G.R. No.
100150 January 5, 1994 the Commission" and ordering said petitioners to
BRIGIDO R. SIMON, JR., CARLOS QUIMPO, CARLITO
ABELARDO, AND GENEROSO OCAMPO, petitioners,
vs.
COMMISSION ON HUMAN RIGHTS, ROQUE
FERMO, AND OTHERS AS JOHN DOES, respondents.
The City Attorney for petitioners.
The Solicitor General for public respondent.
VITUG, J.:
The extent of the authority and power of the
Commission on Human Rights ("CHR") is again
placed into focus in this petition for prohibition, with
prayer for a restraining order and preliminary
injunction. The petitioners ask us to prohibit public
respondent CHR from further hearing and
investigating CHR Case No. 90-1580, entitled "Fermo,
et al. vs. Quimpo, et al."
The case all started when a "Demolition Notice,"
dated 9 July 1990, signed by Carlos Quimpo (one of
the petitioners) in his capacity as an Executive Officer
of the Quezon City Integrated Hawkers Management
Council under the Office of the City Mayor, was sent
to, and received by, the private respondents (being
the officers and members of the North EDSA Vendors
Association, Incorporated). In said notice, the
respondents were given a grace-period of three (3)
days (up to 12 July 1990) within which to vacate the
questioned premises of North EDSA. 1 Prior to their
receipt of the demolition notice, the private
respondents were informed by petitioner Quimpo
that their stalls should be removed to give way to the
"People's Park".2 On 12 July 1990, the group, led by
their President Roque Fermo, filed a letter-complaint
(Pinag-samang Sinumpaang Salaysay ) with the CHR
against the petitioners, asking the late CHR Chairman
Mary Concepcion Bautista for a letter to be addressed
to then Mayor Brigido Simon, Jr., of Quezon City to
stop the demolition of the private respondents'
stalls, sari-sari stores, and carinderia along North
EDSA. The complaint was docketed as CHR Case No.
90-1580.3 On 23 July 1990, the CHR issued an Order,
directing the petitioners "to desist from demolishing
the stalls and shanties at North EDSA pending
resolution of the vendors/squatters' complaint before
appear before the CHR.4
On the basis of the sworn statements submitted by
the private respondents on 31 July 1990, as well as
CHR's own ocular inspection, and convinced that on
28 July 1990 the petitioners carried out the
demolition of private respondents' stalls, sari-
sari stores and carinderia,5 the CHR, in its resolution
of 1 August 1990, ordered the disbursement of
financial assistance of not more than P200,000.00 in
favor of the private respondents to purchase light
housing materials and food under the Commission's
supervision and again directed the petitioners to
"desist from further demolition, with the warning that
violation of said order would lead to a citation for
contempt and arrest."6
A motion to dismiss,7 dated 10 September 1990,
questioned CHR's jurisdiction. The motion also
averred, among other things, that:
1. this case came about due to the
alleged violation by the (petitioners)
of the Inter-Agency Memorandum of
Agreement whereby Metro-Manila
Mayors agreed on a moratorium in
the demolition of the dwellings of
poor dwellers in Metro-Manila;
xxx xxx xxx
3. . . . , a perusal of the said Agreement
(revealed) that the moratorium
referred to therein refers to
moratorium in the demolition of the
structures of poor dwellers;
4. that the complainants in this case
(were) not poor dwellers but
independent business entrepreneurs
even this Honorable Office admitted
in its resolution of 1 August 1990 that
the complainants are indeed, vendors;
5. that the complainants (were)
occupying government land,
particularly the sidewalk of EDSA
corner North Avenue, Quezon City; . . .
and
6. that the City Mayor of Quezon City
(had) the sole and exclusive discretion
 and authority whether or not a certain
business establishment (should) be
allowed to operate within the
jurisdiction of Quezon City, to revoke
or cancel a permit, if already issued,
upon grounds clearly specified by law
and ordinance.8
During the 12 September 1990 hearing, the
petitioners moved for postponement, arguing that
the motion to dismiss set for 21 September 1990 had
yet to be resolved. The petitioners likewise
manifested that they would bring the case to the
courts.
On 18 September 1990 a supplemental motion to
dismiss was filed by the petitioners, stating that the
Commission's authority should be understood as
being confined only to the investigation of violations
of civil and political rights, and that "the rights
allegedly violated in this case (were) not civil and
political rights, (but) their privilege to engage in
business."9
On 21 September 1990, the motion to dismiss was
heard and submitted for resolution, along with the
contempt charge that had meantime been filed by
the private respondents, albeit vigorously objected to
by petitioners (on the ground that the motion to
dismiss was still then unresolved). 10
In an Order,11 dated 25 September 1990, the CHR
cited the petitioners in contempt for carrying out the
demolition of the stalls, sari-sari stores
and carinderia despite the "order to desist", and it
imposed a fine of P500.00 on each of them.
On 1 March 1991,12 the CHR issued an Order, denying
petitioners' motion to dismiss and supplemental
motion to dismiss, in this wise:
Clearly, the Commission on Human
Rights under its constitutional
mandate had jurisdiction over the
complaint filed by the squatters-
vendors who complained of the gross
violations of their human and
constitutional rights. The motion to
dismiss should be and is hereby
DENIED for lack of merit.13
The CHR opined that "it was not the intention of the
(Constitutional) Commission to create only a paper
tiger limited only to investigating civil and political
rights, but it (should) be (considered) a quasi-judicial
body with the power to provide appropriate legal
measures for the protection of human rights of all
persons within the Philippines . . . ." It added:
The right to earn a living is a right
essential to one's right to
development, to life and to dignity. All
these brazenly and violently ignored
and trampled upon by respondents
with little regard at the same time for
the basic rights of women and
children, and their health, safety and
welfare. Their actions have
psychologically scarred and
traumatized the children, who were
witness and exposed to such a violent
demonstration of Man's inhumanity
to man.
In an Order,14 dated 25 April 1991, petitioners' motion
for reconsideration was denied.
Hence, this recourse.
The petition was initially dismissed in our
resolution15 of 25 June 1991; it was subsequently
reinstated, however, in our resolution16 of 18 June
1991, in which we also issued a temporary restraining
order, directing the CHR to "CEASE and DESIST from
further hearing CHR No. 90-1580."17
The petitioners pose the following:
Whether or not the public respondent has
jurisdiction:
a) to investigate the alleged violations of the
"business rights" of the private respondents whose
stalls were demolished by the petitioners at the
instance and authority given by the Mayor of Quezon
City;
b) to impose the fine of P500.00 each on the
petitioners; and
c) to disburse the amount of P200,000.00 as financial
aid to the vendors affected by the demolition.
In the Court's resolution of 10 October 1991, the
Solicitor-General was excused from filing his
comment for public respondent CHR. The latter thus
filed its own comment,18 through Hon. Samuel
Soriano, one of its Commissioners. The Court also
resolved to dispense with the comment of private
respondent Roque Fermo, who had since failed to
comply with the resolution, dated 18 July 1991,
requiring such comment.
The petition has merit.
The Commission on Human Rights was created by
the 1987
Constitution.19 It was formally constituted by then
President Corazon Aquino via Executive Order No.
163,20 issued on 5 May 1987, in the exercise of her
legislative power at the time. It succeeded, but so
superseded as well, the Presidential Committee on
Human Rights.21
The powers and functions22 of the Commission are
defined by the 1987 Constitution, thus: to —
(1) Investigate, on its own or on
complaint by any party, all forms of
human rights violations involving civil
and political rights;
(2) Adopt its operational guidelines
and rules of procedure, and cite for
contempt for violations thereof in
accordance with the Rules of Court;
(3) Provide appropriate legal
measures for the protection of human
rights of all persons within the
Philippines, as well as Filipinos
residing abroad, and provide for
preventive measures and legal aid
services to the underprivileged whose
human rights have been violated or
need protection;
(4) Exercise visitorial powers over jails,
prisons, or detention facilities;
(5) Establish a continuing program of
research, education, and information
to enhance respect for the primacy of
human rights;
(6) Recommend to the Congress
effective measures to promote human
rights and to provide for
compensation to victims of violations
of human rights, or their families;
(7) Monitor the Philippine
Government's compliance with
international treaty obligations on
human rights;
(8) Grant immunity from prosecution
to any person whose testimony or
whose possession of documents or
other evidence is necessary or
convenient to determine the truth in
any investigation conducted by it or
under its authority;
(9) Request the assistance of any
department, bureau, office, or agency
in the performance of its functions;
(10) Appoint its officers and
employees in accordance with law;
and
(11) Perform such other duties and
functions as may be provided by law.
In its Order of 1 March 1991, denying petitioners'
motion to dismiss, the CHR theorizes that the
intention of the members of the Constitutional
Commission is to make CHR a quasi-judicial
body.23 This view, however, has not heretofore been
shared by this Court. In Cariño v. Commission on
Human Rights,24 the Court, through then Associate
Justice, now Chief Justice Andres Narvasa, has
observed that it is "only the first of the enumerated
powers and functions that bears any resemblance to
adjudication or adjudgment," but that resemblance
can in no way be synonymous to the adjudicatory
power itself. The Court explained:
. . . (T)he Commission on Human
Rights . . . was not meant by the
fundamental law to be another court
or quasi-judicial agency in this
country, or duplicate much less take
over the functions of the latter.
The most that may be conceded to
the Commission in the way of
adjudicative power is that it may
investigate, i.e., receive evidence and
make findings of fact as regards
 claimed human rights violations
involving civil and political rights. But
fact finding is not adjudication, and
cannot be likened to the judicial
function of a court of justice, or even a
quasi-judicial agency or official. The
function of receiving evidence and
ascertaining therefrom the facts of a
controversy is not a judicial function,
properly speaking. To be considered
such, the faculty of receiving evidence
and making factual conclusions in a
controversy must be accompanied by
the authority of applying the law to
those factual conclusions to the end
that the controversy may be decided
or determined authoritatively, finally
and definitively, subject to such
appeals or modes of review as may be
provided by law. This function, to
repeat, the Commission does not
have.
After thus laying down at the outset the above rule,
we now proceed to the other kernel of this
controversy and, its is, to determine the extent of
CHR's investigative power.
It can hardly be disputed that the phrase "human
rights" is so generic a term that any attempt to define
it, albeit not a few have tried, could at best be
described as inconclusive. Let us observe. In a
symposium on human rights in the Philippines,
sponsored by the University of the Philippines in
1977, one of the questions that has been
propounded is "(w)hat do you understand by "human
rights?" The participants, representing different
sectors of the society, have given the following varied
answers:
Human rights are the basic rights
which inhere in man by virtue of his
humanity. They are the same in all
parts of the world, whether the
Philippines or England, Kenya or the
Soviet Union, the United States or
Japan, Kenya or Indonesia . . . .
Human rights include civil rights, such
as the right to life, liberty, and
property; freedom of speech, of the
press, of religion, academic freedom,
and the rights of the accused to due
process of law; political rights, such as
the right to elect public officials, to be
elected to public office, and to form
political associations and engage in
politics; and social rights, such as the
right to an education, employment,
and social services.25
Human rights are the entitlement that
inhere in the individual person from
the sheer fact of his humanity. . . .
Because they are inherent, human
rights are not granted by the State but
can only be recognized and protected
by it.26
(Human rights include all) the civil,
political, economic, social, and cultural
rights defined in the Universal
Declaration of Human Rights.27
Human rights are rights that pertain
to man simply because he is human.
They are part of his natural birth, right,
innate and inalienable.28
The Universal Declaration of Human Rights, as well as,
or more specifically, the International Covenant on
Economic, Social and Cultural Rights and
International Covenant on Civil and Political Rights,
suggests that the scope of human rights can be
understood to include those that relate to an
individual's social, economic, cultural, political and
civil relations. It thus seems to closely identify the
term to the universally accepted traits and attributes
of an individual, along with what is generally
considered to be his inherent and inalienable rights,
encompassing almost all aspects of life.
Have these broad concepts been equally
contemplated by the framers of our 1986
Constitutional Commission in adopting the specific
provisions on human rights and in creating an
independent commission to safeguard these rights?
It may of value to look back at the country's
experience under the martial law regime which may
have, in fact, impelled the inclusions of those
provisions in our fundamental law. Many voices have
been heard. Among those voices, aptly represented
perhaps of the sentiments expressed by others,
comes from Mr. Justice J.B.L. Reyes, a respected jurist
and an advocate of civil liberties, who, in his paper,
entitled "Present State of Human Rights in the
Philippines,"29 observes:
But while the Constitution of 1935 and
that of 1973 enshrined in their Bill of
Rights most of the human rights
expressed in the International
Covenant, these rights became
unavailable upon the proclamation of
Martial Law on 21 September 1972.
Arbitrary action then became the rule.
Individuals by the thousands became
subject to arrest upon suspicion, and
were detained and held for indefinite
periods, sometimes for years, without
charges, until ordered released by the
Commander-in-Chief or this
representative. The right to petition
for the redress of grievances became
useless, since group actions were
forbidden. So were strikes. Press and
other mass media were subjected to
censorship and short term licensing.
Martial law brought with it the
suspension of the writ of habeas
corpus, and judges lost independence
and security of tenure, except
members of the Supreme Court. They
were required to submit letters of
resignation and were dismissed upon
the acceptance thereof. Torture to
extort confessions were practiced as
declared by international bodies like
Amnesty International and the
International Commission of Jurists.
Converging our attention to the records of the
Constitutional Commission, we can see the following
discussions during its 26 August 1986 deliberations:
MR. GARCIA . . . , the primacy of its
(CHR) task must be made clear in view
of the importance of human rights
and also because civil and political
rights have been determined by many
international covenants and human
rights legislations in the Philippines,
as well as the Constitution, specifically
the Bill of Rights and subsequent
legislation. Otherwise, if we cover
such a wide territory in area, we might
diffuse its impact and the precise
nature of its task, hence, its effectivity
would also be curtailed.
So, it is important to delienate the
parameters of its tasks so that the
commission can be most effective.
MR. BENGZON. That is precisely my
difficulty because civil and political
rights are very broad. The Article on
the Bill of Rights covers civil and
political rights. Every single right of an
individual involves his civil right or his
political right. So, where do we draw
the line?
MR. GARCIA. Actually, these civil and
political rights have been made clear
in the language of human rights
advocates, as well as in the Universal
Declaration of Human Rights which
addresses a number of articles on the
right to life, the right against torture,
the right to fair and public hearing,
and so on. These are very specific
rights that are considered enshrined
in many international documents and
legal instruments as constituting civil
and political rights, and these are
precisely what we want to defend
here.
MR. BENGZON. So, would the
commissioner say civil and political
rights as defined in the Universal
Declaration of Human Rights?
MR. GARCIA. Yes, and as I have
mentioned, the International
Covenant of Civil and Political Rights
distinguished this right against
torture.
MR. BENGZON. So as to distinguish
this from the other rights that we
have?
MR. GARCIA. Yes, because the other
rights will encompass social and
economic rights, and there are other
violations of rights of citizens which
can be addressed to the proper courts
and authorities.
xxx xxx xxx
MR. BENGZON. So, we will authorize
the commission to define its
functions, and, therefore, in doing that
the commission will be authorized to
take under its wings cases which
perhaps heretofore or at this moment
are under the jurisdiction of the
ordinary investigative and
prosecutorial agencies of the
government. Am I correct?
MR. GARCIA. No. We have already
mentioned earlier that we would like
to define the specific parameters
which cover civil and political rights as
covered by the international
standards governing the behavior of
governments regarding the particular
political and civil rights of citizens,
especially of political detainees or
prisoners. This particular aspect we
have experienced during martial law
which we would now like to
safeguard.
MR. BENGZON. Then, I go back to that
question that I had. Therefore, what
we are really trying to say is, perhaps,
at the proper time we could specify all
those rights stated in the Universal
Declaration of Human Rights and
defined as human rights. Those are
the rights that we envision here?
MR. GARCIA. Yes. In fact, they are also
enshrined in the Bill of Rights of our
Constitution. They are integral parts of
that.
MR. BENGZON. Therefore, is the
Gentleman saying that all the rights
under the Bill of Rights covered by
human rights?
MR. GARCIA. No, only those that
pertain to civil and political rights.
xxx xxx xxx
MR. RAMA. In connection with the
discussion on the scope of human
rights, I would like to state that in the
past regime, everytime we invoke the
violation of human rights, the Marcos
regime came out with the defense
that, as a matter of fact, they had
defended the rights of people to
decent living, food, decent housing
and a life consistent with human
dignity.
So, I think we should really limit the
definition of human rights to political
rights.  Is that the sense of the
committee, so as not to confuse the
issue?
MR. SARMIENTO. Yes, Madam
President.
MR. GARCIA. I would like to continue
and respond also to repeated points
raised by the previous speaker.
There are actually six areas where this
Commission on Human Rights could
act effectively:  1) protection of rights
of political detainees; 2) treatment of
prisoners and the prevention of
tortures; 3) fair and public trials; 4)
cases of disappearances; 5) salvagings
and hamletting; and 6) other crimes
committed against the religious.
xxx xxx xxx
The PRESIDENT. Commissioner
Guingona is recognized.
MR. GUINGONA. Thank You Madam
President.
I would like to start by saying that I
agree with Commissioner Garcia that
we should, in order to make the
proposed Commission more effective,
delimit as much as possible, without
prejudice to future expansion.  The
coverage of the concept and
jurisdictional area of the term  "human
rights". I was actually disturbed this
morning when the reference was
made without qualification to the
rights embodied in the universal
Declaration of Human Rights,
although later on, this was qualified to
refer to civil and political rights
contained therein.
If I remember correctly, Madam
President, Commissioner Garcia, after
mentioning the Universal Declaration
of Human Rights of 1948, mentioned
or linked the concept of human right
with other human rights specified in
other convention which I do not
remember. Am I correct?
MR. GARCIA. Is Commissioner
Guingona referring to the Declaration
of Torture of 1985?
MR. GUINGONA. I do not know, but
the commissioner mentioned another.
MR. GARCIA. Madam President, the
other one is the International
Convention on Civil and Political
Rights of which we are signatory.
MR. GUINGONA. I see. The only
problem is that, although I have a
copy of the Universal Declaration of
Human Rights here, I do not have a
copy of the other covenant
mentioned. It is quite possible that
there are rights specified in that other
convention which may not be
specified here. I was wondering
whether it would be wise to link our
concept of human rights to general
terms like "convention," rather than
specify the rights contained in the
convention.
As far as the Universal Declaration of
Human Rights is concerned, the
Committee, before the period of
amendments, could specify to us
which of these articles in the
Declaration will fall within the concept
of civil and political rights, not for the
purpose of including these in the
proposed constitutional article, but to
give the sense of the Commission as
to what human rights would be
included, without prejudice to
expansion later on, if the need arises.
For example, there was no definite
reply to the question of Commissioner
Regalado as to whether the right to
marry would be considered a civil or a
social right. It is not a civil right?
MR. GARCIA. Madam President, I have
to repeat the various specific civil and
political rights that we felt must be
envisioned initially by this provision
— freedom from political detention
and arrest prevention of torture, right
to fair and public trials, as well as
crimes involving disappearance,
salvagings, hamlettings and collective
violations.  So, it is limited to
politically related crimes precisely to
protect the civil and political rights of
a specific group of individuals, and
therefore, we are not opening it up to
all of the definite areas.
MR. GUINGONA. Correct. Therefore,
just for the record, the Gentlemen is
no longer linking his concept or the
concept of the Committee on Human
Rights with the so-called civil or
political rights as contained in the
Universal Declaration of Human
Rights.
MR. GARCIA. When I mentioned
earlier the Universal Declaration of
Human Rights, I was referring to an
international instrument.
MR. GUINGONA. I know.
MR. GARCIA. But it does not mean
that we will refer to each and every
specific article therein, but only to
those that pertain to the civil and
politically related, as we understand it
in this Commission on Human Rights.
MR. GUINGONA. Madam President, I
am not even clear as to the distinction
between civil and social rights.
MR. GARCIA. There are two
international covenants: the
International Covenant and Civil and
Political Rights and the International
Covenant on Economic, Social and
Cultural Rights. The second covenant
contains all the different rights-the
rights of labor to organize, the right to
education, housing, shelter, et cetera.
MR. GUINGONA. So we are just
limiting at the moment the sense of
the committee to those that the
Gentlemen has specified.
MR. GARCIA. Yes, to civil and political
rights.
MR. GUINGONA. Thank you.
xxx xxx xxx
SR. TAN. Madam President, from the
standpoint of the victims of human
rights, I cannot stress more on how
much we need a Commission on
Human Rights. . . .
. . . human rights victims are usually
penniless. They cannot pay and very
few lawyers will accept clients who do
not pay. And so, they are the ones
more abused and oppressed. Another
reason is, the cases involved are very
delicate — torture, salvaging, picking
up without any warrant of arrest,
massacre — and the persons who are
allegedly guilty are people in power
like politicians, men in the military and
big shots. Therefore, this Human
Rights Commission must be
independent.
I would like very much to emphasize
how much we need this commission,
especially for the little Filipino, the
little individual who needs this kind of
help and cannot get it. And I think we
should concentrate only on civil and
political violations because if we open
this to land, housing and health, we
will have no place to go again and we
will not receive any response. . . .
30
 (emphasis supplied)
The final outcome, now written as Section 18, Article
XIII, of the 1987 Constitution, is a provision
empowering the Commission on Human Rights to
"investigate, on its own or on complaint by any party,
all forms of human rights violations involving civil
and political rights" (Sec. 1).
The term "civil rights,"31 has been defined as referring
—
(t)o those (rights) that belong to every
citizen of the state or country, or, in
wider sense, to all its inhabitants, and
are not connected with the
organization or administration of the
government. They include the rights
of property, marriage, equal
protection of the laws, freedom of
contract, etc. Or, as otherwise defined
civil rights are rights appertaining to a
person by virtue of his citizenship in a
state or community. Such term may
also refer, in its general sense, to
rights capable of being enforced or
redressed in a civil action.
Also quite often mentioned are the guarantees
against involuntary servitude, religious persecution,
unreasonable searches and seizures, and
imprisonment for debt.32
Political rights,33 on the other hand, are said to refer
to the right to participate, directly or indirectly, in the
establishment or administration of government, the
right of suffrage, the right to hold public office, the
right of petition and, in general, the rights
appurtenant to citizenship vis-a-vis the management
of government.34
Recalling the deliberations of the Constitutional
Commission, aforequoted, it is readily apparent that
the delegates envisioned a Commission on Human
Rights that would focus its attention to the more
severe cases of human rights violations. Delegate
Garcia, for instance, mentioned such areas as the "(1)
protection of rights of political detainees, (2)
treatment of prisoners and the prevention of tortures,
(3) fair and public trials, (4) cases of disappearances,
(5) salvagings and hamletting, and (6) other crimes
committed against the religious." While the
enumeration has not likely been meant to have any
preclusive effect, more than just expressing a
statement of priority, it is, nonetheless, significant for
the tone it has set. In any event, the delegates did not
apparently take comfort in peremptorily making a
conclusive delineation of the CHR's scope of
investigatorial jurisdiction. They have thus seen it fit
to resolve, instead, that "Congress may provide for
other cases of violations of human rights that should
fall within the authority of the Commission, taking
into account its recommendation."35
In the particular case at hand, there is no cavil that
what are sought to be demolished are the stalls, sari-
sari stores and carinderia, as well as temporary
shanties, erected by private respondents on a land
which is planned to be developed into a "People's
Park". More than that, the land adjoins the North
EDSA of Quezon City which, this Court can take
judicial notice of, is a busy national highway. The
consequent danger to life and limb is not thus to be
likewise simply ignored. It is indeed paradoxical that a
right which is claimed to have been violated is one
that cannot, in the first place, even be invoked, if it is,
in fact, extant. Be that as it may, looking at the
standards hereinabove discoursed vis-a-vis the
circumstances obtaining in this instance, we are not
prepared to conclude that the order for the
demolition of the stalls, sari-sari stores
and carinderia of the private respondents can fall
within the compartment of "human rights violations
involving civil and political rights" intended by the
Constitution.
On its contempt powers, the CHR is constitutionally
authorized to "adopt its operational guidelines and
rules of procedure, and cite for contempt for
violations thereof in accordance with the Rules of
Court." Accordingly, the CHR acted within its
authority in providing in its revised rules, its power "to
cite or hold any person in direct or indirect contempt,
and to impose the appropriate penalties in
accordance with the procedure and sanctions
provided for in the Rules of Court." That power to cite
for contempt, however, should be understood to
apply only to violations of its adopted operational
guidelines and rules of procedure essential to carry
out its investigatorial powers. To exemplify, the power
to cite for contempt could be exercised against
persons who refuse to cooperate with the said body,
or who unduly withhold relevant information, or who
decline to honor summons, and the like, in pursuing
its investigative work. The "order to desist" (a
semantic interplay for a restraining order) in the
instance before us, however, is not investigatorial in
character but prescinds from an adjudicative power
that it does not possess. In Export Processing Zone
Authority vs. Commission on Human Rights,36 the
Court, speaking through Madame Justice Carolina
Griño-Aquino, explained:
The constitutional provision directing
the CHR to "provide for preventive
measures and legal aid services to the
underprivileged whose human rights
have been violated or need
protection" may not be construed to
confer jurisdiction on the Commission
to issue a restraining order or writ of
injunction for, it that were the
intention, the Constitution would have
expressly said so. "Jurisdiction is
conferred only by the Constitution or
by law". It is never derived by
implication.
Evidently, the "preventive measures
and legal aid services" mentioned in
the Constitution refer to extrajudicial
and judicial remedies (including a writ
of preliminary injunction) which the
CHR may seek from proper courts on
behalf of the victims of human rights
violations. Not being a court of justice,
the CHR itself has no jurisdiction to
issue the writ, for a writ of preliminary
injunction may only be issued "by the
judge of any court in which the action
is pending [within his district], or by a
Justice of the Court of Appeals, or of
the Supreme Court. . . . A writ of
preliminary injunction is an ancillary
remedy. It is available only in a
pending principal action, for the
preservation or protection of the
rights and interests of a party thereto,
and for no other purpose." (footnotes
omitted).
The Commission does have legal standing to indorse,
for appropriate action, its findings and
recommendations to any appropriate agency of
government.37
The challenge on the CHR's disbursement of the
amount of P200,000.00 by way of financial aid to the
vendors affected by the demolition is not an
appropriate issue in the instant petition. Not only is
there lack of locus standi on the part of the
petitioners to question the disbursement but, more
importantly, the matter lies with the appropriate
administrative agencies concerned to initially
consider.
The public respondent explains that this petition for
prohibition filed by the petitioners has become moot
and academic since the case before it (CHR Case No.
90-1580) has already been fully heard, and that the
matter is merely awaiting final resolution. It is true
that prohibition is a preventive remedy to restrain the
doing of an act about to be done, and not intended
to provide a remedy for an act already
accomplished. 38 Here, however, said Commission
admittedly has yet to promulgate its resolution in
CHR Case No. 90-1580. The instant petition has been
intended, among other things, to also prevent CHR
from precisely doing that.39
WHEREFORE, the writ prayed for in this petition is
GRANTED. The Commission on Human Rights is
hereby prohibited from further proceeding with CHR
Case No. 90-1580 and from implementing the
P500.00 fine for contempt. The temporary restraining
order heretofore issued by this Court is made
permanent. No costs.
SO ORDERED.
Narvasa, C.J., Cruz, Feliciano, Bidin, Regalado, Davide,
Jr., Romero, Nocon, Bellosillo, Melo, Quiason and
Puno, JJ., concur.
Separate Opinions
 
PADILLA, J.,  dissenting:
I reiterate my separate opinion in "Carino, et al. vs.
The Commission on Human rights, et al.," G.R. No.
96681, 2 December 1991, 204 SCRA 483 in relation to
the resolution of 29 January 1991 and my dissenting
opinion in "Export Processing Zone Authority vs. The
Commission on Human Rights,
et al.," G.R. No. 101476, 14 April 1992, 208 SCRA 125. I
am of the considered view that the CHR can issue a
cease and desist order to maintain a status
quo pending its investigation of a case involving an
alleged human rights violation; that such cease and
desist order maybe necessary in situations involving a
threatened violation of human rights, which the CHR
intents to investigate.
In the case at bench, I would consider the threatened
demolition of the stalls, sari-sari stores
and carinderias as well as the temporary shanties
owned by the private respondents as posing   prima
facie a case of human rights violation because it
involves an impairment of the civil rights of said
private respondents, under the definition of civil
rights cited by the majority opinion (pp. 20-21) and
which the CHR has unquestioned authority to
investigate (Section 18, Art. XIII, 1987 Constitution).
Human rights demand more than lip service and
extend beyond impressive displays of placards at
street corners. Positive action and results are what
count. Certainly, the cause of human rights is not
enhanced when the very constitutional agency tasked
to protect and vindicate human rights is transformed
by us, from the start, into a tiger without dentures but
with maimed legs to boot. I submit the CHR should
be given a wide latitude to look into and investigate
situations which may (or may not ultimately) involve
human rights violations.
ACCORDINGLY, I vote to DISMISS the petition and to
remand the case to the CHR for further proceedings.
# Separate Opinions
PADILLA, J.,  dissenting:
I reiterate my separate opinion in "Carino, et al. vs.
The Commission on Human rights, et al.," G.R. No.
96681, 2 December 1991, 204 SCRA 483 in relation to
the resolution of 29 January 1991 and my dissenting
opinion in "Export Processing Zone Authority vs. The
Commission on Human Rights,
et al.," G.R. No. 101476, 14 April 1992, 208 SCRA 125. I
am of the considered view that the CHR can issue a
cease and desist order to maintain a status
quo pending its investigation of a case involving an
alleged human rights violation; that such cease and
desist order maybe necessary in situations involving a
threatened violation of human rights, which the CHR
intents to investigate.
In the case at bench, I would consider the threatened
demolition of the stalls, sari-sari stores
and carinderias as well as the temporary shanties
owned by the private respondents as posing   prima
facie a case of human rights violation because it
involves an impairment of the civil rights of said
private respondents, under the definition of civil
rights cited by the majority opinion (pp. 20-21) and
which the CHR has unquestioned authority to
investigate (Section 18, Art. XIII, 1987 Constitution).
Human rights demand more than lip service and
extend beyond impressive displays of placards at
street corners. Positive action and results are what
count. Certainly, the cause of human rights is not
enhanced when the very constitutional agency tasked
to protect and vindicate human rights is transformed
by us, from the start, into a tiger without dentures but
with maimed legs to boot. I submit the CHR should
be given a wide latitude to look into and investigate
situations which may (or may not ultimately) involve
human rights violations.
ACCORDINGLY, I vote to DISMISS the petition and to
remand the case to the CHR for further proceedings.
G.R. No. L-4254             September 26, 1951
BORIS MEJOFF, petitioner,
vs.
THE DIRECTOR OF PRISONS, respondent.
Ambrosio T. Dollete for petitioner.
First Assistant Solicitor General Roberto A. Gianson
and Solicitor Florencio Villamor for respondents.
TUASON, J.:
This is a second petition for habeas corpus  by Boris
Mejoff, the first having been denied in a decision of
this Court of July 30, 1949. The history of the
petitioner's detention was thus briefly set forth in that
decision, written by Mr. Justice Bengzon:
The petitioner Boris Mejoff is an alien of
Russian descent who was brought to this
country from Shanghai as a secret operative
by the Japanese forces during the latter's
regime in these Islands. Upon liberation he
was arrested as a Japanese spy, by U.S. Army
Counter Intelligence Corps. Later he was
handed to theCommonwealth Government
for disposition in accordance with
Commonwealth Act No. 682. Thereafter, the
People's Court ordered his release. But the
deportation Board taking his case up, found
that having no travel documents Mejoff was
illegally in this country, and consequently
referred the matter to the immigration
authorities. After the corresponding
investigation, the Board of commissioners of
Immigration on April 5, 1948, declared that
Mejoff had entered the Philippines illegally in
1944, without inspection and admission by
the immigration officials at a designation port
of entry and, therefore, it ordered that he be
deported on the first available transportation
to Russia. The petitioner was then under
custody, he having been arrested on March
18, 1948. In May 1948 he was transferred to
the Cebu Provincial Jail together with three
other Russians to await the arrival of some
Russian vessels. In July and August of that
year two boats of Russian nationality called at
the Cebu Port. But their masters refused to
take petitioner and his companions alleging
lack of authority to do so. In October 1948
after repeated failures to ship this deportee
abroad, the authorities removed him to Bilibid
Prison at Muntinglupa where he has been
confined up to the present time, inasmuch as
the Commissioner of Immigration believes it
is for the best interests of the country to keep
him under detention while arrangements for
his departure are being made.
The Court held the petitioner's detention temporary
and said that "temporary detention is a necessary
step in the process of exclusion or expulsion of
undesirable aliens and that pending arrangements
for his deportation, the Government has the right to
hold the undesirable alien under confinement for a
reasonable lenght of time." It took note of the fact,
manifested by the Solicitor General's representative
in the course of the of the oral argumment, that "this
Government desires to expel the alien, and does not
relish keeping him at the people's expense . . . making
efforts to carry out the decree of exclusion by the
highest officer of the land." No period was fixed
within which the immigration authorities should carry
out the contemplated deportation beyond the
statement that "The meaning of 'reasonable time'
depends upon the circumstances, specially the
difficulties of obtaining a passport, the availability of
transportation, the diplomatic arrangements with the
governments concerned and the efforts displayed to
send the deportee away;" but the Court warned that
"under established precedents, too long a detention
may justify the issuance of a writ of habeas corpus."
Mr. Justice Paras, now Chief Justice, Mr. Justice Feria,
Mr. Justice Perfecto, and the writer of this decision
dissented. Mr. Justice Feria and Mr. Justice Perfecto
voted for outright discharge of the prisoner from
custody. Mr. Justice Paras qualified his dissent by
stating that he might agree "to further detention of
the herein petitioner, provided that he be released if
after six months, the Government is still unable to
deport him." This writer joined in the latter dissent
but thought that two months constituted reasonable
time.
Over two years having elapsed since the decision
aforesaid was promulgated, the Government has not
found way and means of removing the petitioner out
of the country, and none are in sight, although it
should be said in justice to the deportation
authorities, it was through no fault of theirs that no
ship or country would take the petitioner.
Aliens illegally staying in the Philippines have no right
of asylum therein (Sowapadji vs. Wixon, Sept. 18,
1946, 157 F. ed., 289, 290), even if they are "stateless,"
which the petitioner claims to be. It is no less true
however, as impliedly stated in this Court's decision,
supra, that foreign nationals, not enemy against
whom no charge has been made other than that their
permission to stay has expired, may not indefinitely
be kept in detention. The protection against
deprivation of liberty without due process of law and
except for crimes committed against the laws of the
land is not limited to Philippine citizens but extends
to all residents, except enemy aliens, regardless of
nationality. Whether an alien who entered the
country in violation of its immigration laws may be
detained for as long as the Government is unable to
deport him, is a point we need not decide. The
petitioner's entry into the Philippines was not
unlawful; he was brought by the armed and
belligerent forces of a de facto  government whose
decrees were law furing the occupation.
Moreover, by its Constitution (Art. II, Sec. 3) the
Philippines "adopts the generally accepted principles
of international law as part of the law of Nation." And
in a resolution entitled "Universal Declaration of
Human Rights" and approved by the General
Assembly of the United Nations of which the
Philippines is a member, at its plenary meeting on
December 10, 1948, the right to life and liberty and all
other fundamental rights as applied to all human
beings were proclaimed. It was there resolved that
"All human beings are born free and equal in degree
and rights" (Art. 1); that "Everyone is entitled to all the
rights and freedom set forth in this Declaration,
without distinction of any kind, such as race, colour,
sex, language, religion, political or other opinion,
nationality or social origin, property, birth, or other
status" (Art. 2): that "Every one has the right to an
effective remedy by the competent national tribunals
for acts violating the fundamental rights granted him
by the Constitution or by law" (Art. 8); that "No one
shall be subjected to arbitrary arrest, detention or
exile" (Art. 9); etc.
In U. S. vs. Nichols, 47 Fed. Supp., 201, it was said that
the court "has the power to release from custody an
alien who has been detained an unreasonably long
period of time by the Department of Justice after it
has become apparent that although a warrant for his
deportation has been issued, the warrant can not be
effectuated;" that "the theory on which the court is
given the power to act is that the warrant of
deportation, not having been able to be executed,
is  functus officio  and the alien is being held without
any authority of law." The decision cited several cases
which, it said, settled the matter definitely in that
jurisdiction, adding that the same result had reached
in innumerable cases elsewhere. The cases referred to
were United States ex rel. Ross vs. Wallis, 2 Cir. 279 F.
401, 404; Caranica vs. Nagle, 9 Cir., 28 F. 2d 955;
Saksagansky vs. Weedin, 9 Cir., 53 F. 2d 13, 16 last
paragraph; Ex parte Matthews, D.C.W.D. Wash., 277 F.
857; Moraitis vs. Delany, D.C. Md. Aug. 28, 1942, 46 F.
Supp. 425.
The most recent case, as far as we have been able to
find, was that of Staniszewski vs. Watkins (1948), 90
Fed. Supp., 132, which is nearly foursquare with the
case at hand. In that case a stateless person, formerly
a Polish national, resident in the United States since
1911 and many times serving as a seaman on
American vessels both in peace and in war, was
ordered excluded from the United States and
detained at Ellis Island at the expense of the
steamship company, when he returned from a voyage
on which he had shipped from New York for one or
more European ports and return to the United States.
The grounds for his exclusion were that he had no
passport or immigration visa, and that in 1937 had
been convicted of perjury because in certain
documents he presented himself to be an American
citizen. Upon his application for release on habeas
corpus,  the Court released him upon his own
recognizance. Judge Leibell, of the United States
District Court for the Southern District of New York,
said in part:
 When the return to the writ of habeas corpus
came before this court, I suggested that all
interested parties . . . make an effort to
arrange to have the petitioner ship out of
some country that he would receive him as a
resident. He is, a native-born Pole but the
Polish Consul has advised him in writing that
he is no longer a Polish subject. This
Government does not claim that he is a Polish
citizen. His attorney says he is a stateless. The
Government is willing that he go back to the
ship, but if he were sent back aboard a ship
and sailed to the Port (Cherbourg, France)
from which he last sailed to the United States,
he would probably be denied permission to
land. There is no other country that would
take him, without proper documents.
It seems to me that this is a genuine hardship
case and that the petitioner should be
released from custody on proper terms. . . .
What is to be done with the petitioner? The
government has had him in custody almost
seven months and practically admits it has no
place to send him out of this country. The
steamship company, which employed him as
one of a group sent to the ship by the Union,
with proper seaman's papers issued by the
United States Coast Guard, is paying $3 a day
for petitioner's board at Ellis Island. It is no
fault of the steamship company that
petitioner is an inadmissible alien as the
immigration officials describe him. . . .
I intend to sustain the writ of habeas corpus
and order the release of the petitioner on his
own recognizance. He will be required to
inform the immigration officials at Ellis Island
by mail on the 15th of each month, stating
where he is employed and where he can be
reached by mail. If the government does
succeed in arranging for petitioner's
deportation to a country that will be ready to
receive him as a resident, it may then advise
the petitioner to that effect and arrange for
his deportation in the manner provided by
law.
Although not binding upon this Court as a precedent,
the case aforecited affords a happy solution to the
quandry in which the parties here finds themselves,
solution which we think is sensible, sound and
compatible with law and the Constitution. For this
reason, and since the Philippine law on immigration
was patterned after or copied from the American law
and practice, we choose to follow and adopt the
reasoning and conclusions in the Staniszewski
decision with some modifications which, it is believed,
are in consonance with the prevailing conditions of
peace and order in the Philippines.
It was said or insinuated at the hearing ofthe petition
at bar, but not alleged in the return, that the
petitioner was engaged in subversive activities, and
fear was expressed that he might join or aid the
disloyal elements if allowed to be at large. Bearing in
mind the Government's allegation in its answer that
"the herein petitioner was brought to the Philippines
by the Japanese forces," and the fact that Japan is no
longer at war with the United States or the Philippines
nor identified with the countries allied against these
nations, the possibility of the petitioner's entertaining
or committing hostile acts prejudicial to the interest
and security of this country seems remote.
If we grant, for the sake of argument, that such a
possibility exists, still the petitioner's unduly
prolonged detention would be unwarranted by law
and the Constitution, if the only purpose of the
detention be to eliminate a danger that is by no
means actual, present, or uncontrolable. After all, the
Government is not impotent to deal with or prevent
any threat by such measure as that just outlined. The
thought eloquently expressed by Mr. Justice Jackson
of the United States Supreme Court in connection
with the appliccation for bail of ten Communists
convicted by a lower court of advocacy of violent
overthrow of the United States Government is, in
principle, pertinent and may be availed of at this
juncture. Said the learned Jurist:
The Governmet's alternative contention is
that defendants, by misbehavior after
conviction, have forfeited their claim to bail.
Grave public danger is said to result from
what they may be expected to do, in addition
to what they have done since their conviction.
If I assume that defendants are disposed to
commit every opportune disloyal to act
helpful to Communist countries, it is still
difficult to reconcile with traditional American
law the jailing of persons by the courts
because of anticipated but as yet
uncommitted crimes. lmprisonment to
protect society from predicted but
unconsummated offenses is so
unprecedented in this country and so fraught
with danger of excesses and injustice that I
am loath to resort it, even as a discretionary
judicial technique to supplement conviction
of such offenses as those of which defendants
stand convicted.
But the right of every American to equal
treatment before the law is wrapped up in the
same constitutional bundle with those of
these Communists. If an anger or disgust with
these defendants we throw out the bundle,
we alsocast aside protection for the liberties
of more worthy critics who may be in
opposition to the government of some future
day.
x x x           x x x           x x x1âwphïl.nêt
If, however, I were to be wrong on all of these
abstract or theoretical matters of principle,
there is a very practical aspect of this
application which must not be overlooked or
underestimated — that is the disastrous
effect on the reputation of American justice if
I should now send these men to jail and the
full Court later decide that their conviction is
invalid. All experience with litigation teaches
that existence of a substantial question about
a conviction implies a more than negligible
risk of reversal. Indeed this experience lies
back of our rule permitting and practice of
allowing bail where such questions exist, to
avoid the hazard of unjustifiably imprisoning
persons with consequent reproach to our
system of justice. If that is prudent judicial
practice in the ordinary case, how much more
important to avoid every chance of handing
to the Communist world such an ideological
weapon as it would have if this country should
imprison this handful of Communist leaders
on a conviction that our highest Court would
confess to be illegal. Risks, of course, are
involved in either granting or refusing bail. I
am naive enough to underestimate the
troublemaking propensities of the
defendants. But, with the Department of
Justice alert to the the dangers, the worst they
can accomplish in the short time it will take to
end the litigation is preferable to the
possibility of national embarrassment from a
celebrated case of unjustified imprisonment
of Communist leaders. Under no
circumstances must we permit their
symbolization of an evil force in the world to
be hallowed and glorified by any semblance
of martyrdom. The way to avoid that risk is
not to jail these men until it is finally decided
that they should stay jailed.
If that case is not comparable with ours on the issues
presented, its underlying principle is of universal
application. In fact, its ratio decidendi  applies with
greater force to the present petition, since the right of
accused to bail pending apppeal of his case, as in the
case of the ten Communists, depends upon the
discretion of the court, whereas the right to be
enlarged before formal charges are instituted is
absolute. As already noted, not only are there no
charges pending against the petitioner, but the
prospects of bringing any against him are slim and
remote.
Premises considered, the writ will issue commanding
the respondents to release the petitioner from
custody upon these terms: The petitioner shall be
placed under the surveillance of the immigration
authorities or their agents in such form and manner
as may be deemed adequate to insure that he keep
peace and be available when the Government is
ready to deport him. The surveillance shall be
reasonable and the question of reasonableness shall
be submitted to this Court or to the Court of First
Instance of Manila for decision in case of abuse. He
shall also put up a bond for the above purpose in the
amount of P5,000 with sufficient surety or sureties,
which bond the Commissioner of Immigration is
authorized to exact by section 40 of Commonwealth
Act No. 613.
No costs will be charged.
Paras, C.J., Feria, Bengzon, Padilla, Reyes and Jugo, JJ.,
concur.
Separate Opinions
PABLO, M.,  disidente:
Disiento
En decision disada por este Tribunal en la primera
causa de habeas corpus  incoada por el solicitante
Boris Mejoff (G.R. No. L-2855, Mejoff vs. Director of
Prisons)*, se declaro que el habia venido a Filipinas
procedente de Shanghai como espia japones; en la
liberacion, el ejercito americano le arresto por se
espia, habiendo sido mas tarde entregado al
Gobierno del Commonwealth para ser tratado de
acuerdo con la ley No.682; pero como bajo el Codgo
Penal Revisado, antes de su enmienda por la Orden
Ejecutiva No. 44, (mayo 31, 1945) no se castiga al
extranjero que comete traicion, Mejoff fue puesto en
libertad. Despues de una debida investigacion, la
Junta de Departacion encontra que el solicitante no
tenia permiso para entrar en Filipinas; fue entregado
a la Junta de Inmigacion, la cual ordeno su
deportacion a Rusia por el primer transporte
disponible por haber vendo aqui ilegalmente; fue
enviado a Cebu para que alli se embarcase, pero los
dos barcos de nacionalidad rusa que llegaron a dicho
puerto en julio y agosto de 1948 rehusaron admitirle.
Por no encontrar transportacion para su departacion,
Mejoff fue enviado a la Prison de Muntinglupa,
donde esta actualmente de tenido mientras el
Gobierno no encuenra medio de transportarle a
Rusia.
La mayoria contiende que "The Petitioner's entry into
the Philippines was not unlawful; he was brought by
the armed and belligerent forces of a de
facto  government whose decrees were law during
the occupation." Es tan ilegal la entrada del
solicitante como la del ejercito al que sirvio como
espia. Ninguno tiene derecho a permanecer aqui.
Puesto que fue vencido el ejercito invasor que le
trajo, el solicitante no tiene derecho a pemanecer
aqui ni un minuto mas. Si desea proteccion, debe
acudir al Gobierno Japones a cuyo ejercito el sirvio; el
hecho de que ya esta aqui no le da titulo para
permanecer libre aqui. El que ha venido como espia
de enemigo del Pueblo de Filipinas no tiene derecho
a pedir igual trato que aquel ha entrado de buena fe.
¿Es que Filipinos tiene la obligacion de acoger a un
ciudadano indeseable de Rusia? ¿Desde cuando tiene
que allanarse una nacion a ser residencia de una
extranjero que entro como enemigo o, peor aun,
como espia? Un Estado tiene indiscutible derecho a
deportar y expulsar de su territorio a todo extranjero
indeseable.
El solicitante sostiene que no tiene estado. Eso no es
razon para que tenga derecho a permanecer aqui.
Puede ser departado a Rusio o a Shanghai de donde
vino. Si todos los rusos que, por alguno que otro
motivo, o por odio al comunisomo, dejasen su pais y
emigrasen aqui reclamando igual derecho, no habria
territorio suficiente para ellos. Se puede decir otro
tanto de los chinos que, so pretexto de no querer
someterse al regimen comunista, optasen por resider
para siempre aqui. Y si los mismos communistas
chinos viniesen clandestinamente y despues
reclamasen igual proteccion como la concedida a
Mejoff, ¿tendreos que darles por el gusto?
Se invoca la resolucion aprobada por la Asamblea
General de las Naciones Unidas, titulada "Universal
Declaration of Human Rights", en la que se establece,
entre otras cosas, que "no one shall be subjected to
arbitrary arrest, detention or exile." Yo soy de los que
creen firmemente en lo sagrado de esta resolucion;
no puedo permitir que se detenga y se arreste a
alguien sin motivo justificado, de una manera
arbitraria; pero el solicitante no esta detenido de esta
manera, lo esta de una manera provisional. Tan
pronto como haya barco disponible para su
deportacion o tan pronto como pueda embarcarse en
algun barco para el extenjero o para cualquier otro
punto a donde quiera ir, dejara de ser detenido.
Conste que no esta preso como un criminal
condenado por un delito; esta tratado como
cualquier otro extranjero sujeto a deportacion. Si el
solicitante no hubiera sido espia, si no hubiera venido
aqui para ayudar a las hordas japonesas en la
subyugacion del pueblo filipino, si hubiera venido
como visitante, por ejemplo, y, por azares de la
fortuna, no pudo salir, yo seria el primero en abogar
por su liberacion inmediata.
Se cita el caso de Staniszewski vs. Watkins, (1948
A.M.C. 931, 42 American Journal of International Law,
732) en el cual el recurrente estuvo detenido ya casi
siete meses cuando se decreto su libertad en un
recurso de habeas corpus. En nuestra opinion, dicho
caso no tiene simulitud con la causa presente.
Staniszewski era residente de los Estados desde 1911;
estuvo sirviendo como marino en barcos mercantes
americanos en tiempo de guerra y se ordeno su
detencion en Ellis Island cuando volvio a America
procedente de un viaje a Europa por no tener papeles
de inmigracion. Staniszewski no habia entrado en los
Estados Unidos como espia, estuvo residiendo en
dicho pais por varios años, era ya habitante de los
Estados unidos. La ocupacion de marino es honrosa,
la del espia mercenario, detestable. El espia es peor
que el enemigo. Este lucha cara a cara, y el espia, con
disimulo y arte engañosa, escucha lo que a
Staniszewski se le haya puesto en libertad. Poner en
libertad a un espia es poner en peligro la seguridad
del Estado.
En cuanto a la duracion de la detencion provisional
del recurrente, no hay regla fija, depende de la
cincunstancia de cada caso particular. Es evidente
que los medios de comunicacion entre Filipinas y
Rusia o Shanghai, debico a fala de relciones
diplomaticas, son completamente anormales. No es
culpa del gobierno el que no encuentre medios de
transportacion para el.
La Comision de Inmigracion ha dado pasos para que
la International Refugee Organziation of the United
Nations (IRO0 se hiciera cargo del recurrente para
que pueda ser repartriado o enviado a otro pais
extranjero, pero el Jefe de dicha organizacion
contesto que no estaba en condicines para aceptar
dicha recomendacion.
William Martin Jurgans fue arrestado en 9 de enero
de 1920, en 20 de mayo se decreto su deportacion
por el Sub Secretario del Tarabajo por violacion de la
Ley de Inmigracion; solicto su libertad bajo el recurso
de Habeas Corpus, y en 16 de febrero de 1927 se
denego su peticion; no se le pudo deportar porque
"the necessary arrangements for his deportation
could obviously not be made." (District Court of
Minnesota, 17 F. 2nd series, 507). Como se vera, la
detencion provisional de William Martin Jurgans duro
mas de seis años; la de Mejoff no ha sido mas que de
31 meses, y no porque el gobierno no quiere
deportarle, sino porque no hay medio disponible
para realizarlo.
En Moraitis vs. Delany, 46 F. Supp., 425, se dijo:
What constitutes a reasonable time for the
detention of the petitioner in custody for
deportation depends upon the facts and
circumstances of particular cases. This court
cannot shut its eyes to the vitally important
interests of this country at this time with
respect to the bottleneck of shipping, when
every available ship, domestic and foreign,
must be utilized to the utmost without delay
consequent upon the lack of avilable seamen.
Under these present conditions the court
should be liberal indeed in aiding the
executive branch of the govenment in the
strict enforcement of laws so vitally necessary
in the common defns. There is sound
authority for this view in United States ex. rel.
Schlimm vs. Howe, D C.N. U Y. 222 F. 96, 97,
where Circuit Judge Lacombe refused to
release an alien who had come here from
Germany and was ordered deported in 1915
when, by reason of the then existing war
between Germany and England, his
deportation to Germany was not possible. It
was said:
At the present time there is no regular
passenger ocean service to German ports, so
the authorities are unable to forward him, and
are holding him until some opportunity of
returning him to Germany may present itself.
His continual detention is unfortunate, but
certainly is not illegal. His present condition
can be alleviated only by the action of the
executive branch of the government. A
federal court would not be justified in
discharging him. . . .
If he is not really fit for sea service, it is not
probable that he would be forced into it,
although he may be able to serve his
government in some other capacity. But
however that may be, while this country has
no power under existing legislation to
impress him into sea service against his will,
he has no just cause to be relieved from the
strict enforcement of our deportation laws,
and to remain at liberty in this country as a
sanctuary contrary to our laws.
No es arbitraria la detencion de Mejoff. Esta jutificada
por las circunstancias anormales.
La proposicion de vigilar al recurrente hasta que el
gobierno encuentre transporte para su deportacion,
supon un gasto innecesario.
G.R. No. L-2662             March 26, 1949
SHIGENORI KURODA, petitioner,
vs.
Major General RAFAEL JALANDONI, Brigadier
General CALIXTO DUQUE, Colonel MARGARITO
TORALBA, Colonel IRENEO BUENCONSEJO, Colonel
PEDRO TABUENA, Major FEDERICO ARANAS,
MELVILLE S. HUSSEY and ROBERT
PORT, respondents.
Pedro Serran, Jose G. Lukban, and Liberato B. Cinco
for petitioner.
Fred Ruiz Castro Federico Arenas Mariano Yengco, Jr.,
Ricardo A. Arcilla and S. Melville Hussey for
respondents.
MORAN, C.J.:
Shigenori Kuroda, formerly a Lieutenant-General of
the Japanese Imperial Army and Commanding
General of the Japanese Imperial Forces in The
Philippines during a period covering 19433 and
19444 who is now charged before a military
Commission convened by the Chief of Staff of the
Armed forces of the Philippines with having
unlawfully disregarded and failed "to discharge his
duties as such command, permitting them to commit
brutal atrocities and other high crimes against
noncombatant civilians and prisoners of the Imperial
Japanese Forces in violation of the laws and customs
of war" — comes before this Court seeking to
establish the illegality of Executive Order No. 68 of
the President of the Philippines: to enjoin and
prohibit respondents Melville S. Hussey and Robert
Port from participating in the prosecution of
petitioner's case before the Military Commission and
to permanently prohibit respondents from
proceeding with the case of petitioners.
In support of his case petitioner tenders the following
principal arguments.
First. — "That Executive Order No. 68 is illegal on the
ground that it violates not only the provision of our
constitutional law but also our local laws to say
nothing of the fact (that) the Philippines is not a
signatory nor an adherent to the Hague Convention
on Rules and Regulations covering Land Warfare and
therefore petitioners is charged of 'crimes' not based
on law, national and international." Hence petitioner
argues — "That in view off the fact that this
commission has been empanelled by virtue of an
unconstitutional law an illegal order this commission
is without jurisdiction to try herein petitioner."
Second. — That the participation in the prosecution
of the case against petitioner before the Commission
in behalf of the United State of America of attorneys
Melville Hussey and Robert Port who are not
attorneys authorized by the Supreme Court to
practice law in the Philippines is a diminution of our
personality as an independent state and their
appointment as prosecutor are a violation of our
Constitution for the reason that they are not qualified
to practice law in the Philippines.
Third. — That Attorneys Hussey and Port have no
personality as prosecution the United State not being
a party in interest in the case.
Executive Order No. 68, establishing a National War
Crimes Office prescribing rule and regulation
governing the trial of accused war criminals, was
issued by the President of the Philippines on the 29th
days of July, 1947 This Court holds that this order is
valid and constitutional. Article 2 of our Constitution
provides in its section 3, that —
The Philippines renounces war as an
instrument of national policy and adopts the
generally accepted principles of international
law as part of the of the nation.
In accordance with the generally accepted principle
of international law of the present day including the
Hague Convention the Geneva Convention and
significant precedents of international jurisprudence
established by the United Nation all those person
military or civilian who have been guilty of planning
preparing or waging a war of aggression and of the
commission of crimes and offenses consequential
and incidental thereto in violation of the laws and
customs of war, of humanity and civilization are held
accountable therefor. Consequently in the
promulgation and enforcement of Execution Order
No. 68 the President of the Philippines has acted in
conformity with the generally accepted and policies
of international law which are part of the our
Constitution.
The promulgation of said executive order is an
exercise by the President of his power as Commander
in chief of all our armed forces as upheld by this
Court in the case of Yamashita vs. Styer (L-129, 42 Off.
Gaz., 664) 1 when we said —
War is not ended simply because hostilities
have ceased. After cessation of armed
hostilities incident of war may remain
pending which should be disposed of as in
time of war. An importance incident to a
conduct of war is the adoption of measure by
the military command not only to repel and
defeat the enemies but to seize and subject to
disciplinary measure those enemies who in
their attempt to thwart or impede our military
effort have violated the law of war. (Ex
parte  Quirin 317 U.S., 1; 63 Sup. Ct., 2.) Indeed
the power to create a military commission for
the trial and punishment of war criminals is an
aspect of waging war. And in the language of
a writer a military commission has jurisdiction
so long as a technical state of war continues.
This includes the period of an armistice or
military occupation up to the effective of a
treaty of peace and may extend beyond by
treaty agreement. (Cowles Trial of
War  Criminals by Military Tribunals, America
Bar Association Journal June, 1944.)
Consequently, the President as Commander in Chief
is fully empowered to consummate this unfinished
aspect of war namely the trial and punishment of war
criminal through the issuance and enforcement of
Executive Order No. 68.
Petitioner argues that respondent Military
Commission has no Jurisdiction to try petitioner for
acts committed in violation of the Hague Convention
and the Geneva Convention because the Philippines
is not a signatory to the first and signed the second
only in 1947. It cannot be denied that the rules and
regulation of the Hague and Geneva conventions
form, part of and are wholly based on the generally
accepted principals of international law. In facts these
rules and principles were accepted by the two
belligerent nation the United State and Japan who
were signatories to the two Convention, Such rule
and principles therefore form part of the law of our
nation even if the Philippines was not a signatory to
the conventions embodying them for our
Constitution has been deliberately general and
extensive in its scope and is not confined to the
recognition of rule and principle of international law
as continued inn treaties to which our government
may have been or shall be a signatory.
Furthermore when the crimes charged against
petitioner were allegedly committed the Philippines
was under the sovereignty of United States and thus
we were equally bound together with the United
States and with Japan to the right and obligation
contained in the treaties between the belligerent
countries. These rights and obligation were not
erased by our assumption of full sovereignty. If at all
our emergency as a free state entitles us to enforce
the right on our own of trying and punishing those
who committed crimes against crimes against our
people. In this connection it is well to remember what
we have said in the case of Laurel vs. Misa (76 Phil.,
372):
. . . The change of our form government from
Commonwealth to Republic does not affect
the prosecution of those charged with the
crime of treason committed during then
Commonwealth because it is an offense
against the same sovereign people. . . .
By the same token war crimes committed against our
people and our government while we were a
Commonwealth are triable and punishable by our
present Republic.
Petitioner challenges the participation of two
American attorneys namely Melville S. Hussey and
Robert Port in the prosecution of his case on the
ground that said attorney's are not qualified to
practice law in Philippines in accordance with our
Rules of court and the appointment of said attorneys
as prosecutors is violative of our national sovereignty.
In the first place respondent Military Commission is a
special military tribunal governed by a special law and
not by the Rules of court which govern ordinary civil
court. It has already been shown that Executive Order
No. 68 which provides for the organization of such
military commission is a valid and constitutional law.
There is nothing in said executive order which
requires that counsel appearing before said
commission must be attorneys qualified to practice
law in the Philippines in accordance with the Rules of
Court. In facts it is common in military tribunals that
counsel for the parties are usually military personnel
who are neither attorneys nor even possessed of legal
training.
Secondly the appointment of the two American
attorneys is not violative of our nation sovereignty. It
is only fair and proper that United States, which has
submitted the vindication of crimes against her
government and her people to a tribunal of our
nation should be allowed representation in the trial of
those very crimes. If there has been any
relinquishment of sovereignty it has not been by our
government but by the United State Government
which has yielded to us the trial and punishment of
her enemies. The least that we could do in the spirit
of comity is to allow them representation in said
trials.
Alleging that the United State is not a party in interest
in the case petitioner challenges the personality of
attorneys Hussey and Port as prosecutors. It is of
common knowledge that the United State and its
people have been equally if not more greatly
aggrieved by the crimes with which petitioner stands
charged before the Military Commission. It can be
considered a privilege for our Republic that a leader
nation should submit the vindication of the honor of
its citizens and its government to a military tribunal of
our country.
The Military Commission having been convened by
virtue of a valid law with jurisdiction over the crimes
charged which fall under the provisions of Executive
Order No. 68, and having said petitioner in its
custody, this Court will not interfere with the due
process of such Military commission.
For all the foregoing the petition is denied with
costs de oficio.
Magallona v. Ermita, G.R. No. 187167, July 16, 2011
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 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
14
fishermen.  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
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.
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 Treaty of Paris’
of Regime of Islands to Determine the delimitation (in square
Maritime Zones of the KIG and the square nautical miles)
Scarborough Shoal, not Inconsistent miles)
with the Philippines’ Claim of Sovereignty
Over these Areas Internal or
archipelagic
Petitioners next submit that RA 9522’s use of waters 166,858 171,435
UNCLOS III’s regime of islands framework to draw Territorial Sea 274,136 32,106
the baselines, and to measure the breadth of the
applicable maritime zones of the KIG, "weakens our Exclusive
territorial claim" over that area.27 Petitioners add that Economic Zone   382,669
the KIG’s (and Scarborough Shoal’s) exclusion
TOTAL 440,994 586,210
from the Philippine archipelagic baselines results in
the loss of "about 15,000 square nautical miles of
territorial waters," prejudicing the livelihood of Thus, as the map below shows, the reach of the
subsistence fishermen.28 A comparison of the exclusive economic zone drawn under RA 9522 even
configuration of the baselines drawn under RA 3046 extends way beyond the waters covered by the
and RA 9522 and the extent of maritime space rectangular demarcation under the Treaty of Paris. Of
encompassed by each law, coupled with a reading of course, where there are overlapping exclusive
the text of RA 9522 and its congressional economic zones of opposite or adjacent States, there
deliberations, vis-à-vis the Philippines’ obligations will have to be a delineation of maritime boundaries
under UNCLOS III, belie this view.1avvphi1 in accordance with UNCLOS III.30

The configuration of the baselines drawn under RA Further, petitioners’ argument that the KIG now lies
3046 and RA 9522 shows that RA 9522 merely outside Philippine territory because the baselines that
followed the basepoints mapped by RA 3046, save for RA 9522 draws do not enclose the KIG is negated by
at least nine basepoints that RA 9522 skipped to RA 9522 itself. Section 2 of the law commits to text
optimize the location of basepoints and adjust the the Philippines’ continued claim of sovereignty and
length of one baseline (and thus comply with jurisdiction over the KIG and the Scarborough Shoal:
UNCLOS III’s limitation on the maximum length of
baselines). Under RA 3046, as under RA 9522, the KIG SEC. 2. The baselines in the following areas over
and the Scarborough Shoal lie outside of the which the Philippines likewise exercises sovereignty
baselines drawn around the Philippine archipelago. and jurisdiction shall be determined as "Regime of
This undeniable cartographic fact takes the wind out Islands" under the Republic of the Philippines
of petitioners’ argument branding RA 9522 as a consistent with Article 121 of the United Nations
statutory renunciation of the Philippines’ claim over Convention on the Law of the Sea (UNCLOS):
the KIG, assuming that baselines are relevant for this
purpose. a) The Kalayaan Island Group as constituted
under Presidential Decree No. 1596 and
Petitioners’ assertion of loss of "about 15,000
square nautical miles of territorial waters" under RA b) Bajo de Masinloc, also known as
9522 is similarly unfounded both in fact and law. On Scarborough Shoal. (Emphasis supplied)
the contrary, RA 9522, by optimizing the location of
basepoints, increased  the Philippines’ total Had Congress in RA 9522 enclosed the KIG and the
maritime space (covering its internal waters, territorial Scarborough Shoal as part of the Philippine
sea and exclusive economic zone) by 145,216 square archipelago, adverse legal effects would have ensued.
nautical miles, as shown in the table below: 29 The Philippines would have committed a breach of
two provisions of UNCLOS III. First, Article 47 (3) of
  Extent of maritime Extent of UNCLOS
maritime III requires that "[t]he drawing of such
area using RA 3046, area using RA 9522, shall not depart to any appreciable extent
baselines
as amended, taking taking intofrom the general configuration of the archipelago."
account
into account the UNCLOS Second,
III (inArticle 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.  (Emphasis supplied)
34
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
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 Constitution 39 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,
which, absent enabling legislation, "do not embody
judicially enforceable constitutional rights x x
x."49 Article II provisions serve as guides in
formulating and interpreting implementing
legislation, as well as in interpreting executory
provisions of the Constitution. Although Oposa v.
Factoran50 treated the right to a healthful and
balanced ecology under Section 16 of Article II as an
exception, the present petition lacks factual basis to
substantiate the claimed constitutional violation. The
other provisions petitioners cite, relating to the
protection of marine wealth (Article XII, Section 2,
paragraph 251 ) and subsistence fishermen (Article
XIII, Section 752 ), are not violated by RA 9522.
In fact, the demarcation of the baselines enables the
Philippines to delimit its exclusive economic zone,
reserving solely to the Philippines the exploitation of
all living and non-living resources within such zone.
Such a maritime delineation binds the international
community since the delineation is in strict
observance of UNCLOS III. If the maritime delineation
is contrary to UNCLOS III, the international
community will of course reject it and will refuse to be
bound by it.
UNCLOS III favors States with a long coastline like the
Philippines. UNCLOS III creates a sui generis maritime
space – the exclusive economic zone – in waters
previously part of the high seas. UNCLOS III grants
new rights to coastal States to exclusively exploit the
resources found within this zone up to 200 nautical
miles.53 UNCLOS III, however, preserves the
traditional freedom of navigation of other States that
attached to this zone beyond the territorial sea
before UNCLOS III.
RA 9522 and the Philippines’ Maritime Zones
Petitioners hold the view that, based on the
permissive text of UNCLOS III, Congress was not
bound to pass RA 9522.54 We have looked at the
relevant provision of UNCLOS III 55 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 is measured. This is recipe for a two-
fronted disaster: first, it sends an open invitation to
the seafaring powers to freely enter and exploit the
resources in the waters and submarine areas around
our archipelago; and second, it weakens the
country’s case in any international dispute over
Philippine maritime space. These are consequences
Congress wisely avoided.
The enactment of UNCLOS III compliant baselines law
for the Philippine archipelago and adjacent areas, as
embodied in RA 9522, allows an internationally-
recognized delimitation of the breadth of the
Philippines’ maritime zones and continental shelf.
RA 9522 is therefore a most vital step on the part of
the Philippines in safeguarding its maritime zones,
consistent with the Constitution and our national
interest.
WHEREFORE, we DISMISS the petition.
SO ORDERED.