Republic of the Philippines undertaking, unless they should encounter the presented, is in force, the trial judge, the
presented, is in force, the trial judge, the Honorable George R.
SUPREME COURT
Manila
EN BANC
G.R. No. L-18463 October 4, 1922
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,
vs.
GREGORIO PERFECTOR, defendant-appellant.
Alfonso E. Mendoza and the appellant in behalf of the latter.
Attorney-General Villa-Real for appellee.
MALCOLM, J.:
The important question is here squarely presented of whether
article 256 of the Spanish Penal Code, punishing "Any person
who, by . . . writing, shall defame, abuse, or insult any Minister
of the Crown or other person in authority . . .," is still in force.
About August 20, 1920, the Secretary of the Philippine Senate,
Fernando M. Guerrero, discovered that certain documents
which constituted the records of testimony given by witnesses
in the investigation of oil companies, had disappeared from
his office. Shortly thereafter, the Philippine Senate, having
been called into special session by the Governor-General, the
Secretary for the Senate informed that body of the loss of the
documents and of the steps taken by him to discover the
guilty party. The day following the convening of the Senate,
September 7, 1920, the newspaper La Nacion, edited by Mr.
Gregorio Perfecto, published an article reading as follows:
Half a month has elapsed since the discovery, for the first
time, of the scandalous robbery of records which were kept
and preserved in the iron safe of the Senate, yet up to this
time there is not the slightest indication that the author or
authors of the crime will ever be discovered.
To find them, it would not, perhaps, be necessary to
go out of the Sente itself, and the persons in charge
of the investigation of the case would not have to
display great skill in order to succeed in their
insuperable obstacle of offical concealment.
In that case, every investigation to be made would
be but a mere comedy and nothing more.
After all, the perpetration of the robbery, especially
under the circumstances that have surrounded it,
does not surprise us at all.
The execution of the crime was but the natural
effect of the environment of the place in which it
was committed.
How many of the present Senators can say without
remorse in their conscience and with serenity of
mind, that they do not owe their victory to electoral
robbery? How may?
The author or authors of the robbery of the records
from the said iron safe of the Senate have, perhaps,
but followed the example of certain Senators who
secured their election through fraud and robbery.
The Philippine Senate, in its session of September 9, 1920,
adopted a resolution authorizing its committee on elections
and privileges to report as to the action which should be taken
with reference to the article published in La Nacion. On
September 15, 1920, the Senate adopted a resolution
authorizing the President of the Senate to indorse to the
Attorney-General, for his study and corresponding action, all
the papers referring to the case of the newspaper La
Nacion and its editor, Mr. Gregorio Perfecto. As a result, an
information was filed in the municipal court of the City of
Manila by an assistant city fiscal, in which the editorial in
question was set out and in which it was alleged that the same
constituted a violation of article 256 of the Penal Code. The
defendant Gregorio Perfecto was found guilty in the municipal
court and again in the Court of First Instance of Manila.
During the course of the trial in the Court of First Instance,
after the prosecution had rested, the defense moved for the
dismissal of the case. On the subject of whether or not article
256 of the Penal Code, under which the information was
1
Harvey, said:
This antiquated provision was doubtless
incorporated into the Penal Code of Spain for the
protection of the Ministers of the Crown and other
representatives of the King against free speech and
action by Spanish subjects. A severe punishment
was prescribed because it was doubtless considered
a much more serious offense to insult the King's
representative than to insult an ordinary individual.
This provision, with almost all the other articles of
that Code, was extended to the Philippine Islands
when under the dominion of Spain because the
King's subject in the Philippines might defame,
abuse or insult the Ministers of the Crown or other
representatives of His Majesty. We now have no
Ministers of the Crown or other persons in authority
in the Philippines representing the King of Spain, and
said provision, with other articles of the Penal Code,
had apparently passed into "innocuous desuetude,"
but the Supreme Corut of the Philippine Islands has,
by a majority decision, held that said article 256 is
the law of the land to-day. . . .
The Helbig case is a precedent which, by the rule
of stare decisis, is binding upon this court until
otherwise determined by proper authority.
In the decision rendered by the same judge, he concluded
with the following language:
In the United States such publications are usually
not punishable as criminal offense, and little
importance is attached to them, because they are
generally the result of political controversy and are
usually regarded as more or less colored or
exaggerated. Attacks of this character upon a
legislative body are not punishable, under the Libel
Law. Although such publications are reprehensible,
yet this court feels some aversion to the application
of the provision of law under which this case was
filed. Our Penal Code has come to us from the
Spanish regime. Article 256 of that Code prescribes
punishment for persons who use insulting language
 about Ministers of the Crown or other "authority."
The King of Spain doubtless left the need of such
protection to his ministers and others in authority in
the Philippines as well as in Spain. Hence, the article
referred to was made applicable here.
Notwithstanding the change of sovereignty, our
Supreme Court, in a majority decision, has held that
this provision is still in force, and that one who made
an insulting remark about the President of the
United States was punishable under it.
(U.S. vs. Helbig, supra.) If it applicable in that case, it
would appear to be applicable in this case. Hence,
said article 256 must be enforced, without fear or
favor, until it shall be repealed or superseded by
other legislation, or until the Supreme Court shall
otherwise determine.
In view of the foregoing considerations, the court
finds the defendant guilty as charged in the
information and under article 256 of their Penal
Code sentences him to suffer two months and one
day of arresto mayor and the accessory penalties
prescribed by law, and to pay the costs of both
instances.
The fifteen errors assigned by the defendant and appellant,
reenforced by an extensive brief, and eloquent oral argument
made in his own behalf and by his learned counsel, all reduce
themselves to the pertinent and decisive question which was
announced in the beginning of this decision.
It will be noted in the first place that the trial judge considered
himself bound to follow the rule announced in the case of
United States vs. Helbig (R. G. No. 14705, 1 not published). In
that case, the accused was charged with having said, "To hell
with the President and his proclamations, or words to that
effect," in violation of article 256 of the Penal Code. He was
found guilty in a judgment rendered by the Court of First
Instance of Manila and again on appeal to the Supreme Court,
with the writer of the instant decision dissenting on two
principal grounds: (1) That the accused was deprived of the
constitutional right of cross-examination, and (2) that article
256 of the Spanish Penal Code is no longer in force.
Subsequently, on a motion of reconsideration, the court,
being of the opinion that the Court of First Instance had
committed a prejudicial error in depriving the accused of his
right to cross-examine a principal witness, set aside the
judgment affirming the judgment appealed from and ordered
the return of the record to the court of origin for the
celebration of a new trial. Whether such a trial was actually
had, is not known, but at least, the record in the Helbig case
has never again been elevated to this court.
There may perchance exist some doubt as to the authority of
the decision in the Helbig case, in view of the circumstances
above described. This much, however, is certain: The facts of
the Helbig case and the case before us, which we may term
the Perfecto case, are different, for in the first case there was
an oral defamation, while in the second there is a written
defamation. Not only this, but a new point which, under the
facts, could not have been considered in the Helbig case, is, in
the Perfecto case, urged upon the court. And, finally, as is
apparent to all, the appellate court is not restrained, as was
the trial court, by strict adherence to a former decision. We
much prefer to resolve the question before us unhindered by
references to the Helbig decision.
This is one of those cases on which a variety of opinions all
leading to the same result can be had. A majority of the court
are of the opinion that the Philippine Libel Law, Act No. 277,
has had the effect of repealing so much of article 256 of the
Penal Code as relates to written defamation, abuse, or insult,
and that under the information and the facts, the defendant is
neither guilty of a violation of article 256 of the Penal Code,
nor of the Libel Law. The view of the Chief Justice is that the
accused should be acquitted for the reason that the facts
alleged in the information do not constitute a violation of
article 156 of the Penal Code. Three members of the court
believe that article 256 was abrogated completely by the
change from Spanish to American sovereignty over the
Philippines and is inconsistent with democratic principles of
government.
Without prejudice to the right of any member of the court to
explain his position, we will discuss the two main points just
mentioned.
1. Effect of the Philippine Libel Law, Act No. 277, on
article 256 of the Spanish Penal Code. — The Libel
Law, Act No. 277, was enacted by the Philippine
2
Commission shortly after organization of this
legislative body. Section 1 defines libel as a
"malicious defamation, expressed either in writing,
printing, or by signs or pictures, or the like, or public
theatrical exhibitions, tending to blacken the
memory of one who is dead or to impeach the
honesty, virtue, or reputation, or publish the alleged
or natural deffects of one who is alive, and thereby
expose him to public hatred, contempt or ridicule."
Section 13 provides that "All laws and parts of laws
now in force, so far as the same may be in conflict
herewith, are hereby repealed. . . ."
That parts of laws in force in 1901 when the Libel Law took
effect, were in conflict therewith, and that the Libel Law
abrogated certain portion of the Spanish Penal Code, cannot
be gainsaid. Title X of Book II of the Penal Code, covering the
subjects of calumny and insults, must have been particularly
affected by the Libel Law. Indeed, in the early case of Pardo de
Tavera vs. Garcia Valdez ([1902], 1. Phil., 468), the Supreme
Court spoke of the Libel Law as "reforming the preexisting
Spanish law on the subject of calumnia and injuria." Recently,
specific attention was given to the effect of the Libel Law on
the provisions of the Penal Code, dealing with calumny and
insults, and it was found that those provisions of the Penal
Code on the subject of calumny and insults in which the
elements of writing an publicity entered, were abrogated by
the Libel Law. (People vs. Castro [1922], p. 842, ante.)
The Libel Law must have had the same result on other
provisions of the Penal Code, as for instance article 256.
The facts here are that the editor of a newspaper published an
article, naturally in writing, which may have had the tendency
to impeach the honesty, virtue, or reputation of members of
the Philippine Senate, thereby possibly exposing them to
public hatred, contempt, or ridicule, which is exactly libel, as
defined by the Libel Law. Sir J. F. Stephen is authority for the
statement that a libel is indictable when defaming a "body of
persons definite and small enough for individual members to
be recognized as such, in or by means of anything capable of
being a libel." (Digest of Criminal Law, art. 267.) But in the
United States, while it may be proper to prosecute criminally
the author of a libel charging a legislator with corruption,
criticisms, no matter how severe, on a legislature, are within
the range of the liberty of the press, unless the intention and
effect be seditious. (3 Wharton's Criminal Law, p. 2131.) With
these facts and legal principles in mind, recall that article 256
begins: Any person who, by . . . writing, shall defame, abuse,
or insult any Minister of the Crown or other person in
authority," etc.
The Libel Law is a complete and comprehensive law on the
subject of libel. The well-known rule of statutory construction
is, that where the later statute clearly covers the old subject-
matter of antecedent acts, and it plainly appears to have been
the purpose of the legislature to give expression in it to the
whole law on the subject, previous laws are held to be
repealed by necessary implication. (1 Lewis' Sutherland
Statutory Construction, p. 465.) For identical reasons, it is
evident that Act No. 277 had the effect so much of this article
as punishes defamation, abuse, or insults by writing.
Act No. 292 of the Philippine Commission, the Treason and
Sedition Law, may also have affected article 256, but as to this
point, it is not necessary to make a pronouncement.
2. Effect of the change from Spanish to Amercian
sevoreignty over the Philippine son article 256 of the
Spanish Penal Code. — Appellant's main proposition
in the lower court and again energetically pressed in
the appellate court was that article 256 of the
Spanish Penal Code is not now in force because
abrogated by the change from Spanish to American
sovereignty over the Philippines and because
inconsistent with democratic principles of
government. This view was indirectly favored by the
trial judge, and, as before stated, is the opinion of
three members of this court.
Article 256 is found in Chapter V of title III of Book II of the
Spanish Penal Code. Title I of Book II punishes the crimes of
treason, crimes that endanger the peace or independence of
the state, crimes against international law, and the crime of
piracy. Title II of the same book punishes the crimes of lese
majeste, crimes against the Cortes and its members and
against the council of ministers, crimes against the form of
government, and crimes committed on the occasion of the
exercise of rights guaranteed by the fundamental laws of the
state, including crime against religion and worship. Title III of
the same Book, in which article 256 is found, punishes the
crimes of rebellion, sedition, assaults upon persons in
authority, and their agents, and contempts, insults, injurias,
and threats against persons in authority, and insults, injurias,
and threats against their agents and other public officers, the
last being the title to Chapter V. The first two articles in
Chapter V define and punish the offense of contempt
committed by any one who shall be word or deed defame,
abuse, insult, or threathen a minister of the crown, or any
person in authority. The with an article condemning
challenges to fight duels intervening, comes article 256, now
being weighed in the balance. It reads as follows: "Any person
who, by word, deed, or writing, shall defame, abuse, or
insult any Minister of the Crown or other person in authority,
while engaged in the performance of official duties, or by
reason of such performance, provided that the offensive
minister or person, or the offensive writing be not addressed
to him, shall suffer the penalty of arresto mayor," — that is,
the defamation, abuse, or insult of any Minister of the Crown
of the Monarchy of Spain (for there could not be a Minister of
the Crown in the United States of America), or other person in
authority in the Monarchy of Spain.
It cannot admit of doubt that all those provisions of the
Spanish Penal Code having to do with such subjects as
treason, lese majeste, religion and worship, rebellion, sedition,
and contempts of ministers of the crown, are not longer in
force. Our present task, therefore, is a determination of
whether article 256 has met the same fate, or, more
specifically stated, whether it is in the nature of a municipal
law or political law, and is consistent with the Constitution and
laws of the United States and the characteristics and
institutions of the American Government.
It is a general principle of the public law that on acquisition of
territory the previous political relations of the ceded region
are totally abrogated. "Political" is here used to denominate
the laws regulating the relations sustained by the inhabitants
to the sovereign. (American Insurance Co. vs. Canter [1828], 1
Pet., 511; Chicago, Rock Island and Pacific Railway
Co. vs. McGlinn [1885], 114 U.S., 542; Roa vs. Collector of
Customs [1912], 23 Phil., 315.) Mr. Justice Field of the United
States Supreme Court stated the obvious when in the course
of his opinion in the case of Chicago, Rock Island and Pacific
Railway Co. vs. McGlinn, supra, he said: "As a matter of
course, all laws, ordinances and regulations in conflict with the
3
political character, institutions and Constitution of the new
government are at once displaced. Thus, upon a cession of
political jurisdiction and legislative power — and the latter is
involved in the former — to the United States, the laws of the
country in support of an established religion or abridging the
freedom of the press, or authorizing cruel and unusual
punishments, and he like, would at once cease to be of
obligatory force without any declaration to that effect." To
quote again from the United States Supreme Court: "It cannot
be admitted that the King of Spain could, by treaty or
otherwise, impart to the United States any of his royal
prerogatives; and much less can it be admitted that they have
capacity to receive or power to exercise them. Every nation
acquiring territory, by treaty or otherwise, must hold it subject
to the Constitution and laws of its own government, and not
according to those of the government ceding it."
(Pollard vs. Hagan [1845], 3 Hos., 210.)
On American occupation of the Philippines, by instructions of
the President to the Military Commander dated May 28, 1898,
and by proclamation of the latter, the municipal laws of the
conquered territory affecting private rights of person and
property and providing for the punishment of crime were
nominally continued in force in so far as they were compatible
with the new order of things. But President McKinley, in his
instructions to General Merritt, was careful to say: "The first
effect of the military occupation of the enemy's territory is the
severance of the former political relation of the inhabitants
and the establishment of a new political power." From that
day to this, the ordinarily it has been taken for granted that
the provisions under consideration were still effective. To
paraphrase the language of the United States Supreme Court
in Weems vs. United States ([1910], 217 U. S., 349), there was
not and could not be, except as precise questions were
presented, a careful consideration of the codal provisions and
a determination of the extent to which they accorded with or
were repugnant to the "'great principles of liberty and law'
which had been 'made the basis of our governmental
system.' " But when the question has been squarely raised,
the appellate court has been forced on occasion to hold
certain portions of the Spanish codes repugnant t democratic
institutions and American constitutional principles.
(U.S. vs. Sweet [1901], 1 Phil., 18; U.S. vs. Balcorta [1913], 25
Phil., 273; U.S. vs. Balcorta [1913], 25 Phil., 533;
Weems vs. U.S., supra.)
The nature of the government which has been set up in the
Philippines under American sovereignty was outlined by
President McKinley in that Magna Charta of Philippine liberty,
his instructions to the Commission, of April 7, 1900. In part,
the President said:
In all the forms of government and administrative
provisions which they are authorized to prescribe,
the Commission should bear in mind that he
government which they are establishing is designed
not for our satisfaction or for the expression of our
theoretical views, but for the happiness, peace, and
prosperity of the people of the Philippine Islands,
and the measures adopted should be made to
conform to their customs, their habits, and even
their prejudices, to the fullest extent consistent with
the accomplishment of the indispensable requisites
of just and effective government. At the same time
the Commission should bear in mind, and the people
of the Islands should be made plainly to understand,
that there are certain great principles of government
which have been made the basis of our
governmental system, which we deem essential to
the rule of law and the maintenance of individual
freedom, and of which they have, unfortunately,
been denied the experience possessed by us; that
there are also certain practical rules of government
which we have found to be essential to the
preservation of these great principles of liberty and
law, and that these principles and these rules of
government must be established and maintained in
their islands for the sake of their liberty and
happiness, however much they may conflict with the
customs or laws of procedure with which they are
familiar. It is evident that the most enligthened
thought of the Philippine Islands fully appreciates
the importance of these principles and rules, and
they will inevitably within a short time command
universal assent.
The courts have naturally taken the same view. Mr. Justice
Elliott, speaking for our Supreme Court, in the case of United
States vs. Bull ([1910], 15 Phil., 7), said: "The President and
Congress framed the government on the model with which
American are familiar, and which has proven best adapted for
the advancement of the public interests and the protection of
individual rights and privileges."
Therefore, it has come with somewhat of a shock to hear the
statement made that the happiness, peace, and prosperity of
the people of the Philippine Islands and their customs, habits,
and prejudices, to follow the language of President McKinley,
demand obeisance to authority, and royal protection for that
authority.
According to our view, article 256 of the Spanish Penal Code
was enacted by the Government of Spain to protect Spanish
officials who were the representatives of the King. With the
change of sovereignty, a new government, and a new theory
of government, as set up in the Philippines. It was in no sense
a continuation of the old, although merely for convenience
certain of the existing institutions and laws were continued.
The demands which the new government made, and makes,
on the individual citizen are likewise different. No longer is
there a Minister of the Crown or a person in authority of such
exalted position that the citizen must speak of him only with
bated breath. "In the eye of our Constitution and laws, every
man is a sovereign, a ruler and a freeman, and has equal
rights with every other man. We have no rank or station,
except that of respectability and intelligence as opposed to
indecency and ignorance, and the door to this rank stands
open to every man to freely enter and abide therein, if he is
qualified, and whether he is qualified or not depends upon the
life and character and attainments and conduct of each
person for himself. Every man may lawfully do what he will, so
long as it is not malum in se or malum prohibitum or does not
infringe upon the qually sacred rights of others."
(State vs. Shepherd [1903], 177 Mo., 205; 99 A. S. R., 624.)
It is true that in England, from which so many of the laws and
institutions of the United States are derived, there were once
statutes of scandalum magnatum, under which words which
would not be actionable if spoken of an ordinary subject were
made actionable if spoken of a peer of the realm or of any of
the great officers of the Crown, without proof of any special
damage. The Crown of England, unfortunately, took a view
less tolerant that that of other sovereigns, as for instance, the
Emperors Augustus, Caesar, and Tiberius. These English
statutes have, however, long since, become obsolete, while in
the United States, the offense of scandalum magnatum is not
4
known. In the early days of the American Republic, a sedition
law was enacted, making it an offense to libel the
Government, the Congress, or the President of the United
States, but the law met with so much popular disapproval,
that it was soon repealed. "In this country no distinction as to
persons is recognized, and in practice a person holding a high
office is regarded as a target at whom any person may let fly
his poisonous words. High official position, instead of
affording immunity from slanderous and libelous charges,
seems rather to be regarded as making his character free
plunder for any one who desires to create a senation by
attacking it." (Newell, Slander and Libel, 3d ed., p. 245;
Sillars vs. Collier [1890], 151 Mass., 50; 6 L.R.A., 680.)
Article 256 of the Penal Code is contrary to the genius and
fundamental principles of the American character and system
of government. The gulf which separates this article from the
spirit which inspires all penal legislation of American origin, is
as wide as that which separates a monarchy from a
democratic Republic like that of the United States. This article
was crowded out by implication as soon as the United States
established its authority in the Philippine Islands. Penalties out
of all proportion to the gravity of the offense, grounded in a
distorted monarchical conception of the nature of political
authority, as opposed to the American conception of the
protection of the interests of the public, have been obliterated
by the present system of government in the
Islands. 1awph!l.net
From an entirely different point of view, it must be noted that
this article punishes contempts against executive officials,
although its terms are broad enough to cover the entire
official class. Punishment for contempt of non-judicial officers
has no place in a government based upon American principles.
Our official class is not, as in monarchies, an agent of some
authority greater than the people but it is an agent and
servant of the people themselves. These officials are only
entitled to respect and obedience when they are acting within
the scope of their authority and jurisdiction. The American
system of government is calculated to enforce respect and
obedience where such respect and obedience is due, but
never does it place around the individual who happens to
occupy an official position by mandate of the people any
official halo, which calls for drastic punishment for
contemptuous remarks.
The crime of lese majeste disappeared in the Philippines with
the ratification of the Treaty of Paris. Ministers of the Crown
have no place under the American flag.

To summarize, the result is, that all the members of the court
are of the opinion, although for different reasons, that the
judgment should be reversed and the defendant and appellant
acquitted, with costs de officio. So ordered.

Ostrand and Johns, JJ., concur.

5
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 183591 October 14, 2008
THE PROVINCE OF NORTH COTABATO, duly represented by
GOVERNOR JESUS SACDALAN and/or VICE-GOVERNOR
EMMANUEL PIÑOL, for and in his own behalf, petitioners,
vs.
THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES
PEACE PANEL ON ANCESTRAL DOMAIN (GRP), represented
by SEC. RODOLFO GARCIA, ATTY. LEAH ARMAMENTO, ATTY.
SEDFREY CANDELARIA, MARK RYAN SULLIVAN and/or GEN.
HERMOGENES ESPERON, JR., the latter in his capacity as the
present and duly-appointed Presidential Adviser on the
Peace Process (OPAPP) or the so-called Office of the
Presidential Adviser on the Peace Process, respondents.
x--------------------------------------------x
G.R. No. 183752 October 14, 2008
CITY GOVERNMENT OF ZAMBOANGA, as represented by
HON. CELSO L. LOBREGAT, City Mayor of Zamboanga, and in
his personal capacity as resident of the City of Zamboanga,
Rep. MA. ISABELLE G. CLIMACO, District 1, and Rep. ERICO
BASILIO A. FABIAN, District 2, City of
Zamboanga, petitioners,
vs.
THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES
PEACE NEGOTIATING PANEL (GRP), as represented by
RODOLFO C. GARCIA, LEAH ARMAMENTO, SEDFREY
CANDELARIA, MARK RYAN SULLIVAN and HERMOGENES
ESPERON, in his capacity as the Presidential Adviser on
Peace Process,respondents.
x--------------------------------------------x
G.R. No. 183893 October 14, 2008
THE CITY OF ILIGAN, duly represented by CITY MAYOR
LAWRENCE LLUCH CRUZ, petitioner,
vs.
THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES
PEACE PANEL ON ANCESTRAL DOMAIN (GRP), represented
by SEC. RODOLFO GARCIA, ATTY. LEAH ARMAMENTO, ATTY.
SEDFREY CANDELARIA, MARK RYAN SULLIVAN; GEN.
HERMOGENES ESPERON, JR., in his capacity as the present
and duly appointed Presidential Adviser on the Peace
Process; and/or SEC. EDUARDO ERMITA, in his capacity as
Executive Secretary. respondents.
x--------------------------------------------x
G.R. No. 183951 October 14, 2008
THE PROVINCIAL GOVERNMENT OF ZAMBOANGA DEL
NORTE, as represented by HON. ROLANDO E. YEBES, in his
capacity as Provincial Governor, HON. FRANCIS H. OLVIS, in
his capacity as Vice-Governor and Presiding Officer of the
Sangguniang Panlalawigan, HON. CECILIA JALOSJOS
CARREON, Congresswoman, 1st Congressional District, HON.
CESAR G. JALOSJOS, Congressman, 3rd Congressional District,
and Members of the Sangguniang Panlalawigan of the
Province of Zamboanga del Norte, namely, HON. SETH
FREDERICK P. JALOSJOS, HON. FERNANDO R. CABIGON, JR.,
HON. ULDARICO M. MEJORADA II, HON. EDIONAR M.
ZAMORAS, HON. EDGAR J. BAGUIO, HON. CEDRIC L.
ADRIATICO, HON. FELIXBERTO C. BOLANDO, HON. JOSEPH
BRENDO C. AJERO, HON. NORBIDEIRI B. EDDING, HON.
ANECITO S. DARUNDAY, HON. ANGELICA J. CARREON and
HON. LUZVIMINDA E. TORRINO, petitioners,
vs.
THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES
PEACE NEGOTIATING PANEL [GRP], as represented by HON.
RODOLFO C. GARCIA and HON. HERMOGENES ESPERON, in
his capacity as the Presidential Adviser of Peace
Process, respondents.
x--------------------------------------------x
G.R. No. 183962 October 14, 2008
ERNESTO M. MACEDA, JEJOMAR C. BINAY, and AQUILINO L.
PIMENTEL III, petitioners,
1
vs.
THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES
PEACE NEGOTIATING PANEL, represented by its Chairman
RODOLFO C. GARCIA, and the MORO ISLAMIC LIBERATION
FRONT PEACE NEGOTIATING PANEL, represented by its
Chairman MOHAGHER IQBAL, respondents.
x--------------------------------------------x
FRANKLIN M. DRILON and ADEL ABBAS
TAMANO, petitioners-in-intervention.
x--------------------------------------------x
SEN. MANUEL A. ROXAS, petitioners-in-intervention.
x--------------------------------------------x
MUNICIPALITY OF LINAMON duly represented by its
Municipal Mayor NOEL N. DEANO, petitioners-in-
intervention,
x--------------------------------------------x
THE CITY OF ISABELA, BASILAN PROVINCE, represented by
MAYOR CHERRYLYN P. SANTOS-AKBAR,petitioners-in-
intervention.
x--------------------------------------------x
THE PROVINCE OF SULTAN KUDARAT, rep. by HON.
SUHARTO T. MANGUDADATU, in his capacity as Provincial
Governor and a resident of the Province of Sultan
Kudarat, petitioner-in-intervention.
x-------------------------------------------x
RUY ELIAS LOPEZ, for and in his own behalf and on behalf of
Indigenous Peoples in Mindanao Not Belonging to the
MILF, petitioner-in-intervention.
x--------------------------------------------x
CARLO B. GOMEZ, GERARDO S. DILIG, NESARIO G. AWAT,
JOSELITO C. ALISUAG and RICHALEX G. JAGMIS, as citizens
and residents of Palawan, petitioners-in-intervention.
x--------------------------------------------x
MARINO RIDAO and KISIN BUXANI, petitioners-in-
intervention.
x--------------------------------------------x
MUSLIM LEGAL ASSISTANCE FOUNDATION, INC
(MUSLAF), respondent-in-intervention.
x--------------------------------------------x
MUSLIM MULTI-SECTORAL MOVEMENT FOR PEACE &
DEVELOPMENT (MMMPD), respondent-in-intervention.
x--------------------------------------------x
DECISION
CARPIO MORALES, J.:
Subject of these consolidated cases is the extent of the
powers of the President in pursuing the peace process.While
the facts surrounding this controversy center on the armed
conflict in Mindanao between the government and the Moro
Islamic Liberation Front (MILF), the legal issue involved has a
bearing on all areas in the country where there has been a
long-standing armed conflict. Yet again, the Court is tasked to
perform a delicate balancing act. It must uncompromisingly
delineate the bounds within which the President may lawfully
exercise her discretion, but it must do so in strict adherence
to the Constitution, lest its ruling unduly restricts the freedom
of action vested by that same Constitution in the Chief
Executive precisely to enable her to pursue the peace process
effectively.
I. FACTUAL ANTECEDENTS OF THE PETITIONS
On August 5, 2008, the Government of the Republic of the
Philippines (GRP) and the MILF, through the Chairpersons of
their respective peace negotiating panels, were scheduled to
sign a Memorandum of Agreement on the Ancestral Domain
(MOA-AD) Aspect of the GRP-MILF Tripoli Agreement on
Peace of 2001 in Kuala Lumpur, Malaysia.
The MILF is a rebel group which was established in March
1984 when, under the leadership of the late Salamat Hashim,
it splintered from the Moro National Liberation Front (MNLF)
then headed by Nur Misuari, on the ground, among others, of
what Salamat perceived to be the manipulation of the MNLF
away from an Islamic basis towards Marxist-Maoist
orientations.1
The signing of the MOA-AD between the GRP and the MILF
was not to materialize, however, for upon motion of
petitioners, specifically those who filed their cases before the
scheduled signing of the MOA-AD, this Court issued a
Temporary Restraining Order enjoining the GRP from signing
the same.
The MOA-AD was preceded by a long process of negotiation
and the concluding of several prior agreements between the
two parties beginning in 1996, when the GRP-MILF peace
negotiations began. On July 18, 1997, the GRP and MILF Peace
Panels signed the Agreement on General Cessation of
Hostilities. The following year, they signed the General
Framework of Agreement of Intent on August 27, 1998.
The Solicitor General, who represents respondents,
summarizes the MOA-AD by stating that the same contained,
among others, the commitment of the parties to pursue
peace negotiations, protect and respect human rights,
negotiate with sincerity in the resolution and pacific
settlement of the conflict, and refrain from the use of threat
or force to attain undue advantage while the peace
negotiations on the substantive agenda are on-going.2
Early on, however, it was evident that there was not going to
be any smooth sailing in the GRP-MILF peace process.
Towards the end of 1999 up to early 2000, the MILF attacked
a number of municipalities in Central Mindanao and, in March
2000, it took control of the town hall of Kauswagan, Lanao del
2
Norte.3 In response, then President Joseph Estrada declared
and carried out an "all-out-war" against the MILF.
When President Gloria Macapagal-Arroyo assumed office, the
military offensive against the MILF was suspended and the
government sought a resumption of the peace talks. The
MILF, according to a leading MILF member, initially responded
with deep reservation, but when President Arroyo asked the
Government of Malaysia through Prime Minister Mahathir
Mohammad to help convince the MILF to return to the
negotiating table, the MILF convened its Central Committee
to seriously discuss the matter and, eventually, decided to
meet with the GRP.4
The parties met in Kuala Lumpur on March 24, 2001, with the
talks being facilitated by the Malaysian government, the
parties signing on the same date the Agreement on the
General Framework for the Resumption of Peace Talks
Between the GRP and the MILF. The MILF thereafter
suspended all its military actions.5
Formal peace talks between the parties were held in Tripoli,
Libya from June 20-22, 2001, the outcome of which was the
GRP-MILF Tripoli Agreement on Peace (Tripoli Agreement
2001) containing the basic principles and agenda on the
following aspects of the
negotiation: Security Aspect, Rehabilitation Aspect,
and Ancestral Domain Aspect. With regard to the Ancestral
Domain Aspect, the parties in Tripoli Agreement 2001 simply
agreed "that the same be discussed further by the Parties in
their next meeting."
A second round of peace talks was held in Cyberjaya, Malaysia
on August 5-7, 2001 which ended with the signing of
the Implementing Guidelines on the Security Aspect of the
Tripoli Agreement 2001 leading to a ceasefire status between
the parties. This was followed by the Implementing Guidelines
on the Humanitarian Rehabilitation and Development Aspects
of the Tripoli Agreement 2001, which was signed on May 7,
2002 at Putrajaya, Malaysia. Nonetheless, there were many
incidence of violence between government forces and the
MILF from 2002 to 2003.
Meanwhile, then MILF Chairman Salamat Hashim passed
away on July 13, 2003 and he was replaced by Al Haj Murad,
who was then the chief peace negotiator of the MILF. Murad's
position as chief peace negotiator was taken over by
Mohagher Iqbal.6
In 2005, several exploratory talks were held between the
parties in Kuala Lumpur, eventually leading to the crafting of
the draft MOA-AD in its final form, which, as mentioned, was
set to be signed last August 5, 2008.
II. STATEMENT OF THE PROCEEDINGS
Before the Court is what is perhaps the most contentious
"consensus" ever embodied in an instrument - the MOA-AD
which is assailed principally by the present petitions bearing
docket numbers 183591, 183752, 183893, 183951 and
183962.
Commonly impleaded as respondents are the GRP Peace
Panel on Ancestral Domain7 and the Presidential Adviser on
the Peace Process (PAPP) Hermogenes Esperon, Jr.
On July 23, 2008, the Province of North Cotabato8 and Vice-
Governor Emmanuel Piñol filed a petition, docketed as G.R.
No. 183591, for Mandamus and Prohibition with Prayer for
the Issuance of Writ of Preliminary Injunction and Temporary
Restraining Order.9 Invoking the right to information on
matters of public concern, petitioners seek to compel
respondents to disclose and furnish them the complete and
official copies of the MOA-AD including its attachments, and
to prohibit the slated signing of the MOA-AD, pending the
disclosure of the contents of the MOA-AD and the holding of
a public consultation thereon. Supplementarily, petitioners
pray that the MOA-AD be declared unconstitutional.10
This initial petition was followed by another one, docketed
as G.R. No. 183752, also for Mandamus and Prohibition11 filed
by the City of Zamboanga,12 Mayor Celso Lobregat, Rep. Ma.
Isabelle Climaco and Rep. Erico Basilio Fabian who likewise
pray for similar injunctive reliefs. Petitioners herein moreover
pray that the City of Zamboanga be excluded from the
Bangsamoro Homeland and/or Bangsamoro Juridical Entity
and, in the alternative, that the MOA-AD be declared null and
void.
By Resolution of August 4, 2008, the Court issued a
Temporary Restraining Order commanding and directing
public respondents and their agents to cease and desist from
formally signing the MOA-AD.13 The Court also required the
Solicitor General to submit to the Court and petitioners the
official copy of the final draft of the MOA-AD,14 to which she
complied.15
Meanwhile, the City of Iligan16 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 members18 of the
Sangguniang Panlalawigan of Zamboanga del Norte filed on
August 15, 2008 a petition for Certiorari, Mandamus and
Prohibition,19 docketed as G.R. No. 183951. They pray, inter
alia, that the MOA-AD be declared null and void and without
operative effect, and that respondents be enjoined from
executing the MOA-AD.
On August 19, 2008, Ernesto Maceda, Jejomar Binay, and
Aquilino Pimentel III filed a petition for Prohibition,20docketed
as G.R. No. 183962, praying for a judgment prohibiting and
permanently enjoining respondents from formally signing and
executing the MOA-AD and or any other agreement derived
therefrom or similar thereto, and nullifying the MOA-AD for
being unconstitutional and illegal. Petitioners
herein additionally implead as respondent the MILF Peace
Negotiating Panel represented by its Chairman Mohagher
Iqbal.
Various parties moved to intervene and were granted leave of
court to file their petitions-/comments-in-intervention.
Petitioners-in-Intervention include Senator Manuel A. Roxas,
former Senate President Franklin Drilon and Atty. Adel
Tamano, the City of Isabela21 and Mayor Cherrylyn Santos-
Akbar, the Province of Sultan Kudarat22 and Gov. Suharto
Mangudadatu, the Municipality of Linamon in Lanao del
Norte,23 Ruy Elias Lopez of Davao City and of the Bagobo
3
tribe, Sangguniang Panlungsod member Marino Ridao and
businessman Kisin Buxani, both of Cotabato City; and lawyers
Carlo Gomez, Gerardo Dilig, Nesario Awat, Joselito Alisuag,
Richalex Jagmis, all of Palawan City. The Muslim Legal
Assistance Foundation, Inc. (Muslaf) and the Muslim Multi-
Sectoral Movement for Peace and Development (MMMPD)
filed their respective Comments-in-Intervention.
By subsequent Resolutions, the Court ordered the
consolidation of the petitions. Respondents filed Comments
on the petitions, while some of petitioners submitted their
respective Replies.
Respondents, by Manifestation and Motion of August 19,
2008, stated that the Executive Department shall thoroughly
review the MOA-AD and pursue further negotiations to
address the issues hurled against it, and thus moved to
dismiss the cases. In the succeeding exchange of pleadings,
respondents' motion was met with vigorous opposition from
petitioners.
The cases were heard on oral argument on August 15, 22 and
29, 2008 that tackled the following principal issues:
1. Whether the petitions have become moot and
academic
(i) insofar as the mandamus aspect is
concerned, in view of the disclosure of
official copies of the final draft of the
Memorandum of Agreement (MOA); and
(ii) insofar as the prohibition aspect
involving the Local Government Units is
concerned, if it is considered that
consultation has become fait
accompli with the finalization of the draft;
2. Whether the constitutionality and the legality of
the MOA is ripe for adjudication;
3. Whether respondent Government of the Republic
of the Philippines Peace Panel committed grave
abuse of discretion amounting to lack or excess of
jurisdiction when it negotiated and initiated the
MOA vis-à-vis ISSUES Nos. 4 and 5;
4. Whether there is a violation of the people's right
to information on matters of public concern (1987
Constitution, Article III, Sec. 7) under a state policy
of full disclosure of all its transactions involving
public interest (1987 Constitution, Article II, Sec. 28)
including public consultation under Republic Act No.
7160 (LOCAL GOVERNMENT CODE OF 1991)[;]
If it is in the affirmative, whether prohibition under
Rule 65 of the 1997 Rules of Civil Procedure is an
appropriate remedy;
5. Whether by signing the MOA, the Government of
the Republic of the Philippines would be BINDING
itself
a) to create and recognize the
Bangsamoro Juridical Entity (BJE) as a
separate state, or a juridical, territorial or
political subdivision not recognized by
law;
b) to revise or amend the Constitution and
existing laws to conform to the MOA;
c) to concede to or recognize the claim of
the Moro Islamic Liberation Front for
ancestral domain in violation of Republic
Act No. 8371 (THE INDIGENOUS PEOPLES
RIGHTS ACT OF 1997), particularly Section
3(g) & Chapter VII (DELINEATION,
RECOGNITION OF ANCESTRAL
DOMAINS)[;]
If in the affirmative, whether the Executive Branch
has the authority to so bind the Government of the
Republic of the Philippines;
6. Whether the inclusion/exclusion of the Province
of North Cotabato, Cities of Zamboanga, Iligan and
Isabela, and the Municipality of Linamon, Lanao del
Norte in/from the areas covered by the projected
Bangsamoro Homeland is a justiciable question; and
7. Whether desistance from signing the MOA
derogates any prior valid commitments of the
Government of the Republic of the Philippines.24
The Court, thereafter, ordered the parties to submit their
respective Memoranda. Most of the parties submitted their
memoranda on time.
III. OVERVIEW OF THE MOA-AD
As a necessary backdrop to the consideration of the
objections raised in the subject five petitions and six
petitions-in-intervention against the MOA-AD, as well as the
two comments-in-intervention in favor of the MOA-AD, the
Court takes an overview of the MOA.
The MOA-AD identifies the Parties to it as the GRP and the
MILF.
Under the heading "Terms of Reference" (TOR), the MOA-AD
includes not only four earlier agreements between the GRP
and MILF, but also two agreements between the GRP and the
MNLF: the 1976 Tripoli Agreement, and the Final Peace
Agreement on the Implementation of the 1976 Tripoli
Agreement, signed on September 2, 1996 during the
administration of President Fidel Ramos.
The MOA-AD also identifies as TOR two local statutes - the
organic act for the Autonomous Region in Muslim Mindanao
(ARMM)25 and the Indigenous Peoples Rights Act (IPRA),26 and
several international law instruments - the ILO Convention
No. 169 Concerning Indigenous and Tribal Peoples in
Independent Countries in relation to the UN Declaration on
the Rights of the Indigenous Peoples, and the UN Charter,
among others.
The MOA-AD includes as a final TOR the generic category of
"compact rights entrenchment emanating from the regime
of dar-ul-mua'hada (or territory under compact) and dar-ul-
sulh (or territory under peace agreement) that partakes the
nature of a treaty device."
4
During the height of the Muslim Empire, early Muslim jurists
tended to see the world through a simple dichotomy: there
was the dar-ul-Islam (the Abode of Islam) and dar-ul-harb (the
Abode of War). The first referred to those lands where Islamic
laws held sway, while the second denoted those lands where
Muslims were persecuted or where Muslim laws were
outlawed or ineffective.27 This way of viewing the world,
however, became more complex through the centuries as the
Islamic world became part of the international community of
nations.
As Muslim States entered into treaties with their neighbors,
even with distant States and inter-governmental
organizations, the classical division of the world into dar-ul-
Islam and dar-ul-harb eventually lost its meaning. New terms
were drawn up to describe novel ways of perceiving non-
Muslim territories. For instance, areas like dar-ul-
mua'hada (land of compact) and dar-ul-sulh (land of treaty)
referred to countries which, though under a secular regime,
maintained peaceful and cooperative relations with Muslim
States, having been bound to each other by treaty or
agreement. Dar-ul-aman (land of order), on the other hand,
referred to countries which, though not bound by treaty with
Muslim States, maintained freedom of religion for Muslims.28
It thus appears that the "compact rights entrenchment"
emanating from the regime of dar-ul-mua'hada and dar-ul-
sulh simply refers to all other agreements between the MILF
and the Philippine government - the Philippines being the
land of compact and peace agreement - that partake of the
nature of a treaty device, "treaty" being broadly defined as
"any solemn agreement in writing that sets out
understandings, obligations, and benefits for both parties
which provides for a framework that elaborates the principles
declared in the [MOA-AD]."29
The MOA-AD states that the Parties "HAVE AGREED AND
ACKNOWLEDGED AS FOLLOWS," and starts with its main
body.
The main body of the MOA-AD is divided into four strands,
namely, Concepts and Principles, Territory, Resources, and
Governance.
A. CONCEPTS AND PRINCIPLES
This strand begins with the statement that it is "the birthright
of all Moros and all Indigenous peoples of Mindanao to
identify themselves and be accepted as ‘Bangsamoros.'" It
defines "Bangsamoro people" as the natives or original
inhabitants of Mindanao and its adjacent islands including
Palawan and the Sulu archipelago at the time of conquest or
colonization, and their descendants whether mixed or of full
blood, including their spouses.30
Thus, the concept of "Bangsamoro," as defined in this strand
of the MOA-AD, includes not only "Moros" as traditionally
understood even by Muslims,31 but all indigenous peoples of
Mindanao and its adjacent islands. The MOA-AD adds that the
freedom of choice of indigenous peoples shall be respected.
What this freedom of choice consists in has not been
specifically defined.
The MOA-AD proceeds to refer to the "Bangsamoro
homeland," the ownership of which is vested exclusively in
the Bangsamoro people by virtue of their prior rights of
occupation.32 Both parties to the MOA-AD acknowledge
that ancestral domain does not form part of the public
domain.33
The Bangsamoro people are acknowledged as having the right
to self-governance, which right is said to be rooted on
ancestral territoriality exercised originally under the suzerain
authority of their sultanates and the Pat a Pangampong ku
Ranaw. The sultanates were described as states or
"karajaan/kadatuan" resembling a body politic endowed with
all the elements of a nation-state in the modern sense.34
The MOA-AD thus grounds the right to self-governance of the
Bangsamoro people on the past suzerain authority of the
sultanates. As gathered, the territory defined as the
Bangsamoro homeland was ruled by several sultanates and,
specifically in the case of the Maranao, by the Pat a
Pangampong ku Ranaw, a confederation of independent
principalities (pangampong) each ruled by datus and sultans,
none of whom was supreme over the others.35
The MOA-AD goes on to describe the Bangsamoro people as
"the ‘First Nation' with defined territory and with a system of
government having entered into treaties of amity and
commerce with foreign nations."
The term "First Nation" is of Canadian origin referring to the
indigenous peoples of that territory, particularly those known
as Indians. In Canada, each of these indigenous peoples is
equally entitled to be called "First Nation," hence, all of them
are usually described collectively by the plural "First
Nations."36 To that extent, the MOA-AD, by identifying the
Bangsamoro people as "the First Nation" - suggesting its
exclusive entitlement to that designation - departs from the
Canadian usage of the term.
The MOA-AD then mentions for the first time the
"Bangsamoro Juridical Entity" (BJE) to which it grants the
authority and jurisdiction over the Ancestral Domain and
Ancestral Lands of the Bangsamoro.37
B. TERRITORY
The territory of the Bangsamoro homeland is described as the
land mass as well as the maritime, terrestrial, fluvial and
alluvial domains, including the aerial domain and the
atmospheric space above it, embracing the Mindanao-Sulu-
Palawan geographic region.38
More specifically, the core of the BJE is defined as the present
geographic area of the ARMM - thus constituting the
following areas: Lanao del Sur, Maguindanao, Sulu, Tawi-Tawi,
Basilan, and Marawi City. Significantly, this core also includes
certain municipalities of Lanao del Norte that voted for
inclusion in the ARMM in the 2001 plebiscite.39
Outside of this core, the BJE is to cover other provinces, cities,
municipalities and barangays, which are grouped into two
categories, Category A and Category B. Each of these areas is
to be subjected to a plebiscite to be held on different dates,
years apart from each other. Thus, Category A areas are to be
subjected to a plebiscite not later than twelve (12) months
following the signing of the MOA-AD.40 Category B areas, also
called "Special Intervention Areas," on the other hand, are to
be subjected to a plebiscite twenty-five (25) years from the
signing of a separate agreement - the Comprehensive
Compact.41
The Parties to the MOA-AD stipulate that the BJE shall have
jurisdiction over all natural resources within its
"internalwaters," defined as extending fifteen (15) kilometers
5
from the coastline of the BJE area;42 that the BJE shall also
have "territorial waters," which shall stretch beyond the BJE
internal waters up to the baselines of the Republic of the
Philippines (RP) south east and south west of mainland
Mindanao; and that within these territorial waters, the BJE
and the "Central Government" (used interchangeably with RP)
shall exercise joint jurisdiction, authority and management
over all natural resources.43 Notably, the jurisdiction over
the internal waters is not similarly described as "joint."
The MOA-AD further provides for the sharing of minerals on
the territorial waters between the Central Government and
the BJE, in favor of the latter, through production sharing and
economic cooperation agreement.44 The activities which the
Parties are allowed to conduct on the territorial waters are
enumerated, among which are the exploration and utilization
of natural resources, regulation of shipping and fishing
activities, and the enforcement of police and safety
measures.45 There is no similar provision on the sharing of
minerals and allowed activities with respect to
the internal waters of the BJE.
C. RESOURCES
The MOA-AD states that the BJE is free to enter into any
economic cooperation and trade relations with foreign
countries and shall have the option to establish trade
missions in those countries. Such relationships and
understandings, however, are not to include aggression
against the GRP. The BJE may also enter into environmental
cooperation agreements.46
The external defense of the BJE is to remain the duty and
obligation of the Central Government. The Central
Government is also bound to "take necessary steps to ensure
the BJE's participation in international meetings and events"
like those of the ASEAN and the specialized agencies of the
UN. The BJE is to be entitled to participate in Philippine
official missions and delegations for the negotiation of border
agreements or protocols for environmental protection and
equitable sharing of incomes and revenues involving the
bodies of water adjacent to or between the islands forming
part of the ancestral domain.47
With regard to the right of exploring for, producing, and
obtaining all potential sources of energy, petroleum, fossil
fuel, mineral oil and natural gas, the jurisdiction and control
thereon is to be vested in the BJE "as the party having control
within its territorial jurisdiction." This right carries
the proviso that, "in times of national emergency, when public
interest so requires," the Central Government may, for a fixed
period and under reasonable terms as may be agreed upon by
both Parties, assume or direct the operation of such
resources.48
The sharing between the Central Government and the BJE of
total production pertaining to natural resources is to be 75:25
in favor of the BJE.49
The MOA-AD provides that legitimate grievances of the
Bangsamoro people arising from any unjust dispossession of
their territorial and proprietary rights, customary land
tenures, or their marginalization shall be acknowledged.
Whenever restoration is no longer possible, reparation is to
be in such form as mutually determined by the Parties.50
The BJE may modify or cancel the forest concessions, timber
licenses, contracts or agreements, mining concessions,
Mineral Production and Sharing Agreements (MPSA),
Industrial Forest Management Agreements (IFMA), and other
land tenure instruments granted by the Philippine
Government, including those issued by the present ARMM.51
D. GOVERNANCE
The MOA-AD binds the Parties to invite a multinational third-
party to observe and monitor the implementation of
the Comprehensive Compact. This compact is to embody the
"details for the effective enforcement" and "the mechanisms
and modalities for the actual implementation" of the MOA-
AD. The MOA-AD explicitly provides that the participation of
the third party shall not in any way affect the status of the
relationship between the Central Government and the BJE.52
The "associative" relationship
between the Central Government
and the BJE
The MOA-AD describes the relationship of the Central barangays under Categories A and B earlier mentioned in the
Government and the BJE as "associative," characterized by discussion on the strand on TERRITORY.
shared authority and responsibility. And it states that the
structure of governance is to be based on executive, IV. PROCEDURAL ISSUES
legislative, judicial, and administrative institutions with
defined powers and functions in the Comprehensive
A. RIPENESS
Compact.
The power of judicial review is limited to actual cases or
The MOA-AD provides that its provisions requiring
controversies.54 Courts decline to issue advisory opinions or
"amendments to the existing legal framework" shall take
to resolve hypothetical or feigned problems, or mere
effect upon signing of the Comprehensive Compact and upon
academic questions.55 The limitation of the power of judicial
effecting the aforesaid amendments, with due regard to
review to actual cases and controversies defines the role
the non-derogation of prior agreements and within the
assigned to the judiciary in a tripartite allocation of power, to
stipulated timeframe to be contained in the Comprehensive
assure that the courts will not intrude into areas committed
Compact. As will be discussed later, much of the present
to the other branches of government.56
controversy hangs on the legality of this provision.
An actual case or controversy involves a conflict of legal
The BJE is granted the power to build, develop and maintain
rights, an assertion of opposite legal claims, susceptible of
its own institutions inclusive of civil service, electoral,
judicial resolution as distinguished from a hypothetical or
financial and banking, education, legislation, legal, economic,
abstract difference or dispute. There must be a contrariety of
police and internal security force, judicial system and
legal rights that can be interpreted and enforced on the basis
correctional institutions, the details of which shall be
of existing law and jurisprudence.57 The Court can decide the
discussed in the negotiation of the comprehensive compact.
constitutionality of an act or treaty only when a proper case
between opposing parties is submitted for judicial
As stated early on, the MOA-AD was set to be signed on determination.58
August 5, 2008 by Rodolfo Garcia and Mohagher Iqbal,
Chairpersons of the Peace Negotiating Panels of the GRP and
Related to the requirement of an actual case or controversy is
the MILF, respectively. Notably, the penultimate paragraph of
the requirement of ripeness. A question is ripe for
the MOA-AD identifies the signatories as "the representatives
adjudication when the act being challenged has had a direct
of the Parties," meaning the GRP and MILF themselves, and
adverse effect on the individual challenging it.59 For a case to
not merely of the negotiating panels.53 In addition, the
be considered ripe for adjudication, it is a prerequisite that
signature page of the MOA-AD states that it is "WITNESSED
something had then been accomplished or performed by
BY" Datuk Othman Bin Abd Razak, Special Adviser to the
either branch before a court may come into the picture,60 and
Prime Minister of Malaysia, "ENDORSED BY" Ambassador
the petitioner must allege the existence of an immediate or
Sayed Elmasry, Adviser to Organization of the Islamic
threatened injury to itself as a result of the challenged
Conference (OIC) Secretary General and Special Envoy for
action.61 He must show that he has sustained or is
Peace Process in Southern Philippines, and SIGNED "IN THE
immediately in danger of sustaining some direct injury as a
PRESENCE OF" Dr. Albert G. Romulo, Secretary of Foreign
result of the act complained of.62
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. The Solicitor General argues that there is no justiciable
controversy that is ripe for judicial review in the present
petitions, reasoning that
Annexed to the MOA-AD are two documents containing the
respective lists cum maps of the provinces, municipalities, and
6
 The unsigned MOA-AD is simply a list of consensus
points subject to further negotiations and legislative
enactments as well as constitutional
processes aimed at attaining a final peaceful
agreement. Simply put, the MOA-AD remains to be
a proposal that does not automatically create legally
demandable rights and obligations until the list of
operative acts required have been duly complied
with. x x x
xxxx
In the cases at bar, it is respectfully submitted that
this Honorable Court has no authority to pass upon
issues based on hypothetical or feigned
constitutional problems or interests with no
concrete bases. Considering
the preliminary character of the MOA-AD, there are
no concrete acts that could possibly violate
petitioners' and intervenors' rights since the acts
complained of are mere contemplated steps toward
the formulation of a final peace agreement. Plainly,
petitioners and intervenors' perceived injury, if at
all, is merely imaginary and illusory apart from being
unfounded and based on mere conjectures.
(Underscoring supplied)
The Solicitor General cites63 the following provisions of the
MOA-AD:
TERRITORY
xxxx
2. Toward this end, the Parties enter into the
following stipulations:
xxxx
d. Without derogating from the requirements of
prior agreements, the Government stipulates to
conduct and deliver, using all possible legal
measures, within twelve (12) months following the
signing of the MOA-AD, a plebiscite covering the
areas as enumerated in the list and depicted in the
map as Category A attached herein (the "Annex").
The Annex constitutes an integral part of this
framework agreement. Toward this end, the Parties
shall endeavor to complete the negotiations and
resolve all outstanding issues on the Comprehensive
Compact within fifteen (15) months from the
signing of the MOA-AD.
xxxx
GOVERNANCE
xxxx
7. The Parties agree that mechanisms and
modalities for the actual implementation of this
MOA-AD shall be spelt out in the Comprehensive
Compact to mutually take such steps to enable it to
occur effectively.
Any provisions of the MOA-AD requiring
amendments to the existing legal framework shall
come into force upon the signing of a
Comprehensive Compact and upon effecting the
necessary changes to the legal framework with due
regard to non-derogation of prior agreements and
within the stipulated timeframe to be contained in
the Comprehensive Compact.64 (Underscoring
supplied)
The Solicitor General's arguments fail to persuade.
Concrete acts under the MOA-AD are not necessary to render
the present controversy ripe. In Pimentel, Jr. v. Aguirre,65 this
Court held:
x x x [B]y the mere enactment of the questioned law
or the approval of the challenged action, the
dispute is said to have ripened into a judicial
controversy even without any other overt act.
Indeed, even a singular violation of the Constitution
and/or the law is enough to awaken judicial duty.
7
xxxx
By the same token, when an act of the President,
who in our constitutional scheme is a coequal of
Congress, is seriously alleged to have infringed the
Constitution and the laws x x x settling the dispute
becomes the duty and the responsibility of the
courts.66
In Santa Fe Independent School District v. Doe,67 the United
States Supreme Court held that the challenge to the
constitutionality of the school's policy allowing student-led
prayers and speeches before games was ripe for adjudication,
even if no public prayer had yet been led under the policy,
because the policy was being challenged as unconstitutional
on its face.68
That the law or act in question is not yet effective does not
negate ripeness. For example, in New York v. United
States,69 decided in 1992, the United States Supreme Court
held that the action by the State of New York challenging the
provisions of the Low-Level Radioactive Waste Policy Act was
ripe for adjudication even if the questioned provision was not
to take effect until January 1, 1996, because the parties
agreed that New York had to take immediate action to avoid
the provision's consequences.70
The present petitions pray for Certiorari,71 Prohibition, and
Mandamus. Certiorari and Prohibition are remedies granted
by law when any tribunal, board or officer has acted, in the
case of certiorari, or is proceeding, in the case of prohibition,
without or in excess of its jurisdiction or with grave abuse of
discretion amounting to lack or excess of
jurisdiction.72 Mandamus is a remedy granted by law when
any tribunal, corporation, board, officer or person unlawfully
neglects the performance of an act which the law specifically
enjoins as a duty resulting from an office, trust, or station, or
unlawfully excludes another from the use or enjoyment of a
right or office to which such other is entitled.73 Certiorari,
Mandamus and Prohibition are appropriate remedies to raise
constitutional issues and to review and/or prohibit/nullify,
when proper, acts of legislative and executive officials.74
The authority of the GRP Negotiating Panel is defined by
Executive Order No. 3 (E.O. No. 3), issued on February 28,
2001.75 The said executive order requires that "[t]he
government's policy framework for peace, including the
systematic approach and the administrative structure for
carrying out the comprehensive peace process x x x be
governed by this Executive Order."76
The present petitions allege that respondents GRP Panel and
PAPP Esperon drafted the terms of the MOA-AD without
consulting the local government units or communities
affected, nor informing them of the proceedings. As will be
discussed in greater detail later, such omission, by itself,
constitutes a departure by respondents from their mandate
under E.O. No. 3.
Furthermore, the petitions allege that the provisions of the
MOA-AD violate the Constitution. The MOA-AD provides that
"any provisions of the MOA-AD requiring amendments to the
existing legal framework shall come into force upon the
signing of a Comprehensive Compact and upon effecting the
necessary changes to the legal framework," implying an
amendment of the Constitution to accommodate the MOA-
AD. This stipulation, in effect, guaranteed to the MILF the
amendment of the Constitution. Such act constitutes another
violation of its authority. Again, these points will be discussed
in more detail later.
As the petitions allege acts or omissions on the part of
respondent that exceed their authority, by violating their
duties under E.O. No. 3 and the provisions of the Constitution
and statutes, the petitions make a prima facie case for
Certiorari, Prohibition, and Mandamus, and an actual case or
controversy ripe for adjudication exists. When an act of a
branch of government is seriously alleged to have infringed
the Constitution, it becomes not only the right but in fact the
duty of the judiciary to settle the dispute.77
B. LOCUS STANDI
For a party to have locus standi, one must allege "such a
personal stake in the outcome of the controversy as to assure
that concrete adverseness which sharpens the presentation
of issues upon which the court so largely depends for
illumination of difficult constitutional questions."78
Because constitutional cases are often public actions in which
the relief sought is likely to affect other persons, a preliminary
question frequently arises as to this interest in the
constitutional question raised.79
When suing as a citizen, the person complaining must allege
that he has been or is about to be denied some right or
privilege to which he is lawfully entitled or that he is about to
be subjected to some burdens or penalties by reason of the
statute or act complained of. 80 When the issue concerns a
public right, it is sufficient that the petitioner is a citizen and
has an interest in the execution of the laws. 81
For a taxpayer, one is allowed to sue where there is an
assertion that public funds are illegally disbursed or deflected
to an illegal purpose, or that there is a wastage of public funds
through the enforcement of an invalid or unconstitutional
law.82 The Court retains discretion whether or not to allow a
taxpayer's suit.83
In the case of a legislator or member of Congress, an act of
the Executive that injures the institution of Congress causes a
derivative but nonetheless substantial injury that can be
questioned by legislators. A member of the House of
Representatives has standing to maintain inviolate the
prerogatives, powers and privileges vested by the
Constitution in his office.84
An organization may be granted standing to assert the rights
of its members,85 but the mere invocation by 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.
8
In any case, the Court has discretion to relax the procedural
technicality on locus standi, given the liberal attitude it has
exercised, highlighted in the case of David v. Macapagal-
Arroyo,89 where technicalities of procedure were brushed
aside, the constitutional issues raised being of paramount
public interest or of transcendental importance deserving the
attention of the Court in view of their seriousness, novelty
and weight as precedents.90 The Court's forbearing stance
on locus standi on issues involving constitutional issues has
for its purpose the protection of fundamental rights.
In not a few cases, the Court, in keeping with its duty under
the Constitution to determine whether the other branches of
government have kept themselves within the limits of the
Constitution and the laws and have not abused the discretion
given them, has brushed aside technical rules of procedure.91
In the petitions at bar, petitioners Province of North
Cotabato (G.R. No. 183591) Province of Zamboanga del
Norte (G.R. No. 183951), City of Iligan (G.R. No. 183893)
and City of Zamboanga (G.R. No. 183752) and petitioners-in-
intervention Province of Sultan Kudarat, City of
Isabela and Municipality of Linamon have locus standi in view
of the direct and substantial injury that they, as LGUs, would
suffer as their territories, whether in whole or in part, are to
be included in the intended domain of the BJE. These
petitioners allege that they did not vote for their inclusion in
the ARMM which would be expanded to form the BJE
territory. Petitioners' legal standing is thus beyond doubt.
In G.R. No. 183962, petitioners Ernesto Maceda, Jejomar
Binay and Aquilino Pimentel III would have no standing as
citizens and taxpayers for their failure to specify that they
would be denied some right or privilege or there would be
wastage of public funds. The fact that they are a former
Senator, an incumbent mayor of Makati City, and a resident
of Cagayan de Oro, respectively, is of no consequence.
Considering their invocation of the transcendental
importance of the issues at hand, however, the Court grants
them standing.
Intervenors Franklin Drilon and Adel Tamano, in alleging their
standing as taxpayers, assert that government funds would be
expended for the conduct of an illegal and unconstitutional
plebiscite to delineate the BJE territory. On that score alone,
they can be given legal standing. Their allegation that the
issues involved in these petitions are of "undeniable
transcendental importance" clothes them with added basis
for their personality to intervene in these petitions.
With regard to Senator Manuel Roxas, his standing is
premised on his being a member of the Senate and a citizen
to enforce compliance by respondents of the public's
constitutional right to be informed of the MOA-AD, as well as
on a genuine legal interest in the matter in litigation, or in the
success or failure of either of the parties. He thus possesses
the requisite standing as an intervenor.
With respect to Intervenors Ruy Elias Lopez, as a former
congressman of the 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. Romulo100 and Manalo v.
Calderon101 where the Court similarly decided them on the
merits, supervening events that would ordinarily have
rendered the same moot notwithstanding.
Petitions not mooted
Contrary then to the asseverations of respondents, the non-
signing of the MOA-AD and the eventual dissolution of the
GRP Peace Panel did not moot the present petitions. It bears
emphasis that the signing of the MOA-AD did not push
through due to the Court's issuance of a Temporary
Restraining Order.
Contrary too to respondents' position, the MOA-AD cannot be
considered a mere "list of consensus points," especially given
9
its nomenclature, the need to have it signed or initialed by
all the parties concerned on August 5, 2008, and the far-
reaching Constitutional implications of these "consensus
points," foremost of which is the creation of the BJE.
In fact, as what will, in the main, be discussed, there is
a commitment on the part of respondents to amend and
effect necessary changes to the existing legal framework for
certain provisions of the MOA-AD to take effect.
Consequently, the present petitions are not confined to the
terms and provisions of the MOA-AD, but to other on-
going and future negotiations and agreements necessary for
its realization. The petitions have not, therefore, been
rendered moot and academic simply by the public disclosure
of the MOA-AD,102 the manifestation that it will not be signed
as well as the disbanding of the GRP Panel not withstanding.
Petitions are imbued with paramount public interest
There is no gainsaying that the petitions are imbued with
paramount public interest, involving a significant part of the
country's territory and the wide-ranging political
modifications of affected LGUs. The assertion that the MOA-
AD is subject to further legal enactments including possible
Constitutional amendments more than ever provides
impetus for the Court to formulate controlling principles to
guide the bench, the bar, the public and, in this case, the
government and its negotiating entity.
Respondents cite Suplico v. NEDA, et al.103 where the Court
did not "pontificat[e] on issues which no longer legitimately
constitute an actual case or controversy [as this] will do more
harm than good to the nation as a whole."
The present petitions must be differentiated from Suplico.
Primarily, in Suplico, what was assailed and eventually
cancelled was a stand-alone government procurement
contract for a national broadband network involving a one-
time contractual relation between two parties-the
government and a private foreign corporation. As the issues
therein involved specific government procurement policies
and standard principles on contracts, the majority opinion
in Suplico found nothing exceptional therein, the factual
circumstances being peculiar only to the transactions and
parties involved in the controversy.
The MOA-AD is part of a series of agreements
In the present controversy, the MOA-AD is a significant part
of a series of agreements necessary to carry out the Tripoli
Agreement 2001. The MOA-AD which dwells on the Ancestral
Domain Aspect of said Tripoli Agreement is the third such
component to be undertaken following the implementation
of the Security Aspect in August 2001 and the Humanitarian,
Rehabilitation and Development Aspect in May 2002.
Accordingly, even if the Executive Secretary, in his
Memorandum of August 28, 2008 to the Solicitor General, has
stated that "no matter what the Supreme Court ultimately
decides[,] the government will not sign the MOA[-
AD]," mootness will not set in in light of the terms of the
Tripoli Agreement 2001.
Need to formulate principles-guidelines
Surely, the present MOA-AD can be renegotiated or another
one will be drawn up to carry out the Ancestral Domain
Aspect of the Tripoli Agreement 2001, in another or in any
form, which could contain similar or significantly drastic
provisions. While the Court notes the word of the Executive
Secretary that the government "is committed to securing an
agreement that is both constitutional and equitable because
that is the only way that long-lasting peace can be assured," it
is minded to render a decision on the merits in the present
petitions to formulate controlling principles to guide the
bench, the bar, the public and, most especially, the
government in negotiating with the MILF regarding
Ancestral Domain.
Respondents invite the Court's attention to the separate
opinion of then Chief Justice Artemio Panganiban in Sanlakas
v. Reyes104 in which he stated that the doctrine of "capable of
repetition yet evading review" can override mootness,
"provided the party raising it in a proper case has been and/or
continue to be prejudiced or damaged as a direct result of
their issuance." They contend that the Court must have
jurisdiction over the subject matter for the doctrine to be
invoked.
The present petitions all contain prayers for Prohibition over
which this Court exercises original jurisdiction. While G.R. No.
183893 (City of Iligan v. GRP) is a petition for Injunction and
Declaratory Relief, the Court will treat it as one for Prohibition
as it has far reaching implications and raises questions that
need to be resolved.105 At all events, the Court has jurisdiction
over most if not the rest of the petitions.
Indeed, the present petitions afford a proper venue for the
Court to again apply the doctrine immediately referred to as
what it had done in a number of landmark cases.106 There is
a reasonable expectation that petitioners, particularly the
Provinces of North Cotabato, Zamboanga del Norte and
Sultan Kudarat, the Cities of Zamboanga, Iligan and Isabela,
and the Municipality of Linamon, will again be subjected to
the same problem in the future as respondents' actions are
capable of repetition, in another or any form.
It is with respect to the prayers for Mandamus that the
petitions have become moot, respondents having, by
Compliance of August 7, 2008, provided this Court and
petitioners with official copies of the final draft of the MOA-
AD and its annexes. Too, intervenors have been furnished, or
have procured for themselves, copies of the MOA-AD.
V. SUBSTANTIVE ISSUES
As culled from the Petitions and Petitions-in-Intervention,
there are basically two SUBSTANTIVE issues to be resolved,
one relating to the manner in which the MOA-AD was
negotiated and finalized, the other relating to its
provisions, viz:
1. Did respondents violate constitutional and statutory
provisions on public consultation and the right to information
when they negotiated and later initialed the MOA-AD?
2. Do the contents of the MOA-AD violate the Constitution
and the laws?
ON THE FIRST SUBSTANTIVE ISSUE
Petitioners invoke their constitutional right to information on
matters of public concern, as provided in Section 7, Article III
on the Bill of Rights:
10
Sec. 7. The right of the people to information on
matters of public concern shall be recognized.
Access to official records, and to documents, and
papers pertaining to official acts, transactions, or
decisions, as well as to government research data
used as basis for policy development, shall be
afforded the citizen, subject to such limitations as
may be provided by law.107
As early as 1948, in Subido v. Ozaeta,108 the Court has
recognized the statutory right to examine and inspect public
records, a right which was eventually accorded constitutional
status.
The right of access to public documents, as enshrined in both
the 1973 Constitution and the 1987 Constitution, has been
recognized as a self-executory constitutional right.109
In the 1976 case of Baldoza v. Hon. Judge Dimaano,110 the
Court ruled that access to public records is predicated on the
right of the people to acquire information on matters of
public concern since, undoubtedly, in a democracy, the pubic
has a legitimate interest in matters of social and political
significance.
x x x The incorporation of this right in the Constitution is a
recognition of the fundamental role of free exchange of
information in a democracy. There can be no realistic
perception by the public of the nation's problems, nor a
meaningful democratic decision-making if they are denied
access to information of general interest. Information is
needed to enable the members of society to cope with the
exigencies of the times. As has been aptly observed:
"Maintaining the flow of such information depends on
protection for both its acquisition and its dissemination since,
if either process is interrupted, the flow inevitably ceases." x x
x111
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 nation112 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 concern114 faces no serious
challenge. In fact, respondents admit that the MOA-AD is
indeed of public concern.115 In previous cases, the Court
found that the regularity of real estate transactions entered in
the Register of Deeds,116 the need for adequate notice to the
public of the various laws,117 the civil service eligibility of a
public employee,118 the proper management of GSIS funds
allegedly used to grant loans to public officials,119 the
recovery of the Marcoses' alleged ill-gotten wealth,120 and the
identity of party-list nominees,121 among others, are matters
of public concern. Undoubtedly, the MOA-AD subject of the
present cases is of public concern, involving as it does
the sovereignty and territorial integrity of the State, which
directly affects the lives of the public at large.
Matters of public concern covered by the right to information
include steps and negotiations leading to the consummation
of the contract. In not distinguishing as to the executory
nature or commercial character of agreements, the Court has
categorically ruled:
x x x [T]he right to information "contemplates
inclusion of negotiations leading to the
consummation of the transaction." Certainly, a
consummated contract is not a requirement for the
exercise of the right to information. Otherwise, the
people can never exercise the right if no contract is
consummated, and if one is consummated, it may
be too late for the public to expose its defects.
Requiring a consummated contract will keep the
public in the dark until the contract, which may be
grossly disadvantageous to the government or even
illegal, becomes fait accompli. This negates the
State policy of full transparency on matters of public
concern, a situation which the framers of the
Constitution could not have intended. Such a
requirement will prevent the citizenry from
participating in the public discussion of
any proposed contract, effectively truncating a basic
right enshrined in the Bill of Rights. We can allow
neither an emasculation of a constitutional right,
nor a retreat by the State of its avowed "policy of
full disclosure of all its transactions involving public
interest."122 (Emphasis and italics in the original)
Intended as a "splendid symmetry"123 to the right to
information under the Bill of Rights is the policy of public
disclosure under Section 28, Article II of the Constitution
reading:
Sec. 28. Subject to reasonable conditions prescribed
by law, the State adopts and implements a policy of
full public disclosure of all its transactions involving
public interest.124
The policy of full public disclosure enunciated in above-
quoted Section 28 complements the right of access to
information on matters of public concern found in the Bill of
Rights. The right to information guarantees the right of the
people to demand information, while Section 28 recognizes
the duty of officialdom to give information even if nobody
demands.125
The policy of public disclosure establishes a concrete ethical
principle for the conduct of public affairs in a genuinely open
democracy, with the people's right to know as the
centerpiece. It is a mandate of the State to be accountable by
following such policy.126 These provisions are vital to the
exercise of the freedom of expression and essential to hold
public officials at all times accountable to the people.127
Whether Section 28 is self-executory, the records of the
deliberations of the Constitutional Commission so disclose:
MR. SUAREZ. And since this is not self-executory,
this policy will not be enunciated or will not be in
force and effect until after Congress shall have
provided it.
MR. OPLE. I expect it to influence the climate of
public ethics immediately but, of course, the
11
implementing law will have to be enacted by
Congress, Mr. Presiding Officer.128
The following discourse, after Commissioner Hilario Davide,
Jr., sought clarification on the issue, is enlightening.
MR. DAVIDE. I would like to get some clarifications
on this. Mr. Presiding Officer, did I get the
Gentleman correctly as having said that this is not a
self-executing provision? It would require a
legislation by Congress to implement?
MR. OPLE. Yes. Originally, it was going to be self-
executing, but I accepted an amendment from
Commissioner Regalado, so that the safeguards on
national interest are modified by the clause "as may
be provided by law"
MR. DAVIDE. But as worded, does it not mean that
this will immediately take effect and Congress may
provide for reasonable safeguards on the sole
ground national interest?
MR. OPLE. Yes. I think so, Mr. Presiding Officer, I
said earlier that it should immediately influence
the climate of the conduct of public affairs but, of
course, Congress here may no longer pass a law
revoking it, or if this is approved, revoking this
principle, which is inconsistent with this
policy.129 (Emphasis supplied)
Indubitably, the effectivity of the policy of public disclosure
need not await the passing of a statute. As Congress cannot
revoke this principle, it is merely directed to provide for
"reasonable safeguards." The complete and effective exercise
of the right to information necessitates that its
complementary provision on public disclosure derive the
same self-executory nature. Since both provisions go hand-in-
hand, it is absurd to say that the broader130 right to
information on matters of public concern is already
enforceable while the correlative duty of the State to disclose
its transactions involving public interest is not enforceable
until there is an enabling law. Respondents cannot thus point
to the absence of an implementing legislation as an excuse in
not effecting such policy.
An essential element of these freedoms is to keep open a
continuing dialogue or process of communication between
the government and the people. It is in the interest of the
State that the channels for free political discussion be
maintained to the end that the government may perceive and
be responsive to the people's will.131Envisioned to
be corollary to the twin rights to information and disclosure is
the design for feedback mechanisms.
MS. ROSARIO BRAID. Yes. And lastly, Mr. Presiding
Officer, will the people be able to participate? Will
the government provide feedback mechanisms so
that the people can participate and can react
where the existing media facilities are not able to
provide full feedback mechanisms to the
government? I suppose this will be part of the
government implementing operational
mechanisms.
MR. OPLE. Yes. I think through their elected
representatives and that is how these courses take
place. There is a message and a feedback, both
ways.
xxxx
MS. ROSARIO BRAID. Mr. Presiding Officer, may I
just make one last sentence?
I think when we talk about the feedback network,
we are not talking about public officials but also
network of private business o[r] community-based
organizations that will be reacting. As a matter of
fact, we will put more credence or credibility on the
private network of volunteers and voluntary
community-based organizations. So I do not think
we are afraid that there will be another OMA in the
making.132(Emphasis supplied)
The imperative of a public consultation, as a species of the
right to information, is evident in the "marching orders" to
respondents. The mechanics for the duty to disclose
information and to conduct public consultation regarding the
peace agenda and process is manifestly provided by E.O. No.
3.133 The preambulatory clause of E.O. No. 3 declares that
there is a need to further enhance the contribution of civil
society to the comprehensive peace process by
institutionalizing the people's participation.
One of the three underlying principles of the comprehensive
peace process is that it "should be community-based,
reflecting the sentiments, values and principles important to
all Filipinos" and "shall be defined not by the government
alone, nor by the different contending groups only, but by all
Filipinos as one community."134 Included as a component of
the comprehensive peace process is consensus-building and
empowerment for peace, which includes "continuing
consultations on both national and local levels to build
consensus for a peace agenda and process, and the
mobilization and facilitation of people's participation in the
peace process."135
Clearly, E.O. No. 3 contemplates not just the conduct of a
plebiscite to effectuate "continuing" consultations, contrary
to respondents' position that plebiscite is "more than
sufficient consultation."136
Further, E.O. No. 3 enumerates the functions and
responsibilities of the PAPP, one of which is to
"[c]onduct regular dialogues with the National Peace Forum
(NPF) and other peace partners to seek relevant information,
comments, recommendations as well as to render
appropriate and timely reports on the progress of the
comprehensive peace process."137 E.O. No. 3 mandates the
establishment of the NPF to be "the principal forum for the
PAPP to consult with and seek advi[c]e from the peace
advocates, peace partners and concerned sectors of society
on both national and local levels, on the implementation of
the comprehensive peace process, as well as for
government[-]civil society dialogue and consensus-building on
peace agenda and initiatives."138
In fine, E.O. No. 3 establishes petitioners' right to be
consulted on the peace agenda, as a corollary to the
constitutional right to information and disclosure.
PAPP Esperon committed grave abuse of discretion
The PAPP committed grave abuse of discretion when
he failed to carry out the pertinent consultation. The furtive
12
process by which the MOA-AD was designed and crafted runs
contrary to and in excess of the legal authority, and amounts
to a whimsical, capricious, oppressive, arbitrary and despotic
exercise thereof.
The Court may not, of course, require the PAPP to conduct
the consultation in a particular way or manner. It may,
however, require him to comply with the law and discharge
the functions within the authority granted by the President.139
Petitioners are not claiming a seat at the negotiating table,
contrary to respondents' retort in justifying the denial of
petitioners' right to be consulted. Respondents' stance
manifests the manner by which they treat the salient
provisions of E.O. No. 3 on people's participation. Such
disregard of the express mandate of the President is not much
different from superficial conduct toward token provisos that
border on classic lip service. 140 It illustrates a gross evasion of
positive duty and a virtual refusal to perform the duty
enjoined.
As for respondents' invocation of the doctrine of executive
privilege, it is not tenable under the premises. The argument
defies sound reason when contrasted with E.O. No. 3's explicit
provisions on continuing consultation and dialogue on
both national and local levels. The executive order even
recognizes the exercise of the public's right even before the
GRP makes its official recommendations or before the
government proffers its definite propositions.141 It bear
emphasis that E.O. No. 3 seeks to elicit relevant advice,
information, comments and recommendations from the
people through dialogue.
AT ALL EVENTS, respondents effectively waived the defense of
executive privilege in view of their unqualified disclosure of
the official copies of the final draft of the MOA-AD. By
unconditionally complying with the Court's August 4, 2008
Resolution, without a prayer for the document's disclosure in
camera, or without a manifestation that it was complying
therewith ex abundante ad cautelam.
Petitioners' assertion that the Local Government Code (LGC)
of 1991 declares it a State policy to "require all national
agencies and offices to conduct periodic consultations with
appropriate local government units, non-governmental and
people's organizations, and other concerned sectors of the
community before any project or program is implemented in
their respective jurisdictions"142 is well-taken. The LGC
chapter on intergovernmental relations puts flesh into this
avowed policy:
Prior Consultations Required. - No project or
program shall be implemented by government
authorities unlessthe consultations mentioned in
Sections 2 (c) and 26 hereof are complied with, and
prior approval of the sanggunian concerned is
obtained: Provided, That occupants in areas where
such projects are to be implemented shall not be
evicted unless appropriate relocation sites have
been provided, in accordance with the provisions of
the Constitution.143 (Italics and underscoring
supplied)
In Lina, Jr. v. Hon. Paño,144 the Court held that the above-
stated policy and above-quoted provision of the LGU apply
only to national programs or projects which are to be
implemented in a particular local community. Among the
programs and projects covered are those that are critical to
the environment and human ecology including those that may
call for the eviction of a particular group of people residing in
the locality where these will be implemented.145 The MOA-AD
is one peculiar program that unequivocally and unilaterally
vests ownership of a vast territory to the Bangsamoro
people,146 which could pervasively and drastically result to
the diaspora or displacement of a great number of
inhabitants from their total environment.
With respect to the indigenous cultural
communities/indigenous peoples (ICCs/IPs), whose interests
are represented herein by petitioner Lopez and are adversely
affected by the MOA-AD, the ICCs/IPs have, under the IPRA,
the right to participate fully at all levels of decision-making in
matters which may affect their rights, lives and
destinies.147 The MOA-AD, an instrument recognizing
ancestral domain, failed to justify its non-compliance with the
clear-cut mechanisms ordained in said Act,148 which entails,
among other things, the observance of the free and prior
informed consent of the ICCs/IPs.
Notably, the IPRA does not grant the Executive Department or
any government agency the power to delineate and recognize
an ancestral domain claim by mere agreement or
compromise. The recognition of the ancestral domain is
the raison d'etre of the MOA-AD, without which all other
stipulations or "consensus points" necessarily must fail. In
proceeding to make a sweeping declaration on ancestral
domain, without complying with the IPRA, which is cited as
one of the TOR of the MOA-AD, respondents clearly
transcended the boundaries of their authority. As it seems,
even the heart of the MOA-AD is still subject to necessary
changes to the legal framework. While paragraph 7 on
Governance suspends the effectivity of all provisions requiring
changes to the legal framework, such clause is itself invalid, as
will be discussed in the following section.
Indeed, ours is an open society, with all the acts of the
government subject to public scrutiny and available always to
public cognizance. This has to be so if the country is to remain
democratic, with sovereignty residing in the people and all
government authority emanating from them.149
ON THE SECOND SUBSTANTIVE ISSUE
With regard to the provisions of the MOA-AD, there can be no
question that they cannot all be accommodated under the
present Constitution and laws. Respondents have admitted as
much in the oral arguments before this Court, and the MOA-
AD itself recognizes the need to amend the existing legal
framework to render effective at least some of its provisions.
Respondents, nonetheless, counter that the MOA-AD is free
of any legal infirmity because any provisions therein which are
inconsistent with the present legal framework will not be
effective until the necessary changes to that framework are
made. The validity of this argument will be considered later.
For now, the Court shall pass upon how
The MOA-AD is inconsistent with the Constitution and laws
as presently worded.
In general, the objections against the MOA-AD center on the
extent of the powers conceded therein to the BJE. Petitioners
assert that the powers granted to the BJE exceed those
granted to any local government under present laws, and
even go beyond those of the present ARMM. Before assessing
13
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
x150 (Emphasis and underscoring supplied)
For purposes of illustration, the Republic of the Marshall
Islands and the Federated States of Micronesia (FSM),
formerly part of the U.S.-administered Trust Territory of the
Pacific Islands,151 are associated states of the U.S. pursuant to
a Compact of Free Association. The currency in these
countries is the U.S. dollar, indicating their very close ties with
the U.S., yet they issue their own travel documents, which is a
mark of their statehood. Their international legal status as
states was confirmed by the UN Security Council and by their
admission to UN membership.
According to their compacts of free association, the Marshall
Islands and the FSM generally have the capacity to conduct
foreign affairs in their own name and right, such capacity
extending to matters such as the law of the sea, marine
resources, trade, banking, postal, civil aviation, and cultural
relations. The U.S. government, when conducting its foreign
affairs, is obligated to consult with the governments of the
Marshall Islands or the FSM on matters which it (U.S.
government) regards as relating to or affecting either
government.
In the event of attacks or threats against the Marshall Islands
or the FSM, the U.S. government has the authority and
obligation to defend them as if they were part of U.S.
territory. The U.S. government, moreover, has the option of
establishing and using military areas and facilities within these
associated states and has the right to bar the military
personnel of any third country from having access to these
territories for military purposes.
It bears noting that in U.S. constitutional and international
practice, free association is understood as an international
association between sovereigns. The Compact of Free
Association is a treaty which is subordinate to the associated
nation's national constitution, and each party may terminate
the association consistent with the right of independence. It
has been said that, with the admission of the U.S.-associated
states to the UN in 1990, the UN recognized that the
American model of free association is actually based on an
underlying status of independence.152
In international practice, the "associated state" arrangement
has usually been used as a transitional device of former
colonies on their way to full independence. Examples of states
that have passed through the status of associated states as a
transitional phase are Antigua, St. Kitts-Nevis-Anguilla,
Dominica, St. Lucia, St. Vincent and Grenada. All have since
become independent states.153
Back to the MOA-AD, it contains many provisions which are
consistent with the international legal concept of association,
specifically the following: the BJE's capacity to enter into
economic and trade relations with foreign countries, the
commitment of the Central Government to ensure the BJE's
participation in meetings and events in the ASEAN and the
specialized UN agencies, and the continuing responsibility of
the Central Government over external defense. Moreover,
the BJE's right to participate in Philippine official missions
bearing on negotiation of border agreements, environmental
protection, and sharing of revenues pertaining to the bodies
of water adjacent to or between the islands forming part of
the ancestral domain, resembles the right of the governments
of FSM and the Marshall Islands to be consulted by the U.S.
government on any foreign affairs matter affecting them.
These provisions of the MOA indicate, among other things,
that the Parties aimed to vest in the BJE the status of
an associated state or, at any rate, a status closely
approximating it.
The concept of association is not recognized under the
present Constitution
No province, city, or municipality, not even the ARMM, is
recognized under our laws as having an "associative"
relationship with the national government. Indeed, the
concept implies powers that go beyond anything ever granted
by the Constitution to any local or regional government. It
also implies the recognition of the associated entity as a state.
The Constitution, however, does not contemplate any state in
this jurisdiction other than the Philippine State, much less
does it provide for a transitory status that aims to prepare any
part of Philippine territory for independence.
Even the mere concept animating many of the MOA-AD's
provisions, therefore, already requires for its validity the
14
amendment of constitutional provisions, specifically the
following provisions of Article X:
SECTION 1. The territorial and political subdivisions
of the Republic of the Philippines are the provinces,
cities, municipalities, and barangays. There shall
be autonomous regions in Muslim Mindanao and
the Cordilleras as hereinafter provided.
SECTION 15. There shall be created autonomous
regions in Muslim Mindanao and in the Cordilleras
consisting of provinces, cities, municipalities, and
geographical areas sharing common and distinctive
historical and cultural heritage, economic and social
structures, and other relevant characteristics within
the framework of this Constitution and the
national sovereignty as well as territorial integrity
of the Republic of the Philippines.
The BJE is a far more powerful
entity than the autonomous region
recognized in the Constitution
It is not merely an expanded version of the ARMM, the status
of its relationship with the national government being
fundamentally different from that of the ARMM. Indeed, BJE
is a state in all but name as it meets the criteria of a state
laid down in the Montevideo Convention,154 namely,
a permanent population, a defined territory, a government,
and a capacity to enter into relations with other states.
Even assuming arguendo that the MOA-AD would not
necessarily sever any portion of Philippine territory, the spirit
animating it - which has betrayed itself by its use of the
concept of association - runs counter to the national
sovereignty and territorial integrity of the Republic.
The defining concept underlying the relationship between
the national government and the BJE being itself contrary to
the present Constitution, it is not surprising that many of the
specific provisions of the MOA-AD on the formation and
powers of the BJE are in conflict with the Constitution and
the laws.
Article X, Section 18 of the Constitution provides that "[t]he
creation of the autonomous region shall be effective when
approved by a majority of the votes cast by the constituent
units in a plebiscite called for the purpose, provided that only
provinces, cities, and geographic areas voting favorably in
such plebiscite shall be included in the autonomous region."
(Emphasis supplied)
As reflected above, the BJE is more of a state than an
autonomous region. But even assuming that it is covered by
the term "autonomous region" in the constitutional provision
just quoted, the MOA-AD would still be in conflict with it.
Under paragraph 2(c) on TERRITORY in relation to 2(d) and
2(e), the present geographic area of the ARMM and, in
addition, the municipalities of Lanao del Norte which voted
for inclusion in the ARMM during the 2001 plebiscite - Baloi,
Munai, Nunungan, Pantar, Tagoloan and Tangkal - are
automatically part of the BJE without need of another
plebiscite, in contrast to the areas under Categories A and B
mentioned earlier in the overview. That the present
components of the ARMM and the above-mentioned
municipalities voted for inclusion therein in 2001, however,
does not render another plebiscite unnecessary under the
Constitution, precisely because what these areas voted for
then was their inclusion in the ARMM, not the BJE.
The MOA-AD, moreover, would not
comply with Article X, Section 20 of
the Constitution
since that provision defines the powers of autonomous
regions as follows:
SECTION 20. Within its territorial jurisdiction
and subject to the provisions of this Constitution
and national laws, the organic act of autonomous
regions shall provide for legislative powers over:
(1) Administrative organization;
(2) Creation of sources of revenues;
(3) Ancestral domain and natural resources;
(4) Personal, family, and property relations;
(5) Regional urban and rural planning development;
(6) Economic, social, and tourism development;
(7) Educational policies;
(8) Preservation and development of the cultural
heritage; and
(9) Such other matters as may be authorized by law
for the promotion of the general welfare of the
people of the region. (Underscoring supplied)
Again on the premise that the BJE may be regarded as an
autonomous region, the MOA-AD would require an
amendment that would expand the above-quoted provision.
The mere passage of new legislation pursuant to sub-
paragraph No. 9 of said constitutional provision would not
suffice, since any new law that might vest in the BJE the
powers found in the MOA-AD must, itself, comply with other
provisions of the Constitution. It would not do, for instance,
to merely pass legislation vesting the BJE with treaty-making
power in order to accommodate paragraph 4 of the strand on
RESOURCES which states: "The BJE is free to enter into any
economic cooperation and trade relations with foreign
countries: provided, however, that such relationships and
understandings do not include aggression against the
Government of the Republic of the Philippines x x x." Under
our constitutional system, it is only the President who has
that power. Pimentel v. Executive Secretary155 instructs:
In our system of government, the President, being
the head of state, is regarded as the sole organ and
authority in external relations and is the country's
sole representative with foreign nations. As the
chief architect of foreign policy, the President acts
as the country's mouthpiece with respect to
international affairs. Hence, the President is vested
with the authority to deal with foreign states and
governments, extend or withhold
recognition, maintain diplomatic relations, enter
into treaties, and otherwise transact the business
15
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. 9054156 or the Organic Act of the ARMM,
and the IPRA.157
Article X, Section 3 of the Organic Act of the ARMM is a bar
to the adoption of the definition of "Bangsamoro
people" used in the MOA-AD. Paragraph 1 on Concepts and
Principles states:
1. It is the birthright of all Moros and all Indigenous
peoples of Mindanao to identify themselves and
be accepted as "Bangsamoros". The Bangsamoro
people refers to those who are natives or original
inhabitants of Mindanao and its adjacent
islands including Palawan and the Sulu archipelago
at the time of conquest or colonization of its
descendants whether mixed or of full blood.
Spouses and their descendants are classified as
Bangsamoro. The freedom of choice of the
Indigenous people shall be respected. (Emphasis
and underscoring supplied)
This use of the term Bangsamoro sharply contrasts with that
found in the Article X, Section 3 of the Organic Act, which,
rather than lumping together the identities of the
Bangsamoro and other indigenous peoples living in
Mindanao, clearly distinguishes between Bangsamoro people
and Tribal peoples, as follows:
"As used in this Organic Act, the phrase "indigenous
cultural community" refers to Filipino citizens
residing in the autonomous region who are:
(a) Tribal peoples. These are citizens whose social,
cultural and economic conditions distinguish them
from other sectors of the national community; and
(b) Bangsa Moro people. These are citizens who
are believers in Islam and who have retained some
or all of their own social, economic, cultural, and
political institutions."
Respecting the IPRA, it lays down the prevailing procedure for
the delineation and recognition of ancestral domains. The
MOA-AD's manner of delineating the ancestral domain of the
Bangsamoro people is a clear departure from that procedure.
By paragraph 1 of Territory, the Parties simply agree that,
subject to the delimitations in the agreed Schedules, "[t]he
Bangsamoro homeland and historic territory refer to the land
mass as well as the maritime, terrestrial, fluvial and alluvial
domains, and the aerial domain, the atmospheric space above
it, embracing the Mindanao-Sulu-Palawan geographic region."
Chapter VIII of the IPRA, on the other hand, lays down a
detailed procedure, as illustrated in the following provisions
thereof:
SECTION 52. Delineation Process. - The
identification and delineation of ancestral domains
shall be done in accordance with the following
procedures:
xxxx
b) Petition for Delineation. - The process of
delineating a specific perimeter may be initiated by
the NCIP with the consent of the ICC/IP concerned,
or through a Petition for Delineation filed with the
NCIP, by a majority of the members of the ICCs/IPs;
c) Delineation Proper. - The official delineation of
ancestral domain boundaries including census of all
community members therein, shall be immediately
undertaken by the Ancestral Domains Office upon
filing of the application by the ICCs/IPs concerned.
Delineation will be done in coordination with the
community concerned and shall at all times include
genuine involvement and participation by the
members of the communities concerned;
d) Proof Required. - Proof of Ancestral Domain
Claims shall include the testimony of elders or
community under oath, and other documents
directly or indirectly attesting to the possession or
occupation of the area since time immemorial by
such ICCs/IPs in the concept of owners which shall
be any one (1) of the following authentic
documents:
1) Written accounts of the ICCs/IPs
customs and traditions;
2) Written accounts of the ICCs/IPs
political structure and institution;
3) Pictures showing long term occupation
such as those of old improvements, burial
grounds, sacred places and old villages;
4) Historical accounts, including pacts and
agreements concerning boundaries
entered into by the ICCs/IPs concerned
with other ICCs/IPs;
5) Survey plans and sketch maps;
6) Anthropological data;
7) Genealogical surveys;
8) Pictures and descriptive histories of
traditional communal forests and hunting
grounds;
16
9) Pictures and descriptive histories of
traditional landmarks such as mountains,
rivers, creeks, ridges, hills, terraces and
the like; and
10) Write-ups of names and places
derived from the native dialect of the
community.
e) Preparation of Maps. - On the basis of such
investigation and the findings of fact based thereon,
the Ancestral Domains Office of the NCIP shall
prepare a perimeter map, complete with technical
descriptions, and a description of the natural
features and landmarks embraced therein;
f) Report of Investigation and Other Documents. - A
complete copy of the preliminary census and a
report of investigation, shall be prepared by the
Ancestral Domains Office of the NCIP;
g) Notice and Publication. - A copy of each
document, including a translation in the native
language of the ICCs/IPs concerned shall be posted
in a prominent place therein for at least fifteen (15)
days. A copy of the document shall also be posted
at the local, provincial and regional offices of the
NCIP, and shall be published in a newspaper of
general circulation once a week for two (2)
consecutive weeks to allow other claimants to file
opposition thereto within fifteen (15) days from
date of such publication: Provided, That in areas
where no such newspaper exists, broadcasting in a
radio station will be a valid substitute: Provided,
further, That mere posting shall be deemed
sufficient if both newspaper and radio station are
not available;
h) Endorsement to NCIP. - Within fifteen (15) days
from publication, and of the inspection process, the
Ancestral Domains Office shall prepare a report to
the NCIP endorsing a favorable action upon a claim
that is deemed to have sufficient proof. However, if
the proof is deemed insufficient, the Ancestral
Domains Office shall require the submission of
 additional evidence: Provided, That the Ancestral
Domains Office shall reject any claim that is deemed
patently false or fraudulent after inspection and
verification: Provided, further, That in case of
rejection, the Ancestral Domains Office shall give
the applicant due notice, copy furnished all
concerned, containing the grounds for denial. The
denial shall be appealable to the NCIP: Provided,
furthermore, That in cases where there are
conflicting claims among ICCs/IPs on the boundaries
of ancestral domain claims, the Ancestral Domains
Office shall cause the contending parties to meet
and assist them in coming up with a preliminary
resolution of the conflict, without prejudice to its
full adjudication according to the section below.
xxxx
To remove all doubts about the irreconcilability of the MOA-
AD with the present legal system, a discussion of not only the
Constitution and domestic statutes, but also of international
law is in order, for
Article II, Section 2 of the Constitution states that the
Philippines "adopts the generally accepted principles of
international law as part of the law of the land."
Applying this provision of the Constitution, the Court,
in Mejoff v. Director of Prisons,158 held that the Universal
Declaration of Human Rights is part of the law of the land on
account of which it ordered the release on bail of a detained
alien of Russian descent whose deportation order had not
been executed even after two years. Similarly, the Court
in Agustin v. Edu159 applied the aforesaid constitutional
provision to the 1968 Vienna Convention on Road Signs and
Signals.
International law has long recognized the right to self-
determination of "peoples," understood not merely as the
entire population of a State but also a portion thereof. In
considering the question of whether the people of Quebec
had a right to unilaterally secede from Canada, the Canadian
Supreme Court in REFERENCE RE SECESSION OF
QUEBEC160 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 Rights161 and the International
Covenant on Economic, Social and Cultural Rights162 which
state, in Article 1 of both covenants, that all peoples, by virtue
of the right of self-determination, "freely determine their
political status and freely pursue their economic, social, and
cultural development."
The people's right to self-determination should not, however,
be understood as extending to a unilateral right of secession.
A distinction should be made between the right of internal
and external self-determination. REFERENCE RE SECESSION
OF QUEBEC is again instructive:
"(ii) Scope of the Right to Self-determination
126. The recognized sources of international law
establish that the right to self-determination of a
people is normally fulfilled through internal self-
determination - a people's pursuit of its political,
economic, social and cultural development within
the framework of an existing state. A right
to external self-determination (which in this case
potentially takes the form of the assertion of a
right to unilateral secession) arises in only the
most extreme of cases and, even then, under
carefully defined circumstances. x x x
External self-determination can be defined as in
the following statement from the Declaration on
Friendly Relations, supra, as
The establishment of a sovereign and independent
State, the free association or integration with an
independent State or the emergence into any
other political status freely determined by
a peopleconstitute modes of implementing the right
of self-determination by that people. (Emphasis
added)
17
127. The international law principle of self-
determination has evolved within a framework of
respect for the territorial integrity of existing
states. The various international documents that
support the existence of a people's right to self-
determination also contain parallel statements
supportive of the conclusion that the exercise of
such a right must be sufficiently limited to prevent
threats to an existing state's territorial integrity or
the stability of relations between sovereign states.
x x x x (Emphasis, italics and underscoring supplied)
The Canadian Court went on to discuss the exceptional cases
in which the right to external self-determination can arise,
namely, where a people is under colonial rule, is subject to
foreign domination or exploitation outside a colonial context,
and - less definitely but asserted by a number of
commentators - is blocked from the meaningful exercise of its
right to internal self-determination. The Court ultimately held
that the population of Quebec had no right to secession, as
the same is not under colonial rule or foreign domination, nor
is it being deprived of the freedom to make political choices
and pursue economic, social and cultural development, citing
that Quebec is equitably represented in legislative, executive
and judicial institutions within Canada, even occupying
prominent positions therein.
The exceptional nature of the right of secession is further
exemplified in the REPORT OF THE INTERNATIONAL
COMMITTEE OF JURISTS ON THE LEGAL ASPECTS OF THE
AALAND ISLANDS QUESTION.163 There, Sweden presented to
the Council of the League of Nations the question of whether
the inhabitants of the Aaland Islands should be authorized to
determine by plebiscite if the archipelago should remain
under Finnish sovereignty or be incorporated in the kingdom
of Sweden. The Council, before resolving the question,
appointed an International Committee composed of three
jurists to submit an opinion on the preliminary issue of
whether the dispute should, based on international law, be
entirely left to the domestic jurisdiction of Finland. The
Committee stated the rule as follows:
x x x [I]n the absence of express provisions in
international treaties, the right of disposing of
 national territory is essentially an attribute of the
sovereignty of every State. Positive International
Law does not recognize the right of national
groups, as such, to separate themselves from the
State of which they form part by the simple
expression of a wish, any more than it recognizes
the right of other States to claim such a
separation. Generally speaking, the grant or refusal
of the right to a portion of its population of
determining its own political fate by plebiscite or
by some other method, is, exclusively, an attribute
of the sovereignty of every State which is
definitively constituted. A dispute between two
States concerning such a question, under normal
conditions therefore, bears upon a question which
International Law leaves entirely to the domestic
jurisdiction of one of the States concerned. Any
other solution would amount to an infringement of
sovereign rights of a State and would involve the
risk of creating difficulties and a lack of stability
which would not only be contrary to the very idea
embodied in term "State," but would also endanger
the interests of the international community. If this
right is not possessed by a large or small section of a
nation, neither can it be held by the State to which
the national group wishes to be attached, nor by
any other State. (Emphasis and underscoring
supplied)
The Committee held that the dispute concerning the Aaland
Islands did not refer to a question which is left by
international law to the domestic jurisdiction of Finland,
thereby applying the exception rather than the rule
elucidated above. Its ground for departing from the general
rule, however, was a very narrow one, namely, the Aaland
Islands agitation originated at a time when Finland was
undergoing drastic political transformation. The internal
situation of Finland was, according to the Committee, so
abnormal that, for a considerable time, the conditions
required for the formation of a sovereign State did not exist.
In the midst of revolution, anarchy, and civil war, the
legitimacy of the Finnish national government was disputed
by a large section of the people, and it had, in fact, been
chased from the capital and forcibly prevented from carrying
out its duties. The armed camps and the police were divided
into two opposing forces. In light of these circumstances,
Finland was not, during the relevant time period, a Article 4
"definitively constituted" sovereign state. The Committee,
therefore, found that Finland did not possess the right to Indigenous peoples, in exercising their right to self-
withhold from a portion of its population the option to determination, have the right to autonomy or self-
separate itself - a right which sovereign nations generally have government in matters relating to
with respect to their own populations. their internal and local affairs, as well as ways and
means for financing their autonomous functions.
Turning now to the more specific category
of indigenous peoples, this term has been used, in scholarship Article 5
as well as international, regional, and state practices, to refer
to groups with distinct cultures, histories, and connections to
Indigenous peoples have the right to maintain and
land (spiritual and otherwise) that have been forcibly
strengthen their distinct political, legal, economic,
incorporated into a larger governing society. These groups are
social and cultural institutions, while retaining their
regarded as "indigenous" since they are the living
right to participate fully, if they so choose, in the
descendants of pre-invasion inhabitants of lands now
political, economic, social and cultural life of the
dominated by others. Otherwise stated, indigenous peoples,
State.
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 Self-government, as used in international legal discourse
have been regarded as indigenous peoples are the Maori of pertaining to indigenous peoples, has been understood as
New Zealand and the aboriginal peoples of Canada. 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
As with the broader category of "peoples," indigenous
are quoted hereunder:
peoples situated within states do not have a general right to
independence or secession from those states under
Article 8
international law,165 but they do have rights amounting to
what was discussed above as the right to internal self-
determination. 1. Indigenous peoples and individuals have the right
not to be subjected to forced assimilation or
destruction of their culture.
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 2. States shall provide effective mechanisms for
Assembly Resolution 61/295. The vote was 143 to 4, the prevention of, and redress for:
Philippines being included among those in favor, and the four
voting against being Australia, Canada, New Zealand, and the (a) Any action which has the aim or effect of
U.S. The Declaration clearly recognized the right of depriving them of their integrity as distinct
indigenous peoples to self-determination, encompassing the peoples, or of their cultural values or ethnic
right to autonomy or self-government, to wit: identities;
Article 3 (b) Any action which has the aim or effect of
dispossessing them of their lands, territories or
Indigenous peoples have the right to self- resources;
determination. By virtue of that right they freely
determine their political status and freely pursue
their economic, social and cultural development.
18
(c) Any form of forced population transfer which
has the aim or effect of violating or undermining
any of their rights;
(d) Any form of forced assimilation or integration;
(e) Any form of propaganda designed to promote
or incite racial or ethnic discrimination directed
against them.
Article 21
1. Indigenous peoples have the right, without
discrimination, to the improvement of their
economic and social conditions, including, inter alia,
in the areas of education, employment, vocational
training and retraining, housing, sanitation, health
and social security.
2. States shall take effective measures and, where
appropriate, special measures to ensure continuing
improvement of their economic and social
conditions. Particular attention shall be paid to the
rights and special needs of indigenous elders,
women, youth, children and persons with
disabilities.
Article 26
1. Indigenous peoples have the right to the lands,
territories and resources which they have
traditionally owned, occupied or otherwise used or
acquired.
2. Indigenous peoples have the right to own, use,
develop and control the lands, territories and
resources that they possess by reason of traditional
ownership or other traditional occupation or use, as
well as those which they have otherwise acquired.
3. States shall give legal recognition and protection
to these lands, territories and resources. Such
recognition shall be conducted with due respect to
the customs, traditions and land tenure systems of
the indigenous peoples concerned.
Article 30
1. Military activities shall not take place in the lands
or territories of indigenous peoples, unless justified
by a relevant public interest or otherwise freely
agreed with or requested by the indigenous peoples
concerned.
2. States shall undertake effective consultations
with the indigenous peoples concerned, through
appropriate procedures and in particular through
their representative institutions, prior to using their
lands or territories for military activities.
Article 32
1. Indigenous peoples have the right to determine
and develop priorities and strategies for the
development or use of their lands or territories and
other resources.
2. States shall consult and cooperate in good faith
with the indigenous peoples concerned through
their own representative institutions in order to
obtain their free and informed consent prior to the
approval of any project affecting their lands or
territories and other resources, particularly in
connection with the development, utilization or
exploitation of mineral, water or other resources.
3. States shall provide effective mechanisms for just
and fair redress for any such activities, and
appropriate measures shall be taken to mitigate
adverse environmental, economic, social, cultural or
spiritual impact.
Article 37
1. Indigenous peoples have the right to the
recognition, observance and enforcement of
treaties, agreements and other constructive
19
arrangements concluded with States or their
successors and to have States honour and respect
such treaties, agreements and other constructive
arrangements.
2. Nothing in this Declaration may be interpreted as
diminishing or eliminating the rights of indigenous
peoples contained in treaties, agreements and
other constructive arrangements.
Article 38
States in consultation and cooperation with
indigenous peoples, shall take the appropriate
measures, including legislative measures, to achieve
the ends of this Declaration.
Assuming that the UN DRIP, like the Universal Declaration on
Human Rights, must now be regarded as embodying
customary international law - a question which the Court
need not definitively resolve here - the obligations
enumerated therein do not strictly require the Republic to
grant the Bangsamoro people, through the instrumentality of
the BJE, the particular rights and powers provided for in the
MOA-AD. Even the more specific provisions of the UN DRIP
are general in scope, allowing for flexibility in its application
by the different States.
There is, for instance, no requirement in the UN DRIP that
States now guarantee indigenous peoples their own police
and internal security force. Indeed, Article 8 presupposes that
it is the State which will provide protection for indigenous
peoples against acts like the forced dispossession of their
lands - a function that is normally performed by police
officers. If the protection of a right so essential to indigenous
people's identity is acknowledged to be the responsibility of
the State, then surely the protection of rights less significant
to them as such peoples would also be the duty of States. Nor
is there in the UN DRIP an acknowledgement of the right of
indigenous peoples to the aerial domain and atmospheric
space. What it upholds, in Article 26 thereof, is the right of
indigenous peoples to the lands, territories and resources
which they have traditionally owned, occupied or otherwise
used or acquired.
Moreover, the UN DRIP, while upholding the right of
indigenous peoples to autonomy, does not obligate States to
grant indigenous peoples the near-independent status of an
associated state. All the rights recognized in that document
are qualified in Article 46 as follows:
1. Nothing in this Declaration may be interpreted
as implying for any State, people, group or person
any right to engage in any activity or to perform any
act contrary to the Charter of the United Nations
or construed as authorizing or encouraging any
action which would dismember or impair, totally
or in part, the territorial integrity or political
unity of sovereign and independent States.
Even if the UN DRIP were considered as part of the law of the
land pursuant to Article II, Section 2 of the Constitution, it
would not suffice to uphold the validity of the MOA-AD so as
to render its compliance with other laws unnecessary.
It is, therefore, clear that the MOA-AD contains numerous
provisions that cannot be reconciled with the Constitution
and the laws as presently worded. Respondents proffer,
however, that the signing of the MOA-AD alone would not
have entailed any violation of law or grave abuse of discretion
on their part, precisely because it stipulates that the
provisions thereof inconsistent with the laws shall not take
effect until these laws are amended. They cite paragraph 7 of
the MOA-AD strand on GOVERNANCE quoted earlier, but
which is reproduced below for convenience:
7. The Parties agree that the mechanisms and
modalities for the actual implementation of this
MOA-AD shall be spelt out in the Comprehensive
Compact to mutually take such steps to enable it to
occur effectively.
Any provisions of the MOA-AD requiring
amendments to the existing legal framework shall
come into force upon signing of a Comprehensive
Compact and upon effecting the necessary changes
to the legal framework with due regard to non
derogation of prior agreements and within the
stipulated timeframe to be contained in the
Comprehensive Compact.
Indeed, the foregoing stipulation keeps many controversial
provisions of the MOA-AD from coming into force until the
necessary changes to the legal framework are effected. While
the word "Constitution" is not mentioned in the provision
now under consideration or anywhere else in the MOA-AD,
the term "legal framework" is certainly broad enough to
include the Constitution.
Notwithstanding the suspensive clause, however,
respondents, by their mere act of incorporating in the MOA-
AD the provisions thereof regarding the associative
relationship between the BJE and the Central Government,
have already violated the Memorandum of Instructions From
The President dated March 1, 2001, which states that the
"negotiations shall be conducted in accordance with x x x the
principles of the sovereignty and territorial integrityof the
Republic of the Philippines." (Emphasis supplied) Establishing
an associative relationship between the BJE and the Central
Government is, for the reasons already discussed, a
preparation for independence, or worse, an implicit
acknowledgment of an independent status already prevailing.
Even apart from the above-mentioned Memorandum,
however, the MOA-AD is defective because the suspensive
clause is invalid, as discussed below.
The authority of the GRP Peace Negotiating Panel to
negotiate with the MILF is founded on E.O. No. 3, Section 5(c),
which states that there shall be established Government
Peace Negotiating Panels for negotiations with different rebel
groups to be "appointed by the President as her official
emissaries to conduct negotiations, dialogues, and face-to-
face discussions with rebel groups." These negotiating panels
are to report to the President, through the PAPP on the
conduct and progress of the negotiations.
It bears noting that the GRP Peace Panel, in exploring lasting
solutions to the Moro Problem through its negotiations with
the MILF, was not restricted by E.O. No. 3 only to those
options available under the laws as they presently stand. One
of the components of a comprehensive peace process, which
E.O. No. 3 collectively refers to as the "Paths to Peace," is the
pursuit of social, economic, and political reforms which may
require new legislation or even constitutional amendments.
20
Sec. 4(a) of E.O. No. 3, which reiterates Section 3(a), of E.O.
No. 125,167 states:
SECTION 4. The Six Paths to Peace. - The
components of the comprehensive peace process
comprise the processes known as the "Paths to
Peace". These component processes are
interrelated and not mutually exclusive, and must
therefore be pursued simultaneously in a
coordinated and integrated fashion. They shall
include, but may not be limited to, the following:
a. PURSUIT OF SOCIAL, ECONOMIC AND POLITICAL
REFORMS. This component involves the vigorous
implementation of various policies, reforms,
programs and projects aimed at addressing the
root causes of internal armed conflicts and social
unrest. This may require administrative action,
new legislation or even constitutional
amendments.
x x x x (Emphasis supplied)
The MOA-AD, therefore, may reasonably be perceived as an
attempt of respondents to address, pursuant to this provision
of E.O. No. 3, the root causes of the armed conflict in
Mindanao. The E.O. authorized them to "think outside the
box," so to speak. Hence, they negotiated and were set on
signing the MOA-AD that included various social, economic,
and political reforms which cannot, however, all be
accommodated within the present legal framework, and
which thus would require new legislation and constitutional
amendments.
The inquiry on the legality of the "suspensive clause,"
however, cannot stop here, because it must be
asked whether the President herself may exercise the power
delegated to the GRP Peace Panel under E.O. No. 3, Sec.
4(a).
The President cannot delegate a power that she herself does
not possess. May the President, in the course of peace
negotiations, agree to pursue reforms that would require new
legislation and constitutional amendments, or should the
reforms be restricted only to those solutions which the
present laws allow? The answer to this question requires a
discussion of the extent of the President's power to conduct
peace negotiations.
That the authority of the President to conduct peace
negotiations with rebel groups is not explicitly mentioned in
the Constitution does not mean that she has no such
authority. In Sanlakas v. Executive Secretary,168 in issue was
the authority of the President to declare a state of rebellion -
an authority which is not expressly provided for in the
Constitution. The Court held thus:
"In her ponencia in Marcos v. Manglapus, Justice
Cortes put her thesis into jurisprudence. There, the
Court, by a slim 8-7 margin, upheld the President's
power to forbid the return of her exiled
predecessor. The rationale for the majority's ruling
rested on the President's
. . . unstated residual powers which are
implied from the grant of executive
power and which are necessary for her to
comply with her duties under the
Constitution. The powers of the
President are not limited to what are
expressly enumerated in the article on
the Executive Department and in
scattered provisions of the
Constitution. This is so, notwithstanding
the avowed intent of the members of the
Constitutional Commission of 1986 to
limit the powers of the President as a
reaction to the abuses under the regime
of Mr. Marcos, for the result was a
limitation of specific powers of the
President, particularly those relating to
the commander-in-chief clause, but not a
diminution of the general grant of
executive power.
Thus, the President's authority to declare a state of
rebellion springs in the main from her powers as
chief executive and, at the same time, draws
strength from her Commander-in-Chief powers. x x
x (Emphasis and underscoring supplied)
Similarly, the President's power to conduct peace
negotiations is implicitly included in her powers as Chief
Executive and Commander-in-Chief. As Chief Executive, the
President has the general responsibility to promote public
peace, and as Commander-in-Chief, she has the more specific
duty to prevent and suppress rebellion and lawless
violence.169
As the experience of nations which have similarly gone
through internal armed conflict will show, however, peace is
rarely attained by simply pursuing a military solution.
Oftentimes, changes as far-reaching as a fundamental
reconfiguration of the nation's constitutional structure is
required. The observations of Dr. Kirsti Samuels are
enlightening, to wit:
x x x [T]he fact remains that a successful political
and governance transition must form the core of
any post-conflict peace-building mission. As we
have observed in Liberia and Haiti over the last ten
years, conflict cessation without modification of the
political environment, even where state-building is
undertaken through technical electoral assistance
and institution- or capacity-building, is unlikely to
succeed. On average, more than 50 percent of
states emerging from conflict return to conflict.
Moreover, a substantial proportion of transitions
have resulted in weak or limited democracies.
The design of a constitution and its constitution-
making process can play an important role in the
political and governance transition. Constitution-
making after conflict is an opportunity to create a
common vision of the future of a state and a road
map on how to get there. The constitution can be
partly a peace agreement and partly a framework
setting up the rules by which the new democracy
will operate.170
In the same vein, Professor Christine Bell, in her article on the
nature and legal status of peace agreements, observed that
the typical way that peace agreements establish or confirm
mechanisms for demilitarization and demobilization is by
linking them to new constitutional structures addressing
21
governance, elections, and legal and human rights
institutions.171
In the Philippine experience, the link between peace
agreements and constitution-making has been recognized by
no less than the framers of the Constitution. Behind the
provisions of the Constitution on autonomous regions172 is
the framers' intention to implement a particular peace
agreement, namely, the Tripoli Agreement of 1976 between
the GRP and the MNLF, signed by then Undersecretary of
National Defense Carmelo Z. Barbero and then MNLF
Chairman Nur Misuari.
MR. ROMULO. There are other speakers; so,
although I have some more questions, I will reserve
my right to ask them if they are not covered by the
other speakers. I have only two questions.
I heard one of the Commissioners say that local
autonomy already exists in the Muslim region; it is
working very well; it has, in fact, diminished a great
deal of the problems. So, my question is: since that
already exists, why do we have to go into
something new?
MR. OPLE. May I answer that on behalf of Chairman
Nolledo. Commissioner Yusup Abubakar is right
that certain definite steps have been taken to
implement the provisions of the Tripoli Agreement
with respect to an autonomous region in
Mindanao. This is a good first step, but there is no
question that this is merely a partial response to
the Tripoli Agreement itself and to the fuller
standard of regional autonomy contemplated in
that agreement, and now by state
policy.173(Emphasis supplied)
The constitutional provisions on autonomy and the statutes
enacted pursuant to them have, to the credit of their drafters,
been partly successful. Nonetheless, the Filipino people are
still faced with the reality of an on-going conflict between the
Government and the MILF. If the President is to be expected
to find means for bringing this conflict to an end and to
achieve lasting peace in Mindanao, then she must be given
the leeway to explore, in the course of peace negotiations,
solutions that may require changes to the Constitution for
their implementation. Being uniquely vested with the power
to conduct peace negotiations with rebel groups, the
President is in a singular position to know the precise nature
of their grievances which, if resolved, may bring an end to
hostilities.
The President may not, of course, unilaterally implement the
solutions that she considers viable, but she may not be
prevented from submitting them as recommendations to
Congress, which could then, if it is minded, act upon them
pursuant to the legal procedures for constitutional
amendment and revision. In particular, Congress would have
the option, pursuant to Article XVII, Sections 1 and 3 of the
Constitution, to propose the recommended amendments or
revision to the people, call a constitutional convention, or
submit to the electorate the question of calling such a
convention.
While the President does not possess constituent powers - as
those powers may be exercised only by Congress, a
Constitutional Convention, or the people through initiative
and referendum - she may submit proposals for constitutional
change to Congress in a manner that does not involve the
arrogation of constituent powers.
In Sanidad v. COMELEC,174 in issue was the legality of then
President Marcos' act of directly submitting proposals for
constitutional amendments to a referendum, bypassing the
interim National Assembly which was the body vested by the
1973 Constitution with the power to propose such
amendments. President Marcos, it will be recalled, never
convened the interim National Assembly. The majority upheld
the President's act, holding that "the urges of absolute
necessity" compelled the President as the agent of the people
to act as he did, there being no interim National Assembly to
propose constitutional amendments. Against this ruling,
Justices Teehankee and Muñoz Palma vigorously dissented.
The Court's concern at present, however, is not with regard to
the point on which it was then divided in that controversial
case, but on that which was not disputed by either side.
Justice Teehankee's dissent,175 in particular, bears noting.
While he disagreed that the President may directly submit
proposed constitutional amendments to a referendum,
implicit in his opinion is a recognition that he would have
upheld the President's action along with the majority had the
President convened the interim National Assembly and
coursed his proposals through it. Thus Justice Teehankee
opined:
"Since the Constitution provides for the
organization of the essential departments of
government, defines and delimits the powers of
each and prescribes the manner of the exercise of
such powers, and the constituent power has not
been granted to but has been withheld from the
President or Prime Minister, it follows that the
President's questioned decrees proposing and
submitting constitutional amendments directly to
the people (without the intervention of the interim
National Assembly in whom the power is expressly
vested) are devoid of constitutional and legal
basis."176 (Emphasis supplied)
From the foregoing discussion, the principle may be inferred
that the President - in the course of conducting peace
negotiations - may validly consider implementing even those
policies that require changes to the Constitution, but she
may not unilaterally implement them without the
intervention of Congress, or act in any way as if the assent of
that body were assumed as a certainty.
Since, under the present Constitution, the people also have
the power to directly propose amendments through initiative
and referendum, the President may also submit her
recommendations to the people, not as a formal proposal to
be voted on in a plebiscite similar to what President Marcos
did in Sanidad, but for their independent consideration of
whether these recommendations merit being formally
proposed through initiative.
These recommendations, however, may amount to nothing
more than the President's suggestions to the people, for any
further involvement in the process of initiative by the Chief
Executive may vitiate its character as a genuine
"people's initiative." The only initiative recognized by the
Constitution is that which truly proceeds from the people. As
the Court stated in Lambino v. COMELEC:177
22
"The Lambino Group claims that their initiative is
the ‘people's voice.' However, the Lambino Group
unabashedly states in ULAP Resolution No. 2006-02,
in the verification of their petition with the
COMELEC, that ‘ULAP maintains its unqualified
support to the agenda of Her Excellency President
Gloria Macapagal-Arroyo for constitutional
reforms.' The Lambino Group thus admits that their
‘people's' initiative is an ‘unqualified support to the
agenda' of the incumbent President to change the
Constitution. This forewarns the Court to be wary of
incantations of ‘people's voice' or ‘sovereign will' in
the present initiative."
It will be observed that the President has authority, as stated
in her oath of office,178 only to preserve and defend the
Constitution. Such presidential power does not, however,
extend to allowing her to change the Constitution, but simply
to recommend proposed amendments or revision. As long as
she limits herself to recommending these changes and
submits to the proper procedure for constitutional
amendments and revision, her mere recommendation need
not be construed as an unconstitutional act.
The foregoing discussion focused on the President's authority
to propose constitutional amendments, since her authority to
propose new legislation is not in controversy. It has been an
accepted practice for Presidents in this jurisdiction to propose
new legislation. One of the more prominent instances the
practice is usually done is in the yearly State of the Nation
Address of the President to Congress. Moreover, the annual
general appropriations bill has always been based on the
budget prepared by the President, which - for all intents and
purposes - is a proposal for new legislation coming from the
President.179
The "suspensive clause" in the MOA-AD viewed in light of
the above-discussed standards
Given the limited nature of the President's authority to
propose constitutional amendments, she cannot guaranteeto
any third party that the required amendments will eventually
be put in place, nor even be submitted to a plebiscite. The
most she could do is submit these proposals as
recommendations either to Congress or the people, in whom
constituent powers are vested.
Paragraph 7 on Governance of the MOA-AD states, however,
that all provisions thereof which cannot be reconciled with
the present Constitution and laws "shall come into force upon
signing of a Comprehensive Compact and upon effecting the
necessary changes to the legal framework." This stipulation
does not bear the marks of a suspensive condition - defined in
civil law as a future and uncertain event - but of a term. It is
not a question of whether the necessary changes to the legal
framework will be effected, but when. That there is no
uncertainty being contemplated is plain from what follows,
for the paragraph goes on to state that the contemplated
changes shall be "with due regard to non derogation of prior
agreements and within the stipulated timeframe to be
contained in the Comprehensive Compact."
Pursuant to this stipulation, therefore, it is mandatory for the
GRP to effect the changes to the legal framework
contemplated in the MOA-AD - which changes would include
constitutional amendments, as discussed earlier. It bears
noting that,
By the time these changes are put in place, the MOA-AD
itself would be counted among the "prior agreements" from
which there could be no derogation.
What remains for discussion in the Comprehensive Compact
would merely be the implementing details for these
"consensus points" and, notably, the deadline for effecting
the contemplated changes to the legal framework.
Plainly, stipulation-paragraph 7 on GOVERNANCE
is inconsistent with the limits of the President's authority to
propose constitutional amendments, it being a virtual
guarantee that the Constitution and the laws of the Republic
of the Philippines will certainly be adjusted to conform to all
the "consensus points" found in the MOA-AD. Hence, it must
be struck down as unconstitutional.
A comparison between the "suspensive clause" of the MOA-
AD with a similar provision appearing in the 1996 final peace
agreement between the MNLF and the GRP is most
instructive.
As a backdrop, the parties to the 1996 Agreement stipulated
that it would be implemented in two phases. Phase Icovered
a three-year transitional period involving the putting up of
new administrative structures through Executive Order, such
as the Special Zone of Peace and Development (SZOPAD) and
the Southern Philippines Council for Peace and Development
(SPCPD), while Phase II covered the establishment of the new
regional autonomous government through amendment or
repeal of R.A. No. 6734, which was then the Organic Act of
the ARMM.
The stipulations on Phase II consisted of specific agreements
on the structure of the expanded autonomous region
envisioned by the parties. To that extent, they are similar to
the provisions of the MOA-AD. There is, however, a crucial
difference between the two agreements. While the MOA-
AD virtually guarantees that the "necessary changes to the
legal framework" will be put in place, the GRP-MNLF final
peace agreement states thus: "Accordingly, these provisions
[on Phase II] shall be recommended by the GRP to Congress
for incorporation in the amendatory or repealing law."
Concerns have been raised that the MOA-AD would have
given rise to a binding international law obligation on the part
of the Philippines to change its Constitution in conformity
thereto, on the ground that it may be considered either as a
binding agreement under international law, or a unilateral
declaration of the Philippine government to the international
community that it would grant to the Bangsamoro people all
the concessions therein stated. Neither ground finds sufficient
support in international law, however.
The MOA-AD, as earlier mentioned in the overview thereof,
would have included foreign dignitaries as signatories. In
addition, representatives of other nations were invited to
witness its signing in Kuala Lumpur. These circumstances
readily lead one to surmise that the MOA-AD would have had
the status of a binding international agreement had it been
signed. An examination of the prevailing principles in
international law, however, leads to the contrary conclusion.
The Decision on Challenge to Jurisdiction: Lomé Accord
Amnesty180 (the Lomé Accord case) of the Special Court of
Sierra Leone is enlightening. The Lomé Accord was a peace
agreement signed on July 7, 1999 between the Government
23
of Sierra Leone and the Revolutionary United Front (RUF), a
rebel group with which the Sierra Leone Government had
been in armed conflict for around eight years at the time of
signing. There were non-contracting signatories to the
agreement, among which were the Government of the
Togolese Republic, the Economic Community of West African
States, and the UN.
On January 16, 2002, after a successful negotiation between
the UN Secretary-General and the Sierra Leone Government,
another agreement was entered into by the UN and that
Government whereby the Special Court of Sierra Leone was
established. The sole purpose of the Special Court, an
international court, was to try persons who bore the greatest
responsibility for serious violations of international
humanitarian law and Sierra Leonean law committed in the
territory of Sierra Leone since November 30, 1996.
Among the stipulations of the Lomé Accord was a provision
for the full pardon of the members of the RUF with respect to
anything done by them in pursuit of their objectives as
members of that organization since the conflict began.
In the Lomé Accord case, the Defence argued that the Accord
created an internationally binding obligation not to
prosecute the beneficiaries of the amnesty provided
therein, citing, among other things, the participation of
foreign dignitaries and international organizations in the
finalization of that agreement. The Special Court, however,
rejected this argument, ruling that the Lome Accord is not a
treaty and that it can only create binding obligations and
rights between the parties in municipal law, not in
international law. Hence, the Special Court held, it is
ineffective in depriving an international court like it of
jurisdiction.
"37. In regard to the nature of a negotiated
settlement of an internal armed conflict it is easy to
assume and to argue with some degree of
plausibility, as Defence counsel for the defendants
seem to have done, that the mere fact that in
addition to the parties to the conflict, the
document formalizing the settlement is signed by
foreign heads of state or their representatives and
representatives of international organizations,
means the agreement of the parties is
internationalized so as to create obligations in
international law.
xxxx
40. Almost every conflict resolution will involve the
parties to the conflict and the mediator or facilitator
of the settlement, or persons or bodies under
whose auspices the settlement took place but who
are not at all parties to the conflict, are not
contracting parties and who do not claim any
obligation from the contracting parties or incur any
obligation from the settlement.
41. In this case, the parties to the conflict are the
lawful authority of the State and the RUF which
has no status of statehood and is to all intents and
purposes a faction within the state. The non-
contracting signatories of the Lomé Agreement
were moral guarantors of the principle that, in the
terms of Article XXXIV of the Agreement, "this
peace agreement is implemented with integrity
and in good faith by both parties". The moral
guarantors assumed no legal obligation. It is
recalled that the UN by its representative
appended, presumably for avoidance of doubt, an
understanding of the extent of the agreement to be
implemented as not including certain international
crimes.
42. An international agreement in the nature of a
treaty must create rights and obligations regulated
by international law so that a breach of its terms
will be a breach determined under international law
which will also provide principle means of
enforcement. The Lomé Agreement created neither
rights nor obligations capable of being regulated
by international law. An agreement such as the
Lomé Agreement which brings to an end an
internal armed conflict no doubt creates a factual
situation of restoration of peace that the
international community acting through the
Security Council may take note of. That, however,
will not convert it to an international agreement
which creates an obligation enforceable in
international, as distinguished from municipal,
law. A breach of the terms of such a peace
agreement resulting in resumption of internal
armed conflict or creating a threat to peace in the
determination of the Security Council may indicate
a reversal of the factual situation of peace to be
visited with possible legal consequences arising
from the new situation of conflict created. Such
consequences such as action by the Security Council
pursuant to Chapter VII arise from the situation and
not from the agreement, nor from the obligation
imposed by it. Such action cannot be regarded as a
remedy for the breach. A peace agreement which
settles an internal armed conflict cannot be
ascribed the same status as one which settles an
international armed conflict which, essentially,
must be between two or more warring States. The
Lomé Agreement cannot be characterised as an
international instrument. x x x" (Emphasis, italics
and underscoring supplied)
Similarly, that the MOA-AD would have been signed by
representatives of States and international organizations not
parties to the Agreement would not have sufficed to vest in it
a binding character under international law.
In another vein, concern has been raised that the MOA-AD
would amount to a unilateral declaration of the Philippine
State, binding under international law, that it would comply
with all the stipulations stated therein, with the result that it
would have to amend its Constitution accordingly regardless
of the true will of the people. Cited as authority for this view
is Australia v. France,181 also known as the Nuclear Tests Case,
decided by the International Court of Justice (ICJ).
In the Nuclear Tests Case, Australia challenged before the ICJ
the legality of France's nuclear tests in the South Pacific.
France refused to appear in the case, but public statements
from its President, and similar statements from other French
officials including its Minister of Defence, that its 1974 series
of atmospheric tests would be its last, persuaded the ICJ to
dismiss the case.182 Those statements, the ICJ held, amounted
to a legal undertaking addressed to the international
24
community, which required no acceptance from other States
for it to become effective.
Essential to the ICJ ruling is its finding that the French
government intended to be bound to the international
community in issuing its public statements, viz:
43. It is well recognized that declarations made by
way of unilateral acts, concerning legal or factual
situations, may have the effect of creating legal
obligations. Declarations of this kind may be, and
often are, very specific. When it is the intention of
the State making the declaration that it should
become bound according to its terms, that
intention confers on the declaration the character
of a legal undertaking, the State being thenceforth
legally required to follow a course of conduct
consistent with the declaration. An undertaking of
this kind, if given publicly, and with an intent to be
bound, even though not made within the context of
international negotiations, is binding. In these
circumstances, nothing in the nature of a quid pro
quo nor any subsequent acceptance of the
declaration, nor even any reply or reaction from
other States, is required for the declaration to take
effect, since such a requirement would be
inconsistent with the strictly unilateral nature of the
juridical act by which the pronouncement by the
State was made.
44. Of course, not all unilateral acts imply
obligation; but a State may choose to take up a
certain position in relation to a particular matter
with the intention of being bound-the intention is
to be ascertained by interpretation of the
act. When States make statements by which their
freedom of action is to be limited, a restrictive
interpretation is called for.
xxxx
51. In announcing that the 1974 series of
atmospheric tests would be the last, the French
Government conveyed to the world at large,
including the Applicant, its intention effectively to
 terminate these tests. It was bound to assume that
other States might take note of these statements
and rely on their being effective. The validity of
these statements and their legal consequences
must be considered within the general framework
of the security of international intercourse, and the
confidence and trust which are so essential in the
relations among States. It is from the actual
substance of these statements, and from the
circumstances attending their making, that the
legal implications of the unilateral act must be
deduced. The objects of these statements are clear
and they were addressed to the international
community as a whole, and the Court holds that
they constitute an undertaking possessing legal
effect. The Court considers *270 that the President
of the Republic, in deciding upon the effective
cessation of atmospheric tests, gave an undertaking
to the international community to which his words
were addressed. x x x (Emphasis and underscoring
supplied)
As gathered from the above-quoted ruling of the ICJ, public
statements of a state representative may be construed as
a unilateral declaration only when the following conditions
are present: the statements were clearly addressed to the
international community, the state intended to be bound to
that community by its statements, and that not to give legal
effect to those statements would be detrimental to the
security of international intercourse. Plainly, unilateral
declarations arise only in peculiar circumstances.
The limited applicability of the Nuclear Tests Case ruling was
recognized in a later case decided by the ICJ entitled Burkina
Faso v. Mali,183 also known as the Case Concerning the
Frontier Dispute. The public declaration subject of that case
was a statement made by the President of Mali, in an
interview by a foreign press agency, that Mali would abide by
the decision to be issued by a commission of the Organization
of African Unity on a frontier dispute then pending between
Mali and Burkina Faso.
Unlike in the Nuclear Tests Case, the ICJ held that the
statement of Mali's President was not a unilateral act with
legal implications. It clarified that its ruling in the Nuclear
Tests case rested on the peculiar circumstances surrounding
the French declaration subject thereof, to wit:
40. In order to assess the intentions of the author of
a unilateral act, account must be taken of all the
factual circumstances in which the act occurred. For
example, in the Nuclear Tests cases, the Court took
the view that since the applicant States were not
the only ones concerned at the possible
continuance of atmospheric testing by the French
Government, that Government's unilateral
declarations had ‘conveyed to the world at large,
including the Applicant, its intention effectively to
terminate these tests‘ (I.C.J. Reports 1974, p. 269,
para. 51; p. 474, para. 53). In the particular
circumstances of those cases, the French
Government could not express an intention to be
bound otherwise than by unilateral declarations. It
is difficult to see how it could have accepted the
terms of a negotiated solution with each of the
applicants without thereby jeopardizing its
contention that its conduct was lawful. The
circumstances of the present case are radically
different. Here, there was nothing to hinder the
Parties from manifesting an intention to accept the
binding character of the conclusions of the
Organization of African Unity Mediation
Commission by the normal method: a formal
agreement on the basis of reciprocity. Since no
agreement of this kind was concluded between the
Parties, the Chamber finds that there are no
grounds to interpret the declaration made by Mali's
head of State on 11 April 1975 as a unilateral act
with legal implications in regard to the present case.
(Emphasis and underscoring supplied)
Assessing the MOA-AD in light of the above criteria, it would
not have amounted to a unilateral declaration on the part of
the Philippine State to the international community. The
Philippine panel did not draft the same with the clear
intention of being bound thereby to the international
community as a whole or to any State, but only to the MILF.
While there were States and international organizations
involved, one way or another, in the negotiation and
projected signing of the MOA-AD, they participated merely as
witnesses or, in the case of Malaysia, as facilitator. As held in
25
the Lomé Accord case, the mere fact that in addition to the
parties to the conflict, the peace settlement is signed by
representatives of states and international organizations
does not mean that the agreement is internationalized so as
to create obligations in international law.
Since the commitments in the MOA-AD were not addressed
to States, not to give legal effect to such commitments would
not be detrimental to the security of international intercourse
- to the trust and confidence essential in the relations among
States.
In one important respect, the circumstances surrounding the
MOA-AD are closer to that of Burkina Faso wherein, as
already discussed, the Mali President's statement was not
held to be a binding unilateral declaration by the ICJ. As in
that case, there was also nothing to hinder the Philippine
panel, had it really been its intention to be bound to other
States, to manifest that intention by formal agreement. Here,
that formal agreement would have come about by the
inclusion in the MOA-AD of a clear commitment to be legally
bound to the international community, not just the MILF, and
by an equally clear indication that the signatures of the
participating states-representatives would constitute an
acceptance of that commitment. Entering into such a formal
agreement would not have resulted in a loss of face for the
Philippine government before the international community,
which was one of the difficulties that prevented the French
Government from entering into a formal agreement with
other countries. That the Philippine panel did not enter into
such a formal agreement suggests that it had no intention to
be bound to the international community. On that
ground, the MOA-AD may not be considered a unilateral
declaration under international law.
The MOA-AD not being a document that can bind the
Philippines under international law notwithstanding,
respondents' almost consummated act of guaranteeing
amendments to the legal framework is, by itself, sufficient to
constitute grave abuse of discretion. The grave abuse lies not
in the fact that they considered, as a solution to the Moro
Problem, the creation of a state within a state, but in their
brazen willingness to guarantee that Congress and the
sovereign Filipino people would give their imprimatur to
their solution. Upholding such an act would amount to
authorizing a usurpation of the constituent powers vested
only in Congress, a Constitutional Convention, or the people
themselves through the process of initiative, for the only way
that the Executive can ensure the outcome of the amendment
process is through an undue influence or interference with
that process.
The sovereign people may, if it so desired, go to the extent of
giving up a portion of its own territory to the Moros for the
sake of peace, for it can change the Constitution in any it
wants, so long as the change is not inconsistent with what, in
international law, is known as Jus Cogens.184 Respondents,
however, may not preempt it in that decision.
SUMMARY
The petitions are ripe for adjudication. The failure of
respondents to consult the local government units or
communities affected constitutes a departure by respondents
from their mandate under E.O. No. 3. Moreover, respondents
exceeded their authority by the mere act of guaranteeing
amendments to the Constitution. Any alleged violation of the
Constitution by any branch of government is a proper matter
for judicial review.
As the petitions involve constitutional issues which are of
paramount public interest or of transcendental importance,
the Court grants the petitioners, petitioners-in-intervention
and intervening respondents the requisite locus standi in
keeping with the liberal stance adopted in David v.
Macapagal-Arroyo.
Contrary to the assertion of respondents that the non-signing
of the MOA-AD and the eventual dissolution of the GRP Peace
Panel mooted the present petitions, the Court finds that the
present petitions provide an exception to the "moot and
academic" principle in view of (a) the grave violation of the
Constitution involved; (b) the exceptional character of the
situation and paramount public interest; (c) the need to
formulate controlling principles to guide the bench, the bar,
and the public; and (d) the fact that the case is capable of
repetition yet evading review.
The MOA-AD is a significant part of a series of agreements
necessary to carry out the GRP-MILF Tripoli Agreement on
Peace signed by the government and the MILF back in June
2001. Hence, the present MOA-AD can be renegotiated or
another one drawn up that could contain similar or
significantly dissimilar provisions compared to the original.
The Court, however, finds that the prayers for mandamus
have been rendered moot in view of the respondents' action
in providing the Court and the petitioners with the official
copy of the final draft of the MOA-AD and its annexes.
The people's right to information on matters of public
concern under Sec. 7, Article III of the Constitution is
in splendid symmetry with the state policy of full public
disclosure of all its transactions involving public interest under
Sec. 28, Article II of the Constitution. The right to information
guarantees the right of the people to demand information,
while Section 28 recognizes the duty of officialdom to give
information even if nobody demands. The complete and
effective exercise of the right to information necessitates that
its complementary provision on public disclosure derive the
same self-executory nature, subject only to reasonable
safeguards or limitations as may be provided by law.
The contents of the MOA-AD is a matter of paramount public
concern involving public interest in the highest order. In
declaring that the right to information contemplates steps
and negotiations leading to the consummation of the
contract, jurisprudence finds no distinction as to the
executory nature or commercial character of the agreement.
An essential element of these twin freedoms is to keep a
continuing dialogue or process of communication between
the government and the people. Corollary to these twin rights
is the design for feedback mechanisms. The right to public
consultation was envisioned to be a species of these public
rights.
At least three pertinent laws animate these constitutional
imperatives and justify the exercise of the people's right to be
consulted on relevant matters relating to the peace agenda.
One, E.O. No. 3 itself is replete with mechanics for continuing
consultations on both national and local levels and for a
principal forum for consensus-building. In fact, it is the duty of
the Presidential Adviser on the Peace Process to conduct
26
regular dialogues to seek relevant information, comments,
advice, and recommendations from peace partners and
concerned sectors of society.
Two, Republic Act No. 7160 or the Local Government Code of
1991 requires all national offices to conduct consultations
before any project or program critical to the environment and
human ecology including those that may call for the eviction
of a particular group of people residing in such locality, is
implemented therein. The MOA-AD is one peculiar program
that unequivocally and unilaterally vests ownership of a vast
territory to the Bangsamoro people, which could pervasively
and drastically result to the diaspora or displacement of a
great number of inhabitants from their total environment.
Three, Republic Act No. 8371 or the Indigenous Peoples Rights
Act of 1997 provides for clear-cut procedure for the
recognition and delineation of ancestral domain, which
entails, among other things, the observance of the free and
prior informed consent of the Indigenous Cultural
Communities/Indigenous Peoples. Notably, the statute does
not grant the Executive Department or any government
agency the power to delineate and recognize an ancestral
domain claim by mere agreement or compromise.
The invocation of the doctrine of executive privilege as a
defense to the general right to information or the specific
right to consultation is untenable. The various explicit legal
provisions fly in the face of executive secrecy. In any event,
respondents effectively waived such defense after it
unconditionally disclosed the official copies of the final draft
of the MOA-AD, for judicial compliance and public scrutiny.
In sum, the Presidential Adviser on the Peace Process
committed grave abuse of discretion when he failed to carry
out the pertinent consultation process, as mandated by E.O.
No. 3, Republic Act No. 7160, and Republic Act No. 8371. The
furtive process by which the MOA-AD was designed and
crafted runs contrary to and in excess of the legal authority,
and amounts to a whimsical, capricious, oppressive, arbitrary
and despotic exercise thereof. It illustrates a gross evasion of
positive duty and a virtual refusal to perform the duty
enjoined.
The MOA-AD cannot be reconciled with the present
Constitution and laws. Not only its specific provisions but the
very concept underlying them, namely, the associative
relationship envisioned between the GRP and the
BJE, are unconstitutional, for the concept presupposes that
the associated entity is a state and implies that the same is on
its way to independence.

While there is a clause in the MOA-AD stating that the

provisions thereof inconsistent with the present legal
framework will not be effective until that framework is
amended, the same does not cure its defect. The inclusion of
provisions in the MOA-AD establishing an associative
relationship between the BJE and the Central Government is,
itself, a violation of the Memorandum of Instructions From
The President dated March 1, 2001, addressed to the
government peace panel. Moreover, as the clause is worded,
it virtually guarantees that the necessary amendments to the
Constitution and the laws will eventually be put in place.
Neither the GRP Peace Panel nor the President herself is
authorized to make such a guarantee. Upholding such an act
would amount to authorizing a usurpation of the constituent
powers vested only in Congress, a Constitutional Convention,
or the people themselves through the process of initiative, for
the only way that the Executive can ensure the outcome of
the amendment process is through an undue influence or
interference with that process.

While the MOA-AD would not amount to an international

agreement or unilateral declaration binding on the Philippines
under international law, respondents' act of guaranteeing
amendments is, by itself, already a constitutional violation
that renders the MOA-AD fatally defective.

WHEREFORE, respondents' motion to dismiss is DENIED. The

main and intervening petitions are GIVEN DUE COURSE and
hereby GRANTED.

The Memorandum of Agreement on the Ancestral Domain

Aspect of the GRP-MILF Tripoli Agreement on Peace of 2001 is
declared contrary to law and the Constitution.

SO ORDERED.

27
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R No. 187167 August 16, 2011
PROF. MERLIN M. MAGALLONA, AKBAYAN PARTY-LIST REP.
RISA HONTIVEROS, PROF. HARRY C. ROQUE, JR., AND
UNIVERSITY OF THE PHILIPPINES COLLEGE OF LAW
STUDENTS, ALITHEA BARBARA ACAS, VOLTAIRE ALFERES,
CZARINA MAY ALTEZ, FRANCIS ALVIN ASILO, SHERYL BALOT,
RUBY AMOR BARRACA, JOSE JAVIER BAUTISTA, ROMINA
BERNARDO, VALERIE PAGASA BUENAVENTURA, EDAN
MARRI CAÑETE, VANN ALLEN DELA CRUZ, RENE DELORINO,
PAULYN MAY DUMAN, SHARON ESCOTO, RODRIGO
FAJARDO III, GIRLIE FERRER, RAOULLE OSEN FERRER, CARLA
REGINA GREPO, ANNA MARIE CECILIA GO, IRISH KAY
KALAW, MARY ANN JOY LEE, MARIA LUISA MANALAYSAY,
MIGUEL RAFAEL MUSNGI, MICHAEL OCAMPO, JAKLYN
HANNA PINEDA, WILLIAM RAGAMAT, MARICAR RAMOS,
ENRIK FORT REVILLAS, JAMES MARK TERRY RIDON, JOHANN
FRANTZ RIVERA IV, CHRISTIAN RIVERO, DIANNE MARIE ROA,
NICHOLAS SANTIZO, MELISSA CHRISTINA SANTOS, CRISTINE
MAE TABING, VANESSA ANNE TORNO, MARIA ESTER
VANGUARDIA, and MARCELINO VELOSO III, Petitioners,
vs.
HON. EDUARDO ERMITA, IN HIS CAPACITY AS EXECUTIVE
SECRETARY, HON. ALBERTO ROMULO, IN HIS CAPACITY AS
SECRETARY OF THE DEPARTMENT OF FOREIGN AFFAIRS,
HON. ROLANDO ANDAYA, IN HIS CAPACITY AS SECRETARY
OF THE DEPARTMENT OF BUDGET AND MANAGEMENT,
HON. DIONY VENTURA, IN HIS CAPACITY AS
ADMINISTRATOR OF THE NATIONAL MAPPING & RESOURCE
INFORMATION AUTHORITY, and HON. HILARIO DAVIDE, JR.,
IN HIS CAPACITY AS REPRESENTATIVE OF THE PERMANENT
MISSION OF THE REPUBLIC OF THE PHILIPPINES TO THE
UNITED NATIONS,Respondents.
DECISION
CARPIO, J.:
The Case
This original action for the writs of certiorari and prohibition
assails the constitutionality of Republic Act No. 95221(RA
9522) adjusting the country’s archipelagic baselines and
classifying the baseline regime of nearby territories.
The Antecedents
In 1961, Congress passed Republic Act No. 3046 (RA
3046)2 demarcating the maritime baselines of the Philippines
as an archipelagic State.3 This law followed the framing of the
Convention on the Territorial Sea and the Contiguous Zone in
1958 (UNCLOS I),4 codifying, among others, the sovereign
right of States parties over their "territorial sea," the breadth
of which, however, was left undetermined. Attempts to fill
this void during the second round of negotiations in Geneva in
1960 (UNCLOS II) proved futile. Thus, domestically, RA 3046
remained unchanged for nearly five decades, save for
legislation passed in 1968 (Republic Act No. 5446 [RA 5446])
correcting typographical errors and reserving the drawing of
baselines around Sabah in North Borneo.
In March 2009, Congress amended RA 3046 by enacting RA
9522, the statute now under scrutiny. The change was
prompted by the need to make RA 3046 compliant with the
terms of the United Nations Convention on the Law of the Sea
(UNCLOS III),5 which the Philippines ratified on 27 February
1984.6 Among others, UNCLOS III prescribes the water-land
ratio, length, and contour of baselines of archipelagic States
like the Philippines7 and sets the deadline for the filing of
application for the extended continental shelf. 8 Complying
with these requirements, RA 9522 shortened one baseline,
optimized the location of some basepoints around the
Philippine archipelago and classified adjacent territories,
namely, the Kalayaan Island Group (KIG) and the Scarborough
Shoal, as "regimes of islands" whose islands generate their
own applicable maritime zones.
Petitioners, professors of law, law students and a legislator, in
their respective capacities as "citizens, taxpayers or x x x
legislators,"9 as the case may be, assail the constitutionality of
RA 9522 on two principal grounds, namely: (1) RA 9522
reduces Philippine maritime territory, and logically, the reach
of the Philippine state’s sovereign power, in violation of
Article 1 of the 1987 Constitution,10 embodying the terms of
the Treaty of Paris11 and ancillary treaties,12 and (2) RA 9522
1
opens the country’s waters landward of the baselines to
maritime passage by all vessels and aircrafts, undermining
Philippine sovereignty and national security, contravening the
country’s nuclear-free policy, and damaging marine
resources, in violation of relevant constitutional provisions.13
In addition, petitioners contend that RA 9522’s treatment of
the KIG as "regime of islands" not only results in the loss of a
large maritime area but also prejudices the livelihood of
subsistence fishermen.14 To buttress their argument of
territorial diminution, petitioners facially attack RA 9522 for
what it excluded and included – its failure to reference either
the Treaty of Paris or Sabah and its use of UNCLOS III’s
framework of regime of islands to determine the maritime
zones of the KIG and the Scarborough Shoal.
Commenting on the petition, respondent officials raised
threshold issues questioning (1) the petition’s compliance
with the case or controversy requirement for judicial review
grounded on petitioners’ alleged lack of locus standi and (2)
the propriety of the writs of certiorari and prohibition to
assail the constitutionality of RA 9522. On the merits,
respondents defended RA 9522 as the country’s compliance
with the terms of UNCLOS III, preserving Philippine territory
over the KIG or Scarborough Shoal. Respondents add that RA
9522 does not undermine the country’s security, environment
and economic interests or relinquish the Philippines’ claim
over Sabah.
Respondents also question the normative force, under
international law, of petitioners’ assertion that what Spain
ceded to the United States under the Treaty of Paris were the
islands and all the waters found within the boundaries of the
rectangular area drawn under the Treaty of Paris.
We left unacted petitioners’ prayer for an injunctive writ.
The Issues
The petition raises the following issues:
1. Preliminarily –
 1. Whether petitioners possess locus
standi to bring this suit; and
2. Whether the writs of certiorari and
prohibition are the proper remedies to
assail the constitutionality of RA 9522.
2. On the merits, whether RA 9522 is
unconstitutional.
The Ruling of the Court
as taxpayers
On the threshold issues, we hold that (1) petitioners
possess locus standi to bring this suit as citizens and (2) the
writs of certiorari and prohibition are proper remedies to test
the constitutionality of RA 9522. On the merits, we find no
basis to declare RA 9522 unconstitutional.
On the Threshold Issues
Petitioners Possess Locus
Standi as Citizens
Petitioners themselves undermine their assertion of locus
standi as legislators and taxpayers because the petition
alleges neither infringement of legislative prerogative15 nor
misuse of public funds,16 occasioned by the passage and
implementation of RA 9522. Nonetheless, we recognize
petitioners’ locus standi as citizens with constitutionally
sufficient interest in the resolution of the merits of the case
which undoubtedly raises issues of national significance
necessitating urgent resolution. Indeed, owing to the peculiar
nature of RA 9522, it is understandably difficult to find other
litigants possessing "a more direct and specific interest" to
bring the suit, thus satisfying one of the requirements for
granting citizenship standing.17
The Writs of Certiorari and Prohibition
Are Proper Remedies to Test
the Constitutionality of Statutes
In praying for the dismissal of the petition on preliminary
grounds, respondents seek a strict observance of the offices
of the writs of certiorari and prohibition, noting that the writs
cannot issue absent any showing of grave abuse of discretion
in the exercise of judicial, quasi-judicial or ministerial powers
on the part of respondents and resulting prejudice on the part
of petitioners.18
Respondents’ submission holds true in ordinary civil
proceedings. When this Court exercises its constitutional
power of judicial review, however, we have, by tradition,
viewed the writs of certiorari and prohibition as proper
remedial vehicles to test the constitutionality of
statutes,19 and indeed, of acts of other branches of
government.20 Issues of constitutional import are sometimes
crafted out of statutes which, while having no bearing on the
personal interests of the petitioners, carry such relevance in
the life of this nation that the Court inevitably finds itself
constrained to take cognizance of the case and pass upon the
issues raised, non-compliance with the letter of procedural
rules notwithstanding. The statute sought to be reviewed
here is one such law.
RA 9522 is Not Unconstitutional
RA 9522 is a Statutory Tool
to Demarcate the Country’s
Maritime Zones and Continental
Shelf Under UNCLOS III, not to
Delineate Philippine Territory
Petitioners submit that RA 9522 "dismembers a large portion
of the national territory"21 because it discards the pre-
UNCLOS III demarcation of Philippine territory under the
Treaty of Paris and related treaties, successively encoded in
the definition of national territory under the 1935, 1973 and
1987 Constitutions. Petitioners theorize that this
constitutional definition trumps any treaty or statutory
provision denying the Philippines sovereign control over
waters, beyond the territorial sea recognized at the time of
the Treaty of Paris, that Spain supposedly ceded to the United
States. Petitioners argue that from the Treaty of Paris’
technical description, Philippine sovereignty over territorial
waters extends hundreds of nautical miles around the
Philippine archipelago, embracing the rectangular area
delineated in the Treaty of Paris.22
Petitioners’ theory fails to persuade us.
ceded-relinquish
2
UNCLOS III has nothing to do with the acquisition (or loss) of
territory. It is a multilateral treaty regulating, among others,
sea-use rights over maritime zones (i.e., the territorial waters
[12 nautical miles from the baselines], contiguous zone [24
nautical miles from the baselines], exclusive economic zone
[200 nautical miles from the baselines]), and continental
shelves that UNCLOS III delimits.23 UNCLOS III was the
culmination of decades-long negotiations among United
Nations members to codify norms regulating the conduct of
States in the world’s oceans and submarine areas, recognizing
coastal and archipelagic States’ graduated authority over a
limited span of waters and submarine lands along their
coasts.
On the other hand, baselines laws such as RA 9522 are
enacted by UNCLOS III States parties to mark-out specific
basepoints along their coasts from which baselines are drawn,
either straight or contoured, to serve as geographic starting
points to measure the breadth of the maritime zones and
continental shelf. Article 48 of UNCLOS III on archipelagic
States like ours could not be any clearer:
Article 48. Measurement of the breadth of the territorial sea,
the contiguous zone, the exclusive economic zone and the
continental shelf. – The breadth of the territorial sea, the
contiguous zone, the exclusive economic zone and the
continental shelf shall be measured from archipelagic
baselines drawn in accordance with article 47. (Emphasis
supplied)
Thus, baselines laws are nothing but statutory mechanisms
for UNCLOS III States parties to delimit with precision the
extent of their maritime zones and continental shelves. In
turn, this gives notice to the rest of the international
community of the scope of the maritime space and submarine
areas within which States parties exercise treaty-based rights,
namely, the exercise of sovereignty over territorial waters
(Article 2), the jurisdiction to enforce customs, fiscal,
immigration, and sanitation laws in the contiguous zone
(Article 33), and the right to exploit the living and non-living
resources in the exclusive economic zone (Article 56) and
continental shelf (Article 77).
Even under petitioners’ theory that the Philippine territory
embraces the islands and all the waters within the rectangular
area delimited in the Treaty of Paris, the baselines of the
Philippines would still have to be drawn in accordance with
RA 9522 because this is the only way to draw the baselines in
conformity with UNCLOS III. The baselines cannot be drawn
from the boundaries or other portions of the rectangular area
delineated in the Treaty of Paris, but from the "outermost
islands and drying reefs of the archipelago."24
UNCLOS III and its ancillary baselines laws play no role in the
acquisition, enlargement or, as petitioners claim, diminution
of territory. Under traditional international law typology,
States acquire (or conversely, lose) territory through
occupation, accretion, cession and prescription,25 not by
executing multilateral treaties on the regulations of sea-use
rights or enacting statutes to comply with the treaty’s terms
to delimit maritime zones and continental shelves. Territorial
claims to land features are outside UNCLOS III, and are
instead governed by the rules on general international law.26
RA 9522’s Use of the Framework
of Regime of Islands to Determine the
Maritime Zones of the KIG and the
Scarborough Shoal, not Inconsistent
with the Philippines’ Claim of Sovereignty
Over these Areas
Petitioners next submit that RA 9522’s use of UNCLOS III’s
regime of islands framework to draw the baselines, and to
measure the breadth of the applicable maritime zones of the
KIG, "weakens our territorial claim" over that
area.27Petitioners add that the KIG’s (and Scarborough
Shoal’s) exclusion from the Philippine archipelagic baselines
results in the loss of "about 15,000 square nautical miles of
territorial waters," prejudicing the livelihood of subsistence
fishermen.28 A comparison of the configuration of the
baselines drawn under RA 3046 and RA 9522 and the extent
of maritime space encompassed by each law, coupled with a
reading of the text of RA 9522 and its congressional
deliberations, vis-à-vis the Philippines’ obligations under
UNCLOS III, belie this view.1avvphi1
The configuration of the baselines drawn under RA 3046 and
RA 9522 shows that RA 9522 merely followed the basepoints
mapped by RA 3046, save for at least nine basepoints that RA
9522 skipped to optimize the location of basepoints and
adjust the length of one baseline (and thus comply with
UNCLOS III’s limitation on the maximum length of baselines).
Under RA 3046, as under RA 9522, the KIG and the
Scarborough Shoal lie outside of the baselines drawn around
the Philippine archipelago. This undeniable cartographic fact
takes the wind out of petitioners’ argument branding RA 9522
as a statutory renunciation of the Philippines’ claim over the
KIG, assuming that baselines are relevant for this purpose.
Petitioners’ assertion of loss of "about 15,000 square nautical
miles of territorial waters" under RA 9522 is similarly
unfounded both in fact and law. On the contrary, RA 9522, by
optimizing the location of basepoints, increased the
Philippines’ total maritime space (covering its internal waters,
territorial sea and exclusive economic zone) by 145,216
square nautical miles, as shown in the table below:29
Extent of maritime Extent of maritime
area using RA 3046, area using RA 9522,
as amended, taking taking into account
into account the UNCLOS III (in
Treaty of Paris’ square nautical
delimitation (in miles)
square nautical
miles)
Internal or 166,858 171,435
archipelagic waters
Territorial Sea 274,136 32,106
Exclusive Economic 382,669
Zone
TOTAL 440,994 586,210
Thus, as the map below shows, the reach of the exclusive
economic zone drawn under RA 9522 even extends way
beyond the waters covered by the rectangular demarcation
under the Treaty of Paris. Of course, where there are
overlapping exclusive economic zones of opposite or adjacent
States, there will have to be a delineation of maritime
boundaries in accordance with UNCLOS III.30
Further, petitioners’ argument that the KIG now lies outside
Philippine territory because the baselines that RA 9522 draws
do not enclose the KIG is negated by RA 9522 itself. Section 2
3
of the law commits to text the Philippines’ continued claim of
sovereignty and jurisdiction over the KIG and the Scarborough
Shoal:
SEC. 2. The baselines in the following areas over which the
Philippines likewise exercises sovereignty and
jurisdiction shall be determined as "Regime of Islands" under
the Republic of the Philippines consistent with Article 121 of
the United Nations Convention on the Law of the Sea
(UNCLOS):
a) The Kalayaan Island Group as constituted under
Presidential Decree No. 1596 and
b) Bajo de Masinloc, also known as Scarborough
Shoal. (Emphasis supplied)
Had Congress in RA 9522 enclosed the KIG and the
Scarborough Shoal as part of the Philippine archipelago,
adverse legal effects would have ensued. The Philippines
would have committed a breach of two provisions of UNCLOS
III. First, Article 47 (3) of UNCLOS III requires that "[t]he
drawing of such baselines shall not depart to any appreciable
extent from the general configuration of the archipelago."
Second, Article 47 (2) of UNCLOS III requires that "the length
of the baselines shall not exceed 100 nautical miles," save for
three per cent (3%) of the total number of baselines which
can reach up to 125 nautical miles.31
Although the Philippines has consistently claimed sovereignty
over the KIG32 and the Scarborough Shoal for several decades,
these outlying areas are located at an appreciable distance
from the nearest shoreline of the Philippine
archipelago,33 such that any straight baseline loped around
them from the nearest basepoint will inevitably "depart to an
appreciable extent from the general configuration of the
archipelago."
The principal sponsor of RA 9522 in the Senate, Senator
Miriam Defensor-Santiago, took pains to emphasize the
foregoing during the Senate deliberations:
What we call the Kalayaan Island Group or what the rest of
the world call[] the Spratlys and the Scarborough Shoal are
outside our archipelagic baseline because if we put them
inside our baselines we might be accused of violating the
provision of international law which states: "The drawing of
such baseline shall not depart to any appreciable extent from
the general configuration of the archipelago." So sa loob ng
ating baseline, dapat magkalapit ang mga islands. Dahil
malayo ang Scarborough Shoal, hindi natin masasabing
malapit sila sa atin although we are still allowed by
international law to claim them as our own.
This is called contested islands outside our configuration. We
see that our archipelago is defined by the orange line which
[we] call[] archipelagic baseline. Ngayon, tingnan ninyo ang
maliit na circle doon sa itaas, that is Scarborough Shoal, itong
malaking circle sa ibaba, that is Kalayaan Group or the
Spratlys. Malayo na sila sa ating archipelago kaya kung ilihis
pa natin ang dating archipelagic baselines para lamang
masama itong dalawang circles, hindi na sila magkalapit at
baka hindi na tatanggapin ng United Nations because of the
rule that it should follow the natural configuration of the
archipelago.34 (Emphasis supplied)
Similarly, the length of one baseline that RA 3046 drew
exceeded UNCLOS III’s limits.1avvphi1 The need to shorten
this baseline, and in addition, to optimize the location of
basepoints using current maps, became imperative as
discussed by respondents:
[T]he amendment of the baselines law was necessary to
enable the Philippines to draw the outer limits of its maritime
zones including the extended continental shelf in the manner
provided by Article 47 of [UNCLOS III]. As defined by R.A.
3046, as amended by R.A. 5446, the baselines suffer from
some technical deficiencies, to wit:
1. The length of the baseline across Moro Gulf (from
Middle of 3 Rock Awash to Tongquil Point) is 140.06
nautical miles x x x. This exceeds the maximum
length allowed under Article 47(2) of the [UNCLOS
III], which states that "The length of such baselines
shall not exceed 100 nautical miles, except that up
to 3 per cent of the total number of baselines
enclosing any archipelago may exceed that length,
up to a maximum length of 125 nautical miles."
2. The selection of basepoints is not optimal. At
least 9 basepoints can be skipped or deleted from
the baselines system. This will enclose an additional
2,195 nautical miles of water.
3. Finally, the basepoints were drawn from maps
existing in 1968, and not established by geodetic
survey methods. Accordingly, some of the points,
particularly along the west coasts of Luzon down to
Palawan were later found to be located either
inland or on water, not on low-water line and drying
reefs as prescribed by Article 47.35
Hence, far from surrendering the Philippines’ claim over the
KIG and the Scarborough Shoal, Congress’ decision to classify
the KIG and the Scarborough Shoal as "‘Regime[s] of Islands’
under the Republic of the Philippines consistent with Article
121"36 of UNCLOS III manifests the Philippine State’s
responsible observance of its pacta sunt servanda obligation
under UNCLOS III. Under Article 121 of UNCLOS III, any
"naturally formed area of land, surrounded by water, which is
above water at high tide," such as portions of the KIG,
qualifies under the category of "regime of islands," whose
islands generate their own applicable maritime zones.37
Statutory Claim Over Sabah under
RA 5446 Retained
Petitioners’ argument for the invalidity of RA 9522 for its
failure to textualize the Philippines’ claim over Sabah in North
Borneo is also untenable. Section 2 of RA 5446, which RA
9522 did not repeal, keeps open the door for drawing the
baselines of Sabah:
Section 2. The definition of the baselines of the territorial sea
of the Philippine Archipelago as provided in this Act is without
prejudice to the delineation of the baselines of the territorial
sea around the territory of Sabah, situated in North Borneo,
over which the Republic of the Philippines has acquired
dominion and sovereignty. (Emphasis supplied)
UNCLOS III and RA 9522 not
Incompatible with the Constitution’s
Delineation of Internal Waters
4
As their final argument against the validity of RA 9522,
petitioners contend that the law unconstitutionally "converts"
internal waters into archipelagic waters, hence subjecting
these waters to the right of innocent and sea lanes passage
under UNCLOS III, including overflight. Petitioners extrapolate
that these passage rights indubitably expose Philippine
internal waters to nuclear and maritime pollution hazards, in
violation of the Constitution.38
Whether referred to as Philippine "internal waters" under
Article I of the Constitution39 or as "archipelagic waters"
under UNCLOS III (Article 49 [1]), the Philippines exercises
sovereignty over the body of water lying landward of the
baselines, including the air space over it and the submarine
areas underneath. UNCLOS III affirms this:
Article 49. Legal status of archipelagic waters, of the air space
over archipelagic waters and of their bed and subsoil. –
1. The sovereignty of an archipelagic State extends
to the waters enclosed by the archipelagic
baselines drawn in accordance with article 47,
described as archipelagic waters, regardless of their
depth or distance from the coast.
2. This sovereignty extends to the air space over
the archipelagic waters, as well as to their bed and
subsoil, and the resources contained therein.
xxxx
4. The regime of archipelagic sea lanes passage
established in this Part shall not in other respects
affect the status of the archipelagic
waters, including the sea lanes, or the exercise by
the archipelagic State of its sovereignty over such
waters and their air space, bed and subsoil, and
the resources contained therein. (Emphasis
supplied)
The fact of sovereignty, however, does not preclude the
operation of municipal and international law norms
subjecting the territorial sea or archipelagic waters to
necessary, if not marginal, burdens in the interest of
maintaining unimpeded, expeditious international navigation,
consistent with the international law principle of freedom of
navigation. Thus, domestically, the political branches of the
Philippine government, in the competent discharge of their
constitutional powers, may pass legislation designating routes
within the archipelagic waters to regulate innocent and sea
lanes passage.40 Indeed, bills drawing nautical highways for
sea lanes passage are now pending in Congress.41
In the absence of municipal legislation, international law
norms, now codified in UNCLOS III, operate to grant innocent
passage rights over the territorial sea or archipelagic waters,
subject to the treaty’s limitations and conditions for their
exercise.42 Significantly, the right of innocent passage is a
customary international law,43 thus automatically
incorporated in the corpus of Philippine law.44 No modern
State can validly invoke its sovereignty to absolutely forbid
innocent passage that is exercised in accordance with
customary international law without risking retaliatory
measures from the international community.
The fact that for archipelagic States, their archipelagic waters
are subject to both the right of innocent passage and sea
lanes passage45 does not place them in lesser footing vis-à-
vis continental coastal States which are subject, in their
territorial sea, to the right of innocent passage and the right
of transit passage through international straits. The
imposition of these passage rights through archipelagic
waters under UNCLOS III was a concession by archipelagic
States, in exchange for their right to claim all the waters
landward of their baselines, regardless of their depth or
distance from the coast, as archipelagic waters subject to
their territorial sovereignty. More importantly, the
recognition of archipelagic States’ archipelago and the waters
enclosed by their baselines as one cohesive entity prevents
the treatment of their islands as separate islands under
UNCLOS III.46 Separate islands generate their own maritime
zones, placing the waters between islands separated by more
than 24 nautical miles beyond the States’ territorial
sovereignty, subjecting these waters to the rights of other
States under UNCLOS III.47
Petitioners’ invocation of non-executory constitutional
provisions in Article II (Declaration of Principles and State
Policies)48 must also fail. Our present state of jurisprudence
considers the provisions in Article II as mere legislative guides, is measured. This is recipe for a two-fronted disaster: first, it
which, absent enabling legislation, "do not embody judicially sends an open invitation to the seafaring powers to freely
enforceable constitutional rights x x x."49 Article II provisions enter and exploit the resources in the waters and submarine
serve as guides in formulating and interpreting implementing areas around our archipelago; and second, it weakens the
legislation, as well as in interpreting executory provisions of country’s case in any international dispute over Philippine
the Constitution. Although Oposa v. Factoran50 treated the maritime space. These are consequences Congress wisely
right to a healthful and balanced ecology under Section 16 of avoided.
Article II as an exception, the present petition lacks factual
basis to substantiate the claimed constitutional violation. The The enactment of UNCLOS III compliant baselines law for the
other provisions petitioners cite, relating to the protection of Philippine archipelago and adjacent areas, as embodied in RA
marine wealth (Article XII, Section 2, paragraph 251 ) and 9522, allows an internationally-recognized delimitation of the
subsistence fishermen (Article XIII, Section 752 ), are not breadth of the Philippines’ maritime zones and continental
violated by RA 9522. shelf. RA 9522 is therefore a most vital step on the part of the
Philippines in safeguarding its maritime zones, consistent with
In fact, the demarcation of the baselines enables the the Constitution and our national interest.
Philippines to delimit its exclusive economic zone, reserving
solely to the Philippines the exploitation of all living and non- WHEREFORE, we DISMISS the petition.
living resources within such zone. Such a maritime delineation
binds the international community since the delineation is in "the archipelago known as the Philippine Islands"
strict observance of UNCLOS III. If the maritime delineation is
contrary to UNCLOS III, the international community will of 1. Entered into between the Unites States and Spain on 10
course reject it and will refuse to be bound by it. December 1898 following the conclusion of the
Spanish-American War. Under the terms of the treaty of
UNCLOS III favors States with a long coastline like the Paris, Spain ceded to the United States
Philippines. UNCLOS III creates a sui generis maritime space –
2. The Treaty of Washington, between Spain and the United
the exclusive economic zone – in waters previously part of the
States (7 November 1900), transferring to the US the islands
high seas. UNCLOS III grants new rights to coastal States to
of Cagayan, Sulu, and Sibutu and
exclusively exploit the resources found within this zone up to
200 nautical miles.53 UNCLOS III, however, preserves the
3. US-Great Britain Convention (2 January 1930)
traditional freedom of navigation of other States that
demarcating boundary lines between the Philippines and
attached to this zone beyond the territorial sea before
North Borneo. Turtle islands
UNCLOS III.
4. islands of batanes under 1935 constituion
RA 9522 and the Philippines’ Maritime Zones
5. contemplated on the phrass "all territories belonging to
the Philippines by historic right or legal title" found in the
Petitioners hold the view that, based on the permissive text of
1973 Constitution - SABAH (only islands near sabah. not
UNCLOS III, Congress was not bound to pass RA 9522.54 We
sabah itself)
have looked at the relevant provision of UNCLOS III55 and we
find petitioners’ reading plausible. Nevertheless, the
prerogative of choosing this option belongs to Congress, not
to this Court. Moreover, the luxury of choosing this option
comes at a very steep price. Absent an UNCLOS III compliant
baselines law, an archipelagic State like the Philippines will
find itself devoid of internationally acceptable baselines from
where the breadth of its maritime zones and continental shelf
5
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-44640 October 12, 1976
PABLO C. SANIDAD and PABLITO V. SANIDAD, petitioner,
vs.
HONORABLE COMMISSION ON ELECTIONS and HONORABLE
NATIONAL TREASURER, respondents.
G.R. No. L-44684. October 12,1976
VICENTE M. GUZMAN, petitioner,
vs.
COMMISSION ELECTIONS, respondent.
G.R. No. L-44714. October 12,1976
RAUL M. GONZALES, RAUL T. GONZALES, JR., and ALFREDO
SALAPANTAN, petitioners,
vs.
HONORABLE COMMISSION ON SELECTIONS and
HONORABLE NATIONAL TREASURER, respondents.
MARTIN, J,:
The capital question raised in these prohibition suits with
preliminary injunction relates to the power of the incumbent
President of the Philippines to propose amendments to the
present Constitution in the absence of the interim National
Assembly which has not been convened.
On September 2, 1976, President Ferdinand E. Marcos issued
Presidential Decree No. 991 calling for a national referendum
on October 16, 1976 for the Citizens Assemblies ("barangays")
to resolve, among other things, the issues of martial law, the I
. assembly, its replacement, the powers of such replacement,
the period of its existence, the length of the period for tile
exercise by the President of his present powers.1
Twenty days after or on September 22, 1976, the President
issued another related decree, Presidential Decree No. 1031,
amending the previous Presidential Decree No. 991, by
declaring the provisions of presidential Decree No. 229
providing for the manner of voting and canvass of votes in
"barangays" (Citizens Assemblies) applicable to the national
referendum-plebiscite of October 16, 1976. Quite relevantly,
Presidential Decree No. 1031 repealed Section 4, of
Presidential Decree No. 991, the full text of which (Section 4)
is quoted in the footnote below.2
On the same date of September 22, 1976, the President
issued Presidential Decree No. 1033, stating the questions to
be submitted to the people in the referendum-plebiscite on
October 16, 1976. The Decree recites in its "whereas" clauses
that the people's continued opposition to the convening of
the National Assembly evinces their desire to have such body
abolished and replaced thru a constitutional amendment,
providing for a legislative body, which will be submitted
directly to the people in the referendum-plebiscite of October
16.
The questions ask, to wit:
(1) Do you want martial law to be continued?
(2) Whether or not you want martial law to be continued, do
you approve the following amendments to the Constitution?
For the purpose of the second question, the referendum shall
have the effect of a plebiscite within the contemplation of
Section 2 of Article XVI of the Constitution.
PROPOSED AMENDMENTS:
1. There shall be, in lieu of the interim National Assembly, an
interim Batasang Pambansa. Members of the interim
Batasang Pambansa which shall not be more than 120, unless
otherwise provided by law, shall include the incumbent
President of the Philippines, representatives elected from the
different regions of the nation, those who shall not be less
than eighteen years of age elected by their respective sectors,
and those chosen by the incumbent President from the
members of the Cabinet. Regional representatives shall be
apportioned among the regions in accordance with the
number of their respective inhabitants and on the basis of a
1
uniform and progressive ratio while the sectors shall be
determined by law. The number of representatives from each
region or sector and the, manner of their election shall be
prescribed and regulated by law.
2. The interim Batasang Pambansa shall have the same
powers and its members shall have the same functions,
responsibilities, rights, privileges, and disqualifications as the
interim National Assembly and the regular National Assembly
and the members thereof. However, it shall not exercise the
power provided in Article VIII, Section 14(l) of the
Constitution.
3. The incumbent President of the Philippines shall, within 30
days from the election and selection of the members,
convene the interim Batasang Pambansa and preside over its
sessions until the Speaker shall have been elected. The
incumbent President of the Philippines shall be the Prime
Minister and he shall continue to exercise all his powers even
after the interim Batasang Pambansa is organized and ready
to discharge its functions and likewise he shall continue to
exercise his powers and prerogatives under the nineteen
hundred and thirty five. Constitution and the powers vested
in the President and the Prime Minister under this
Constitution.
4. The President (Prime Minister) and his Cabinet shall
exercise all the powers and functions, and discharge the
responsibilities of the regular President (Prime Minister) and
his Cabinet, and shall be subject only to such disqualifications
as the President (Prime Minister) may prescribe. The
President (Prime Minister) if he so desires may appoint a
Deputy Prime Minister or as many Deputy Prime Ministers as
he may deem necessary.
5. The incumbent President shall continue to exercise
legislative powers until martial law shall have been lifted.
6. Whenever in the judgment of the President (Prime
Minister), there exists a grave emergency or a threat or
imminence thereof, or whenever the interim Batasang
Pambansa or the regular National Assembly fails or is unable
to act adequately on any matter for any reason that in his
judgment requires immediate action, he may, in order to
meet the exigency, issue the necessary decrees, orders or
letters of instructions, which shall form part of the law of the
land.
7. The barangays and sanggunians shall continue as presently
constituted but their functions, powers, and composition may
be altered by law.
Referenda conducted thru the barangays and under the
Supervision of the Commission on Elections may be called at
any time the government deems it necessary to ascertain the
will of the people regarding any important matter whether of
national or local interest.
8. All provisions of this Constitution not inconsistent with any
of these amendments shall continue in full force and effect.
9. These amendments shall take effect after the incumbent
President shall have proclaimed that they have been ratified
by I majority of the votes cast in the referendum-plebiscite."
The Commission on Elections was vested with the exclusive
supervision and control of the October 1976 National
Referendum-Plebiscite.
On September 27, 1976, PABLO C. SANIDAD and PABLITO V.
SANIDAD, father and son, commenced L-44640 for Prohibition
with Preliminary Injunction seeking to enjoin the Commission
on Elections from holding and conducting the Referendum
Plebiscite on October 16; to declare without force and effect
Presidential Decree Nos. 991 and 1033, insofar as they
propose amendments to the Constitution, as well as
Presidential Decree No. 1031, insofar as it directs the
Commission on Elections to supervise, control, hold, and
conduct the Referendum-Plebiscite scheduled on October 16,
1976.
Petitioners contend that under the 1935 and 1973
Constitutions there is no grant to the incumbent President to
exercise the constituent power to propose amendments to
the new Constitution. As a consequence, the Referendum-
Plebiscite on October 16 has no constitutional or legal basis.
On October 5, 1976, the Solicitor General filed the comment
for respondent Commission on Elections, The Solicitor
General principally maintains that petitioners have no
standing to sue; the issue raised is political in nature, beyond
judicial cognizance of this Court; at this state of the transition
period, only the incumbent President has the authority to
exercise constituent power; the referendum-plebiscite is a
step towards normalization.
On September 30, 1976, another action for Prohibition with
Preliminary Injunction, docketed as L-44684, was instituted by
VICENTE M. GUZMAN, a delegate to the 1971 Constitutional
Convention, asserting that the power to propose
amendments to, or revision of the Constitution during the
transition period is expressly conferred on the interim
National Assembly under Section 16, Article XVII of the
Constitution.3
Still another petition for Prohibition with Preliminary
Injunction was filed on October 5, 1976 by RAUL M.
GONZALES, his son RAUL, JR., and ALFREDO SALAPANTAN,
docketed as L- 44714, to restrain the implementation of
Presidential Decrees relative to the forthcoming Referendum-
Plebiscite of October 16.
These last petitioners argue that even granting him legislative
powers under Martial Law, the incumbent President cannot
act as a constituent assembly to propose amendments to the
Constitution; a referendum-plebiscite is untenable under the
Constitutions of 1935 and 1973; the submission of the
proposed amendments in such a short period of time for
deliberation renders the plebiscite a nullity; to lift Martial
Law, the President need not consult the people via
referendum; and allowing 15-.year olds to vote would amount
to an amendment of the Constitution, which confines the
right of suffrage to those citizens of the Philippines 18 years
of age and above.
We find the petitions in the three entitled cases to be devoid
of merit.
I
Justiciability of question raised.
2
1. As a preliminary resolution, We rule that the petitioners in
L-44640 (Pablo C. Sanidad and Pablito V. Sanidad)
possess locus standi to challenge the constitutional premise of
Presidential Decree Nos. 991, 1031, and 1033. It is now an
ancient rule that the valid source of a stature Presidential
Decrees are of such nature-may be contested by one who will
sustain a direct injuries as a in result of its enforcement. At
the instance of taxpayers, laws providing for the
disbursement of public funds may be enjoined, upon the
theory that the expenditure of public funds by an officer of
the State for the purpose of executing an unconstitutional act
constitutes a misapplication of such funds. 4 The breadth of
Presidential Decree No. 991 carries all appropriation of Five
Million Pesos for the effective implementation of its
purposes. 5 Presidential Decree No. 1031 appropriates the
sum of Eight Million Pesos to carry out its provisions. 6 The
interest of the aforenamed petitioners as taxpayers in the
lawful expenditure of these amounts of public money
sufficiently clothes them with that personality to litigate the
validity of the Decrees appropriating said funds. Moreover, as
regards taxpayer's suits, this Court enjoys that open discretion
to entertain the same or not. 7 For the present case, We
deem it sound to exercise that discretion affirmatively so that
the authority upon which the disputed Decrees are
predicated may be inquired into.
2. The Solicitor General would consider the question at bar as
a pure political one, lying outside the domain of judicial
review. We disagree. The amending process both as to
proposal and ratification, raises a judicial question. 8This is
especially true in cases where the power of the Presidency to
initiate the of normally exercised by the legislature, is
seriously doubted. Under the terms of the 1973 Constitution,
the power to propose amendments o the constitution resides
in the interim National Assembly in the period of transition
(See. 15, Transitory provisions). After that period, and the
regular National Assembly in its active session, the power to
propose amendments becomes ipso facto the prerogative of
the regular National Assembly (Sec. 1, pars. 1 and 2 of Art.
XVI, 1973 constitution). The normal course has not been
followed. Rather than calling the National Assembly to
constitute itself into a constituent assembly the incumbent
President undertook the proposal of amendments and
submitted the proposed amendments thru Presidential
Decree 1033 to the people in a Referendum-Plebiscite on
October 16. Unavoidably, the regularity regularity of the
procedure for amendments, written in lambent words in the
very Constitution sought to be amended, raises a contestable
issue. The implementing Presidential Decree Nos. 991, 1031,
and 1033, which commonly purport to have the force and
effect of legislation are assailed as invalid, thus the issue of
the validity of said Decrees is plainly a justiciable one, within
the competence of this Court to pass upon. Section 2 (2),
Article X of the new Constitution provides: "All cases involving
the constitutionality of a treaty, executive agreement, or law
may shall be heard and decided by the Supreme Court en
banc and no treaty, executive agreement, or law may be
declared unconstitutional without the concurrence of at least
ten Members. ..." The Supreme Court has the last word in the
construction not only of treaties and statutes, but also of the
Constitution itself The amending, like all other powers
organized in the Constitution, is in form a delegated and
hence a limited power, so that the Supreme Court is vested
with that authorities to determine whether that power has
been discharged within its limits.
Political questions are neatly associated with the wisdom, of
the legality of a particular act. Where the vortex of the
controversy refers to the legality or validity of the contested
act, that matter is definitely justiciable or non-political. What
is in the heels of the Court is not the wisdom of the act of the
incumbent President in proposing amendments to the
Constitution, but his constitutional authority to perform such
act or to assume the power of a constituent assembly.
Whether the amending process confers on the President that
power to propose amendments is therefore a downright
justiciable question. Should the contrary be found, the
actuation of the President would merely be a brutum fulmen.
If the Constitution provides how it may be amended, the
judiciary as the interpreter of that Constitution, can declare
whether the procedure followed or the authority assumed
was valid or not.10
We cannot accept the view of the Solicitor General, in
pursuing his theory of non-justiciability, that the question of
the President's authority to propose amendments and the
regularity of the procedure adopted for submission of the
proposal to the people ultimately lie in the judgment of the A
clear Descartes fallacy of vicious circle. Is it not that the
people themselves, by their sovereign act, provided for the
authority and procedure for the amending process when they
ratified the present Constitution in 1973? Whether, therefore,
the constitutional provision has been followed or not is the
proper subject of inquiry, not by the people themselves of
course who exercise no power of judicial but by the Supreme
Court in whom the people themselves vested that power, a
power which includes the competence to determine whether
the constitutional norms for amendments have been
observed or not. And, this inquiry must be done a prior not a
posterior i.e., before the submission to and ratification by the
people.
Indeed, the precedents evolved by the Court or, prior
constitutional cases underline the preference of the Court's
majority to treat such issue of Presidential role in the
amending process as one of non-political impression. In the
Plebiscite Cases, 11 the contention of the Solicitor General that
the issue on the legality of Presidential Decree No. 73
"submitting to the Pilipino people (on January 15, 1973) for
ratification or rejection the Constitution of the Republic of the
Philippines proposed by the 1971 Constitutional Convention
and appropriating fund s therefore "is a political one, was
rejected and the Court unanimously considered the issue as
justiciable in nature. Subsequently in the Ratification
Cases12 involving the issue of whether or not the validity of
Presidential Proclamation No. 1102. announcing the
Ratification by the Filipino people of the constitution
proposed by the 1971 Constitutional Convention," partakes of
the nature of a political question, the affirmative stand of' the
Solicitor General was dismissed, the Court ruled that the
question raised is justiciable. Chief Justice Concepcion,
expressing the majority view, said, Thus, in the
aforementioned plebiscite cases, We rejected the theory of
the respondents therein that the question whether
Presidential Decree No. 73 calling a plebiscite to be held on
January 15, 1973, for the ratification or rejection of the
proposed new Constitution, was valid or not, was not a
proper subject of judicial inquiry because, they claimed, it
partook of a political nature, and We unanimously declared
that the issue was a justiciable one. With Identical unanimity.
We overruled the respondent's contention in the 1971 habeas
corpus cases, questioning Our authority to determine the
constitutional sufficiency of the factual bases of the
Presidential proclamation suspending the privilege of the writ
of habeas corpus on August 21, 1971, despite the opposite
view taken by this Court in Barcelon vs. Baker and
Montenegro vs. Castaneda, insofar as it adhered to the
former case, which view We, accordingly, abandoned and
3
refused to apply. For the same reason, We did not apply and
expressly modified, in Gonzales vs. Commission on Elections,
the political-question theory adopted in Mabanag vs. Lopez
Vito." 13 The return to Barcelon vs. Baker and Mabanag vs.
Lopez Vito, urged by the Solicitor General, was decisively
refused by the Court. Chief Justice Concepcion continued:
"The reasons adduced in support thereof are, however,
substantially the same as those given in support on the
political question theory advanced in said habeas corpus and
plebiscite cases, which were carefully considered by this Court
and found by it to be legally unsound and constitutionally
untenable. As a consequence. Our decisions in the
aforementioned habeas corpus cases partakes of the nature
and effect of a stare decisis which gained added weight by its
virtual reiteration."
II
The amending process as laid out in the new Constitution.
1. Article XVI of the 1973 Constitution on Amendments
ordains:
SECTION 1. (1) Any amendment to, or
revision of, this Constitution may be
proposed by the National Assembly upon
a vote of three-fourths of all its Members,
or by a constitutional convention. (2) The
National Assembly may, by a vote of two-
thirds of all its Members, call a
constitutional convention or, by a majority
vote of all its Members, submit the
question of calling such a convention to
the electorate in an election.
SECTION 2. Any amendment to, or
revision of, this Constitution shall be valid
when ratified by a majority of the votes
cast in a plebiscite which shall be held not
later than three months after the approval
of such amendment or revision.
In the present period of transition, the interim National
Assembly instituted in the Transitory Provisions is conferred
with that amending power. Section 15 of the Transitory
Provisions reads:
SECTION 15. The interim National
Assembly, upon special call by the interim
Prime Minister, may, by a majority vote of
all its Members, propose amendments to
this Constitution. Such amendments shall
take effect when ratified in accordance
with Article Sixteen hereof.
There are, therefore, two periods contemplated in the
constitutional life of the nation, i.e., period of normalcy and
period of transition. In times of normally, the amending
process may be initiated by the proposals of the (1) regular
National Assembly upon a vote of three-fourths of all its
members; or (2) by a Constitutional Convention called by a
vote of two-thirds of all the Members of the National
Assembly. However the calling of a Constitutional Convention
may be submitted to the electorate in an election voted upon
by a majority vote of all the members of the National
Assembly. In times of transition, amendments may be
proposed by a majority vote of all the Members of the
National Assembly upon special call by the interim Prime
Minister,.
2. This Court in Aquino v. COMELEC," had already settled that
the incumbent President is vested with that prerogative of
discretion as to when he shall initially convene the interim
National Assembly. Speaking for the majority opinion in that
case, Justice Makasiar said: "The Constitutional Convention
intended to leave to the President the determination of the
time when he shall initially convene the interim National
Assembly, consistent with the prevailing conditions of peace
and order in the country." Concurring, Justice Fernandez,
himself a member of that Constitutional Convention,
revealed: "(W)hen the Delegates to the Constitutional
Convention voted on the Transitory Provisions, they were
aware of the fact that under the same, the incumbent
President was given the discretion as to when he could
convene the interim National Assembly; it was so stated
plainly by the sponsor, Delegate Yaneza; as a matter of fact,
the proposal that it be convened 'immediately', made by
Delegate Pimentel (V) was rejected. The President's decision
to defer the convening of the interim National Assembly soon
found support from the people themselves. In the plebiscite
of January 10-15, 1973, at which the ratification of the 1973
Constitution was submitted, the people voted against the
convening of the interim National Assembly. In the
referendum of July 24, 1973, the Citizens Assemblies
("bagangays") reiterated their sovereign will to withhold the
convening of the interim National Assembly. Again, in the
referendum of February 27, 1975, the proposed question of
whether the interim National Assembly shall be initially
convened was eliminated, because some of the members of
Congress and delegates of the Constitutional Convention,
who were deemed automatically members of the I interim
National Assembly, were against its inclusion since in that
referendum of January, 1973, the people had already
resolved against it.
3. In sensu strictiore, when the legislative arm of the state
undertakes the proposals of amendment to a Constitution,
that body is not in the usual function of lawmaking. lt is not
legislating when engaged in the amending process.16 Rather,
it is exercising a peculiar power bestowed upon it by the
fundamental charter itself. In the Philippines, that power is
provided for in Article XVI of the 1973 Constitution (for the
regular National Assembly) or in Section 15 of the Transitory
Provisions (for the National Assembly). While ordinarily it is
the business of the legislating body to legislate for the nation
by virtue of constitutional conferment amending of the
Constitution is not legislative in character. In political science
a distinction is made between constitutional content of an
organic character and that of a legislative character'. The
distinction, however, is one of policy, not of law.17 Such being
the case, approval of the President of any proposed
amendment is a misnomer 18 The prerogative of the President
to approve or disapprove applies only to the ordinary cases of
legislation. The President has nothing to do with proposition
or adoption of amendments to the Constitution. 19
III
Concentration of Powers in the President during crisis
government.
1. In general, the governmental powers in crisis government
the Philippines is a crisis government today are more or less
concentrated in the President. 20 According to Rossiter, "(t)he
4
concentration of government power in a democracy faced by
an emergency is a corrective to the crisis inefficiencies
inherent in the doctrine of the separation of powers. In most
free states it has generally been regarded as imperative that
the total power of the government be parceled out among
three mutually independent branches executive, legislature,
and judiciary. It is believed to be destructive of
constitutionalism if any one branch should exercise any two
or more types of power, and certainly a total disregard of the
separation of powers is, as Madison wrote in the Federalist,
No. 47, 'the very definition of tyranny.' In normal times the
separation of powers forms a distinct obstruction to arbitrary
governmental action. By this same token, in abnormal times it
may form an insurmountable barrier to a decisive emergency
action in behalf of the state and its independent existence.
There are moments in the life of any government when all
powers must work together in unanimity of purpose and
action, even if this means the temporary union of executive,
legislative, and judicial power in the hands of one man. The
more complete the separation of powers in a constitutional
system, the more difficult and yet the more necessary will be
their fusion in time of crisis. This is evident in a comparison of
the crisis potentialities of the cabinet and presidential
systems of government. In the former the all-important
harmony of legislature and executive is taken for granted; in
the latter it is neither guaranteed nor to be to confidently
expected. As a result, cabinet is more easily established and
more trustworthy than presidential dictatorship. The power
of the state in crisis must not only be concentrated and
expanded; it must also be freed from the normal system of
constitutional and legal limitations. 21 John Locke, on the
other hand, claims for the executive in its own right a broad
discretion capable even of setting aside the ordinary laws in
the meeting of special exigencies for which the legislative
power had not provided. 22 The rationale behind such broad
emergency powers of the Executive is the release of the
government from "the paralysis of constitutional restrains" so
that the crisis may be ended and normal times restored.
2. The presidential exercise of legislative powers in time of
martial law is now a conceded valid at. That sun clear
authority of the President is saddled on Section 3 (pars. 1 and
2) of the Transitory Provisions, thus:23
The incumbent President of the
Philippines shall initially convene the
 interim National Assembly and shall
preside over its sessions until the interim
Speaker shall have been elected. He shall
continue to exercise his powers and
prerogatives under the nineteen hundred
and thirty-five Constitution and the
powers vested in the President and the
Prime Minister under this Constitution
until the calls upon the interim National
Assembly to elect the interim President
and the interim Prime Minister, who shall
then exercise their respective powers
vested by this Constitution.
All proclamations, orders, decrees,
instructions, and acts promulgated,
issued, or done by the incumbent
President shall be part of the law of the
land, and shall remain valid, binding, and
effective even after lifting of martial law
or the ratification of this Constitution,
unless modified, revoked, or superseded
by subsequent proclamations, orders,
decrees, instructions, or other acts of the
incumbent President, or unless expressly
and explicitly modified or repealed by the
regular National Assembly.
"It is unthinkable," said Justice Fernandez, a 1971
Constitutional Convention delegate, "that the Constitutional
Convention, while giving to the President the discretion when
to call the interim National Assembly to session, and knowing
that it may not be convened soon, would create a vacuum in
the exercise of legislative powers. Otherwise, with no one to
exercise the lawmaking powers, there would be paralyzation
of the entire governmental machinery." 24 Paraphrasing
Rossiter, this is an extremely important factor in any
constitutional dictatorship which extends over a period of
time. The separation of executive and legislature ordained in
the Constitution presents a distinct obstruction to efficient
crisis government. The steady increase in executive power is
not too much a cause for as the steady increase in the
magnitude and complexity of the problems the President has
been called upon by the Filipino people to solve in their
behalf, which involve rebellion, subversion, secession,
recession, inflation, and economic crisis-a crisis greater than
war. In short, while conventional constitutional law just undertake the amending process would leave the
confines the President's power as Commander-in-Chief to the governmental machineries at a stalemate or create in the
direction of the operation of the national forces, yet the facts powers of the State a destructive vacuum, thereby impeding
of our political, social, and economic disturbances had the objective of a crisis government "to end the crisis and
convincingly shown that in meeting the same, indefinite restore normal times." In these parlous times, that
power should be attributed to tile President to take Presidential initiative to reduce into concrete forms the
emergency measures 25 constant voices of the people reigns supreme. After all,
constituent assemblies or constitutional conventions, like the
IV President now, are mere agents of the people .26
2. The President's action is not a unilateral move. As early as
Authority of the incumbent President t to propose
the referendums of January 1973 and February 1975, the
amendments to the Constitution.
people had already rejected the calling of the interim National
Assembly. The Lupong Tagapagpaganap of the Katipunan ng
1. As earlier pointed out, the power to legislate is
mga Sanggunian, the Pambansang Katipunan ng mga
constitutionally consigned to the interim National Assembly
Barangay, and the Pambansang Katipunan ng mga Barangay,
during the transition period. However, the initial convening of
representing 42,000 barangays, about the same number of
that Assembly is a matter fully addressed to the judgment of
Kabataang Barangay organizations, Sanggunians in 1,458
the incumbent President. And, in the exercise of that
municipalities, 72 provinces, 3 sub-provinces, and 60 cities
judgment, the President opted to defer convening of that
had informed the President that the prevailing sentiment of
body in utter recognition of the people's preference. Likewise,
the people is for the abolition of the interim National
in the period of transition, the power to propose
Assembly. Other issues concerned the lifting of martial law
amendments to the Constitution lies in the interim National
and amendments to the Constitution .27 The national
Assembly upon special call by the President (See. 15 of the
organizations of Sangguniang Bayan presently proposed to
Transitory Provisions). Again, harking to the dictates of the
settle the issues of martial law, the interim Assembly, its
sovereign will, the President decided not to call the interim
replacement, the period of its existence, the length of the
National Assembly. Would it then be within the bounds of the
period for the exercise by the President of its present powers
Constitution and of law for the President to assume that
in a referendum to be held on October 16 .28 The Batasang
constituent power of the interim Assembly vis-a-vis his
Bayan (legislative council) created under Presidential Decree
assumption of that body's legislative functions? The answer is
995 of September 10, 1976, composed of 19 cabinet
yes. If the President has been legitimately discharging the
members, 9 officials with cabinet rank, 91 members of the
legislative functions of the interim Assembly, there is no
Lupong Tagapagpaganap (executive committee) of the
reason why he cannot validly discharge the function of that
Katipunan ng mga Sangguniang Bayan voted in session to
Assembly to propose amendments to the Constitution, which
submit directly to the people in a plebiscite on October 16,
is but adjunct, although peculiar, to its gross legislative power.
the previously quoted proposed amendments to the
This, of course, is not to say that the President has converted
Constitution, including the issue of martial law .29 Similarly,
his office into a constituent assembly of that nature normally
the "barangays" and the "sanggunians" endorsed to the
constituted by the legislature. Rather, with the interim
President the submission of the proposed amendments to the
National Assembly not convened and only the Presidency and
people on October 16. All the foregoing led the President to
the Supreme Court in operation, the urges of absolute
initiate the proposal of amendments to the Constitution and
necessity render it imperative upon the President to act as
the subsequent issuance of Presidential Decree No, 1033 on
agent for and in behalf of the people to propose amendments
September 22, 1976 submitting the questions (proposed
to the Constitution. Parenthetically, by its very constitution,
amendments) to the people in the National Referendum-
the Supreme Court possesses no capacity to propose
Plebiscite on October 16.
amendments without constitutional infractions. For the
President to shy away from that actuality and decline to
V
5
The People is Sovereign
1. Unlike in a federal state, the location of sovereignty in a
unitary state is easily seen. In the Philippines, a republican
and unitary state, sovereignty "resides in the people and all
government authority emanates from them .30 In its fourth
meaning, Savigny would treat people as "that particular
organized assembly of individuals in which, according to the
Constitution, the highest power exists." 31 This is the concept
of popular sovereignty. It means that the constitutional
legislator, namely the people, is sovereign 32 In consequence,
the people may thus write into the Constitution their
convictions on any subject they choose in the absence of
express constitutional prohibition. 33 This is because, as
Holmes said, the Constitution "is an experiment, as all life is
all experiment."34 "The necessities of orderly government,"
wrote Rottschaefer, "do not require that one generation
should be permitted to permanently fetter all future
generations." A constitution is based, therefore, upon a self-
limiting decision of the people when they adopt it. 35
2. The October 16 referendum-plebiscite is a resounding call
to the people to exercise their sovereign power as
constitutional legislator. The proposed amendments, as
earlier discussed, proceed not from the thinking of a single
man. Rather, they are the collated thoughts of the sovereign
will reduced only into enabling forms by the authority who
can presently exercise the powers of the government. In
equal vein, the submission of those proposed amendments
and the question of martial law in a referendum-plebiscite
expresses but the option of the people themselves
implemented only by the authority of the President. Indeed, it
may well be said that the amending process is a sovereign act,
although the authority to initiate the same and the procedure
to be followed reside somehow in a particular body.
VI
Referendum-Plebiscite not rendered nugatory by the
participation of the 15-year olds.
1. October 16 is in parts a referendum and a plebiscite. The
question - (1) Do you want martial law to be continued? - is a
referendum question, wherein the 15-year olds may
participate. This was prompted by the desire of the
Government to reach the larger mas of the people so that
their true pulse may be felt to guide the President in pursuing
his program for a New Order. For the succeeding question on
the proposed amendments, only those of voting age of 18
years may participate. This is the plebiscite aspect, as
contemplated in Section 2, Article XVI of the new
Constitution. 36 On this second question, it would only be the
votes of those 18 years old and above which will have valid
bearing on the results. The fact that the voting populace are
simultaneously asked to answer the referendum question and
the plebiscite question does not infirm the referendum-
plebiscite. There is nothing objectionable in consulting the
people on a given issue, which is of current one and
submitting to them for ratification of proposed constitutional
amendments. The fear of commingled votes (15-year olds and
18-year olds above) is readily dispelled by the provision of
two ballot boxes for every barangay center, one containing
the ballots of voters fifteen years of age and under eighteen,
and another containing the ballots of voters eighteen years of
age and above. 37 The ballots in the ballot box for voters
fifteen years of age and under eighteen shall be counted
ahead of the ballots of voters eighteen years and above
contained in another ballot box. And, the results of the
referendum-plebiscite shall be separately prepared for the
age groupings, i.e., ballots contained in each of the two
boxes.38
2. It is apt to distinguish here between a "referendum" and a
"plebiscite." A "referendum" is merely consultative in
character. It is simply a means of assessing public reaction to
the given issues submitted to the people foe their
consideration, the calling of which is derived from or within
the totality of the executive power of the President.39 It is
participated in by all citizens from the age of fifteen,
regardless of whether or not they are illiterates, feeble-
minded, or ex- convicts .40 A "plebiscite," on the other hand,
involves the constituent act of those "citizens of the
Philippines not otherwise disqualified by law, who are
eighteen years of age or over, and who shall have resided in
the Philippines for at least one year and in the place wherein
they propose to vote for at least six months preceding the
election Literacy, property or any other substantive
requirement is not imposed. It is generally associated with the
amending process of the Constitution, more particularly, the
ratification aspect.
6
VII
1. There appeals to be no valid basis for the claim that the
regime of martial law stultifies in main the freedom to
dissent. That speaks of a bygone fear. The martial law regime
which, in the observation of Justice Fernando, 41 is impressed
with a mild character recorded no State imposition for a
muffled voice. To be sure, there are restraints of the
individual liberty, but on certain grounds no total suppression
of that liberty is aimed at. The for the referendum-plebiscite
on October 16 recognizes all the embracing freedoms of
expression and assembly The President himself had
announced that he would not countenance any suppression
of dissenting views on the issues, as he is not interested in
winning a "yes" or "no" vote, but on the genuine sentiment of
the people on the issues at hand. 42 Thus, the dissenters soon
found their way to the public forums, voicing out loud and
clear their adverse views on the proposed amendments and
even (in the valid ratification of the 1973 Constitution, which
is already a settled matter.43 Even government employees
have been held by the Civil Service Commission free to
participate in public discussion and even campaign for their
stand on the referendum-plebiscite issues.44
VIII
Time for deliberation is not short.
1. The period from September 21 to October 16 or a period of
3 weeks is not too short for free debates or discussions on the
referendum-plebiscite issues. The questions are not new.
They are the issues of the day. The people have been living
with them since the proclamation of martial law four years
ago. The referendums of 1973 and 1975 carried the same
issue of martial law. That notwithstanding, the contested brief
period for discussion is not without counterparts in previous
plebiscites for constitutional amendments. Justice Makasiar,
in the Referendum Case, recalls: "Under the old Society, 15
days were allotted for the publication in three consecutive
issues of the Official Gazette of the women's suffrage
amendment to the Constitution before the scheduled
plebiscite on April 30, 1937 (Com. Act No. 34). The
constitutional amendment to append as ordinance the
complicated Tydings-Kocialskowski was published in only
three consecutive issues of the Official Gazette for 10 days
prior to the scheduled plebiscite (Com. Act 492). For the 1940
Constitutional amendments providing for the bicameral
Congress, the reelection of the President and Vice President,
and the creation of the Commission on Elections, 20 days of
publication in three consecutive issues of the Official Gazette
was fixed (Com Act No. 517). And the Parity Amendment, an
involved constitutional amendment affecting the economy as
well as the independence of the Republic was publicized in
three consecutive issues of the Official Gazette for 20 days
prior to the plebiscite (Rep. Act No. 73)."45
2. It is worthy to note that Article XVI of the Constitution
makes no provision as to the specific date when the plebiscite
shall be held, but simply states that it "shall be held not later
than three months after the approval of such amendment or
revision." In Coleman v. Miller, 46 the United States Supreme
court held that this matter of submission involves "an
appraisal of a great variety of relevant conditions, political,
social and economic," which "are essentially political and not
justiciable." The constituent body or in the instant cases, the
President, may fix the time within which the people may act.
This is because proposal and ratification are not treated as
unrelated acts, but as succeeding steps in a single endeavor,
the natural inference being that they are not to be widely
separated in time; second, it is only when there is deemed to
be a necessity therefor that amendments are to be proposed,
the reasonable implication being that when proposed, they
are to be considered and disposed of presently, and third,
ratification is but the expression of the approbation of the
people, hence, it must be done contemporaneously. 47 In the
words of Jameson, "(a)n alteration of the Constitution
proposed today has relation to the sentiment and the felt
needs of today, and that, if not ratified early while that
sentiment may fairly be supposed to exist. it ought to be
regarded as waived, and not again to be voted upon, unless a
second time proposed by proper body
IN RESUME
The three issues are
1. Is the question of the constitutionality of Presidential
Decrees Nos. 991, 1031 and 1033 political or justiciable?
2. During the present stage of the transition period, and proper submission with sufficient information and time to
under, the environmental circumstances now obtaining, does assure intelligent consent or rejection under the standards set
the President possess power to propose amendments to the by this Court in the controlling cases of Gonzales, supra, and
Constitution as well as set up the required machinery and Tolentino vs. COMELEC (41 SCRA 702).
prescribe the procedure for the ratification of his proposals by
the people? Chief Justice Castro and Associate Justices Barredo, Makasiar,
Antonio, Aquino, Concepcion Jr. and Martin voted to dismiss
3. Is the submission to the people of the proposed the three petitions at bar. For reasons as expressed in his
amendments within the time frame allowed therefor a separate opinion, Associate Justice Fernando concurs in the
sufficient and proper submission? result. Associate Justices Teehankee and Munoz Palma voted
to grant the petitions.
Upon the first issue, Chief Justice Fred Ruiz Castro and
Associate Justices Enrique M. Fernando, Claudio Teehankee, ACCORDINGLY, the vote being 8 to 2 to dismiss, the said
Antonio P. Barredo, Cecilia Munoz Palma, Hermogenes petitions are hereby dismissed. This decision is immediately
Concepcion Jr. and Ruperto G. Martin are of the view that the executory.
question posed is justiciable, while Associate Justices Felix V.
Makasiar, Felix Q. Antonio and Ramon C. Aquino hold the SO ORDERED.
view that the question is political.
Upon the second issue, Chief Justice Castro and Associate
Justices Barredo, Makasiar, Antonio, Aquino, Concepcion Jr.
and Martin voted in the affirmative, while Associate Justices
Teehankee and Munoz Palma voted in the negative. Associate
Justice Fernando, conformably to his concurring and
dissenting opinion in Aquino vs. Enrile (59 SCRA 183),
specifically dissents from the proposition that there is
concentration of powers in the Executive during periods of
crisis, thus raising serious doubts as to the power of the
President to propose amendments.
Upon the third issue, Chief Justice Castro and Associate
Justices Barredo, Makasiar, Aquino, Concepcion Jr. and Martin
are of the view that there is a sufficient and proper
submission of the proposed amendments for ratification by
the people. Associate Justices Barredo and Makasiar
expressed the hope, however that the period of time may be
extended. Associate Justices Fernando, Makasiar and Antonio
are of the view that the question is political and therefore
beyond the competence and cognizance of this Court,
Associate Justice Fernando adheres to his concurrence in the
opinion of Chief Justice Concepcion in Gonzales vs. COMELEC
(21 SCRA 774).Associate Justices Teehankee and MUNOZ
Palma hold that prescinding from the President's lack of
authority to exercise the constituent power to propose the
amendments, etc., as above stated, there is no fair and
7
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-32052 July 25, 1975
PHILIPPINE VIRGINIA TOBACCO
ADMINISTRATION, petitioner,
vs.
COURT OF INDUSTRIAL RELATIONS, REUEL ABRAHAM,
MILAGROS ABUEG, AVELINO ACOSTA, CAROLINA ACOSTA,
MARTIN AGSALUD, JOSEFINA AGUINALDO, GLORIA ALBANO,
ANTONIO ALUNING, COSME ALVAREZ, ISABEL ALZATE,
AURORA APUSEN, TOMAS ARCANGEL, LOURDES
ARJONELLO, MANUEL AROMIN, DIONISIO ASISTIN, JOSE
AURE, NICASIO AZNAR, EUGENIO AZURIN, CLARITA
BACUGAN, PIO BALAGOT, HEREDIO BALMACEDA, ESTHER
BANAAG, JOVENCIO BARBERO, MONICO BARBADILLO,
HERNANDO BARROZO, FILIPINA BARROZO, REMEDIO
BARTOLOME, ANGELINA BASCOS, JOSE BATALLA, ALMARIO
BAUTISTA, EUGENIO BAUTISTA, JR., HERMALO BAUTISTA,
JUANITO BAUTISTA, SEVERINO BARBANO, CAPPIA
BARGONIA, ESMERALDA BERNARDEZ, RUBEN BERNARDEZ,
ALFREDO BONGER, TOMAS BOQUIREN, ANGELINA BRAVO,
VIRGINIA BRINGA, ALBERTO BUNEO, SIMEON CABANAYAN,
LUCRECIA CACATIAN, LEONIDES CADAY, ANGELINA
CADOTTE, IGNACIO CALAYCAY, PACIFICO CALUB, RUFINO
CALUZA, CALVIN CAMBA, ALFREDO CAMPOSENO, BAGUILITA
CANTO, ALFREDO CARRERA, PEDRO CASES, CRESCENTE
CASIS, ERNESTO CASTANEDA, HERMINIO CASTILLO, JOSE
CASTRO, LEONOR CASTRO, MADEO CASTRO, MARIA PINZON
CASTRO, PABLO CATURA, RESTITUTO CESPADES, FLORA
CHACON, EDMUNDO CORPUZ, ESTHER CRUZ, CELIA
CUARESMA, AQUILINO DACAYO, DIONISIA DASALLA,
SOCORRO DELFIN, ABELARDO DIAZ, ARTHUR DIAZ, CYNTHIA
DIZON, MARCIA DIZON, ISABELO DOMINGO, HONORATA
DOZA, CAROLINA DUAD, JUSTINIANO EPISTOLA, ROMEO
ENCARNACION, PRIMITIVO ESCANO, ELSA ESPEJO, JUAN
ESPEJO, RIZALINA ESQUILLO, YSMAEL FARINAS, LORNA
FAVIS, DAN FERNANDEZ, JAIME FERNANDEZ, ALFREDO
FERRER, MODESTO FERRER, JR., EUGENIO FLANDEZ,
GUILLERMO FLORENDO, ALFREDO FLORES, DOMINGA
FLORES, ROMEO FLORES, LIGAYA FONTANILLA, MELCHOR
GASMEN, LEILA GASMENA, CONSUELO GAROLAGA,
ALFONSO GOROSPE, CESAR GOROSPE, RICARDO GOROSPE,
JR., CARLITO GUZMAN, ERNESTO DE GUZMAN, THELMA DE
GUZMAN, FELIX HERNANDEZ, SOLIVEN HERNANDO,
FRANCISCO HIDALGO, LEONILO INES, SIXTO JAQUIES,
TRINIDAD JAVIER, FERMIN LAGUA, GUALBERTO LAMBINO,
ROMAN LANTING, OSCAR LAZO, ROSARIO LAZO, JOSEFINA
DE LARA, AMBROSIO LAZOL, NALIE LIBATIQUE, LAMBERTO
LLAMAS, ANTONIO LLANES, ROMULA LOPEZ, ADRIANO
LORENZANA, ANTONIO MACARAEG, ILDEFONSO MAGAT,
CECILIO MAGHANOY, ALFONSO MAGSANOC, AVELINA
MALLARE, AUGUSTO MANALO, DOMINADOR MANASAN,
BENITO MANECLANG, JR., TIRSO MANGUMAY, EVELIA
MANZANO, HONORANTE MARIANO, DOMINGO MEDINA,
MARTIN MENDOZA, PERFECTO MILANA, EMILIO MILLAN,
GREGORIO MONEGAS, CONSOLACION NAVALTA, NOLI
OCAMPO, VICENTE CLEGARIO, ELPIDIO PALMONES, ARACELI
PANGALANGAN, ISIDORO PANLASIGUI, JR., ARTEMIO PARIS,
JR., FEDERICO PAYUMO, JR., NELIA PAYUMO, BITUEN PAZ,
FRANCISCO PENGSON, OSCAR PERALTA, PROCORRO
PERALTA, RAMON PERALTA, MINDA PICHAY, MAURO
PIMENTEL, PRUDENCIO PIMENTEL, LEOPOLDO PUNO,
REYNALDO RABE, ROLANDO REA, CONSTANTINO REA,
CECILIA RICO, CECILIO RILLORAZA, AURORA ROMAN,
MERCEDES RUBIO, URSULA RUPISAN, OLIVIA SABADO,
BERNARDO SACRAMENTO, LUZ SALVADOR, JOSE SAMSON,
JR., ROMULA DE LOS SANTOS, ANTONIO SAYSON, JR.,
FLORANTE SERIL, MARIO SISON, RUDY SISON, PROCEDIO
TABIN, LUCENA TABISULA, HANNIBAL TAJANO, ENRIQUE
TIANGCO, JR., JUSTINIANO TOBIAS, NYMIA TOLENTINO,
CONSTANTE TOLENTINO, TEODORO TOREBIO, FEDERICO
TRINIDAD, JOVENCINTO TRINIDAD, LAZARO VALDEZ,
LUDRALINA VALDEZ, MAXIMINA VALDEZ, FRANCISCO
VELASCO, JR., ROSITA VELASCO, SEVERO VANTANILLA,
VENANCIO VENTIGAN, FELICITAS VENUS, NIEVES DE VERA,
ELISEO VERSOZA, SILVESTRE VILA, GLORIA VILLAMOR,
ALEJANDRO VELLANUEVA, DAVID VILLANUEVA, CAROLINA
VILLASENOR ORLANDO VILLASTIQUE, MAJELLA VILORIN,
ROSARIO VILORIA, MAY VIRATA, FEDERICO VIRAY, MELBA
YAMBAO, MARIO ZAMORA, AUTENOR ABUEG, SOTERO
ACEDO, HONRADO ALBERTO, FELIPE ALIDO, VICENTE
ANCHUELO, LIBERTAD APEROCHO, MARIANO BALBAGO,
MARIO BALMACEDA, DAISY BICENIO, SYLVIA BUSTAMANTE,
RAYMUNDO GEMERINO, LAZARO CAPURAS, ROGELIO
CARUNGCONG, ZACARIAS CAYETANO, JR., LILY CHUA,
ANDRES CRUZ, ARTURO CRUZ, BIENVENIDO ESTEBAN,
1
PABLO JARETA, MANUEL JOSE, NESTORIA KINTANAR,
CLEOPATRIA LAZEM. MELCHOR LAZO, JESUS LUNA, GASPAR
MARINAS, CESAR MAULSON, MANUEL MEDINA, JESUS
PLURAD, LAKAMBINI RAZON, GLORIA IBANEZ, JOSE SANTOS,
ELEAZAR SQUI, JOSE TAMAYO, FELIPE TENORIO, SILVINO
UMALI, VICENTE ZARA, SATURNINO GARCIA, WILLIAM
GARCIA, NORMA GARINGARAO, ROSARIO ANTONIO, RUBEN
BAUTISTA, QUIRINO PUESTO, NELIA M. GOMERI, OSCAR R.
LANUZA, AURORA M. LINDAYA, GREGORIO MOGSINO,
JACRM B. PAPA, GREGORIO R. RIEGO, TERESITA N. ROZUL,
MAGTANGOL SAMALA, PORFIRIO AGOCOLIS, LEONARDO
MONTE, HERMELINO PATI, ALFREDO PAYOYO,
PURIFICACION ROJAS, ODANO TEANO, RICARDO SANTIAGO,
and MARCELO MANGAHAS, respondents.
Gov't. Corp. Counsel Leopoldo M. Abellera, Trial Attorneys
Manuel M. Lazaro and Vicente Constantine, Jr., for petitioner.
Renato B. Kare and Simeon C. Sato for private respondents.
FERNANDO, J.:
The principal issue that calls for resolution in this appeal
by certiorari from an order of respondent Court of Industrial
Relations is one of constitutional significance. It is concerned
with the expanded role of government necessitated by the
increased responsibility to provide for the general welfare.
More specifically, it deals with the question of whether
petitioner, the Philippine Virginia Tobacco Administration,
discharges governmental and not proprietary functions. The
landmark opinion of the then Justice, row Chief Justice,
Makalintal in Agricultural Credit and Cooperative Financing
Administration v. Confederation of Unions in Government
Corporations and offices, points the way to the right
answer.1 It interpreted the then fundamental law as hostile to
the view of a limited or negative state. It is antithetical to
the laissez faire concept. For as noted in an earlier decision,
the welfare state concept "is not alien to the philosophy of
[the 1935] Constitution."2 It is much more so under the
present Charter, which is impressed with an even more
explicit recognition of social and economic rights.3 There is
manifest, to recall Laski, "a definite increase in the profundity
of the social conscience," resulting in "a state which seeks to
realize more fully the common good of its members."4 It does
not necessarily follow, however, just because petitioner is
engaged in governmental rather than proprietary functions,
that the labor controversy was beyond the jurisdiction of the
now defunct respondent Court. Nor is the objection raised
that petitioner does not come within the coverage of the
Eight-Hour Labor Law persuasive.5 We cannot then grant the
reversal sought. We affirm.
The facts are undisputed. On December 20, 1966, claimants,
now private respondents, filed with respondent Court a
petition wherein they alleged their employment relationship,
the overtime services in excess of the regular eight hours a
day rendered by them, and the failure to pay them overtime
compensation in accordance with Commonwealth Act No.
444. Their prayer was for the differential between the amount
actually paid to them and the amount allegedly due
them.6 There was an answer filed by petitioner Philippine
Virginia Tobacco Administration denying the allegations and
raising the special defenses of lack of a cause of action and
lack of jurisdiction. 7 The issues were thereafter joined, and
the case set for trial, with both parties presenting their
evidence.8 After the parties submitted the case for decision,
the then Presiding Judge Arsenio T. Martinez of respondent
Court issued an order sustaining the claims of private
respondents for overtime services from December 23, 1963
up to the date the decision was rendered on March 21, 1970,
and directing petitioner to pay the same, minus what it had
already paid.9 There was a motion for reconsideration, but
respondent Court en banc denied the same. 10 Hence this
petition for certiorari.
Petitioner Philippine Virginia Tobacco Administration, as had
been noted, would predicate its plea for the reversal of the
order complained of on the basic proposition that it is beyond
the jurisdiction of respondent Court as it is exercising
governmental functions and that it is exempt from the
operation of Commonwealth Act No. 444. 11 While, to repeat,
its submission as to the governmental character of its
operation is to be given credence, it is not a necessary
consequence that respondent Court is devoid of jurisdiction.
Nor could the challenged order be set aside on the additional
argument that the Eight-Hour Labor Law is not applicable to
it. So it was, at the outset, made clear.
1. A reference to the enactments creating petitioner
corporation suffices to demonstrate the merit of petitioner's
plea that it performs governmental and not proprietary
functions. As originally established by Republic Act No.
2265, 12 its purposes and objectives were set forth thus: "(a)
To promote the effective merchandising of Virginia tobacco in
the domestic and foreign markets so that those engaged in
the industry will be placed on a basis of economic security; (b)
To establish and maintain balanced production and
consumption of Virginia tobacco and its manufactured
products, and such marketing conditions as will insure and
stabilize the price of a level sufficient to cover the cost of
production plus reasonable profit both in the local as well as
in the foreign market; (c) To create, establish, maintain, and
operate processing, warehousing and marketing facilities in
suitable centers and supervise the selling and buying of
Virginia tobacco so that the farmers will enjoy reasonable
prices that secure a fair return of their investments; (d) To
prescribe rules and regulations governing the grading,
classifying, and inspecting of Virginia tobacco; and (e) To
improve the living and economic conditions of the people
engaged in the tobacco industry." 13The amendatory statute,
Republic Act No. 4155, 14 renders even more evident its
nature as a governmental agency. Its first section on the
declaration of policy reads: "It is declared to be the national
policy, with respect to the local Virginia tobacco industry, to
encourage the production of local Virginia tobacco of the
qualities needed and in quantities marketable in both
domestic and foreign markets, to establish this industry on an
efficient and economic basis, and, to create a climate
conducive to local cigarette manufacture of the qualities
desired by the consuming public, blending imported and
native Virginia leaf tobacco to improve the quality of locally
manufactured cigarettes." 15 The objectives are set forth thus:
"To attain this national policy the following objectives are
hereby adopted: 1. Financing; 2. Marketing; 3. The disposal of
stocks of the Agricultural Credit Administration (ACA) and the
Philippine Virginia Tobacco Administration (PVTA) at the best
obtainable prices and conditions in order that a reinvigorated
Virginia tobacco industry may be established on a sound
basis; and 4. Improving the quality of locally manufactured
cigarettes through blending of imported and native Virginia
leaf tobacco; such importation with corresponding
exportation at a ratio of one kilo of imported to four kilos of
exported Virginia tobacco, purchased by the importer-
exporter from the Philippine Virginia Tobacco
Administration." 16
2
It is thus readily apparent from a cursory perusal of such
statutory provisions why petitioner can rightfully invoke the
doctrine announced in the leading Agricultural Credit and
Cooperative Financing Administration decision 17 and why the
objection of private respondents with its overtones of the
distinction between constituent and ministrant functions of
governments as set forth in Bacani v. National Coconut
Corporation 18 if futile. The irrelevance of such a distinction
considering the needs of the times was clearly pointed out by
the present Chief Justice, who took note, speaking of the
reconstituted Agricultural Credit Administration, that
functions of that sort "may not be strictly what President
Wilson described as "constituent" (as distinguished from
"ministrant"),such as those relating to the maintenance of
peace and the prevention of crime, those regulating property
and property rights, those relating to the administration of
justice and the determination of political duties of citizens,
and those relating to national defense and foreign relations.
Under this traditional classification, such constituent
functions are exercised by the State as attributes of
sovereignty, and not merely to promote the welfare, progress
and prosperity of the people — these latter functions being
ministrant, the exercise of which is optional on the part of the
government." 19Nonetheless, as he explained so persuasively:
"The growing complexities of modern society, however, have
rendered this traditional classification of the functions of
government quite unrealistic, not to say obsolete. The areas
which used to be left to private enterprise and initiative and
which the government was called upon to enter optionally,
and only "because it was better equipped to administer for
the public welfare than is any private individual or group of
individuals", continue to lose their well-defined boundaries
and to be absorbed within activities that the government
must undertake in its sovereign capacity if it is to meet the
increasing social challenges of the times. Here as almost
everywhere else the tendency is undoubtedly towards a
greater socialization of economic forces. Here of course this
development was envisioned, indeed adopted as a national
policy, by the Constitution itself in its declaration of principle
concerning the promotion of social justice." 20 Thus was laid
to rest the doctrine in Bacani v. National Coconut
Corporation, 21 based on the Wilsonian classification of the
tasks incumbent on government into constituent and
ministrant in accordance with the laissez faire principle. That
concept, then dominant in economics, was carried into the
governmental sphere, as noted in a textbook on political
science, 22 the first edition of which was published in 1898, its
author being the then Professor, later American President,
Woodrow Wilson. He took pains to emphasize that what was
categorized by him as constituent functions had its basis in a
recognition of what was demanded by the "strictest [concept
of] laissez faire, [as they] are indeed the very bonds of
society." 23 The other functions he would minimize as
ministrant or optional.
It is a matter of law that in the Philippines, the laissez
faire principle hardly commanded the authoritative position
which at one time it held in the United States. As early as
1919, Justice Malcolm in Rubi v. Provincial Board 24 could
affirm: "The doctrines of laissez faire and of unrestricted
freedom of the individual, as axioms of economic and political
theory, are of the past. The modern period has shown a
widespread belief in the amplest possible demonstration of
government activity." 25 The 1935 Constitution, as was
indicated earlier, continued that approach. As noted in Edu v.
Ericta:26 "What is more, to erase any doubts, the
Constitutional Convention saw to it that the concept
of laissez-faire was rejected. It entrusted to our government
the responsibility of coping with social and economic
problems with the commensurate power of control over
economic affairs. Thereby it could live up to its commitment
to promote the general welfare through state action." 27 Nor
did the opinion in Edu stop there: "To repeat, our Constitution
which took effect in 1935 erased whatever doubts there
might be on that score. Its philosophy is a repudiation
of laissez-faire. One of the leading members of the
Constitutional Convention, Manuel A. Roxas, later the first
President of the Republic, made it clear when he disposed of
the objection of Delegate Jose Reyes of Sorsogon, who noted
the "vast extensions in the sphere of governmental functions"
and the "almost unlimited power to interfere in the affairs of
industry and agriculture as well as to compete with existing
business" as "reflections of the fascination exerted by [the
then] current tendencies' in other jurisdictions. He spoke
thus: "My answer is that this constitution has a definite and
well defined philosophy, not only political but social and
economic.... If in this Constitution the gentlemen will find
declarations of economic policy they are there because they
are necessary to safeguard the interest and welfare of the
Filipino people because we believe that the days have come
when in self-defense, a nation may provide in its constitution
those safeguards, the patrimony, the freedom to grow, the
freedom to develop national aspirations and national
interests, not to be hampered by the artificial boundaries
which a constitutional provision automatically imposes." 28
It would be then to reject what was so emphatically stressed
in the Agricultural Credit Administration decision about which
the observation was earlier made that it reflected the
philosophy of the 1935 Constitution and is even more in
consonance with the expanded role of government accorded
recognition in the present Charter if the plea of petitioner
that it discharges governmental function were not heeded.
That path this Court is not prepared to take. That would be to
go backward, to retreat rather than to advance. Nothing can
thus be clearer than that there is no constitutional obstacle to
a government pursuing lines of endeavor, formerly reserved
for private enterprise. This is one way, in the language of
Laski, by which through such activities, "the harsh contract
which [does] obtain between the levels of the rich and the
poor" may be minimized. 29 It is a response to a trend noted
by Justice Laurel in Calalang v. Williams 30 for the
humanization of laws and the promotion of the interest of all
component elements of society so that man's innate
aspirations, in what was so felicitously termed by the First
Lady as "a compassionate society" be attained. 31
2. The success that attended the efforts of petitioner to be
adjudged as performing governmental rather than proprietary
functions cannot militate against respondent Court assuming
jurisdiction over this labor dispute. So it was mentioned
earlier. As far back as Tabora v. Montelibano, 32 this Court,
speaking through Justice Padilla, declared: The NARIC was
established by the Government to protect the people against
excessive or unreasonable rise in the price of cereals by
unscrupulous dealers. With that main objective there is no
reason why its function should not be deemed governmental.
The Government owes its very existence to that aim and
purpose — to protect the people." 33 In a subsequent
case, Naric Worker's Union v. Hon. Alvendia, 34 decided four
years later, this Court, relying on Philippine Association of Free
Labor Unions v. Tan, 35 which specified the cases within the
exclusive jurisdiction of the Court of Industrial Relations,
included among which is one that involves hours of
employment under the Eight-Hour Labor Law, ruled that it is
precisely respondent Court and not ordinary courts that
should pass upon that particular labor controversy. For Justice
J. B. L. Reyes, the ponente, the fact that there were judicial as
3
well as administrative and executive pronouncements to the
effect that the Naric was performing governmental functions
did not suffice to confer competence on the then respondent
Judge to issue a preliminary injunction and to entertain a
complaint for damages, which as pointed out by the labor
union, was connected with an unfair labor practice. This is
emphasized by the dispositive portion of the decision:
"Wherefore, the restraining orders complained of, dated May
19, 1958 and May 27, 1958, are set aside, and the complaint
is ordered dismissed, without prejudice to the National Rice
and Corn Corporation's seeking whatever remedy it is entitled
to in the Court of Industrial Relations." 36 Then, too, in a case
involving petitioner itself, Philippine Virginia Tobacco
Administration, 37 where the point in dispute was whether it
was respondent Court or a court of first instance that is
possessed of competence in a declaratory relief petition for
the interpretation of a collective bargaining agreement, one
that could readily be thought of as pertaining to the judiciary,
the answer was that "unless the law speaks clearly and
unequivocally, the choice should fall on the Court of Industrial
Relations." 38 Reference to a number of decisions which
recognized in the then respondent Court the jurisdiction to
determine labor controversies by government-owned or
controlled corporations lends to support to such an
approach. 39 Nor could it be explained only on the assumption
that proprietary rather than governmental functions did call
for such a conclusion. It is to be admitted that such a view
was not previously bereft of plausibility. With the aforecited
Agricultural Credit and Cooperative Financing Administration
decision rendering obsolete the Bacani doctrine, it has, to use
a Wilsonian phrase, now lapsed into "innocuous
desuetude." 40 Respondent Court clearly was vested with
jurisdiction.
3. The contention of petitioner that the Eight-Hour Labor
Law 41 does not apply to it hardly deserves any extended
consideration. There is an air of casualness in the way such an
argument was advanced in its petition for review as well as in
its brief. In both pleadings, it devoted less than a full page to
its discussion. There is much to be said for brevity, but not in
this case. Such a terse and summary treatment appears to be
a reflection more of the inherent weakness of the plea rather
than the possession of an advocate's enviable talent for
concision. It did cite Section 2 of the Act, but its very language
leaves no doubt that "it shall apply to all persons employed in
any industry or occupation, whether public or private ...
." 42 Nor are private respondents included among the
employees who are thereby barred from enjoying the
statutory benefits. It cited Marcelo v. Philippine National Red
Cross 43 and Boy Scouts of the Philippines v. Araos.44 Certainly,
the activities to which the two above public corporations
devote themselves can easily be distinguished from that
engaged in by petitioner. A reference to the pertinent
sections of both Republic Acts 2265 and 2155 on which it
relies to obtain a ruling as to its governmental character
should render clear the differentiation that exists. If as a
result of the appealed order, financial burden would have to
be borne by petitioner, it has only itself to blame. It need not
have required private respondents to render overtime
service. It can hardly be surmised that one of its chief
problems is paucity of personnel. That would indeed be a
cause for astonishment. It would appear, therefore, that such
an objection based on this ground certainly cannot suffice for
a reversal. To repeat, respondent Court must be sustained.

WHEREFORE, the appealed Order of March 21, 1970 and the

Resolution of respondent Court en banc of May 8, 1970
denying a motion for reconsideration are hereby affirmed.
The last sentence of the Order of March 21, 1970 reads as
follows: "To find how much each of them [private
respondents] is entitled under this judgment, the Chief of the
Examining Division, or any of his authorized representative, is
hereby directed to make a reexamination of records, papers
and documents in the possession of respondent PVTA
pertinent and proper under the premises and to submit his
report of his findings to the Court for further disposition
thereof." Accordingly, as provided by the New Labor Code,
this case is referred to the National Labor Relations
Commission for further proceedings conformably to law. No
costs.

4
 Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. L-25843 July 25, 1974
MELCHORA CABANAS, plaintiff-appellee,
vs.
FRANCISCO PILAPIL, defendant-appellant.
Seno, Mendoza & Associates for plaintiff-appellee.
Emilio Benitez, Jr. for defendant-appellant.
FERNANDO, J.:p
The disputants in this appeal from a question of law from a
lower court decision are the mother and the uncle of a minor
beneficiary of the proceeds of an insurance policy issued on
the life of her deceased father. The dispute centers as to who
of them should be entitled to act as trustee thereof. The
lower court applying the appropriate Civil Code provisions
decided in favor of the mother, the plaintiff in this case.
Defendant uncle appealed. As noted, the lower court acted
the way it did following the specific mandate of the law. In
addition, it must have taken into account the principle that in
cases of this nature the welfare of the child is the paramount
consideration. It is not an unreasonable assumption that
between a mother and an uncle, the former is likely to lavish
more care on and pay greater attention to her. This is all the
more likely considering that the child is with the mother.
There are no circumstances then that did militate against
what conforms to the natural order of things, even if the
language of the law were not as clear. It is not to be lost sight
of either that the judiciary pursuant to its role as an agency of
the State as parens patriae, with an even greater stress on
family unity under the present Constitution, did weigh in the
balance the opposing claims and did come to the conclusion
that the welfare of the child called for the mother to be
entrusted with such responsibility. We have to affirm.
The appealed decision made clear: "There is no controversy as
to the facts. "1 The insured, Florentino Pilapil had a child,
Millian Pilapil, with a married woman, the plaintiff, Melchora
Cabanas. She was ten years old at the time the complaint was
filed on October 10, 1964. The defendant, Francisco Pilapil, is
the brother of the deceased. The deceased insured himself
and instituted as beneficiary, his child, with his brother to act
as trustee during her minority. Upon his death, the proceeds
were paid to him. Hence this complaint by the mother, with
whom the child is living, seeking the delivery of such sum. She
filed the bond required by the Civil Code. Defendant would
justify his claim to the retention of the amount in question by
invoking the terms of the insurance policy.2
After trial duly had, the lower court in a decision of May 10,
1965, rendered judgment ordering the defendant to deliver
the proceeds of the policy in question to plaintiff. Its main
reliance was on Articles 320 and 321 of the Civil Code. The
former provides: "The father, or in his absence the mother, is
the legal administrator of the property pertaining to the child
under parental authority. If the property is worth more than
two thousand pesos, the father or mother shall give a bond
subject to the approval of the Court of First Instance."3 The
latter states: "The property which the unemancipated child
has acquired or may acquire with his work or industry, or by
any lucrative title, belongs to the child in ownership, and in
usufruct to the father or mother under whom he is under
parental authority and whose company he lives; ...4
Conformity to such explicit codal norm is apparent in this
portion of the appealed decision: "The insurance proceeds
belong to the beneficiary. The beneficiary is a minor under
the custody and parental authority of the plaintiff, her
mother. The said minor lives with plaintiff or lives in the
company of the plaintiff. The said minor acquired this
property by lucrative title. Said property, therefore, belongs
to the minor child in ownership, and in usufruct to the
plaintiff, her mother. Since under our law the usufructuary is
entitled to possession, the plaintiff is entitled to possession of
the insurance proceeds. The trust, insofar as it is in conflict
with the above quoted provision of law, is pro tanto null and
void. In order, however, to protect the rights of the minor,
Millian Pilapil, the plaintiff should file an additional bond in
the guardianship proceedings, Sp. Proc. No. 2418-R of this
Court to raise her bond therein to the total amount of
P5,000.00."5
1
It is very clear, therefore, considering the above, that unless
the applicability of the two cited Civil Code provisions can be
disputed, the decision must stand. There is no ambiguity in
the language employed. The words are rather clear. Their
meaning is unequivocal. Time and time again, this Court has
left no doubt that where codal or statutory norms are cast in
categorical language, the task before it is not one of
interpretation but of application.6 So it must be in this case.
So it was in the appealed decision.
1. It would take more than just two paragraphs as found in
the brief for the defendant-appellant7 to blunt the force of
legal commands that speak so plainly and so unqualifiedly.
Even if it were a question of policy, the conclusion will remain
unaltered. What is paramount, as mentioned at the outset, is
the welfare of the child. It is in consonance with such
primordial end that Articles 320 and 321 have been worded.
There is recognition in the law of the deep ties that bind
parent and child. In the event that there is less than full
measure of concern for the offspring, the protection is
supplied by the bond required. With the added circumstance
that the child stays with the mother, not the uncle, without
any evidence of lack of maternal care, the decision arrived at
can stand the test of the strictest scrutiny. It is further
fortified by the assumption, both logical and natural, that
infidelity to the trust imposed by the deceased is much less in
the case of a mother than in the case of an uncle. Manresa,
commenting on Article 159 of the Civil Code of Spain, the
source of Article 320 of the Civil Code, was of that view: Thus
"El derecho y la obligacion de administrar el Patrimonio de los
hijos es una consecuencia natural y lógica de la patria
potestad y de la presunción de que nadie cuidará de los
bienes de acquéllos con mas cariño y solicitude que los
padres. En nuestro Derecho antiguo puede decirse que se
hallaba reconocida de una manera indirecta aquelia doctrina,
y asi se desprende de la sentencia del Tribunal Supremeo de
30 de diciembre de 1864, que se refiere a la ley 24, tit. XIII de
la Partida 5. De la propia suerte aceptan en general dicho
principio los Codigos extranjeros, con las limitaciones y
requisitos de que trataremos mis adelante."8
2. The appealed decision is supported by another cogent
consideration. It is buttressed by its adherence to the concept
that the judiciary, as an agency of the State acting
as parens patriae, is called upon whenever a pending suit of
litigation affects one who is a minor to accord priority to his
best interest. It may happen, as it did occur here, that family
relations may press their respective claims. It would be more
in consonance not only with the natural order of things but
the tradition of the country for a parent to be preferred. it
could have been different if the conflict were between father
and mother. Such is not the case at all. It is a mother asserting
priority. Certainly the judiciary as the instrumentality of the
State in its role of parens patriae, cannot remain insensible to
the validity of her plea. In a recent case,9 there is this
quotation from an opinion of the United States Supreme
Court: "This prerogative of parens patriae is inherent in the
supreme power of every State, whether that power is lodged
in a royal person or in the legislature, and has no affinity to
those arbitrary powers which are sometimes exerted by
irresponsible monarchs to the great detriment of the people
and the destruction of their liberties." What is more, there is
this constitutional provision vitalizing this concept. It reads:
"The State shall strengthen the family as a basic social
institution." 10 If, as the Constitution so wisely dictates, it is
the family as a unit that has to be strengthened, it does not
admit of doubt that even if a stronger case were presented
for the uncle, still deference to a constitutional mandate
would have led the lower court to decide as it did.

WHEREFORE, the decision of May 10, 1965 is affirmed. Costs

against defendant-appellant.

2
LAWYERS LEAGUE FOR A BETTER PHILIPPINES vs. AQUINO
(G.R. No. 73748 - May 22, 1986)
------------------------
(There is no "Full-Text" of this case. This is a Minute
Resolution made by the SC.)
Minute Resolutions
EN BANC
[G.R. No. 73748, May 22, 1986]
LAWYERS LEAGUE FOR A BETTER PHILIPPINES AND/OR OLIVER
A. LOZANO VS. PRESIDENT CORAZON C. AQUINO, ET AL.
SIRS/MESDAMES:
Quoted hereunder, for your information, is a resolution of this
Court MAY 22, 1986.
In G.R. No. 73748, Lawyers League for a Better Philippines vs.
President Corazon C. Aquino, et al.; G.R. No. 73972, People's
Crusade for Supremacy of the Constitution vs. Mrs. Cory
Aquino, et al., and G.R. No. 73990, Councilor Clifton U. Ganay
vs. Corazon C. Aquino, et al., the legitimacy of the
government of President Aquino is questioned. It is claimed
that her government is illegal because it was not established
pursuant to the 1973 Constitution.
As early as April 10, 1986, this Court* had already voted to
dismiss the petitions for the reasons to be stated below. On
April 17, 1986, Atty. Lozano as counsel for the petitioners in
G.R. Nos. 73748 and 73972 withdrew the petitions and
manifested that they would pursue the question by extra-
judicial methods. The withdrawal is functus oficio.
The three petitions obviously are not impressed with merit.
Petitioners have no personality to sue and their petitions
state no cause of action. For the legitimacy of the Aquino
government is not a justiciable matter. It belongs to the realm
of politics where only the people of the Philippines are the
judge. And the people have made the judgment; they have
accepted the government of President Corazon C. Aquino
which is in effective control of the entire country so that it is
not merely a de factogovernment but is in fact and law a de
jure government. Moreover, the community of nations has
recognized the legitimacy of the present government. All the
eleven members of this Court, as reorganized, have sworn to
uphold the fundamental law of the Republic under her
government.
In view of the foregoing, the petitions are hereby dismissed.
Very truly yours,
(Sgd.) GLORIA C. PARAS
Clerk of Court
* The Court was then composed of Teehankee, C.J. and Abad
Santos., Melencio-Herrera, Plana, Escolin, Gutierrez, Jr.,
Cuevas, Alampay and Patajo, JJ.----------------------------------------
--
DIGEST
FACTS:
On February 25, 1986, President Corazon Aquino issued
Proclamation No. 1 announcing that she and Vice President
Laurel were taking power.
On March 25, 1986, proclamation No.3 was issued providing
the basis of the Aquino government assumption of power by
stating that the "new government was installed through a
direct exercise of the power of the Filipino people assisted by
units of the New Armed Forces of the Philippines."
ISSUE:
Whether or not the government of Corazon Aquino is
legitimate.
HELD:
Yes. The legitimacy of the Aquino government is not a
justiciable matter but belongs to the realm of politics where
only the people are the judge.
The Court further held that:
The people have accepted the Aquino government which is in
effective control of the entire country;
It is not merely a de facto government but in fact and law a de
jure government; and
The community of nations has recognized the legitimacy of
the new government.
1
Extract of the Decision of Philippine Supreme Court
On the constitutionality of Batas Pambansa Blg. 883 on the
holding of the Snap Presidential Election
[Released in Manila, December 19, 1985]
Gentlemen:
Quoted hereunder, for your information, is a resolution of the
Court dated December 19, 1985
After considering all the pleadings and deliberating on the
issues raised in the petitions as well as on the oral arguments
of the parties and the amici curiae in the hearings held in
these cases, Chief Justice Ramon C. Aquino and six (6)
Justices, namely, Justices Claudio Teehankee, Hermogenes
Concepcion Jr., Vicente Abad Santos, Efren I. Plana, Vinicio T.
Escolin and Lorenzo Relova, voted to DISMISS the petitions in
these cases and to DENY the prayer for the issuance of an
injunction restraining respondents from holding the election
on February 7, 1986. In the opinion of Chief Justice Aquino,
B.P. 883 is constitutional.
Justices Hugo Gutierrez, Jr., B.S. de la Fuente, Serafin R.
Cuevas, Nestor B. Alampay and Lino M. Patajo voted to
DECLARE B.P. 883 unconstitutional and to grant the injunction
prayed for.
Justices Teehankee, Plana, Escolin, Relova, Gutierrez, Jr.,
Alampay and Patajo filed separate opinions.
This resolution is without prejudice to the filing of separate
opinions by the other Members of this Court.”
Melencio-Herrera, J., is on leave.
G.R. NO. 72915 (PBA ET AL. VS. COMELEC ET AL.) and other
consolidated petitions.
TEEHANKEE, J., concurring:
I vote for the dismissal of the petition for prohibition against
enforcement of BP Blg. 883 on the ground that no clear case
has been made of an absolute void of power and authority
that would warrant its nullification and that prohibition is not office of President in case of vacancy therein occurred during
a remedy for acts done that can no longer be undone. the term of President Marcos, it (the cited section) excluded
any discretion on the part of the Batasang Pambansa to
The stated issue is quite simple: Is B.P. Blg. 883 calling for legislate on the same subject. In fact, given the very detailed
special national elections on February 7, 1986 for the offices and precise steps to be taken by the Batasang Pambansa
of President and Vice-President of the Philippines (for the first under (the first four paragraphs) for the purpose of calling a
time since the pre-martial era 1969 presidential elections) special election to fill the vacancy, there was no room for
unconstitutional, and should this Court therefore stop and legislative action to supplement the same. BP Blg. 883 which
prohibit the holding of the elections? is a reproduction of Cabinet Bill No. 7, is in conflict with the
constitution in that it allows the President to continue holding
Upon the filing on December 3rd of the lead and other office after the calling of the special election. To put it
petitions at bar, four members of the Court (Justices Abad another way: the President’s offer to cut his term short is
Santos, Relova, Gutierrez, Jr. and myself) voted per the valid. The trouble is he does not go far enough: he should
Court’s Resolution of December 5th to issue a temporary actually vacate the office forthwith.”
restraining order against enforcement of the Act and to hear
the petitions on last December 12th so as to maintain the
status quo and thereafter speedily resolve the issue and
prevent the people’s expectations from reaching a point of no
return. Our vote did not gain the required concurrence of a
majority of eight. Instead the Court granted the parties
substantial periods for filing of respondents’ comment and
petitioners’ replies and to hear the case only after two weeks
on December 17th (continued to December 18th) with a clear
consensus to take a vote and resolve the petitions
immediately after the hearing.
It is of public knowledge and record, as pointed out by former
Vice-President, Senator and Executive Committee Member
Emmanuel N. Pelaez, amicus curiae, who helped in drafting
the 1984 constitutional amendments abolishing the Executive
Committee and restoring the Office of Vice-President as the
President’s successor, that such restoration was not made
effective immediately, but only at the end of the incumbent
President’s term on June 30, 1987 in view of his oft-expressed
“allergy to vice-presidents.” Hence, Sen. Pelaez submits that
the President’s letter of conditional “resignation” (for the
word is nowhere used therein) “did not create the actual
vacancy required in Section 9, Article VII of the Constitution
which could be the basis of the holding of a special election
for President and Vice-President earlier than the regular
election for such positions in 1987. The letter’s intent was
obvious: to circumvent the constitutional provision which
would, in effect, require the President to actually vacate his
office in favor of the Speaker who would then be the Acting
President until a new one shall have been elected and shall
have qualified. X X In prescribing the procedure to fill the