is
limited only to giving or withholding its consent, or concurrence, to the ratification.
Hence, it is within the authority of the President to refuse to submit a treaty to the
Senate or, having secured its consent for its ratification, refuse to ratify it.
ABAYA vs. EBDANE, JR.
515 SCRA 720
GR No. 167919, February 14, 2007
"A taxpayer need not be a party to the contract to challenge its validity."

FACTS: The petitioners, Plaridel M. Abaya who claims that he filed the instant petition as a taxpayer,
former lawmaker, and a Filipino citizen, and Plaridel C. Garcia likewise claiming that he filed the suit
as a taxpayer, former military officer, and a Filipino citizen, mainly seek to nullify a DPWH resolution
which recommended the award to private respondent China Road & Bridge Corporation of the
contract for the implementation of the civil works known as Contract Package No. I (CP I). They also
seek to annul the contract of agreement subsequently entered into by and between the DPWH and
private respondent China Road & Bridge Corporation pursuant to the said resolution.

ISSUE: Has petitioners the legal standing to file the instant case against the government?

HELD: Petitioners, as taxpayers, possess locus standi to file the present suit. Briefly stated, locus
standi is a right of appearance in a court of justice on a given question. More particularly, it is a
party’s personal and substantial interest in a case such that he has sustained or will sustain direct
injury as a result of the governmental act being challenged. 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. Consequently, the
Court, in a catena of cases, has invariably adopted a liberal stance on locus standi, including those
cases involving taxpayers.
The prevailing doctrine in taxpayer’s suits is to allow taxpayers to question contracts entered into
by the national government or government- owned or controlled corporations allegedly in
contravention of law. A taxpayer is allowed to sue where there is a claim that public funds are
illegally disbursed, or that public money is being deflected to any improper purpose, or that there is
a wastage of public funds through the enforcement of an invalid or unconstitutional law.
Significantly, a taxpayer need not be a party to the contract to challenge its validity.

Pharmaceutical and Health Care Association

of the Philippines v Duque III
Facts:

Petition for certiorari seeking to nullify the Revised Implementing Rules and Regulations (RIRR) of
E.O. 51 (Milk Code). Petitioner claims that the RIRR is not valid as it contains provisions that are not
constitutional and go beyond what it is supposed to implement. Milk Code was issued by President
Cory Aquino under the Freedom Constitution on Oct.1986. One of the preambular clauses of the
Milk Code states that the law seeks to give effect to Art 11 of the Int’l Code of Marketing and
Breastmilk Substitutes(ICBMS), a code adopted by the World Health Assembly(WHA). From 1982-
2006, The WHA also adopted severe resolutions to the effect that breastfeeding should be
supported, hence, it should be ensured that nutrition and health claims are not permitted for
breastmilk substitutes. In 2006, the DOH issued the assailed RIRR.

Issue:
Sub-Issue: W/N the pertinent int’l agreements entered into by the Phil are part of the law of the land
and may be implemented by DOH through the RIRR. If yes, W/N the RIRR is in accord with int’l
agreements

MAIN: W/N the DOH acted w/o or in excess of their jurisdiction, or with grave abuse of discretion
amounting to lack of excess of jurisdiction and in violation of the Constitution by promulgating the
RIRR.

Held:

Sub-issue:

Yes for ICBMS. Under 1987 Consti, int’l law can become domestic law by transformation (thru
constitutional mechanism such as local legislation) or incorporation (mere constitutional declaration
i.e treaties) The ICBMS and WHA resolutions were not treaties as they have not been concurred by
2/3 of all members of the Senate as required under Sec, 21, Art 8. However, the ICBMS had been
transformed into domestic law through a local legislation such as the Milk Code. The Milk Code is
almost a verbatim reproduction of ICBMS.

No for WHA Resolutions. The Court ruled that DOH failed to establish that the provisions pertinent
WHA resolutions are customary int’l law that may be deemed part of the law of the land. For an int’l
rule to be considered as customary law, it must be established that such rule is being followed by
states because they consider it as obligatory to comply with such rules (opinion juris). The WHO
resolutions, although signed by most of the member states, were enforced or practiced by at least a
majority of member states. Unlike the ICBMS whereby legislature enacted most of the provisions into
the law via the Milk Code, the WHA Resolutions (specifically providing for exclusive breastfeeding
from 0-6 months, breastfeeding up to 24 Months and absolutely prohibiting ads for breastmilk
substitutes) have not been adopted as domestic law nor are they followed in our country as well. The
Filipinos have the option of how to take care of their babies as they see fit. WHA Resolutions may be
classified as SOFT LAW – non-binding norms, principles and practices that influence state behavior.
Soft law is not part of int’l law.

Main issue:

Yes. Some parts of the RIRR were not in consonance with the Milk Code such as Sec. 4(f) -
>advertising, promotions of formula are prohibited,

Sec 11 -> prohibitions for advertising breastmilk substitutes intended for infants and young children
uo to 24 months

And Sec 46 -> sanctions for advertising .

These provisions are declared null and void. The DOH and respondents are prohibited from
implementing said provisions.

G.R. No. 183591 October 14 2008

Province of North Cotabato vs Government of the Republic of the Philippines

FACTS:
On August 5, 2008, the Government of the Republic of the Philippines and the Moro Islamic
Liberation Front (MILF) were scheduled to sign a Memorandum of Agreement of the Ancestral
Domain Aspect of the GRP - MILF Tripoli Agreement on Peace of 2001 in Kuala Lumpur, Malaysia.
Invoking the right to information on matters of public concern, the petitioners seek to compel
respondents to disclose and furnish them the complete and official copies of the MA-AD and to
prohibit the slated signing of the MOA-AD and the holding of public consultation thereon. They also
pray that the MOA-AD be declared unconstitutional. The Court issued a TRO enjoining the GRP from
signing the same.

ISSUES:
1. Whether or not the constitutionality and the legality of the MOA is ripe for adjudication;
2. Whether or not there is a violation of the people's right to information on matters of public concern
(Art 3 Sec. 7) under a state policy of full disclosure of all its transactions involving public interest (Art
2, Sec 28) including public consultation under RA 7160 (Local Government Code of 1991)
3. Whether or not the signing of 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)

RULINGS:
1. Yes, the petitions are ripe for adjudication. The failure of the respondents to consult the local
government units or communities affected constitutes a departure by respondents from their
mandate under EO No. 3. Moreover, the respondents exceeded their authority by the mere act of
guaranteeing amendments to the Constitution. Any alleged violation of the Constitution by any
branch of government is a proper matter for judicial review.
As the petitions involve constitutional issues which are of paramount public interest or of
transcendental importance, the Court grants the petitioners, petitioners-in-intervention and
intervening respondents the requisite locus standi in keeping with the liberal stance adopted in David
v. Macapagal- Arroyo.
In Pimentel, Jr. v. Aguirre, this Court held:
x x x [B]y the mere enactment of the questioned law or the approval of the challenged action,
the dispute is said to have ripened into a judicial controversy even without any other overt act
. Indeed, even a singular violation of the Constitution and/or the law is enough to awaken judicial
duty.x x x x
By the same token, when an act of the President, who in our constitutional scheme is a coequal of
Congress, is seriously alleged to have infringed the Constitution and the laws x x x settling the
dispute becomes the duty and the responsibility of the courts.
That the law or act in question is not yet effective does not negate ripeness.

2. Yes. The Court finds that there is a grave violation of the Constitution involved in the matters of
public concern (Sec 7 Art III) under a state policy of full disclosure of all its transactions involving
public interest (Art 2, Sec 28) including public consultation under RA 7160 (Local Government Code
of 1991).
(Sec 7 ArtIII) The right to information guarantees the right of the people to demand information, while
Sec 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.
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.

3.
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;

Yes. The 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.

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, 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. 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.

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

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 .

It will be observed that the President has authority, as stated in her oath of office, 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 “suspensive clause” in the MOA-AD viewed in light of the above-discussed standards.

Given the limited nature of the President’s authority to propose constitutional amendments,
she cannot guarantee to any third party that the required amendments will eventually be put
in place, nor even be submitted to a plebiscite. The most she could do is submit these
proposals as recommendations either to Congress or the people, in whom constituent powers
are vested.

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)
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.

Thus, the concept of “Bangsamoro,” as defined in this strand of the MOA-AD, includes not
only “Moros” as traditionally understood even by Muslims, 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. Both parties to the MOA-AD acknowledge that ancestral domain does
not form part of the public domain.

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.

Two, Republic Act No. 7160 or the Local Government Code of 1991 requires all national offices to
conduct consultations beforeany 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.

CONCLUSION:
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.
Province of North Cotabato vs GRP Peace Panel
on Ancestral Domain
Chester Cabalza recommends his visitors to please read the original & full text of the case cited. Xie xie!

Province of North Cotabato vs GRP Peace Panel on Ancestral Domain

G.R. No. 1833591,
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.

Facts:

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 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.

On July 23, 2008, the Province of North Cotabato and Vice-Governor Emmanuel Piñol filed a petition, docketed
as G.R. No. 183591, for Mandamus and Prohibition with Prayer for the Issuance of Writ of Preliminary Injunction
and Temporary Restraining Order. 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.

Issues:

1. Whether the petitions have become moot and academic

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

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

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

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

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

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

5. Whether by signing the MOA, the Government of the Republic of the Philippines would be BINDING itself

a) to create and recognize the Bangsamoro Juridical Entity (BJE) as a separate state, or a juridical, territorial or
political subdivision not recognized by law;

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

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

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

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

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

Held:

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

The power of judicial review is limited to actual cases or controversies. Courts decline to issue advisory opinions
or to resolve hypothetical or feigned problems, or mere academic questions. 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.

As the petitions involve constitutional issues which are of paramount public interest or of transcendental
importance, the Court grants the petitioners, petitioners-in-intervention and intervening respondents the requisite
locus standi in keeping with the liberal stance adopted in David v. Macapagal-Arroyo.

Contrary to the assertion of respondents that the non-signing of the MOA-AD and the eventual dissolution of the
GRP Peace Panel mooted the present petitions, the Court finds that the present petitions provide an exception
to the "moot and academic" principle in view of (a) the grave violation of the Constitution involved; (b) the
exceptional character of the situation and paramount public interest; (c) the need to formulate controlling
principles to guide the bench, the bar, and the public; and (d) the fact that the case is capable of repetition yet
evading review.

The MOA-AD is a significant part of a series of agreements necessary to carry out the GRP-MILF Tripoli
Agreement on Peace signed by the government and the MILF back in June 2001. Hence, the present MOA-AD
can be renegotiated or another one drawn up that could contain similar or significantly dissimilar provisions
compared to the original.

That the subject of the information sought in the present cases is a matter of public concern faces no serious
challenge. In fact, respondents admit that the MOA-AD is indeed of public concern. In previous cases, the Court
found that the regularity of real estate transactions entered in the Register of Deeds, the need for adequate
notice to the public of the various laws, the civil service eligibility of a public employee, the proper management
of GSIS funds allegedly used to grant loans to public officials, the recovery of the Marcoses' alleged ill-gotten
wealth, and the identity of party-list nominees, 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.

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.

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.