Republic of the Philippines

SUPREME COURT
Manila

This original action for the writs of certiorari and prohibition assails the
constitutionality of Republic Act No. 95221(RA 9522) adjusting the countrys
archipelagic baselines and classifying the baseline regime of nearby
territories.

EN BANC
The Antecedents
G.R No. 187167

August 16, 2011

PROF. MERLIN M. MAGALLONA, AKBAYAN PARTY-LIST REP. RISA

HONTIVEROS, PROF. HARRY C. ROQUE, JR., AND UNIVERSITY OF
THE PHILIPPINES COLLEGE OF LAW STUDENTS, ALITHEA BARBARA
ACAS, VOLTAIRE ALFERES, CZARINA MAY ALTEZ, FRANCIS ALVIN
ASILO, SHERYL BALOT, RUBY AMOR BARRACA, JOSE JAVIER
BAUTISTA, ROMINA BERNARDO, VALERIE PAGASA BUENAVENTURA,
EDAN MARRI CAETE, VANN ALLEN DELA CRUZ, RENE DELORINO,
PAULYN MAY DUMAN, SHARON ESCOTO, RODRIGO FAJARDO III,
GIRLIE FERRER, RAOULLE OSEN FERRER, CARLA REGINA GREPO,
ANNA MARIE CECILIA GO, IRISH KAY KALAW, MARY ANN JOY LEE,
MARIA LUISA MANALAYSAY, MIGUEL RAFAEL MUSNGI, MICHAEL
OCAMPO, JAKLYN HANNA PINEDA, WILLIAM RAGAMAT, MARICAR
RAMOS, ENRIK FORT REVILLAS, JAMES MARK TERRY RIDON,
JOHANN FRANTZ RIVERA IV, CHRISTIAN RIVERO, DIANNE MARIE
ROA, NICHOLAS SANTIZO, MELISSA CHRISTINA SANTOS, CRISTINE
MAE TABING, VANESSA ANNE TORNO, MARIA ESTER VANGUARDIA,
and MARCELINO VELOSO III, Petitioners,
vs.
HON. EDUARDO ERMITA, IN HIS CAPACITY AS EXECUTIVE
SECRETARY, HON. ALBERTO ROMULO, IN HIS CAPACITY AS
SECRETARY OF THE DEPARTMENT OF FOREIGN AFFAIRS, HON.
ROLANDO ANDAYA, IN HIS CAPACITY AS SECRETARY OF THE
DEPARTMENT OF BUDGET AND MANAGEMENT, HON. DIONY
VENTURA, IN HIS CAPACITY AS ADMINISTRATOR OF THE NATIONAL
MAPPING & RESOURCE INFORMATION AUTHORITY, and HON.
HILARIO DAVIDE, JR., IN HIS CAPACITY AS REPRESENTATIVE OF THE
PERMANENT MISSION OF THE REPUBLIC OF THE PHILIPPINES TO
THE UNITED NATIONS,Respondents.
DECISION
CARPIO, J.:
The Case

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 Philippines 7 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 states 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 countrys waters
landward of the baselines to maritime passage by all vessels and aircrafts,
undermining Philippine sovereignty and national security, contravening the

countrys nuclear-free policy, and damaging marine resources, in violation of

relevant constitutional provisions.13
In addition, petitioners contend that RA 9522s treatment of the KIG as
"regime of islands" not only results in the loss of a large maritime area but
also prejudices the livelihood of subsistence fishermen.14 To buttress their
argument of territorial diminution, petitioners facially attack RA 9522 for what
it excluded and included its failure to reference either the Treaty of Paris or
Sabah and its use of UNCLOS IIIs 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 petitions compliance with the case or controversy
requirement for judicial review grounded on petitioners alleged lack of locus
standiand (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 countrys 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 countrys 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 Countrys
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 worlds 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 treatys 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 9522s Use of the Framework
of Regime of Islands to Determine the
Maritime Zones of the KIG and the
Scarborough Shoal, not Inconsistent
with the Philippines Claim of Sovereignty
Over these Areas
Petitioners next submit that RA 9522s use of UNCLOS IIIs regime of islands
framework to draw the baselines, and to measure the breadth of the
applicable maritime zones of the KIG, "weakens our territorial claim" over
that area.27 Petitioners add that the KIGs (and Scarborough Shoals)
exclusion from the Philippine archipelagic baselines results in the loss of

"about 15,000 square nautical miles of territorial waters," prejudicing the

livelihood of subsistence fishermen.28 A comparison of the configuration of
the baselines drawn under RA 3046 and RA 9522 and the extent of maritime
space encompassed by each law, coupled with a reading of the text of RA
9522 and its congressional deliberations, vis--vis the Philippines
obligations under UNCLOS III, belie this view.1avvphi1
The configuration of the baselines drawn under RA 3046 and RA 9522
shows that RA 9522 merely followed the basepoints mapped by RA 3046,
save for at least nine basepoints that RA 9522 skipped to optimize the
location of basepoints and adjust the length of one baseline (and thus
comply with UNCLOS IIIs limitation on the maximum length of baselines).
Under RA 3046, as under RA 9522, the KIG and the Scarborough Shoal lie
outside of the baselines drawn around the Philippine archipelago. This
undeniable cartographic fact takes the wind out of petitioners argument
branding RA 9522 as a statutory renunciation of the Philippines claim over
the KIG, assuming that baselines are relevant for this purpose.
Petitioners assertion of loss of "about 15,000 square nautical miles of
territorial waters" under RA 9522 is similarly unfounded both in fact and law.
On the contrary, RA 9522, by optimizing the location of
basepoints, increasedthe Philippines total maritime space (covering its
internal waters, territorial sea and exclusive economic zone) by 145,216
square nautical miles, as shown in the table below: 29

Extent of maritime
area using RA 3046,
as amended, taking
into account the
Treaty of Paris
delimitation (in
square nautical miles)

Extent of maritime
area using RA 9522,
taking into account
UNCLOS III (in
square nautical miles)

Internal or
archipelagic
waters

166,858

171,435

Territorial Sea

274,136

32,106

Exclusive
Economic Zone

382,669

TOTAL

440,994

586,210

Thus, as the map below shows, the reach of the exclusive economic zone
drawn under RA 9522 even extends way beyond the waters covered by the
rectangular demarcation under the Treaty of Paris. Of course, where there
are overlapping exclusive economic zones of opposite or adjacent States,
there will have to be a delineation of maritime boundaries in accordance with
UNCLOS III.30

Philippines continued claim of sovereignty and jurisdiction over the KIG and
the Scarborough Shoal:
SEC. 2. The baselines in the following areas over which the Philippines
likewise exercises sovereignty and jurisdiction shall be determined as
"Regime of Islands" under the Republic of the Philippines consistent with
Article 121 of the United Nations Convention on the Law of the Sea
(UNCLOS):
a) The Kalayaan Island Group as constituted under Presidential
Decree No. 1596 and
b) Bajo de Masinloc, also known as Scarborough Shoal. (Emphasis
supplied)
Had Congress in RA 9522 enclosed the KIG and the Scarborough Shoal as
part of the Philippine archipelago, adverse legal effects would have ensued.
The Philippines would have committed a breach of two provisions of
UNCLOS III. First, Article 47 (3) of UNCLOS III requires that "[t]he drawing of
such baselines shall not depart to any appreciable extent from the general
configuration of the archipelago." Second, Article 47 (2) of UNCLOS III
requires that "the length of the baselines shall not exceed 100 nautical
miles," save for three per cent (3%) of the total number of baselines which
can reach up to 125 nautical miles.31
Although the Philippines has consistently claimed sovereignty over the
KIG32 and the Scarborough Shoal for several decades, these outlying areas
are located at an appreciable distance from the nearest shoreline of the
Philippine archipelago,33 such that any straight baseline loped around them
from the nearest basepoint will inevitably "depart to an appreciable extent
from the general configuration of the archipelago."
The principal sponsor of RA 9522 in the Senate, Senator Miriam DefensorSantiago, took pains to emphasize the foregoing during the Senate
deliberations:

Further, petitioners argument that the KIG now lies outside Philippine
territory because the baselines that RA 9522 draws do not enclose the KIG
is negated by RA 9522 itself. Section 2 of the law commits to text the

What we call the Kalayaan Island Group or what the rest of the world call[]
the Spratlys and the Scarborough Shoal are outside our archipelagic
baseline because if we put them inside our baselines we might be accused
of violating the provision of international law which states: "The drawing of
such baseline shall not depart to any appreciable extent from the general
configuration of the archipelago." So sa loob ng ating baseline, dapat
magkalapit ang mga islands. Dahil malayo ang Scarborough Shoal, hindi

natin masasabing malapit sila sa atin although we are still allowed by

international law to claim them as our own.
This is called contested islands outside our configuration. We see that our
archipelago is defined by the orange line which [we] call[] archipelagic
baseline. Ngayon, tingnan ninyo ang maliit na circle doon sa itaas, that is
Scarborough Shoal, itong malaking circle sa ibaba, that is Kalayaan Group
or the Spratlys. Malayo na sila sa ating archipelago kaya kung ilihis pa natin
ang dating archipelagic baselines para lamang masama itong dalawang
circles, hindi na sila magkalapit at baka hindi na tatanggapin ng United
Nations because of the rule that it should follow the natural configuration of
the archipelago.34 (Emphasis supplied)
Similarly, the length of one baseline that RA 3046 drew exceeded UNCLOS
IIIs 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 States 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 Actis 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 Constitutions
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
Constitution39 or as "archipelagic waters" under UNCLOS III (Article 49 [1]),
the Philippines exercises sovereignty over the body of water lying landward
of the baselines, including the air space over it and the submarine areas
underneath. UNCLOS III affirms this:

Article 49. Legal status of archipelagic waters, of the air space over
archipelagic waters and of their bed and subsoil.
1. The sovereignty of an archipelagic State extends to the
waters enclosed by the archipelagic baselines drawn in
accordance with article 47, described as archipelagic waters,
regardless of their depth or distance from the coast.
2. This sovereignty extends to the air space over the
archipelagic waters, as well as to their bed and subsoil, and the
resources contained therein.
xxxx
4. The regime of archipelagic sea lanes passage established in this
Part shall not in other respects affect the status of the
archipelagic waters, including the sea lanes, or the exercise by
the archipelagic State of its sovereignty over such waters and
their air space, bed and subsoil, and the resources contained
therein. (Emphasis supplied)
The fact of sovereignty, however, does not preclude the operation of
municipal and international law norms subjecting the territorial sea or
archipelagic waters to necessary, if not marginal, burdens in the interest of
maintaining unimpeded, expeditious international navigation, consistent with
the international law principle of freedom of navigation. Thus, domestically,
the political branches of the Philippine government, in the competent
discharge of their constitutional powers, may pass legislation designating
routes within the archipelagic waters to regulate innocent and sea lanes
passage.40 Indeed, bills drawing nautical highways for sea lanes passage
are now pending in Congress.41
In the absence of municipal legislation, international law norms, now codified
in UNCLOS III, operate to grant innocent passage rights over the territorial
sea or archipelagic waters, subject to the treatys 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 passage 45 does not place
them in lesser footing vis--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.

JR.
Associate Justice

CASTRO
Associate Justice

ARTURO D. BRION
Associate Justice

DIOSDADO M. PERALTA
Associate Justice

LUCAS P. BERSAMIN
Associate Justice

MARIANO C. DEL CASTILLO

Associate Justice

ROBERTO A. ABAD
Associate Justice

MARTIN S. VILLARAMA, JR.

Associate Justice

JOSE PORTUGAL PEREZ

Associate Justice

JOSE C. MENDOZA
Associate Justice

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 III55 and we find petitioners reading plausible.
Nevertheless, the prerogative of choosing this option belongs to Congress,
not to this Court. Moreover, the luxury of choosing this option comes at a
very steep price. Absent an UNCLOS III compliant baselines law, an
archipelagic State like the Philippines will find itself devoid of internationally
acceptable baselines from where the breadth of its maritime zones and
continental shelf 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 countrys 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.

MARIA LOURDES P. A. SERENO

Associate Justice
C E R TI F I CATI O N
Pursuant to Section 13, Article VIII of the Constitution, I certify that the
conclusions in the above Decision had been reached in consultation before
the case was assigned to the writer of the opinion of the Court.
RENATO C. CORONA
Chief Justice
Footnotes

SO ORDERED.

Entitled "An Act to Amend Certain Provisions of Republic Act No.

3046, as Amended by Republic Act No. 5446, to Define the
Archipelagic Baselines of the Philippines, and for Other Purposes."

ANTONIO T. CARPIO
Associate Justice
WE CONCUR:

RENATO C. CORONA
Chief Justice
PRESBITERO J. VELASCO,

TERESITA J. LEONARDO-DE

Entitled "An Act to Define the Baselines of the Territorial Sea of the
Philippines."
3

The third "Whereas Clause" of RA 3046 expresses the import of

treating the Philippines as an archipelagic State:

"WHEREAS, all the waters around, between, and

connecting the various islands of the Philippine archipelago,
irrespective of their width or dimensions, have always been
considered as necessary appurtenances of the land territory,
forming part of the inland waters of the Philippines."

give the names of any Commission members who have provided it

with scientific and technical advice." (Underscoring supplied)
In a subsequent meeting, the States parties agreed that for
States which became bound by the treaty before 13 May
1999 (such as the Philippines) the ten-year period will be
counted from that date. Thus, RA 9522, which took effect on
27 March 2009, barely met the deadline.

One of the four conventions framed during the first United Nations
Convention on the Law of the Sea in Geneva, this treaty, excluding
the Philippines, entered into force on 10 September 1964.
9
5

UNCLOS III entered into force on 16 November 1994.

The Philippines signed the treaty on 10 December 1982.

Article 47, paragraphs 1-3, provide:

Rollo, p. 34.

10

1. An archipelagic State may draw straight archipelagic

baselines joining the outermost points of the outermost
islands and drying reefs of the archipelago provided that
within such baselines are included the main islands and an
area in which the ratio of the area of the water to the area of
the land, including atolls, is between 1 to 1 and 9 to 1.
2. 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.
3. The drawing of such baselines shall not depart to any
appreciable extent from the general configuration of the
archipelago. (Emphasis supplied)
xxxx

Which provides: "The national territory comprises the Philippine

archipelago, with all the islands and waters embraced therein, and
all other territories over which the Philippines has sovereignty or
jurisdiction, consisting of its terrestrial, fluvial, and aerial domains,
including its territorial sea, the seabed, the subsoil, the insular
shelves, and other submarine areas. The waters around, between,
and connecting the islands of the archipelago, regardless of their
breadth and dimensions, form part of the internal waters of the
Philippines."
11

Entered into between the Unites States and Spain on 10

December 1898 following the conclusion of the Spanish-American
War. Under the terms of the treaty, Spain ceded to the United States
"the archipelago known as the Philippine Islands" lying within its
technical description.
12

The Treaty of Washington, between Spain and the United States

(7 November 1900), transferring to the US the islands of Cagayan,
Sulu, and Sibutu and the US-Great Britain Convention (2 January
1930) demarcating boundary lines between the Philippines and
North Borneo.
13

Article II, Section 7, Section 8, and Section 16.

UNCLOS III entered into force on 16 November 1994. The

deadline for the filing of application is mandated in Article 4, Annex
II: "Where a coastal State intends to establish, in accordance with
article 76, the outer limits of its continental shelf beyond 200 nautical
miles, it shall submit particulars of such limits to the Commission
along with supporting scientific and technical data as soon as
possible but in any case within 10 years of the entry into force of this
Convention for that State. The coastal State shall at the same time

14

Allegedly in violation of Article XII, Section 2, paragraph 2 and

Article XIII, Section 7 of the Constitution.
15

16

Kilosbayan, Inc. v. Morato, 320 Phil. 171, 186 (1995).

Pascual v. Secretary of Public Works, 110 Phil. 331

(1960); Sanidad v. COMELEC, 165 Phil. 303 (1976).

17

Francisco, Jr. v. House of Representatives, 460 Phil. 830, 899

(2003) citing Kilosbayan, Inc. v. Guingona, Jr., G.R. No. 113375, 5
May 1994, 232 SCRA 110, 155-156 (1995) (Feliciano, J.,
concurring). The two other factors are: "the character of funds or
assets involved in the controversy and a clear disregard of
constitutional or statutory prohibition." Id.

islands and drying reefs of the archipelago provided that

within such baselines are included the main islands and an
area in which the ratio of the area of the water to the area of
the land, including atolls, is between 1 to 1 and 9 to 1.
(Emphasis supplied)
25

18

. Rollo, pp. 144-147.

19

See e.g. Aquino III v. COMELEC, G.R. No. 189793, 7 April 2010,
617 SCRA 623 (dismissing a petition for certiorari and prohibition
assailing the constitutionality of Republic Act No. 9716, not for the
impropriety of remedy but for lack of merit); Aldaba v. COMELEC,
G.R. No. 188078, 25 January 2010, 611 SCRA 137 (issuing the writ
of prohibition to declare unconstitutional Republic Act No.
9591); Macalintal v. COMELEC, 453 Phil. 586 (2003) (issuing the
writs of certiorari and prohibition declaring unconstitutional portions
of Republic Act No. 9189).
20

See e.g. Neri v. Senate Committee on Accountability of Public

Officers and Investigations, G.R. No. 180643, 25 March 2008, 549
SCRA 77 (granting a writ of certiorari against the Philippine Senate
and nullifying the Senate contempt order issued against petitioner).
21

Rollo, p. 31.

22

Respondents state in their Comment that petitioners theory "has

not been accepted or recognized by either the United States or
Spain," the parties to the Treaty of Paris. Respondents add that "no
State is known to have supported this proposition." Rollo, p. 179.
23

UNCLOS III belongs to that larger corpus of international law of

the sea, which petitioner Magallona himself defined as "a body of
treaty rules and customary norms governing the uses of the sea, the
exploitation of its resources, and the exercise of jurisdiction over
maritime regimes. x x x x" (Merlin M. Magallona, Primer on the Law
of the Sea 1 [1997]) (Italicization supplied).
24

Following Article 47 (1) of UNCLOS III which provides:

An archipelagic State may draw straight archipelagic
baselines joining the outermost points of theoutermost

Under the United Nations Charter, use of force is no longer a valid

means of acquiring territory.
26

The last paragraph of the preamble of UNCLOS III states that

"matters not regulated by this Convention continue to be governed
by the rules and principles of general international law."
27

Rollo, p. 51.

28

Id. at 51-52, 64-66.

29

Based on figures respondents submitted in their Comment (id. at

182).
30

Under Article 74.

31

See note 7.

32

Presidential Decree No. 1596 classifies the KIG as a municipality

of Palawan.
33

KIG lies around 80 nautical miles west of Palawan while

Scarborough Shoal is around 123 nautical west of Zambales.
34

Journal, Senate 14th Congress 44th Session 1416 (27 January

2009).
35

Rollo, p. 159.

36

Section 2, RA 9522.

37

Article 121 provides: "Regime of islands.

1. An island is a naturally formed area of land, surrounded
by water, which is above water at high tide.

38

2. Except as provided for in paragraph 3, the territorial sea,

the contiguous zone, the exclusive economic zone and the
continental shelf of an island are determined in accordance
with the provisions of this Convention applicable to other
land territory.

1. An archipelagic State may designate sea lanes

and air routes thereabove, suitable for the
continuous and expeditious passage of foreign
ships and aircraft through or over its archipelagic
waters and the adjacent territorial sea.

3. Rocks which cannot sustain human habitation or

economic life of their own shall have no exclusive economic
zone or continental shelf."

2. All ships and aircraft enjoy the right of

archipelagic sea lanes passage in such sea
lanes and air routes.

Rollo, pp. 56-57, 60-64.

39

Paragraph 2, Section 2, Article XII of the Constitution uses the

term "archipelagic waters" separately from "territorial sea." Under
UNCLOS III, an archipelagic State may have internal waters such
as those enclosed by closing lines across bays and mouths of rivers.
See Article 50, UNCLOS III. Moreover, Article 8 (2) of UNCLOS III
provides: "Where the establishment of a straight baseline in
accordance with the method set forth in article 7 has the effect of
enclosing as internal waters areas which had not previously been
considered as such, a right of innocent passage as provided in this
Convention shall exist in those waters." (Emphasis supplied)
40

Mandated under Articles 52 and 53 of UNCLOS III:

Article 52. Right of innocent passage.
1. Subject to article 53 and without prejudice to
article 50, ships of all States enjoy the right of
innocent passage through archipelagic waters,
in accordance with Part II, section 3.
2. The archipelagic State may, without
discrimination in form or in fact among foreign ships,
suspend temporarily in specified areas of its
archipelagic waters the innocent passage of foreign
ships if such suspension is essential for the
protection of its security. Such suspension shall take
effect only after having been duly published.
(Emphasis supplied)
Article 53. Right of archipelagic sea lanes passage.

3. Archipelagic sea lanes passage means the

exercise in accordance with this Convention of the
rights of navigation and overflight in the normal
mode solely for the purpose of continuous,
expeditious and unobstructed transit between one
part of the high seas or an exclusive economic zone
and another part of the high seas or an exclusive
economic zone.
4. Such sea lanes and air routes shall traverse the
archipelagic waters and the adjacent territorial sea
and shall include all normal passage routes used as
routes for international navigation or overflight
through or over archipelagic waters and, within such
routes, so far as ships are concerned, all normal
navigational channels, provided that duplication of
routes of similar convenience between the same
entry and exit points shall not be necessary.
5. Such sea lanes and air routes shall be defined by
a series of continuous axis lines from the entry
points of passage routes to the exit points. Ships
and aircraft in archipelagic sea lanes passage shall
not deviate more than 25 nautical miles to either
side of such axis lines during passage, provided that
such ships and aircraft shall not navigate closer to
the coasts than 10 per cent of the distance between
the nearest points on islands bordering the sea
lane.
6. An archipelagic State which designates sea lanes
under this article may also prescribe traffic

separation schemes for the safe passage of ships

through narrow channels in such sea lanes.
7. An archipelagic State may, when circumstances
require, after giving due publicity thereto, substitute
other sea lanes or traffic separation schemes for
any sea lanes or traffic separation schemes
previously designated or prescribed by it.
8. Such sea lanes and traffic separation schemes
shall conform to generally accepted international
regulations.
9. In designating or substituting sea lanes or
prescribing or substituting traffic separation
schemes, an archipelagic State shall refer proposals
to the competent international organization with a
view to their adoption. The organization may adopt
only such sea lanes and traffic separation schemes
as may be agreed with the archipelagic State, after
which the archipelagic State may designate,
prescribe or substitute them.
10. The archipelagic State shall clearly indicate the
axis of the sea lanes and the traffic separation
schemes designated or prescribed by it on charts to
which due publicity shall be given.
11. Ships in archipelagic sea lanes passage shall
respect applicable sea lanes and traffic separation
schemes established in accordance with this article.
12. If an archipelagic State does not designate sea
lanes or air routes, the right of archipelagic sea
lanes passage may be exercised through the routes
normally used for international navigation.
(Emphasis supplied)
41

Namely, House Bill No. 4153 and Senate Bill No. 2738, identically
titled "AN ACT TO ESTABLISH THE ARCHIPELAGIC SEA LANES
IN THE PHILIPPINE ARCHIPELAGIC WATERS, PRESCRIBING
THE RIGHTS AND OBLIGATIONS OF FOREIGN SHIPS AND
AIRCRAFTS EXERCISING THE RIGHT OF ARCHIPELAGIC SEA

LANES PASSAGE THROUGH THE ESTABLISHED

ARCHIPELAGIC SEA LANES AND PROVIDING FOR THE
ASSOCIATED PROTECTIVE MEASURES THEREIN."
42

The relevant provision of UNCLOS III provides:

Article 17. Right of innocent passage.
Subject to this Convention, ships of all States, whether
coastal or land-locked, enjoy the right of innocent
passage through the territorial sea. (Emphasis supplied)
Article 19. Meaning of innocent passage.
1. Passage is innocent so long as it is not prejudicial
to the peace, good order or security of the coastal
State. Such passage shall take place in conformity
with this Convention and with other rules of
international law.
2. Passage of a foreign ship shall be considered to
be prejudicial to the peace, good order or security of
the coastal State if in the territorial sea it engages in
any of the following activities:
(a) any threat or use of force against the
sovereignty, territorial integrity or political
independence of the coastal State, or in any
other manner in violation of the principles of
international law embodied in the Charter of
the United Nations;
(b) any exercise or practice with weapons of
any kind;
(c) any act aimed at collecting information to
the prejudice of the defence or security of
the coastal State;
(d) any act of propaganda aimed at
affecting the defence or security of the
coastal State;

(e) the launching, landing or taking on board

of any aircraft;

(d) the conservation of the living resources

of the sea;

(f) the launching, landing or taking on board

of any military device;

(e) the prevention of infringement of the

fisheries laws and regulations of the coastal
State;

(g) the loading or unloading of any

commodity, currency or person contrary to
the customs, fiscal, immigration or sanitary
laws and regulations of the coastal State;

(f) the preservation of the environment of

the coastal State and the prevention,
reduction and control of pollution thereof;

(h) any act of willful and serious pollution

contrary to this Convention;

(g) marine scientific research and

hydrographic surveys;

(i) any fishing activities;

(h) the prevention of infringement of the

customs, fiscal, immigration or sanitary laws
and regulations of the coastal State.

(j) the carrying out of research or survey

activities;
(k) any act aimed at interfering with any
systems of communication or any other
facilities or installations of the coastal State;

2. Such laws and regulations shall not apply to the

design, construction, manning or equipment of
foreign ships unless they are giving effect to
generally accepted international rules or standards.

(l) any other activity not having a direct

bearing on passage

3. The coastal State shall give due publicity to all

such laws and regulations.
4. Foreign ships exercising the right of innocent
passage through the territorial sea shall comply with
all such laws and regulations and all generally
accepted international regulations relating to the
prevention of collisions at sea.

Article 21. Laws and regulations of the coastal State relating

to innocent passage.
1. The coastal State may adopt laws and
regulations, in conformity with the provisions of this
Convention and other rules of international law,
relating to innocent passage through the territorial
sea, in respect of all or any of the following:
(a) the safety of navigation and the
regulation of maritime traffic;
(b) the protection of navigational aids and
facilities and other facilities or installations;
(c) the protection of cables and pipelines;

43

The right of innocent passage through the territorial sea applies

only to ships and not to aircrafts (Article 17, UNCLOS III). The right
of innocent passage of aircrafts through the sovereign territory of a
State arises only under an international agreement. In contrast, the
right of innocent passage through archipelagic waters applies to
both ships and aircrafts (Article 53 (12), UNCLOS III).
44

Following Section 2, Article II of the Constitution: "Section 2. The

Philippines renounces war as an instrument of national
policy, adopts the generally accepted principles of international

law as part of the law of the land and adheres to the policy of
peace, equality, justice, freedom, cooperation, and amity with all
nations." (Emphasis supplied)

1. The high seas are open to all States, whether

coastal or land-locked. Freedom of the high seas is
exercised under the conditions laid down by this
Convention and by other rules of international law. It
comprises, inter alia, both for coastal and landlocked States:

45

"Archipelagic sea lanes passage is essentially the same as transit

passage through straits" to which the territorial sea of continental
coastal State is subject. R.R. Churabill and A.V. Lowe, The Law of
the Sea 127 (1999).
46

(a) freedom of navigation;

Falling under Article 121 of UNCLOS III (see note 37).

(b) freedom of overflight;

47

Within the exclusive economic zone, other States enjoy the

following rights under UNCLOS III:

(c) freedom to lay submarine cables and

pipelines, subject to Part VI;

Article 58. Rights and duties of other States in the exclusive

economic zone.

(d) freedom to construct artificial islands

and other installations permitted under
international law, subject to Part VI;

1. In the exclusive economic zone, all States,

whether coastal or land-locked, enjoy, subject to the
relevant provisions of this Convention, the freedoms
referred to in article 87 of navigation and overflight
and of the laying of submarine cables and pipelines,
and other internationally lawful uses of the sea
related to these freedoms, such as those associated
with the operation of ships, aircraft and submarine
cables and pipelines, and compatible with the other
provisions of this Convention.
2. Articles 88 to 115 and other pertinent rules of
international law apply to the exclusive economic
zone in so far as they are not incompatible with this
Part.

(e) freedom of fishing, subject to the

conditions laid down in section 2;
(f) freedom of scientific research, subject to
Parts VI and XIII.
2. These freedoms shall be exercised by all States
with due regard for the interests of other States in
their exercise of the freedom of the high seas, and
also with due regard for the rights under this
Convention with respect to activities in the Area.
48

See note 13.

49

xxxx
Beyond the exclusive economic zone, other States enjoy the
freedom of the high seas, defined under UNCLOS III as
follows:
Article 87. Freedom of the high seas.

Kilosbayan, Inc. v. Morato, 316 Phil. 652, 698 (1995); Taada v.

Angara, 338 Phil. 546, 580-581 (1997).
50

51

G.R. No. 101083, 30 July 1993, 224 SCRA 792.

"The State shall protect the nations marine wealth in its

archipelagic waters, territorial sea, and exclusive economic zone,
and reserve its use and enjoyment exclusively to Filipino citizens."

52

"The State shall protect the rights of subsistence fishermen,

especially of local communities, to the preferential use of the
communal marine and fishing resources, both inland and offshore. It
shall provide support to such fishermen through appropriate
technology and research, adequate financial, production, and
marketing assistance, and other services. The State shall also
protect, develop, and conserve such resources. The protection shall
extend to offshore fishing grounds of subsistence fishermen against
foreign intrusion. Fishworkers shall receive a just share from their
labor in the utilization of marine and fishing resources."
53

This can extend up to 350 nautical miles if the coastal State

proves its right to claim an extended continental shelf (see UNCLOS
III, Article 76, paragraphs 4(a), 5 and 6, in relation to Article 77).
54

Rollo, pp. 67-69.

55

Article 47 (1) provides: "An archipelagic State may draw straight

archipelagic baselines joining the outermost points of the outermost
islands and drying reefs of the archipelago provided that within such
baselines are included the main islands and an area in which the
ratio of the area of the water to the area of the land, including atolls,
is between 1 to 1 and 9 to 1." (Emphasis supplied) in the Area.
CONCURRING OPINION
VELASCO, JR., J.:
I concur with the ponencia and add the following complementary arguments
and observations:
A statute is a product of hard work and earnest studies of Congress to
ensure that no constitutional provision, prescription or concept is infringed.
Withal, before a law, in an appropriate proceeding, is nullified, an
unequivocal breach of, or a clear conflict with, the Constitution must be
demonstrated in such a way as to leave no doubt in the mind of the
Court.1 In the same token, if a law runs directly afoul of the Constitution, the
Courts duty on the matter should be clear and simple: Pursuant to its judicial
power and as final arbiter of all legal questions,2 it should strike such law
down, however laudable its purpose/s might be and regardless of the
deleterious effect such action may carry in its wake.

Challenged in these proceedings is the constitutionality of Republic Act (RA

9522) entitled "An Act to Amend Certain Provisions of [RA] 3046, as
Amended by [RA] 5446 to Define the Archipelagic Baselines Of The
Philippines and for Other Purposes." For perspective, RA 3046, "An Act to
Define the Baselines of the Territorial Sea of the Philippines, was enacted in
1961 to comply with the United Nations Convention on the Law of the Sea
(UNCLOS) I. Eight years later, RA 5446 was enacted to amend
typographical errors relating to coordinates in RA 3046. The latter law also
added a provision asserting Philippine sovereignty over Sabah.
As its title suggests, RA 9522 delineates archipelagic baselines of the
country, amending in the process the old baselines law, RA 3046. Everybody
is agreed that RA 9522 was enacted in response to the countrys
commitment to conform to some 1982 Law of the Sea Convention (LOSC) or
UNCLOS III provisions to define new archipelagic baselines through
legislation, the Philippines having signed3 and eventually ratified4 this
multilateral treaty. The Court can take judicial notice that RA 9522 was
registered and deposited with the UN on April 4, 2009.
As indicated in its Preamble,5 1982 LOSC aims, among other things, to
establish, with due regard for the sovereignty of all States, "a legal order for
the seas and oceans which will facilitate international communication, and
will promote the peaceful uses of the seas and oceans." One of the
measures to attain the order adverted to is to have a rule on baselines. Of
particular relevance to the Philippines, as an archipelagic state, is Article 47
of UNCLOS III which deals with baselines:
1. An archipelagic State may draw straight archipelagic baselines
joining the outermost points of the outermost islands and drying
reefs of the archipelago provided that within such baselines are
included the main islands and an area in which the ratio of the area
of the water to the area of the land, including atolls, is between 1 to
1 and 9 to 1.
2. The length of such baseline 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.
3. The drawing of such baselines shall not depart to any appreciable
extent from the general configuration of the archipelago.
xxxx

9. The archipelagic State shall give due publicity to such charts or

lists of geographical co-ordinates and shall deposit a copy of each
such chart or list with the Secretary-General of the United
Nations.6 (Emphasis added.)
To obviate, however, the possibility that certain UNCLOS III baseline
provisions would, in their implementation, undermine its sovereign and/or
jurisdictional interests over what it considers its territory,7 the Philippines,
when it signed UNCLOS III on December 10, 1982, made the following
"Declaration" to said treaty:
The Government of the Republic of the Philippines [GRP] hereby manifests
that in signing the 1982 United Nations Convention on the Law of the Sea, it
does so with the understandings embodied in this declaration, made under
the provisions of Article 310 of the Convention, to wit:
The signing of the Convention by the [GRP] shall not in any manner impair
or prejudice the sovereign rights of the [RP] under and arising from the
Constitution of the Philippines;
Such signing shall not in any manner affect the sovereign rights of the [RP]
as successor of the United States of America [USA], under and arising out of
the Treaty of Paris between Spain and the United States of America of
December 10, 1898, and the Treaty of Washington between the [USA] and
Great Britain of January 2, 1930;
xxxx
Such signing shall not in any manner impair or prejudice the sovereignty of
the [RP] over any territory over which it exercises sovereign authority, such
as the Kalayaan Islands, and the waters appurtenant thereto;
The Convention shall not be construed as amending in any manner any
pertinent laws and Presidential Decrees or Proclamations of the Republic of
the Philippines. The [GRP] maintains and reserves the right and authority to
make any amendments to such laws, decrees or proclamations pursuant to
the provisions of the Philippine Constitution;
The provisions of the Convention on archipelagic passage through sea lanes
do not nullify or impair the sovereignty of the Philippines as an archipelagic
state over the sea lanes and do not deprive it of authority to enact legislation
to protect its sovereignty independence and security;

The concept of archipelagic waters is similar to the concept of internal

waters under the Constitution of the Philippines, and removes straits
connecting these waters with the economic zone or high sea from the rights
of foreign vessels to transit passage for international navigation. 8 (Emphasis
added.)
Petitioners challenge the constitutionality of RA 9522 on the principal ground
that the law violates Section 1, Article I of the 1987 Constitution on national
territory which states:
Section 1. The national territory comprises the Philippine archipelago, with
all the islands and waters embraced therein, and all other territories over
which the Philippines has sovereignty or jurisdiction, consisting of its
terrestrial, fluvial and aerial domains, including its territorial sea, the seabed,
the subsoil, the insular shelves, and other submarine areas. The waters
around, between, and connecting the islands of the archipelago, regardless
of their breadth and dimensions, form part of the internal waters of the
Philippines. (Emphasis supplied.)
According to Fr. Joaquin Bernas, S.J., himself a member of the 1986
Constitutional Commission which drafted the 1987 Constitution, the
aforequoted Section 1 on national territory was "in substance a copy of its
1973 counterpart."9 Art. I of the 1973 Constitution reads:
Section 1. The national territory comprises the Philippine archipelago, with
all the islands and waters embraced therein, and all other territories
belonging to the Philippines by historic right or legal title, including the
territorial sea, the air space, the subsoil, the insular shelves, and other
submarine areas over which the Philippines has sovereignty or jurisdiction.
The waters around, between, and connecting the islands of the archipelago,
regardless of their breadth and dimensions, form part of the internal waters
of the Philippines. (Emphasis added.)
As may be noted both constitutions speak of the "Philippine archipelago,"
and, via the last sentence of their respective provisions, assert the countrys
adherence to the "archipelagic principle." Both constitutions divide the
national territory into two main groups: (1) the Philippine archipelago and (2)
other territories belonging to the Philippines. So what or where is Philippine
archipelago contemplated in the 1973 and 1987 Constitutions then? Fr.
Bernas answers the poser in the following wise:
Article I of the 1987 Constitution cannot be fully understood without
reference to Article I of the 1973 Constitution. x x x

xxxx
x x x To understand [the meaning of national territory as comprising the
Philippine archipelago], one must look into the evolution of [Art. I of the 1973
Constitution] from its first draft to its final form.
Section 1 of the first draft submitted by the Committee on National Territory
almost literally reproduced Article I of the 1935 Constitution x x x. Unlike the
1935 version, however, the draft designated the Philippines not simply as the
Philippines but as "the Philippine archipelago.10 In response to the criticism
that the definition was colonial in tone x x x, the second draft further
designated the Philippine archipelago, as the historic home of the Filipino
people from its beginning.11
After debates x x x, the Committee reported out a final draft, which became
the initially approved version: "The national territory consists of the Philippine
archipelago which is the ancestral home of the Filipino people and which is
composed of all the islands and waters embraced therein"
What was the intent behind the designation of the Philippines as an
"archipelago"? x x x Asked by Delegate Roselller Lim (Zamboanga) where
this archipelago was, Committee Chairman Quintero answered that it was
the area delineated in the Treaty of Paris. He said that objections to the
colonial implication of mentioning the Treaty of Paris was responsible for the
omission of the express mention of the Treaty of Paris.
Report No. 01 of the Committee on National Territory had in fact been
explicit in its delineation of the expanse of this archipelago. It said:
Now if we plot on a map the boundaries of this archipelago as set forth in the
Treaty of Paris, a huge or giant rectangle will emerge, measuring about 600
miles in width and 1,200 miles in length. Inside this giant rectangle are the
7,100 islands comprising the Philippine Islands. From the east coast of
Luzon to the eastern boundary of this huge rectangle in the Pacific Ocean,
there is a distance of over 300 miles. From the west coast of Luzon to the
western boundary of this giant rectangle in the China sea, there is a distance
of over 150 miles.
When the [US] Government enacted the Jones Law, the Hare-Hawes
Cutting Law and the Tydings McDuffie Law, it in reality announced to the
whole world that it was turning over to the Government of the Philippine
Islands an archipelago (that is a big body of water studded with islands), the
boundaries of which archipelago are set forth in Article III of the Treaty of

Paris. It also announced to the whole world that the waters inside the giant
rectangle belong to the Philippines that they are not part of the high seas.
When Spain signed the Treaty of Paris, in effect she announced to the whole
world that she was ceding to the [US] the Philippine archipelago x x x, that
this archipelago was bounded by lines specified in the treaty, and that the
archipelago consisted of the huge body of water inside the boundaries and
the islands inside said boundaries.
The delineation of the extent of the Philippine archipelago must be
understood in the context of the modifications made both by the Treaty of
Washington of November 7, 1900, and of the Convention of January 12,
1930, in order to include the Islands of Sibutu and of Cagayan de Sulu and
the Turtle and Mangsee Islands. However, x x x the definition of the
archipelago did not include the Batanes group[, being] outside the
boundaries of the Philippine archipelago as set forth in the Treaty of Paris. In
literal terms, therefore, the Batanes islands would come not under the
Philippine archipelago but under the phrase "all other territories belong to the
Philippines."12x x x (Emphasis added.)
From the foregoing discussions on the deliberations of the provisions on
national territory, the following conclusion is abundantly evident: the
"Philippine archipelago" of the 1987 Constitution is the same "Philippine
archipelago" referred to in Art. I of the 1973 Constitution which in turn
corresponds to the territory defined and described in Art. 1 of the 1935
Constitution,13 which pertinently reads:
Section 1. The Philippines comprises all the territory ceded to the [US] by
the Treaty of Paris concluded between the [US] and Spain on the tenth day
of December, [1898], the limits of which are set forth in Article III of said
treaty, together with all the islands in the treaty concluded at Washington,
between the [US] and Spain on November [7, 1900] and the treaty
concluded between the [US] and Great Britain x x x.
While the Treaty of Paris is not mentioned in both the 1973 and 1987
Constitutions, its mention, so the nationalistic arguments went, being "a
repulsive reminder of the indignity of our colonial past," 14 it is at once clear
that the Treaty of Paris had been utilized as key reference point in the
definition of the national territory.
On the other hand, the phrase "all other territories over which the Philippines
has sovereignty or jurisdiction," found in the 1987 Constitution, which
replaced the deleted phrase "all territories belonging to the Philippines by

historic right or legal title"15 found in the 1973 Constitution, covers areas
linked to the Philippines with varying degrees of certainty.16 Under this
category would fall: (a) Batanes, which then 1971 Convention Delegate
Eduardo Quintero, Chairperson of the Committee on National Territory,
described as belonging to the Philippines in all its history; 17 (b) Sabah, over
which a formal claim had been filed, the so-called Freedomland (a group of
islands known as Spratleys); and (c) any other territory, over which the
Philippines had filed a claim or might acquire in the future through
recognized modes of acquiring territory.18 As an author puts it, the deletion of
the words "by historic right or legal title" is not to be interpreted as precluding
future claims to areas over which the Philippines does not actually exercise
sovereignty.19
Upon the foregoing perspective and going into specifics, petitioners would
have RA 9522 stricken down as unconstitutional for the reasons that it
deprives the Philippines of what has long been established as part and
parcel of its national territory under the Treaty of Paris, as supplemented by
the aforementioned 1900 Treaty of Washington or, to the same effect,
revises the definition on or dismembers the national territory. Pushing their
case, petitioners argue that the constitutional definition of the national
territory cannot be remade by a mere statutory act. 20 As another point,
petitioners parlay the theory that the law in question virtually weakens the
countrys territorial claim over the Kalayaan Island Group (KIG) and Sabah,
both of which come under the category of "other territories" over the
Philippines has sovereignty or jurisdiction. Petitioners would also assail the
law on grounds related to territorial sea lanes and internal waters transit
passage by foreign vessels.
It is remarkable that petitioners could seriously argue that RA 9522 revises
the Philippine territory as defined in the Constitution, or worse, constitutes an
abdication of territory.
It cannot be over-emphasized enough that RA 9522 is a baseline law
enacted to implement the 1982 LOSC, which in turn seeks to regulate and
establish an orderly sea use rights over maritime zones. Or as the ponencia
aptly states, RA 9522 aims to mark-out specific base points along the
Philippine coast from which baselines are drawn to serve as starting points
to measure the breadth of the territorial sea and maritime zones. 21 The
baselines are set to define the sea limits of a state, be it coastal or
archipelagic, under the UNCLOS III regime. By setting the baselines to
conform to the prescriptions of UNCLOS III, RA 9522 did not surrender any
territory, as petitioners would insist at every turn, for UNCLOS III is
concerned with setting order in the exercise of sea-use rights, not the

acquisition or cession of territory. And let it be noted that under UNCLOS III,
it is recognized that countries can have territories outside their baselines.
Far from having a dismembering effect, then, RA 9522 has in a limited but
real sense increased the countrys maritime boundaries. How this situation
comes about was extensively explained by then Minister of State and head
of the Philippine delegation to UNCLOS III Arturo Tolentino in his
sponsorship speech22 on the concurrence of the Batasang Pambansa with
the LOSC:
xxxx
Then, we should consider, Mr. Speaker, that under the archipelagic principle,
the whole area inside the archipelagic base lines become a unified whole
and the waters between the islands which formerly were regarded by
international law as open or international seas now become waters under
the complete sovereignty of the Filipino people. In this light there would be
an additional area of 141,800 square nautical miles inside the base lines that
will be recognized by international law as Philippine waters, equivalent to
45,351,050 hectares. These gains in the waters of the sea, 45,211,225
hectares outside the base lines and 141,531,000 hectares inside the base
lines, total 93,742,275 hectares as a total gain in the waters under Philippine
jurisdiction.
From a pragmatic standpoint, therefore, the advantage to our country and
people not only in terms of the legal unification of land and waters of the
archipelago in the light of international law, but also in terms of the vast
resources that will come under the dominion and jurisdiction of the Republic
of the Philippines, your Committee on Foreign Affairs does not hesitate to
ask this august Body to concur in the Convention by approving the resolution
before us today.
May I say it was the unanimous view of delegations at the Conference on
the Law of the Sea that archipelagos are among the biggest gainers or
beneficiaries under the Convention on the Law of the Sea.
Lest it be overlooked, the constitutional provision on national territory, as
couched, is broad enough to encompass RA 9522s definition of the
archipelagic baselines. To reiterate, the laying down of baselines is not a
mode of acquiring or asserting ownership a territory over which a state
exercises sovereignty. They are drawn for the purpose of defining or
establishing the maritime areas over which a state can exercise sovereign
rights. Baselines are used for fixing starting point from which the territorial
belt is measured seawards or from which the adjacent maritime waters are

measured. Thus, the territorial sea, a marginal belt of maritime waters, is

measured from the baselines extending twelve (12) nautical miles
outward.23 Similarly, Art. 57 of the 1982 LOSC provides that the Exclusive
Economic Zone (EEZ) "shall not extend beyond 200 nautical miles from the
baselines from which the breadth of the territorial sea is measured." 24 Most
important to note is that the baselines indicated under RA 9522 are derived
from Art. 47 of the 1982 LOSC which was earlier quoted.
Since the 1987 Constitutions definition of national territory does not delimit
where the Philippines baselines are located, it is up to the political branches
of the government to supply the deficiency. Through Congress, the
Philippines has taken an official position regarding its baselines to the
international community through RA 3046,25 as amended by RA 544626 and
RA 9522. When the Philippines deposited a copy of RA 9522 with the UN
Secretary General, we effectively complied in good faith with our obligation
under the 1982 LOSC. A declaration by the Court of the constitutionality of
the law will complete the bona fides of the Philippines vis-a-vis the law of the
sea treaty.
It may be that baseline provisions of UNCLOS III, if strictly implemented,
may have an imposing impact on the signatory states jurisdiction and even
their sovereignty. But this actuality, without more, can hardly provide a
justifying dimension to nullify the complying RA 9522. As held by the Court in
Bayan Muna v. Romulo,27 treaties and international agreements have a
limiting effect on the otherwise encompassing and absolute nature of
sovereignty. By their voluntary acts, states may decide to surrender or waive
some aspects of their sovereignty. The usual underlying consideration in this
partial surrender may be the greater benefits derived from a pact or
reciprocal undertaking. On the premise that the Philippines has adopted the
generally accepted principles of international law as part of the law of the
land, a portion of sovereignty may be waived without violating the
Constitution.
As a signatory of the 1982 LOSC, it behooves the Philippines to honor its
obligations thereunder. Pacta sunt servanda, a basic international law
postulate that "every treaty in force is binding upon the parties to it and must
be performed by them in good faith."28 The exacting imperative of this
principle is such that a state may not invoke provisions in its constitution or
its laws as an excuse for failure to perform this duty." 29
The allegation that Sabah has been surrendered by virtue of RA 9522, which
supposedly repealed the hereunder provision of RA 5446, is likewise
unfounded.

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.
There is nothing in RA 9522 indicating a clear intention to supersede Sec. 2
of RA 5446. Petitioners obviously have read too much into RA 9522s
amendment on the baselines found in an older law. Aside from setting the
countrys baselines, RA 9522 is, in its Sec. 3, quite explicit in its reiteration of
the Philippines exercise of sovereignty, thus:
Section 3. This Act affirms that the Republic of the Philippines has dominion,
sovereignty and jurisdiction over all portions of the national territory as
defined in the Constitution and by provisions of applicable laws including,
without limitation, Republic Act No. 7160, otherwise known as the Local
Government Code of 1991, as amended.
To emphasize, baselines are used to measure the breadth of the territorial
sea, the contiguous zone, the exclusive economic zone and the continental
shelf. Having KIG and the Scarborough Shoal outside Philippine baselines
will not diminish our sovereignty over these areas. Art. 46 of UNCLOS III in
fact recognizes that an archipelagic state, such as the Philippines, is a state
"constituted wholly by one or more archipelagos and may include other
islands." (emphasis supplied) The "other islands" referred to in Art. 46 are
doubtless islands not forming part of the archipelago but are nevertheless
part of the states territory.
The Philippines sovereignty over KIG and Scarborough Shoal are, thus, in
no way diminished. Consider: Other countries such as Malaysia and the
United States have territories that are located outside its baselines, yet there
is no territorial question arising from this arrangement. 30
It may well be apropos to point out that the Senate version of the baseline
bill that would become RA 9522 contained the following explanatory note:
The law "reiterates our sovereignty over the Kalayaan Group of Islands
declared as part of the Philippine territory under Presidential Decree No.
1596. As part of the Philippine territory, they shall be considered as a regime
of islands under Article 121 of the Convention."31 Thus, instead of being in
the nature of a "treasonous surrender" that petitioners have described it to
be, RA 9522 even harmonizes our baseline laws with our international
agreements, without limiting our territory to those confined within the
countrys baselines.

Contrary to petitioners contention, the classification of KIG and the

Scarborough Shoal as falling under the Philippines regime of islands is not
constitutionally objectionable. Such a classification serves as compliance
with LOSC and the Philippines assertion of sovereignty over KIG and
Scarborough Shoal. In setting the baseline in KIG and Scarborough Shoal,
RA 9522 states that these are areas "over which the Philippines likewise
exercises sovereignty and jurisdiction." It is, thus, not correct for petitioners
to claim that the Philippines has lost 15,000 square nautical miles of
territorial waters upon making this classification. Having 15,000 square
nautical miles of Philippine waters outside of our baselines, to reiterate, does
not translate to a surrender of these waters. The Philippines maintains its
assertion of ownership over territories outside of its baselines. Even China
views RA 9522 as an assertion of ownership, as seen in its Protest 32 filed
with the UN Secretary-General upon the deposit of RA 9522.
We take judicial notice of the effective occupation of KIG by the Philippines.
Petitioners even point out that national and local elections are regularly held
there. The classification of KIG as under a "regime of islands" does not in
any manner affect the Philippines consistent position with regard to
sovereignty over KIG. It does not affect the Philippines other acts of
ownership such as occupation or amend Presidential Decree No. 1596,
which declared KIG as a municipality of Palawan.
The fact that the baselines of KIG and Scarborough Shoal have yet to be
defined would not detract to the constitutionality of the law in question. The
resolution of the problem lies with the political departments of the
government.
All told, the concerns raised by the petitioners about the diminution or the
virtual dismemberment of the Philippine territory by the enactment of RA
9522 are, to me, not well grounded. To repeat, UNCLOS III pertains to a law
on the seas, not territory. As part of its Preamble, 33 LOSC recognizes "the
desirability of establishing through this Convention, with due regard for the
sovereignty of all States, a legal order for the seas and oceans x x x."

The adverted Sec. 8, Art. II of the 1987 Constitution declares the adoption
and pursuit by the Philippines of "a policy of freedom from nuclear weapons
in its territory." On the other hand, the succeeding Sec. l6 underscores the
States firm commitment "to protect and advance the right of the people to a
balanced and healthful ecology in accord with the rhythm and harmony of
nature." Following the allegations of petitioners, these twin provisions will
supposedly be violated inasmuch as RA 9522 accedes to the right of
innocent passage and the right of archipelagic sea-lane passage provided
under the LOSC. Therefore, ships of all nationsbe they nuclear-carrying
warships or neutral commercial vessels transporting goodscan assert the
right to traverse the waters within our islands.
A cursory reading of RA 9522 would belie petitioners posture. In context, RA
9522 simply seeks to conform to our international agreement on the setting
of baselines and provides nothing about the designation of archipelagic sealane passage or the regulation of innocent passage within our waters. Again,
petitioners have read into the amendatory RA 9522 something not intended.
Indeed, the 1982 LOSC enumerates the rights and obligations of
archipelagic party-states in terms of transit under Arts. 51 to 53, which are
explained below:
To safeguard, in explicit terms, the general balance struck by [Articles 51
and 52] between the need for passage through the area (other than straits
used for international navigation) and the archipelagic states need for
security, Article 53 gave the archipelagic state the right to regulate where
and how ships and aircraft pass through its territory by designating specific
sea lanes. Rights of passage through these archipelagic sea lanes are
regarded as those of transit passage:
(1) An archipelagic State may designate sea lanes and air routes
thereabove, suitable for safe, continuous and expeditious passage
of foreign ships and aircraft through or over its archipelagic waters
and the adjacent territorial sea.

This brings me to the matter of transit passage of foreign vessels through

Philippine waters.

(2) All ships and aircraft enjoy the right of archipelagic sea lanes
passage in such sea lanes and air routes.

Apropos thereto, petitioners allege that RA 9522 violates the nuclear

weapons-free policy under Sec. 8, in relation to Sec. 16, Art. II of the
Constitution, and exposes the Philippines to marine pollution hazards, since
under the LOSC the Philippines supposedly must give to ships of all states
the right of innocent passage and the right of archipelagic sea-lane passage.

(3) Archipelagic sea lanes passage is the exercise in accordance

with the present Convention of the rights of navigation and overflight
in the normal mode solely for the purpose of continuous, expeditious
and unobstructed transit between one part of the high seas or an

exclusive economic zone and another part of the high seas or an

exclusive economic zone.34
But owing to the geographic structure and physical features of the country,
i.e., where it is "essentially a body of water studded with islands, rather than
islands with water around them,"35 the Philippines has consistently
maintained the conceptual unity of land and water as a necessary element
for territorial integrity,36 national security (which may be compromised by the
presence of warships and surveillance ships on waters between the
islands),37 and the preservation of its maritime resources. As succinctly
explained by Minister Arturo Tolentino, the essence of the archipelagic
concept is "the dominion and sovereignty of the archipelagic State within its
baselines, which were so drawn as to preserve the territorial integrity of the
archipelago by the inseparable unity of the land and water
domain."38 Indonesia, like the Philippines, in terms of geographic reality, has
expressed agreement with this interpretation of the archipelagic concept. So
it was that in 1957, the Indonesian Government issued the Djuanda
Declaration, therein stating :
[H]istorically, the Indonesian archipelago has been an entity since time
immemorial.1avvphi1 In view of the territorial entirety and of preserving the
wealth of the Indonesian state, it is deemed necessary to consider all waters
between the islands and entire entity.
x x x On the ground of the above considerations, the Government
states that all waters around, between and connecting, the islands
or parts of islands belonging to the Indonesian archipelago
irrespective of their width or dimension are natural appurtenances of
its land territory and therefore an integral part of the inland or
national waters subject to the absolute sovereignty of
Indonesia.39 (Emphasis supplied.)
Hence, the Philippines maintains the sui generis character of our
archipelagic waters as equivalent to the internal waters of
continental coastal states. In other words, the landward waters
embraced within the baselines determined by RA 9522, i.e., all
waters around, between, and connecting the islands of the
archipelago, regardless of their breadth and dimensions, form part of
the internal waters of the Philippines.40 Accordingly, such waters are
not covered by the jurisdiction of the LOSC and cannot be subjected
to the rights granted to foreign states in archipelagic waters, e.g., the
right of innocent passage,41 which is allowed only in the territorial
seas, or that area of the ocean comprising 12 miles from the

baselines of our archipelago; archipelagic sea-lane passage; 42 over

flight;43 and traditional fishing rights.44
Our position that all waters within our baselines are internal waters,
which are outside the jurisdiction of the 1982 LOSC,45 was
abundantly made clear by the Philippine Declaration at the time of
the signing of the LOSC on December 10, 1982. To reiterate,
paragraphs 5, 6 and 7 of the Declaration state:
5. The Convention shall not be construed as amending in any
manner any pertinent laws and Presidential decrees of Proclamation
of the republic of the Philippines; the Government x x x maintains
and reserves the right and authority to make any amendments to
such laws, decrees or proclamations pursuant to the provisions of
the Philippine Constitution;
6. The provisions of the Convention on archipelagic passage
through sea lanes do not nullify or impair the sovereignty of the
Philippines as an archipelagic State over the sea lanes and do not
deprive it of authority to enact legislation to protect its sovereignty,
independence and security;
7. The concept of archipelagic waters is similar to the concept of
internal waters under the Constitution of the Philippines and
removes straits connecting this water with the economic zone or
high seas from the rights of foreign vessels to transit passage for
international navigation. (Emphasis supplied.)46
More importantly, by the ratification of the 1987 Constitution on February 2,
1987, the integrity of the Philippine state as comprising both water and land
was strengthened by the proviso in its first article, viz: "The waters around,
between, and connecting the islands of the [Philippine] archipelago,
regardless of their breadth and dimensions, form part of the internal waters
of the Philippines. (emphasis supplied)
In effect, contrary to petitioners allegations, the Philippines ratification of the
1982 LOSC did not matter-of-factly open our internal waters to passage by
foreign ships, either in the concept of innocent passage or archipelagic sealane passage, in exchange for the international communitys recognition of
the Philippines as an archipelagic state. The Filipino people, by ratifying the
1987 Constitution, veritably rejected the quid pro quo petitioners take as
being subsumed in that treaty.

Harmonized with the Declaration and the Constitution, the designation of

baselines made in RA 9522 likewise designates our internal waters, through
which passage by foreign ships is not a right, but may be granted by the
Philippines to foreign states but only as a dissolvable privilege.
In view of the foregoing, I vote to DISMISS the Petition.
PRESBITERO J. VELASCO, JR.
Associate Justice
Footnotes
1
League of Cities of the Phil. v. COMELEC, G.R. No. 176951,
December 21, 2009, 608 SCRA 636.
2
Under Art. VIII, Sec. 5 of the Constitution, the Supreme Court is
empowered to review, revise, reverse, modify, or affirm on appeal or
certiorari as the law or the Rules of Court may provide, final
judgments and orders of lower courts in: all cases in which the
Constitutionality or validity of any treaty, international or executive
agreement, law, presidential decree, proclamation, order, instruction,
ordinance, or regulation is in question. (Emphasis supplied.)
3
December 10, 1982.
4
May 8, 1984.
5
Available on
<http://www.un.org/Depts/los/convention_agreements/texts/unclos/cl
osindx.htm> (visited July 28, 2011).
6
UNCLOS, Art. 47, December 10, 1982.
7
J. Bernas, S.J., The 1987 Constitution of the Republic of the
Philippines A Commentary 57 (2003).
8
See J. Batongbacal, The Metes and Bounds of the Philippine
National Territory, An International Law and Policy Perspective,
Supreme Court of the Philippines, Philippine Judicial Academy Third
Distinguished Lecture, Far Eastern University, June 27, 2008.
9
J. Bernas, supra note 7, at 10.
10
Citing Report No. 01 of the Committee on National Territory.
11
Citing Report No. 02 of the Committee on National Territory.
12
J. Bernas, supra note 7, at 11-14.
13
Id. at 14.
14
Id. at 9; citing Speech, Session February 15, 1972, of Delegates
Amanio Sorongon, et al.
15
The history of this deleted phrase goes back to the last clause of
Art. I of the 1935 Constitution which included "all territory over which
the present Government of the Philippine Islands exercises
jurisdiction. See J. Bernas, supra note 7, at 14.

16

J. Bernas, supra note 7, at 16.

Id.; citing deliberations of the February 17, 1972 Session.
18
Id.
19
De Leon, Philippine Constitution 62 (2011).
20
Petition, pp. 4-5.
21
Art. 48 of UNCLOS III provides that the breadth of the territorial
sea, the contiguous zone, the exclusive economic zone and the
continental shelf shall be measured from the archipelagic baseline
drawn in accordance with Art. 47.
22
R.P. Lotilla, The Philippine National Territory: A Collection of
Related Documents 513-517 (1995); citing Batasang Pambansa,
Acts and Resolution, 6th Regular Session.
23
J. Bernas, supra note 7, at 22.
24
UNCLOS III, Art. 57.
25
June 17, 1961.
26
September 18, 1968.
27
G.R. No. 159618, February 1, 2011; citing Taada v. Angara, G.R.
No. 118295, May 2, 1997, 272 SCRA 18.
28
Art. 26, Vienna Convention on the Law of Treaties, 1969.
29
Art. 13, Declaration of Rights and Duties of States Adopted by the
International Law Commission, 1949.
30
See J. Batongbacal, supra note 8.
31
Id.
32
The Protest reads in part: "The above-mentioned Philippine Act
illegally claims Huangyan Island (referred as "Bajo de Masinloc" in
the Act) of China as "areas over which the Philippines likewise
exercises sovereignty and jurisdiction." The Chinese Government
hereby reiterates that Huangyan Island and Nansha Islands have
been part of the territory of China since ancient time. The Peoples
Republic of China has indisputable sovereignty over Huangyan
Island and Nansha Islands and their surrounding areas. Any claim to
territorial sovereignty over Huangyan Island and Nansha Islands by
any other State is, therefore, null and void." Available on
<http://www.un.org/Depts/los/LEGISLATIONANDTREATIES/
PDFFILES/DEPOSIT/
communicationsredeposit/mzn69_2009_chn.pdf> (visited
August 9, 2011).
33
Supra note 5.
34
C. Ku, The Archipelagic States Concept and Regional Stability in
Southeast Asia, Case W. Res. J. Intl L., Vol. 23:463, 469; citing
1958 U.N. Conference on the Law of the Sea, Summary Records
44, Doc. A/Conf. 13/42.
35
Id.
17

36

Hiran W. Jayewardene, The Regime of Islands in International

Law, AD Dordrecht: Martinus Nijhoff Publishers, p. 103 (1990).
37
Id. at 112.
38
UNCLOS III Off. Rec., Vol. II, 264, par. 65, and also pars. 61-62
and 66; cited in B. Kwiatkowska, "The Archipelagic Regime in
Practice in the Philippines and Indonesia Making or Breaking
International Law?", International Journal of Estuarine and Coastal
Law, Vol. 6, No. 1, pp. 6-7.
39
4 Whiteman D.G., International Law 284 (1965); quoted in C. Ku,
supra note 34, at 470.
40
1987 Constitution, Art. I.
41
LOSC, Arts. 52 and 54.
42
LOSC, Art. 53, par. 2.
43
LOSC, Art. 53, par. 2.
44
LOSC, Art. 51.
45
LOSC, Art. 8, par. 2.
46
Cf. B. Kwiatkowska, supra note 38; citing J.D. Ingles, "The United
Nations Convention on the Law of the Sea: Implications of Philippine
Ratification," 9 Philippine Yil (1983) 48-9 and 61-2; and Congress of
the Philippines, First Regular Session, Senate, S. No. 232,
Explanatory Note and An Act to Repeal Section 2 (concerning TS
baselines around Sabah disputed with Malaysia) of the 1968 Act No.
5446.

PIOL, for and in his own behalf, petitioners,

vs.
THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE
PANEL ON ANCESTRAL DOMAIN (GRP), represented by SEC.
RODOLFO GARCIA, ATTY. LEAH ARMAMENTO, ATTY. SEDFREY
CANDELARIA, MARK RYAN SULLIVAN and/or GEN. HERMOGENES
ESPERON, JR., the latter in his capacity as the present and dulyappointed Presidential Adviser on the Peace Process (OPAPP) or the
so-called Office of the Presidential Adviser on the Peace
Process, respondents.
x--------------------------------------------x
G.R. No. 183752

October 14, 2008

CITY GOVERNMENT OF ZAMBOANGA, as represented by HON. CELSO

L. LOBREGAT, City Mayor of Zamboanga, and in his personal capacity
as resident of the City of Zamboanga, Rep. MA. ISABELLE G.
CLIMACO, District 1, and Rep. ERICO BASILIO A. FABIAN, District 2,
City of Zamboanga, petitioners,
vs.
THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE
NEGOTIATING PANEL (GRP), as represented by RODOLFO C. GARCIA,
LEAH ARMAMENTO, SEDFREY CANDELARIA, MARK RYAN SULLIVAN
and HERMOGENES ESPERON, in his capacity as the Presidential
Adviser on Peace Process,respondents.
x--------------------------------------------x
G.R. No. 183893

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 183591

October 14, 2008

THE PROVINCE OF NORTH COTABATO, duly represented by

GOVERNOR JESUS SACDALAN and/or VICE-GOVERNOR EMMANUEL

October 14, 2008

THE CITY OF ILIGAN, duly represented by CITY MAYOR LAWRENCE

LLUCH CRUZ, petitioner,
vs.
THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE
PANEL ON ANCESTRAL DOMAIN (GRP), represented by SEC.
RODOLFO GARCIA, ATTY. LEAH ARMAMENTO, ATTY. SEDFREY
CANDELARIA, MARK RYAN SULLIVAN; GEN. HERMOGENES
ESPERON, JR., in his capacity as the present and duly appointed
Presidential Adviser on the Peace Process; and/or SEC. EDUARDO
ERMITA, in his capacity as Executive Secretary. respondents.
x--------------------------------------------x

G.R. No. 183951

October 14, 2008

THE PROVINCIAL GOVERNMENT OF ZAMBOANGA DEL NORTE, as

represented by HON. ROLANDO E. YEBES, in his capacity as
Provincial Governor, HON. FRANCIS H. OLVIS, in his capacity as ViceGovernor and Presiding Officer of the Sangguniang Panlalawigan,
HON. CECILIA JALOSJOS CARREON, Congresswoman,
1st Congressional District, HON. CESAR G. JALOSJOS, Congressman,
3rdCongressional District, and Members of the Sangguniang
Panlalawigan of the Province of Zamboanga del Norte, namely, HON.
SETH FREDERICK P. JALOSJOS, HON. FERNANDO R. CABIGON, JR.,
HON. ULDARICO M. MEJORADA II, HON. EDIONAR M. ZAMORAS, HON.
EDGAR J. BAGUIO, HON. CEDRIC L. ADRIATICO, HON. FELIXBERTO
C. BOLANDO, HON. JOSEPH BRENDO C. AJERO, HON. NORBIDEIRI B.
EDDING, HON. ANECITO S. DARUNDAY, HON. ANGELICA J. CARREON
and HON. LUZVIMINDA E. TORRINO, petitioners,
vs.
THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE
NEGOTIATING PANEL [GRP], as represented by HON. RODOLFO C.
GARCIA and HON. HERMOGENES ESPERON, in his capacity as the
Presidential Adviser of Peace Process, respondents.
x--------------------------------------------x
G.R. No. 183962

October 14, 2008

ERNESTO M. MACEDA, JEJOMAR C. BINAY, and AQUILINO L.

PIMENTEL III, petitioners,
vs.
THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE
NEGOTIATING PANEL, represented by its Chairman RODOLFO C.
GARCIA, and the MORO ISLAMIC LIBERATION FRONT PEACE
NEGOTIATING PANEL, represented by its Chairman MOHAGHER
IQBAL, respondents.
x--------------------------------------------x
FRANKLIN M. DRILON and ADEL ABBAS TAMANO, petitioners-inintervention.
x--------------------------------------------x

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

x--------------------------------------------x
MUNICIPALITY OF LINAMON duly represented by its Municipal Mayor
NOEL N. DEANO, petitioners-in-intervention,
x--------------------------------------------x
THE CITY OF ISABELA, BASILAN PROVINCE, represented by MAYOR
CHERRYLYN P. SANTOS-AKBAR,petitioners-in-intervention.
x--------------------------------------------x
THE PROVINCE OF SULTAN KUDARAT, rep. by HON. SUHARTO T.
MANGUDADATU, in his capacity as Provincial Governor and a resident
of the Province of Sultan Kudarat, petitioner-in-intervention.
x-------------------------------------------x
RUY ELIAS LOPEZ, for and in his own behalf and on behalf of
Indigenous Peoples in Mindanao Not Belonging to the MILF, petitionerin-intervention.
x--------------------------------------------x
CARLO B. GOMEZ, GERARDO S. DILIG, NESARIO G. AWAT, JOSELITO
C. ALISUAG and RICHALEX G. JAGMIS, as citizens and residents of
Palawan, petitioners-in-intervention.
x--------------------------------------------x
MARINO RIDAO and KISIN BUXANI, petitioners-in-intervention.
x--------------------------------------------x
MUSLIM LEGAL ASSISTANCE FOUNDATION, INC
(MUSLAF), respondent-in-intervention.
x--------------------------------------------x

MUSLIM MULTI-SECTORAL MOVEMENT FOR PEACE &

DEVELOPMENT (MMMPD), respondent-in-intervention.
x--------------------------------------------x
DECISION
CARPIO MORALES, J.:
Subject of these consolidated cases is the extent of the powers of the
President in pursuing the peace process.While the facts surrounding this
controversy center on the armed conflict in Mindanao between the
government and the Moro Islamic Liberation Front (MILF), the legal issue
involved has a bearing on all areas in the country where there has been a
long-standing armed conflict. Yet again, the Court is tasked to perform a
delicate balancing act. It must uncompromisingly delineate the bounds within
which the President may lawfully exercise her discretion, but it must do so in
strict adherence to the Constitution, lest its ruling unduly restricts the
freedom of action vested by that same Constitution in the Chief Executive
precisely to enable her to pursue the peace process effectively.

The MOA-AD was preceded by a long process of negotiation and the

concluding of several prior agreements between the two parties beginning in
1996, when the GRP-MILF peace negotiations began. On July 18, 1997, the
GRP and MILF Peace Panels signed the Agreement on General Cessation
of Hostilities. The following year, they signed the General Framework of
Agreement of Intent on August 27, 1998.
The Solicitor General, who represents respondents, summarizes the MOAAD by stating that the same contained, among others, the commitment of
the parties to pursue peace negotiations, protect and respect human rights,
negotiate with sincerity in the resolution and pacific settlement of the conflict,
and refrain from the use of threat or force to attain undue advantage while
the peace negotiations on the substantive agenda are on-going. 2
Early on, however, it was evident that there was not going to be any smooth
sailing in the GRP-MILF peace process. Towards the end of 1999 up to early
2000, the MILF attacked a number of municipalities in Central Mindanao
and, in March 2000, it took control of the town hall of Kauswagan, Lanao del
Norte.3 In response, then President Joseph Estrada declared and carried out
an "all-out-war" against the MILF.

On August 5, 2008, the Government of the Republic of the Philippines (GRP)

and the MILF, through the Chairpersons of their respective peace negotiating
panels, were scheduled to sign a Memorandum of Agreement on the
Ancestral Domain (MOA-AD) Aspect of the GRP-MILF Tripoli Agreement on
Peace of 2001 in Kuala Lumpur, Malaysia.

When President Gloria Macapagal-Arroyo assumed office, the military

offensive against the MILF was suspended and the government sought a
resumption of the peace talks. The MILF, according to a leading MILF
member, initially responded with deep reservation, but when President
Arroyo asked the Government of Malaysia through Prime Minister Mahathir
Mohammad to help convince the MILF to return to the negotiating table, the
MILF convened its Central Committee to seriously discuss the matter and,
eventually, decided to meet with the GRP.4

The MILF is a rebel group which was established in March 1984 when,
under the leadership of the late Salamat Hashim, it splintered from the Moro
National Liberation Front (MNLF) then headed by Nur Misuari, on the
ground, among others, of what Salamat perceived to be the manipulation of
the MNLF away from an Islamic basis towards Marxist-Maoist orientations. 1

The parties met in Kuala Lumpur on March 24, 2001, with the talks being
facilitated by the Malaysian government, the parties signing on the same
date the Agreement on the General Framework for the Resumption of Peace
Talks Between the GRP and the MILF. The MILF thereafter suspended all its
military actions.5

The signing of the MOA-AD between the GRP and the MILF was not to
materialize, however, for upon motion of petitioners, specifically those who
filed their cases before the scheduled signing of the MOA-AD, this Court
issued a Temporary Restraining Order enjoining the GRP from signing the
same.

Formal peace talks between the parties were held in Tripoli, Libya from June
20-22, 2001, the outcome of which was the GRP-MILF Tripoli Agreement on
Peace (Tripoli Agreement 2001) containing the basic principles and agenda
on the following aspects of the
negotiation: Security Aspect, Rehabilitation Aspect, and Ancestral
Domain Aspect. With regard to the Ancestral Domain Aspect, the parties in

I. FACTUAL ANTECEDENTS OF THE PETITIONS

Tripoli Agreement 2001 simply agreed "that the same be discussed further
by the Parties in their next meeting."
A second round of peace talks was held in Cyberjaya, Malaysia on August 57, 2001 which ended with the signing of the Implementing Guidelines on the
Security Aspect of the Tripoli Agreement 2001 leading to a ceasefire status
between the parties. This was followed by the Implementing Guidelines on
the Humanitarian Rehabilitation and Development Aspects of the Tripoli
Agreement 2001, which was signed on May 7, 2002 at Putrajaya, Malaysia.
Nonetheless, there were many incidence of violence between government
forces and the MILF from 2002 to 2003.
Meanwhile, then MILF Chairman Salamat Hashim passed away on July 13,
2003 and he was replaced by Al Haj Murad, who was then the chief peace
negotiator of the MILF. Murad's position as chief peace negotiator was taken
over by Mohagher Iqbal.6
In 2005, several exploratory talks were held between the parties in Kuala
Lumpur, eventually leading to the crafting of the draft MOA-AD in its final
form, which, as mentioned, was set to be signed last August 5, 2008.
II. STATEMENT OF THE PROCEEDINGS
Before the Court is what is perhaps the most contentious "consensus" ever
embodied in an instrument - the MOA-AD which is assailed principally by the
present petitions bearing docket numbers 183591, 183752, 183893, 183951
and 183962.
Commonly impleaded as respondents are the GRP Peace Panel on
Ancestral Domain7 and the Presidential Adviser on the Peace Process
(PAPP) Hermogenes Esperon, Jr.
On July 23, 2008, the Province of North Cotabato 8 and Vice-Governor
Emmanuel Piol filed a petition, docketed as G.R. No. 183591, for
Mandamus and Prohibition with Prayer for the Issuance of Writ of
Preliminary Injunction and Temporary Restraining Order.9 Invoking the right
to information on matters of public concern, petitioners seek to compel
respondents to disclose and furnish them the complete and official copies of
the MOA-AD including its attachments, and to prohibit the slated signing of
the MOA-AD, pending the disclosure of the contents of the MOA-AD and the
holding of a public consultation thereon. Supplementarily, petitioners pray
that the MOA-AD be declared unconstitutional.10

This initial petition was followed by another one, docketed as G.R. No.
183752, also for Mandamus and Prohibition11 filed by the City of
Zamboanga,12 Mayor Celso Lobregat, Rep. Ma. Isabelle Climaco and Rep.
Erico Basilio Fabian who likewise pray for similar injunctive reliefs.
Petitioners herein moreover pray that the City of Zamboanga be excluded
from the Bangsamoro Homeland and/or Bangsamoro Juridical Entity and, in
the alternative, that the MOA-AD be declared null and void.
By Resolution of August 4, 2008, the Court issued a Temporary Restraining
Order commanding and directing public respondents and their agents to
cease and desist from formally signing the MOA-AD.13 The Court also
required the Solicitor General to submit to the Court and petitioners the
official copy of the final draft of the MOA-AD,14 to which she complied.15
Meanwhile, the City of Iligan16 filed a petition for Injunction and/or
Declaratory Relief, docketed as G.R. No. 183893, praying that respondents
be enjoined from signing the MOA-AD or, if the same had already been
signed, from implementing the same, and that the MOA-AD be declared
unconstitutional. Petitioners herein additionally implead Executive Secretary
Eduardo Ermita as respondent.
The Province of Zamboanga del Norte,17 Governor Rolando Yebes, ViceGovernor Francis Olvis, Rep. Cecilia Jalosjos-Carreon, Rep. Cesar Jalosjos,
and the members18 of the Sangguniang Panlalawigan of Zamboanga del
Norte filed on August 15, 2008 a petition for Certiorari, Mandamus and
Prohibition,19 docketed as G.R. No. 183951. They pray, inter alia, that the
MOA-AD be declared null and void and without operative effect, and that
respondents be enjoined from executing the MOA-AD.
On August 19, 2008, Ernesto Maceda, Jejomar Binay, and Aquilino Pimentel
III filed a petition for Prohibition,20docketed as G.R. No. 183962, praying for
a judgment prohibiting and permanently enjoining respondents from formally
signing and executing the MOA-AD and or any other agreement derived
therefrom or similar thereto, and nullifying the MOA-AD for being
unconstitutional and illegal. Petitioners herein additionally implead as
respondent the MILF Peace Negotiating Panel represented by its Chairman
Mohagher Iqbal.
Various parties moved to intervene and were granted leave of court to file
their petitions-/comments-in-intervention. Petitioners-in-Intervention include
Senator Manuel A. Roxas, former Senate President Franklin Drilon and Atty.
Adel Tamano, the City of Isabela21 and Mayor Cherrylyn Santos-Akbar, the
Province of Sultan Kudarat22 and Gov. Suharto Mangudadatu, the

Municipality of Linamon in Lanao del Norte,23 Ruy Elias Lopez of Davao City
and of the Bagobo tribe, Sangguniang Panlungsod member Marino Ridao
and businessman Kisin Buxani, both of Cotabato City; and lawyers Carlo
Gomez, Gerardo Dilig, Nesario Awat, Joselito Alisuag, Richalex Jagmis, all
of Palawan City. The Muslim Legal Assistance Foundation, Inc. (Muslaf) and
the Muslim Multi-Sectoral Movement for Peace and Development (MMMPD)
filed their respective Comments-in-Intervention.

under a state policy of full disclosure of all its transactions involving

public interest (1987 Constitution, Article II, Sec. 28) including public
consultation under Republic Act No. 7160 (LOCAL GOVERNMENT
CODE OF 1991)[;]

By subsequent Resolutions, the Court ordered the consolidation of the

petitions. Respondents filed Comments on the petitions, while some of
petitioners submitted their respective Replies.

5. Whether by signing the MOA, the Government of the Republic of

the Philippines would be BINDING itself

Respondents, by Manifestation and Motion of August 19, 2008, stated that

the Executive Department shall thoroughly review the MOA-AD and pursue
further negotiations to address the issues hurled against it, and thus moved
to dismiss the cases. In the succeeding exchange of pleadings, respondents'
motion was met with vigorous opposition from petitioners.
The cases were heard on oral argument on August 15, 22 and 29, 2008 that
tackled the following principal issues:
1. Whether the petitions have become moot and academic
(i) insofar as the mandamus aspect is concerned, in view of
the disclosure of official copies of the final draft of the
Memorandum of Agreement (MOA); and
(ii) insofar as the prohibition aspect involving the Local
Government Units is concerned, if it is considered that
consultation has become fait accompli with the finalization of
the draft;
2. Whether the constitutionality and the legality of the MOA is ripe for
adjudication;
3. Whether respondent Government of the Republic of the
Philippines Peace Panel committed grave abuse of discretion
amounting to lack or excess of jurisdiction when it negotiated and
initiated the MOA vis--vis ISSUES Nos. 4 and 5;
4. Whether there is a violation of the people's right to information on
matters of public concern (1987 Constitution, Article III, Sec. 7)

If it is in the affirmative, whether prohibition under Rule 65 of the

1997 Rules of Civil Procedure is an appropriate remedy;

a) to create and recognize the Bangsamoro Juridical Entity

(BJE) as a separate state, or a juridical, territorial or political
subdivision not recognized by law;
b) to revise or amend the Constitution and existing laws to
conform to the MOA;
c) to concede to or recognize the claim of the Moro Islamic
Liberation Front for ancestral domain in violation of Republic
Act No. 8371 (THE INDIGENOUS PEOPLES RIGHTS ACT
OF 1997), particularly Section 3(g) & Chapter VII
(DELINEATION, RECOGNITION OF ANCESTRAL
DOMAINS)[;]
If in the affirmative, whether the Executive Branch has the authority
to so bind the Government of the Republic of the Philippines;
6. Whether the inclusion/exclusion of the Province of North
Cotabato, Cities of Zamboanga, Iligan and Isabela, and the
Municipality of Linamon, Lanao del Norte in/from the areas covered
by the projected Bangsamoro Homeland is a justiciable question;
and
7. Whether desistance from signing the MOA derogates any prior
valid commitments of the Government of the Republic of the
Philippines.24
The Court, thereafter, ordered the parties to submit their respective
Memoranda. Most of the parties submitted their memoranda on time.
III. OVERVIEW OF THE MOA-AD

As a necessary backdrop to the consideration of the objections raised in the

subject five petitions and six petitions-in-intervention against the MOA-AD,
as well as the two comments-in-intervention in favor of the MOA-AD, the
Court takes an overview of the MOA.
The MOA-AD identifies the Parties to it as the GRP and the MILF.
Under the heading "Terms of Reference" (TOR), the MOA-AD includes not
only four earlier agreements between the GRP and MILF, but also two
agreements between the GRP and the MNLF: the 1976 Tripoli Agreement,
and the Final Peace Agreement on the Implementation of the 1976 Tripoli
Agreement, signed on September 2, 1996 during the administration of
President Fidel Ramos.
The MOA-AD also identifies as TOR two local statutes - the organic act for
the Autonomous Region in Muslim Mindanao (ARMM)25 and the Indigenous
Peoples Rights Act (IPRA),26 and several international law instruments - the
ILO Convention No. 169 Concerning Indigenous and Tribal Peoples in
Independent Countries in relation to the UN Declaration on the Rights of the
Indigenous Peoples, and the UN Charter, among others.
The MOA-AD includes as a final TOR the generic category of "compact
rights entrenchment emanating from the regime of dar-ul-mua'hada (or
territory under compact) and dar-ul-sulh (or territory under peace agreement)
that partakes the nature of a treaty device."
During the height of the Muslim Empire, early Muslim jurists tended to see
the world through a simple dichotomy: there was the dar-ul-Islam (the Abode
of Islam) and dar-ul-harb (the Abode of War). The first referred to those
lands where Islamic laws held sway, while the second denoted those lands
where Muslims were persecuted or where Muslim laws were outlawed or
ineffective.27 This way of viewing the world, however, became more complex
through the centuries as the Islamic world became part of the international
community of nations.
As Muslim States entered into treaties with their neighbors, even with distant
States and inter-governmental organizations, the classical division of the
world into dar-ul-Islam and dar-ul-harb eventually lost its meaning. New
terms were drawn up to describe novel ways of perceiving non-Muslim
territories. For instance, areas like dar-ul-mua'hada (land of compact)
and dar-ul-sulh (land of treaty) referred to countries which, though under a
secular regime, maintained peaceful and cooperative relations with Muslim
States, having been bound to each other by treaty or agreement. Dar-ul-

aman (land of order), on the other hand, referred to countries which, though
not bound by treaty with Muslim States, maintained freedom of religion for
Muslims.28
It thus appears that the "compact rights entrenchment" emanating from the
regime of dar-ul-mua'hada and dar-ul-sulh simply refers to all other
agreements between the MILF and the Philippine government - the
Philippines being the land of compact and peace agreement - that partake of
the nature of a treaty device, "treaty" being broadly defined as "any solemn
agreement in writing that sets out understandings, obligations, and benefits
for both parties which provides for a framework that elaborates the principles
declared in the [MOA-AD]."29
The MOA-AD states that the Parties "HAVE AGREED AND
ACKNOWLEDGED AS FOLLOWS," and starts with its main body.
The main body of the MOA-AD is divided into four strands, namely,
Concepts and Principles, Territory, Resources, and Governance.
A. CONCEPTS AND PRINCIPLES
This strand begins with the statement that it is "the birthright of all Moros and
all Indigenous peoples of Mindanao to identify themselves and be accepted
as Bangsamoros.'" It defines "Bangsamoro people" as the natives or
original inhabitants of Mindanao and its adjacent islands including Palawan
and the Sulu archipelago at the time of conquest or colonization, and their
descendants whether mixed or of full blood, including their spouses.30
Thus, the concept of "Bangsamoro," as defined in this strand of the MOAAD, includes not only "Moros" as traditionally understood even by
Muslims,31 but all indigenous peoples of Mindanao and its adjacent islands.
The MOA-AD adds that the freedom of choice of indigenous peoples shall
be respected. What this freedom of choice consists in has not been
specifically defined.
The MOA-AD proceeds to refer to the "Bangsamoro homeland," the
ownership of which is vested exclusively in the Bangsamoro people by virtue
of their prior rights of occupation.32 Both parties to the MOA-AD
acknowledge that ancestral domain does not form part of the public
domain.33

The Bangsamoro people are acknowledged as having the right to selfgovernance, which right is said to be rooted on ancestral territoriality
exercised originally under the suzerain authority of their sultanates and
the Pat a Pangampong ku Ranaw. The sultanates were described as states
or "karajaan/kadatuan" resembling a body politic endowed with all the
elements of a nation-state in the modern sense.34
The MOA-AD thus grounds the right to self-governance of the Bangsamoro
people on the past suzerain authority of the sultanates. As gathered, the
territory defined as the Bangsamoro homeland was ruled by several
sultanates and, specifically in the case of the Maranao, by the Pat a
Pangampong ku Ranaw, a confederation of independent principalities
(pangampong) each ruled by datus and sultans, none of whom was supreme
over the others.35
The MOA-AD goes on to describe the Bangsamoro people as "the First
Nation' with defined territory and with a system of government having
entered into treaties of amity and commerce with foreign nations."
The term "First Nation" is of Canadian origin referring to the indigenous
peoples of that territory, particularly those known as Indians. In Canada,
each of these indigenous peoples is equally entitled to be called "First
Nation," hence, all of them are usually described collectively by the plural
"First Nations."36 To that extent, the MOA-AD, by identifying the Bangsamoro
people as "the First Nation" - suggesting its exclusive entitlement to that
designation - departs from the Canadian usage of the term.

Outside of this core, the BJE is to cover other provinces, cities,

municipalities and barangays, which are grouped into two categories,
Category A and Category B. Each of these areas is to be subjected to a
plebiscite to be held on different dates, years apart from each other. Thus,
Category A areas are to be subjected to a plebiscite not later than twelve
(12) months following the signing of the MOA-AD.40 Category B areas, also
called "Special Intervention Areas," on the other hand, are to be subjected to
a plebiscite twenty-five (25) years from the signing of a separate agreement
- the Comprehensive Compact.41
The Parties to the MOA-AD stipulate that the BJE shall have jurisdiction over
all natural resources within its "internal waters," defined as extending fifteen
(15) kilometers from the coastline of the BJE area;42 that the BJE shall also
have "territorial waters," which shall stretch beyond the BJE internal waters
up to the baselines of the Republic of the Philippines (RP) south east and
south west of mainland Mindanao; and that within these territorialwaters, the
BJE and the "Central Government" (used interchangeably with RP) shall
exercise joint jurisdiction, authority and management over all natural
resources.43 Notably, the jurisdiction over the internal waters is not similarly
described as "joint."

The MOA-AD then mentions for the first time the "Bangsamoro Juridical
Entity" (BJE) to which it grants the authority and jurisdiction over the
Ancestral Domain and Ancestral Lands of the Bangsamoro.37

The MOA-AD further provides for the sharing of minerals on

the territorial waters between the Central Government and the BJE, in favor
of the latter, through production sharing and economic cooperation
agreement.44 The activities which the Parties are allowed to conduct on
the territorial waters are enumerated, among which are the exploration and
utilization of natural resources, regulation of shipping and fishing activities,
and the enforcement of police and safety measures.45 There is no similar
provision on the sharing of minerals and allowed activities with respect to
the internal waters of the BJE.

B. TERRITORY

C. RESOURCES

The territory of the Bangsamoro homeland is described as the land mass as

well as the maritime, terrestrial, fluvial and alluvial domains, including the
aerial domain and the atmospheric space above it, embracing the MindanaoSulu-Palawan geographic region.38

The MOA-AD states that the BJE is free to enter into any economic
cooperation and trade relations with foreign countries and shall have the
option to establish trade missions in those countries. Such relationships and
understandings, however, are not to include aggression against the GRP.
The BJE may also enter into environmental cooperation agreements. 46

More specifically, the core of the BJE is defined as the present geographic
area of the ARMM - thus constituting the following areas: Lanao del Sur,
Maguindanao, Sulu, Tawi-Tawi, Basilan, and Marawi City. Significantly, this
core also includes certain municipalities of Lanao del Norte that voted for
inclusion in the ARMM in the 2001 plebiscite.39

The external defense of the BJE is to remain the duty and obligation of the
Central Government. The Central Government is also bound to "take
necessary steps to ensure the BJE's participation in international meetings
and events" like those of the ASEAN and the specialized agencies of the

UN. The BJE is to be entitled to participate in Philippine official missions and

delegations for the negotiation of border agreements or protocols for
environmental protection and equitable sharing of incomes and revenues
involving the bodies of water adjacent to or between the islands forming part
of the ancestral domain.47
With regard to the right of exploring for, producing, and obtaining all potential
sources of energy, petroleum, fossil fuel, mineral oil and natural gas, the
jurisdiction and control thereon is to be vested in the BJE "as the party
having control within its territorial jurisdiction." This right carries
the proviso that, "in times of national emergency, when public interest so
requires," the Central Government may, for a fixed period and under
reasonable terms as may be agreed upon by both Parties, assume or direct
the operation of such resources.48
The sharing between the Central Government and the BJE of total
production pertaining to natural resources is to be 75:25 in favor of the
BJE.49
The MOA-AD provides that legitimate grievances of the Bangsamoro people
arising from any unjust dispossession of their territorial and proprietary
rights, customary land tenures, or their marginalization shall be
acknowledged. Whenever restoration is no longer possible, reparation is to
be in such form as mutually determined by the Parties. 50
The BJE may modify or cancel the forest concessions, timber licenses,
contracts or agreements, mining concessions, Mineral Production and
Sharing Agreements (MPSA), Industrial Forest Management Agreements
(IFMA), and other land tenure instruments granted by the Philippine
Government, including those issued by the present ARMM.51
D. GOVERNANCE
The MOA-AD binds the Parties to invite a multinational third-party to observe
and monitor the implementation of the Comprehensive Compact. This
compact is to embody the "details for the effective enforcement" and "the
mechanisms and modalities for the actual implementation" of the MOA-AD.
The MOA-AD explicitly provides that the participation of the third party shall
not in any way affect the status of the relationship between the Central
Government and the BJE.52

The "associative" relationship

between the Central Government
and the BJE
The MOA-AD describes the relationship of the Central Government and the
BJE as "associative," characterizedby shared authority and responsibility.
And it states that the structure of governance is to be based on executive,
legislative, judicial, and administrative institutions with defined powers and
functions in the Comprehensive Compact.
The MOA-AD provides that its provisions requiring "amendments to the
existing legal framework" shall take effect upon signing of the
Comprehensive Compact and upon effecting the aforesaid amendments,
with due regard to the non-derogation of prior agreements and within the
stipulated timeframe to be contained in the Comprehensive Compact. As
will be discussed later, much of the present controversy hangs on the
legality of this provision.
The BJE is granted the power to build, develop and maintain its own
institutions inclusive of civil service, electoral, financial and banking,
education, legislation, legal, economic, police and internal security force,
judicial system and correctional institutions, the details of which shall be
discussed in the negotiation of the comprehensive compact.
As stated early on, the MOA-AD was set to be signed on August 5, 2008 by
Rodolfo Garcia and Mohagher Iqbal, Chairpersons of the Peace Negotiating
Panels of the GRP and the MILF, respectively. Notably, the penultimate
paragraph of the MOA-AD identifies the signatories as "the representatives
of the Parties," meaning the GRP and MILF themselves, and not merely of
the negotiating panels.53 In addition, the signature page of the MOA-AD
states that it is "WITNESSED BY" Datuk Othman Bin Abd Razak, Special
Adviser to the Prime Minister of Malaysia, "ENDORSED BY" Ambassador
Sayed Elmasry, Adviser to Organization of the Islamic Conference (OIC)
Secretary General and Special Envoy for Peace Process in Southern
Philippines, and SIGNED "IN THE PRESENCE OF" Dr. Albert G. Romulo,
Secretary of Foreign Affairs of RP and Dato' Seri Utama Dr. Rais Bin Yatim,
Minister of Foreign Affairs, Malaysia, all of whom were scheduled to sign the
Agreement last August 5, 2008.
Annexed to the MOA-AD are two documents containing the respective
lists cum maps of the provinces, municipalities, and barangays under
Categories A and B earlier mentioned in the discussion on the strand on
TERRITORY.

IV. PROCEDURAL ISSUES

A. RIPENESS
The power of judicial review is limited to actual cases or
controversies.54 Courts decline to issue advisory opinions or to resolve
hypothetical or feigned problems, or mere academic questions. 55 The
limitation of the power of judicial review to actual cases and controversies
defines the role assigned to the judiciary in a tripartite allocation of power, to
assure that the courts will not intrude into areas committed to the other
branches of government.56
An actual case or controversy involves a conflict of legal rights, an assertion
of opposite legal claims, susceptible of judicial resolution as distinguished
from a hypothetical or abstract difference or dispute. There must be a
contrariety of legal rights that can be interpreted and enforced on the basis
of existing law and jurisprudence.57The Court can decide the constitutionality
of an act or treaty only when a proper case between opposing parties is
submitted for judicial determination.58
Related to the requirement of an actual case or controversy is the
requirement of ripeness. A question is ripe for adjudication when the act
being challenged has had a direct adverse effect on the individual
challenging it.59 For a case to be considered ripe for adjudication, it is a
prerequisite that something had then been accomplished or performed by
either branch before a court may come into the picture, 60 and the petitioner
must allege the existence of an immediate or threatened injury to itself as a
result of the challenged action.61 He must show that he has sustained or is
immediately in danger of sustaining some direct injury as a result of the act
complained of.62
The Solicitor General argues that there is no justiciable controversy that is
ripe for judicial review in the present petitions, reasoning that
The unsigned MOA-AD is simply a list of consensus points subject
to further negotiations and legislative enactments as well as
constitutional processes aimed at attaining a final peaceful
agreement. Simply put, the MOA-AD remains to be a proposal that
does not automatically create legally demandable rights and
obligations until the list of operative acts required have been duly
complied with. x x x
xxxx

In the cases at bar, it is respectfully submitted that this Honorable

Court has no authority to pass upon issues based on hypothetical or
feigned constitutional problems or interests with no concrete bases.
Considering the preliminary character of the MOA-AD, there are no
concrete acts that could possibly violate petitioners' and intervenors'
rights since the acts complained of are mere contemplated
steps toward the formulation of a final peace agreement. Plainly,
petitioners and intervenors' perceived injury, if at all, is merely
imaginary and illusory apart from being unfounded and based on
mere conjectures. (Underscoring supplied)
The Solicitor General cites63 the following provisions of the MOA-AD:
TERRITORY
xxxx
2. Toward this end, the Parties enter into the following stipulations:
xxxx
d. Without derogating from the requirements of prior agreements,
the Government stipulates to conduct and deliver, using all possible
legal measures, within twelve (12) months following the signing of
the MOA-AD, a plebiscite covering the areas as enumerated in the
list and depicted in the map as Category A attached herein (the
"Annex"). The Annex constitutes an integral part of this framework
agreement. Toward this end, the Parties shall endeavor to complete
the negotiations and resolve all outstanding issues on the
Comprehensive Compact within fifteen (15) months from the signing
of the MOA-AD.
xxxx
GOVERNANCE
xxxx
7. The Parties agree that mechanisms and modalities for the actual
implementation of this MOA-AD shall be spelt out in the
Comprehensive Compact to mutually take such steps to enable it to
occur effectively.

Any provisions of the MOA-AD requiring amendments to the existing

legal framework shall come into forceupon the signing of a
Comprehensive Compact and upon effecting the necessary changes
to the legal framework with due regard to non-derogation of prior
agreements and within the stipulated timeframe to be contained in
the Comprehensive Compact.64 (Underscoring supplied)
The Solicitor General's arguments fail to persuade.
Concrete acts under the MOA-AD are not necessary to render the present
controversy ripe. In Pimentel, Jr. v. Aguirre,65 this Court held:
x x x [B]y the mere enactment of the questioned law or the approval
of the challenged action, the dispute is said to have ripened into a
judicial controversy even without any other overt act. Indeed, even a
singular violation of the Constitution and/or the law is enough to
awaken judicial duty.
xxxx
By the same token, when an act of the President, who in our
constitutional scheme is a coequal of Congress, is seriously alleged
to have infringed the Constitution and the laws x x x settling the
dispute becomes the duty and the responsibility of the courts. 66
In Santa Fe Independent School District v. Doe,67 the United States Supreme
Court held that the challenge to the constitutionality of the school's policy
allowing student-led prayers and speeches before games was ripe for
adjudication, even if no public prayer had yet been led under the policy,
because the policy was being challenged as unconstitutional on its face. 68
That the law or act in question is not yet effective does not negate ripeness.
For example, in New York v. United States,69 decided in 1992, the United
States Supreme Court held that the action by the State of New York
challenging the provisions of the Low-Level Radioactive Waste Policy Act
was ripe for adjudication even if the questioned provision was not to take
effect until January 1, 1996, because the parties agreed that New York had
to take immediate action to avoid the provision's consequences. 70
The present petitions pray for Certiorari,71 Prohibition, and Mandamus.
Certiorari and Prohibition are remedies granted by law when any tribunal,
board or officer has acted, in the case of certiorari, or is proceeding, in the

case of prohibition, without or in excess of its jurisdiction or with grave abuse

of discretion amounting to lack or excess of jurisdiction.72 Mandamus is a
remedy granted by law when any tribunal, corporation, board, officer or
person unlawfully neglects the performance of an act which the law
specifically enjoins as a duty resulting from an office, trust, or station, or
unlawfully excludes another from the use or enjoyment of a right or office to
which such other is entitled.73 Certiorari, Mandamus and Prohibition are
appropriate remedies to raise constitutional issues and to review and/or
prohibit/nullify, when proper, acts of legislative and executive officials. 74
The authority of the GRP Negotiating Panel is defined by Executive Order
No. 3 (E.O. No. 3), issued on February 28, 2001.75 The said executive order
requires that "[t]he government's policy framework for peace, including the
systematic approach and the administrative structure for carrying out the
comprehensive peace process x x x be governed by this Executive Order." 76
The present petitions allege that respondents GRP Panel and PAPP
Esperon drafted the terms of the MOA-AD without consulting the local
government units or communities affected, nor informing them of the
proceedings. As will be discussed in greater detail later, such omission, by
itself, constitutes a departure by respondents from their mandate under E.O.
No. 3.
Furthermore, the petitions allege that the provisions of the MOA-AD violate
the Constitution. The MOA-AD provides that "any provisions of the MOA-AD
requiring amendments to the existing legal framework shall come into force
upon the signing of a Comprehensive Compact and upon effecting the
necessary changes to the legal framework," implying an amendment of the
Constitution to accommodate the MOA-AD. This stipulation, in
effect,guaranteed to the MILF the amendment of the Constitution. Such act
constitutes another violation of its authority. Again, these points will be
discussed in more detail later.
As the petitions allege acts or omissions on the part of respondent
that exceed their authority, by violating their duties under E.O. No. 3 and
the provisions of the Constitution and statutes, the petitions make a prima
facie case for Certiorari, Prohibition, and Mandamus, and an actual case or
controversy ripe for adjudication exists. When an act of a branch of
government is seriously alleged to have infringed the Constitution, it
becomes not only the right but in fact the duty of the judiciary to settle
the dispute.77
B. LOCUS STANDI

For a party to have locus standi, one must allege "such a personal stake in
the outcome of the controversy as to assure that concrete adverseness
which sharpens the presentation of issues upon which the court so largely
depends for illumination of difficult constitutional questions." 78
Because constitutional cases are often public actions in which the relief
sought is likely to affect other persons, a preliminary question frequently
arises as to this interest in the constitutional question raised. 79
When suing as a citizen, the person complaining must allege that he has
been or is about to be denied some right or privilege to which he is lawfully
entitled or that he is about to be subjected to some burdens or penalties by
reason of the statute or act complained of.80 When the issue concerns a
public right, it is sufficient that the petitioner is a citizen and has an interest in
the execution of the laws.81
For a taxpayer, one is allowed to sue where there is an assertion that public
funds are illegally disbursed or deflected to an illegal purpose, or that there
is a wastage of public funds through the enforcement of an invalid or
unconstitutional law.82 The Court retains discretion whether or not to allow a
taxpayer's suit.83
In the case of a legislator or member of Congress, an act of the Executive
that injures the institution of Congress causes a derivative but nonetheless
substantial injury that can be questioned by legislators. A member of the
House of Representatives has standing to maintain inviolate the
prerogatives, powers and privileges vested by the Constitution in his office. 84
An organization may be granted standing to assert the rights of its
members,85 but the mere invocation by theIntegrated Bar of the Philippines
or any member of the legal profession of the duty to preserve the rule of law
does not suffice to clothe it with standing. 86
As regards a local government unit (LGU), it can seek relief in order to
protect or vindicate an interest of its own, and of the other LGUs. 87
Intervenors, meanwhile, may be given legal standing upon showing of facts
that satisfy the requirements of the law authorizing intervention, 88 such as a
legal interest in the matter in litigation, or in the success of either of the
parties.

In any case, the Court has discretion to relax the procedural technicality
on locus standi, given the liberal attitude it has exercised, highlighted in the
case of David v. Macapagal-Arroyo,89 where technicalities of procedure were
brushed aside, the constitutional issues raised being of paramount public
interest or of transcendental importance deserving the attention of the Court
in view of their seriousness, novelty and weight as precedents. 90 The Court's
forbearing stance on locus standi on issues involving constitutional issues
has for its purpose the protection of fundamental rights.
In not a few cases, the Court, in keeping with its duty under the Constitution
to determine whether the other branches of government have kept
themselves within the limits of the Constitution and the laws and have not
abused the discretion given them, has brushed aside technical rules of
procedure.91
In the petitions at bar, petitioners Province of North Cotabato (G.R. No.
183591) Province of Zamboanga del Norte (G.R. No. 183951), City of
Iligan (G.R. No. 183893) and City of Zamboanga (G.R. No. 183752) and
petitioners-in-intervention Province of Sultan Kudarat, City of
Isabela and Municipality of Linamon havelocus standi in view of the direct
and substantial injury that they, as LGUs, would suffer as their territories,
whether in whole or in part, are to be included in the intended domain of the
BJE. These petitioners allege that they did not vote for their inclusion in the
ARMM which would be expanded to form the BJE territory. Petitioners' legal
standing is thus beyond doubt.
In G.R. No. 183962, petitioners Ernesto Maceda, Jejomar
Binay and Aquilino Pimentel III would have no standing as citizens and
taxpayers for their failure to specify that they would be denied some right or
privilege or there would be wastage of public funds. The fact that they are a
former Senator, an incumbent mayor of Makati City, and a resident of
Cagayan de Oro, respectively, is of no consequence. Considering their
invocation of the transcendental importance of the issues at hand, however,
the Court grants them standing.
Intervenors Franklin Drilon and Adel Tamano, in alleging their standing as
taxpayers, assert that government funds would be expended for the conduct
of an illegal and unconstitutional plebiscite to delineate the BJE territory. On
that score alone, they can be given legal standing. Their allegation that the
issues involved in these petitions are of "undeniable transcendental
importance" clothes them with added basis for their personality to intervene
in these petitions.

With regard to Senator Manuel Roxas, his standing is premised on his

being a member of the Senate and a citizen to enforce compliance by
respondents of the public's constitutional right to be informed of the MOAAD, as well as on a genuine legal interest in the matter in litigation, or in the
success or failure of either of the parties. He thus possesses the requisite
standing as an intervenor.
With respect to Intervenors Ruy Elias Lopez, as a former congressman of
the 3rd district of Davao City, a taxpayer and a member of the Bagobo tribe;
Carlo B. Gomez, et al., as members of the IBP Palawan chapter, citizens
and taxpayers; Marino Ridao, as taxpayer, resident and member of
the Sangguniang Panlungsod of Cotabato City; and Kisin Buxani, as
taxpayer, they failed to allege any proper legal interest in the present
petitions. Just the same, the Court exercises its discretion to relax the
procedural technicality on locus standigiven the paramount public interest in
the issues at hand.
Intervening respondents Muslim Multi-Sectoral Movement for Peace and
Development, an advocacy group for justice and the attainment of peace
and prosperity in Muslim Mindanao; and Muslim Legal Assistance
Foundation Inc., a non-government organization of Muslim lawyers, allege
that they stand to be benefited or prejudiced, as the case may be, in the
resolution of the petitions concerning the MOA-AD, and prays for the denial
of the petitions on the grounds therein stated. Such legal interest suffices to
clothe them with standing.
B. MOOTNESS
Respondents insist that the present petitions have been rendered moot with
the satisfaction of all the reliefs prayed for by petitioners and the subsequent
pronouncement of the Executive Secretary that "[n]o matter what the
Supreme Court ultimately decides[,] the government will not sign the
MOA."92
In lending credence to this policy decision, the Solicitor General points out
that the President had already disbanded the GRP Peace Panel. 93
In David v. Macapagal-Arroyo,94 this Court held that the "moot and
academic" principle not being a magical formula that automatically
dissuades courts in resolving a case, it will decide cases, otherwise moot
and academic, if it finds that (a) there is a grave violation of the
Constitution;95 (b) the situation is of exceptional character and paramount
public interest is involved;96 (c) the constitutional issue raised requires

formulation of controlling principles to guide the bench, the bar, and the
public;97 and (d) the case is capable of repetition yet evading review.98
Another exclusionary circumstance that may be considered is where there is
a voluntary cessation of the activity complained of by the defendant or doer.
Thus, once a suit is filed and the doer voluntarily ceases the challenged
conduct, it does not automatically deprive the tribunal of power to hear and
determine the case and does not render the case moot especially when the
plaintiff seeks damages or prays for injunctive relief against the possible
recurrence of the violation.99
The present petitions fall squarely into these exceptions to thus thrust them
into the domain of judicial review. The grounds cited above in David are just
as applicable in the present cases as they were, not only in David, but also
in Province of Batangas v. Romulo100 and Manalo v. Calderon101 where the
Court similarly decided them on the merits, supervening events that would
ordinarily have rendered the same moot notwithstanding.
Petitions not mooted
Contrary then to the asseverations of respondents, the non-signing of the
MOA-AD and the eventual dissolution of the GRP Peace Panel did not moot
the present petitions. It bears emphasis that the signing of the MOA-AD did
not push through due to the Court's issuance of a Temporary Restraining
Order.
Contrary too to respondents' position, the MOA-AD cannot be considered a
mere "list of consensus points," especially given its nomenclature, the need
to have it signed or initialed by all the parties concerned on August 5,
2008, and the far-reaching Constitutional implications of these
"consensus points," foremost of which is the creation of the BJE.
In fact, as what will, in the main, be discussed, there is a commitment on
the part of respondents to amend and effect necessary changes to the
existing legal framework for certain provisions of the MOA-AD to take
effect. Consequently, the present petitions are not confined to the terms and
provisions of the MOA-AD, but to other on-going and future negotiations
and agreements necessary for its realization. The petitions have not,
therefore, been rendered moot and academic simply by the public disclosure
of the MOA-AD,102 the manifestation that it will not be signed as well as the
disbanding of the GRP Panel not withstanding.
Petitions are imbued with paramount public interest

There is no gainsaying that the petitions are imbued with paramount public
interest, involving a significant part of the country's territory and the wideranging political modifications of affected LGUs. The assertion that the
MOA-AD is subject to further legal enactments including possible
Constitutional amendments more than ever provides impetus for the
Court to formulate controlling principles to guide the bench, the bar,
the public and, in this case, the government and its negotiating entity.
Respondents cite Suplico v. NEDA, et al.103 where the Court did not
"pontificat[e] on issues which no longer legitimately constitute an actual case
or controversy [as this] will do more harm than good to the nation as a
whole."
The present petitions must be differentiated from Suplico. Primarily,
in Suplico, what was assailed and eventually cancelled was a stand-alone
government procurement contract for a national broadband network
involving a one-time contractual relation between two parties-the
government and a private foreign corporation. As the issues therein involved
specific government procurement policies and standard principles on
contracts, the majority opinion in Suplico found nothing exceptional therein,
the factual circumstances being peculiar only to the transactions and parties
involved in the controversy.

significantly drastic provisions. While the Court notes the word of the
Executive Secretary that the government "is committed to securing an
agreement that is both constitutional and equitable because that is the only
way that long-lasting peace can be assured," it is minded to render
a decision on the merits in the present petitions toformulate controlling
principles to guide the bench, the bar, the public and, most especially,
the government in negotiating with the MILF regarding Ancestral
Domain.
Respondents invite the Court's attention to the separate opinion of then
Chief Justice Artemio Panganiban inSanlakas v. Reyes104 in which he stated
that the doctrine of "capable of repetition yet evading review" can override
mootness, "provided the party raising it in a proper case has been and/or
continue to be prejudiced or damaged as a direct result of their issuance."
They contend that the Court must have jurisdiction over the subject matter
for the doctrine to be invoked.
The present petitions all contain prayers for Prohibition over which this Court
exercises original jurisdiction. While G.R. No. 183893 (City of Iligan v. GRP)
is a petition for Injunction and Declaratory Relief, the Court will treat it as one
for Prohibition as it has far reaching implications and raises questions that
need to be resolved.105 At all events, the Court has jurisdiction over most if
not the rest of the petitions.

The MOA-AD is part of a series of agreements

In the present controversy, the MOA-AD is a significant part of a series of
agreements necessary to carry out the Tripoli Agreement 2001. The MOAAD which dwells on the Ancestral Domain Aspect of said Tripoli Agreement
is the third such component to be undertaken following the implementation
of the Security Aspect in August 2001 and the Humanitarian, Rehabilitation
and Development Aspect in May 2002.
Accordingly, even if the Executive Secretary, in his Memorandum of August
28, 2008 to the Solicitor General, has stated that "no matter what the
Supreme Court ultimately decides[,] the government will not sign the MOA[AD],"mootness will not set in in light of the terms of the Tripoli Agreement
2001.
Need to formulate principles-guidelines
Surely, the present MOA-AD can be renegotiated or another one will be
drawn up to carry out the Ancestral Domain Aspect of the Tripoli
Agreement 2001, in another or in any form, which could contain similar or

Indeed, the present petitions afford a proper venue for the Court to again
apply the doctrine immediately referred to as what it had done in a number
of landmark cases.106 There is a reasonable expectation that petitioners,
particularly the Provinces of North Cotabato, Zamboanga del Norte and
Sultan Kudarat, the Cities of Zamboanga, Iligan and Isabela, and the
Municipality of Linamon, will again be subjected to the same problem in the
future as respondents' actions are capable of repetition, in another or any
form.
It is with respect to the prayers for Mandamus that the petitions have
become moot, respondents having, by Compliance of August 7, 2008,
provided this Court and petitioners with official copies of the final draft of the
MOA-AD and its annexes. Too, intervenors have been furnished, or have
procured for themselves, copies of the MOA-AD.
V. SUBSTANTIVE ISSUES
As culled from the Petitions and Petitions-in-Intervention, there are basically
two SUBSTANTIVE issues to be resolved, one relating to the manner in

which the MOA-AD was negotiated and finalized, the other relating to its
provisions, viz:

for both its acquisition and its dissemination since, if either process is
interrupted, the flow inevitably ceases." x x x111

1. Did respondents violate constitutional and statutory provisions on public

consultation and the right to information when they negotiated and later
initialed the MOA-AD?

In the same way that free discussion enables members of society to cope
with the exigencies of their time, access to information of general interest
aids the people in democratic decision-making by giving them a better
perspective of the vital issues confronting the nation 112 so that they may be
able to criticize and participate in the affairs of the government in a
responsible, reasonable and effective manner. It is by ensuring an
unfettered and uninhibited exchange of ideas among a well-informed public
that a government remains responsive to the changes desired by the
people.113

2. Do the contents of the MOA-AD violate the Constitution and the laws?
ON THE FIRST SUBSTANTIVE ISSUE
Petitioners invoke their constitutional right to information on matters of
public concern, as provided in Section 7, Article III on the Bill of Rights:
Sec. 7. The right of the people to information on matters of public
concern shall be recognized. Access to official records, and to
documents, and papers pertaining to official acts, transactions, or
decisions, as well as to government research data used as basis for
policy development, shall be afforded the citizen, subject to such
limitations as may be provided by law.107
As early as 1948, in Subido v. Ozaeta,108 the Court has recognized the
statutory right to examine and inspect public records, a right which was
eventually accorded constitutional status.
The right of access to public documents, as enshrined in both the 1973
Constitution and the 1987 Constitution, has been recognized as a selfexecutory constitutional right.109
In the 1976 case of Baldoza v. Hon. Judge Dimaano,110 the Court ruled that
access to public records is predicated on the right of the people to acquire
information on matters of public concern since, undoubtedly, in a democracy,
the pubic has a legitimate interest in matters of social and political
significance.
x x x The incorporation of this right in the Constitution is a recognition of the
fundamental role of free exchange of information in a democracy. There can
be no realistic perception by the public of the nation's problems, nor a
meaningful democratic decision-making if they are denied access to
information of general interest. Information is needed to enable the members
of society to cope with the exigencies of the times. As has been aptly
observed: "Maintaining the flow of such information depends on protection

The MOA-AD is a matter of public concern

That the subject of the information sought in the present cases is a matter of
public concern114 faces no serious challenge. In fact, respondents admit that
the MOA-AD is indeed of public concern.115 In previous cases, the Court
found that the regularity of real estate transactions entered in the Register of
Deeds,116 the need for adequate notice to the public of the various
laws,117 the civil service eligibility of a public employee,118 the proper
management of GSIS funds allegedly used to grant loans to public
officials,119 the recovery of the Marcoses' alleged ill-gotten wealth, 120 and the
identity of party-list nominees,121 among others, are matters of public
concern. Undoubtedly, the MOA-AD subject of the present cases is of
public concern, involving as it does the sovereignty and territorial
integrity of the State, which directly affects the lives of the public at large.
Matters of public concern covered by the right to information include steps
and negotiations leading to the consummation of the contract. In not
distinguishing as to the executory nature or commercial character of
agreements, the Court has categorically ruled:
x x x [T]he right to information "contemplates inclusion of
negotiations leading to the consummation of the transaction."
Certainly, a consummated contract is not a requirement for the
exercise of the right to information. Otherwise, the people can never
exercise the right if no contract is consummated, and if one is
consummated, it may be too late for the public to expose its defects.
Requiring a consummated contract will keep the public in the dark
until the contract, which may be grossly disadvantageous to the
government or even illegal, becomes fait accompli. This negates the

State policy of full transparency on matters of public concern, a

situation which the framers of the Constitution could not have
intended. Such a requirement will prevent the citizenry from
participating in the public discussion of any proposed contract,
effectively truncating a basic right enshrined in the Bill of Rights. We
can allow neither an emasculation of a constitutional right, nor a
retreat by the State of its avowed "policy of full disclosure of all its
transactions involving public interest."122 (Emphasis and italics in the
original)
Intended as a "splendid symmetry"123 to the right to information under the Bill
of Rights is the policy of public disclosure under Section 28, Article II of the
Constitution reading:
Sec. 28. Subject to reasonable conditions prescribed by law, the
State adopts and implements a policy of full public disclosure of all
its transactions involving public interest.124
The policy of full public disclosure enunciated in above-quoted Section
28 complements the right of access to information on matters of public
concern found in the Bill of Rights. The right to information guarantees
the right of the people to demand information, while Section 28 recognizes
the duty of officialdom to give information even if nobody demands.125
The policy of public disclosure establishes a concrete ethical principle for the
conduct of public affairs in a genuinely open democracy, with the people's
right to know as the centerpiece. It is a mandate of the State to be
accountable by following such policy.126 These provisions are vital to the
exercise of the freedom of expression and essential to hold public officials at
all times accountable to the people.127
Whether Section 28 is self-executory, the records of the deliberations of the
Constitutional Commission so disclose:
MR. SUAREZ. And since this is not self-executory, this policy will not
be enunciated or will not be in force and effect until after Congress
shall have provided it.
MR. OPLE. I expect it to influence the climate of public ethics
immediately but, of course, the implementing law will have to be
enacted by Congress, Mr. Presiding Officer.128

The following discourse, after Commissioner Hilario Davide, Jr., sought

clarification on the issue, is enlightening.
MR. DAVIDE. I would like to get some clarifications on this. Mr.
Presiding Officer, did I get the Gentleman correctly as having said
that this is not a self-executing provision? It would require a
legislation by Congress to implement?
MR. OPLE. Yes. Originally, it was going to be self-executing, but I
accepted an amendment from Commissioner Regalado, so that the
safeguards on national interest are modified by the clause "as may
be provided by law"
MR. DAVIDE. But as worded, does it not mean that this will
immediately take effect and Congress may provide for
reasonable safeguards on the sole ground national interest?
MR. OPLE. Yes. I think so, Mr. Presiding Officer, I said earlier
that it should immediately influence the climate of the conduct
of public affairs but, of course, Congress here may no longer pass
a law revoking it, or if this is approved, revoking this principle, which
is inconsistent with this policy.129 (Emphasis supplied)
Indubitably, the effectivity of the policy of public disclosure need not
await the passing of a statute. As Congress cannot revoke this principle, it
is merely directed to provide for "reasonable safeguards." The complete and
effective exercise of the right to information necessitates that its
complementary provision on public disclosure derive the same selfexecutory nature. Since both provisions go hand-in-hand, it is absurd to say
that the broader130 right to information on matters of public concern is
already enforceable while the correlative duty of the State to disclose its
transactions involving public interest is not enforceable until there is an
enabling law.Respondents cannot thus point to the absence of an
implementing legislation as an excuse in not effecting such policy.
An essential element of these freedoms is to keep open a continuing
dialogue or process of communication between the government and the
people. It is in the interest of the State that the channels for free political
discussion be maintained to the end that the government may perceive and
be responsive to the people's will.131Envisioned to be corollary to the twin
rights to information and disclosure is the design for feedback mechanisms.

MS. ROSARIO BRAID. Yes. And lastly, Mr. Presiding Officer, will
the people be able to participate? Will the government provide
feedback mechanisms so that the people can participate and
can react where the existing media facilities are not able to
provide full feedback mechanisms to the government? I
suppose this will be part of the government implementing
operational mechanisms.
MR. OPLE. Yes. I think through their elected representatives and
that is how these courses take place. There is a message and a
feedback, both ways.
xxxx
MS. ROSARIO BRAID. Mr. Presiding Officer, may I just make one
last sentence?
I think when we talk about the feedback network, we are not
talking about public officials but also network of private
business o[r] community-based organizations that will be
reacting. As a matter of fact, we will put more credence or credibility
on the private network of volunteers and voluntary community-based
organizations. So I do not think we are afraid that there will be
another OMA in the making.132(Emphasis supplied)
The imperative of a public consultation, as a species of the right to
information, is evident in the "marching orders" to respondents. The
mechanics for the duty to disclose information and to conduct public
consultation regarding the peace agenda and process is manifestly provided
by E.O. No. 3.133 The preambulatory clause of E.O. No. 3 declares that there
is a need to further enhance the contribution of civil society to the
comprehensive peace process by institutionalizing the people's participation.
One of the three underlying principles of the comprehensive peace process
is that it "should be community-based, reflecting the sentiments, values and
principles important to all Filipinos" and "shall be defined not by the
government alone, nor by the different contending groups only, but by all
Filipinos as one community."134Included as a component of the
comprehensive peace process is consensus-building and empowerment for
peace, which includes "continuing consultations on both national and local
levels to build consensus for a peace agenda and process, and the
mobilization and facilitation of people's participation in the peace process."135

Clearly, E.O. No. 3 contemplates not just the conduct of a plebiscite to

effectuate "continuing" consultations, contrary to respondents'
position that plebiscite is "more than sufficient consultation."136
Further, E.O. No. 3 enumerates the functions and responsibilities of the
PAPP, one of which is to "[c]onductregular dialogues with the National Peace
Forum (NPF) and other peace partners to seek relevant information,
comments, recommendations as well as to render appropriate and timely
reports on the progress of the comprehensive peace process." 137 E.O. No. 3
mandates the establishment of the NPF to be "the principal forumfor the
PAPP to consult with and seek advi[c]e from the peace advocates, peace
partners and concerned sectors of society on both national and local levels,
on the implementation of the comprehensive peace process, as well as for
government[-]civil society dialogue and consensus-building on peace
agenda and initiatives."138
In fine, E.O. No. 3 establishes petitioners' right to be consulted on the
peace agenda, as a corollary to the constitutional right to information
and disclosure.
PAPP Esperon committed grave abuse of discretion
The PAPP committed grave abuse of discretion when he failed to carry
out the pertinent consultation. The furtive process by which the MOA-AD
was designed and crafted runs contrary to and in excess of the legal
authority, and amounts to a whimsical, capricious, oppressive, arbitrary and
despotic exercise thereof.
The Court may not, of course, require the PAPP to conduct the
consultation in a particular way or manner. It may, however, require him to
comply with the law and discharge the functions within the authority
granted by the President.139
Petitioners are not claiming a seat at the negotiating table, contrary to
respondents' retort in justifying the denial of petitioners' right to be consulted.
Respondents' stance manifests the manner by which they treat the salient
provisions of E.O. No. 3 on people's participation. Such disregard of the
express mandate of the President is not much different from superficial
conduct toward token provisos that border on classic lip service. 140 It
illustrates a gross evasion of positive duty and a virtual refusal to perform the
duty enjoined.

As for respondents' invocation of the doctrine of executive privilege, it is not

tenable under the premises. The argument defies sound reason when
contrasted with E.O. No. 3's explicit provisions on continuing consultation
and dialogue on both national and local levels. The executive order even
recognizes the exercise of the public's right even before the GRP makes
its official recommendations or before the government proffers its definite
propositions.141 It bear emphasis that E.O. No. 3 seeks to elicit relevant
advice, information, comments and recommendations from the people
through dialogue.
AT ALL EVENTS, respondents effectively waived the defense of executive
privilege in view of their unqualified disclosure of the official copies of the
final draft of the MOA-AD. By unconditionally complying with the Court's
August 4, 2008 Resolution, without a prayer for the document's disclosure in
camera, or without a manifestation that it was complying therewith ex
abundante ad cautelam.
Petitioners' assertion that the Local Government Code (LGC) of 1991
declares it a State policy to "require all national agencies and offices to
conduct periodic consultations with appropriate local government units, nongovernmental and people's organizations, and other concerned sectors of
the community before any project or program is implemented in their
respective jurisdictions"142 is well-taken. The LGC chapter on
intergovernmental relations puts flesh into this avowed policy:
Prior Consultations Required. - No project or program shall be
implemented by government authoritiesunless the consultations
mentioned in Sections 2 (c) and 26 hereof are complied with, and
prior approval of the sanggunian concerned is obtained: Provided,
That occupants in areas where such projects are to be implemented
shall not be evicted unless appropriate relocation sites have been
provided, in accordance with the provisions of the
Constitution.143 (Italics and underscoring supplied)
In Lina, Jr. v. Hon. Pao,144 the Court held that the above-stated policy and
above-quoted provision of the LGU apply only to national programs or
projects which are to be implemented in a particular local community. Among
the programs and projects covered are those that are critical to the
environment and human ecology including those that may call for
the eviction of a particular group of people residing in the locality where
these will be implemented.145 The MOA-AD is one peculiar program that
unequivocally and unilaterally vests ownership of a vast territory to the
Bangsamoro people,146 which could pervasively and drastically result

to the diaspora or displacement of a great number of inhabitants from

their total environment.
With respect to the indigenous cultural communities/indigenous peoples
(ICCs/IPs), whose interests are represented herein by petitioner Lopez and
are adversely affected by the MOA-AD, the ICCs/IPs have, under the IPRA,
the right to participate fully at all levels of decision-making in matters which
may affect their rights, lives and destinies.147 The MOA-AD, an instrument
recognizing ancestral domain, failed to justify its non-compliance with the
clear-cut mechanisms ordained in said Act,148 which entails, among other
things, the observance of the free and prior informed consent of the
ICCs/IPs.
Notably, the IPRA does not grant the Executive Department or any
government agency the power to delineate and recognize an ancestral
domain claim by mere agreement or compromise. The recognition of the
ancestral domain is the raison d'etre of the MOA-AD, without which all other
stipulations or "consensus points" necessarily must fail. In proceeding to
make a sweeping declaration on ancestral domain, without complying with
the IPRA, which is cited as one of the TOR of the MOA-AD, respondents
clearly transcended the boundaries of their authority. As it seems, even
the heart of the MOA-AD is still subject to necessary changes to the legal
framework. While paragraph 7 on Governance suspends the effectivity of all
provisions requiring changes to the legal framework, such clause is itself
invalid, as will be discussed in the following section.
Indeed, ours is an open society, with all the acts of the government subject
to public scrutiny and available always to public cognizance. This has to be
so if the country is to remain democratic, with sovereignty residing in the
people and all government authority emanating from them. 149
ON THE SECOND SUBSTANTIVE ISSUE
With regard to the provisions of the MOA-AD, there can be no question that
they cannot all be accommodated under the present Constitution and laws.
Respondents have admitted as much in the oral arguments before this
Court, and the MOA-AD itself recognizes the need to amend the existing
legal framework to render effective at least some of its provisions.
Respondents, nonetheless, counter that the MOA-AD is free of any legal
infirmity because any provisions therein which are inconsistent with the
present legal framework will not be effective until the necessary changes to
that framework are made. The validity of this argument will be considered
later. For now, the Court shall pass upon how

The MOA-AD is inconsistent with the Constitution and laws as

presently worded.
In general, the objections against the MOA-AD center on the extent of the
powers conceded therein to the BJE. Petitioners assert that the powers
granted to the BJE exceed those granted to any local government under
present laws, and even go beyond those of the present ARMM. Before
assessing some of the specific powers that would have been vested in the
BJE, however, it would be useful to turn first to a general idea that serves as
a unifying link to the different provisions of the MOA-AD, namely, the
international law concept of association. Significantly, the MOA-AD explicitly
alludes to this concept, indicating that the Parties actually framed its
provisions with it in mind.
Association is referred to in paragraph 3 on TERRITORY, paragraph 11 on
RESOURCES, and paragraph 4 on GOVERNANCE. It is in the last
mentioned provision, however, that the MOA-AD most clearly uses it to
describe the envisioned relationship between the BJE and the Central
Government.
4. The relationship between the Central Government and the
Bangsamoro juridical entity shall beassociative characterized
by shared authority and responsibility with a structure of
governance based on executive, legislative, judicial and
administrative institutions with defined powers and functions in the
comprehensive compact. A period of transition shall be established
in a comprehensive peace compact specifying the relationship
between the Central Government and the BJE. (Emphasis and
underscoring supplied)
The nature of the "associative" relationship may have been intended to be
defined more precisely in the still to be forged Comprehensive Compact.
Nonetheless, given that there is a concept of "association" in international
law, and the MOA-AD - by its inclusion of international law instruments in its
TOR- placed itself in an international legal context, that concept of
association may be brought to bear in understanding the use of the term
"associative" in the MOA-AD.

principal, while maintaining its international status as a state.

Free associations represent a middle ground between
integration and independence. x x x150 (Emphasis and
underscoring supplied)
For purposes of illustration, the Republic of the Marshall Islands and the
Federated States of Micronesia (FSM), formerly part of the U.S.administered Trust Territory of the Pacific Islands,151 are associated states of
the U.S. pursuant to a Compact of Free Association. The currency in these
countries is the U.S. dollar, indicating their very close ties with the U.S., yet
they issue their own travel documents, which is a mark of their statehood.
Their international legal status as states was confirmed by the UN Security
Council and by their admission to UN membership.
According to their compacts of free association, the Marshall Islands and the
FSM generally have the capacity to conduct foreign affairs in their own name
and right, such capacity extending to matters such as the law of the sea,
marine resources, trade, banking, postal, civil aviation, and cultural relations.
The U.S. government, when conducting its foreign affairs, is obligated to
consult with the governments of the Marshall Islands or the FSM on matters
which it (U.S. government) regards as relating to or affecting either
government.
In the event of attacks or threats against the Marshall Islands or the FSM,
the U.S. government has the authority and obligation to defend them as if
they were part of U.S. territory. The U.S. government, moreover, has the
option of establishing and using military areas and facilities within these
associated states and has the right to bar the military personnel of any third
country from having access to these territories for military purposes.
It bears noting that in U.S. constitutional and international practice, free
association is understood as an international association between
sovereigns. The Compact of Free Association is a treaty which is
subordinate to the associated nation's national constitution, and each party
may terminate the association consistent with the right of independence. It
has been said that, with the admission of the U.S.-associated states to the
UN in 1990, the UN recognized that the American model of free association
is actually based on an underlying status of independence. 152

Keitner and Reisman state that

[a]n association is formed when two states of unequal power
voluntarily establish durable links. In the basic model, one state, the
associate, delegates certain responsibilities to the other, the

In international practice, the "associated state" arrangement has usually

been used as a transitional device of former colonies on their way to full
independence. Examples of states that have passed through the status of
associated states as a transitional phase are Antigua, St. Kitts-Nevis-

Anguilla, Dominica, St. Lucia, St. Vincent and Grenada. All have since
become independent states.153
Back to the MOA-AD, it contains many provisions which are consistent with
the international legal concept of association, specifically the following: the
BJE's capacity to enter into economic and trade relations with foreign
countries, the commitment of the Central Government to ensure the BJE's
participation in meetings and events in the ASEAN and the specialized UN
agencies, and the continuing responsibility of the Central Government over
external defense. Moreover, the BJE's right to participate in Philippine official
missions bearing on negotiation of border agreements, environmental
protection, and sharing of revenues pertaining to the bodies of water
adjacent to or between the islands forming part of the ancestral
domain, resembles the right of the governments of FSM and the Marshall
Islands to be consulted by the U.S. government on any foreign affairs matter
affecting them.
These provisions of the MOA indicate, among other things, that the
Parties aimed to vest in the BJE the status of an associated state or, at
any rate, a status closely approximating it.
The concept of association is not recognized under the present
Constitution
No province, city, or municipality, not even the ARMM, is recognized under
our laws as having an "associative" relationship with the national
government. Indeed, the concept implies powers that go beyond anything
ever granted by the Constitution to any local or regional government. It also
implies the recognition of the associated entity as a state. The Constitution,
however, does not contemplate any state in this jurisdiction other than the
Philippine State, much less does it provide for a transitory status that aims to
prepare any part of Philippine territory for independence.
Even the mere concept animating many of the MOA-AD's provisions,
therefore, already requires for its validity the amendment of constitutional
provisions, specifically the following provisions of Article X:
SECTION 1. The territorial and political subdivisions of the Republic
of the Philippines are the provinces, cities, municipalities, and
barangays. There shall be autonomous regions in Muslim
Mindanao and the Cordilleras as hereinafter provided.

SECTION 15. There shall be created autonomous regions in Muslim

Mindanao and in the Cordilleras consisting of provinces, cities,
municipalities, and geographical areas sharing common and
distinctive historical and cultural heritage, economic and social
structures, and other relevant characteristics within the framework
of this Constitution and the national sovereignty as well as
territorial integrity of the Republic of the Philippines.
The BJE is a far more powerful
entity than the autonomous region
recognized in the Constitution
It is not merely an expanded version of the ARMM, the status of its
relationship with the national government being fundamentally different from
that of the ARMM. Indeed, BJE is a state in all but name as it meets the
criteria of a state laid down in the Montevideo Convention,154 namely,
a permanent population, a defined territory, a government, and a capacity to
enter into relations with other states.
Even assuming arguendo that the MOA-AD would not necessarily sever any
portion of Philippine territory, the spirit animating it - which has betrayed
itself by its use of the concept of association - runs counter to the national
sovereignty and territorial integrity of the Republic.
The defining concept underlying the relationship between the national
government and the BJE being itself contrary to the present
Constitution, it is not surprising that many of the specific provisions of
the MOA-AD on the formation and powers of the BJE are in conflict
with the Constitution and the laws.
Article X, Section 18 of the Constitution provides that "[t]he creation of the
autonomous region shall be effective when approved by a majority of the
votes cast by the constituent units in a plebiscite called for the purpose,
provided that only provinces, cities, and geographic areas voting
favorably in such plebiscite shall be included in the autonomous
region." (Emphasis supplied)
As reflected above, the BJE is more of a state than an autonomous region.
But even assuming that it is covered by the term "autonomous region" in the
constitutional provision just quoted, the MOA-AD would still be in conflict
with it. Under paragraph 2(c) on TERRITORY in relation to 2(d) and 2(e), the
present geographic area of the ARMM and, in addition, the municipalities of
Lanao del Norte which voted for inclusion in the ARMM during the 2001

plebiscite - Baloi, Munai, Nunungan, Pantar, Tagoloan and Tangkal - are

automatically part of the BJE without need of another plebiscite, in contrast
to the areas under Categories A and B mentioned earlier in the overview.
That the present components of the ARMM and the above-mentioned
municipalities voted for inclusion therein in 2001, however, does not render
another plebiscite unnecessary under the Constitution, precisely because
what these areas voted for then was their inclusion in the ARMM, not the
BJE.
The MOA-AD, moreover, would not
comply with Article X, Section 20 of
the Constitution
since that provision defines the powers of autonomous regions as follows:
SECTION 20. Within its territorial jurisdiction and subject to the
provisions of this Constitution and national laws, the organic act of
autonomous regions shall provide for legislative powers over:
(1) Administrative organization;
(2) Creation of sources of revenues;

above-quoted provision. The mere passage of new legislation pursuant to

sub-paragraph No. 9 of said constitutional provision would not suffice, since
any new law that might vest in the BJE the powers found in the MOA-AD
must, itself, comply with other provisions of the Constitution. It would not do,
for instance, to merely pass legislation vesting the BJE with treaty-making
power in order to accommodate paragraph 4 of the strand on RESOURCES
which states: "The BJE is free to enter into any economic cooperation and
trade relations with foreign countries: provided, however, that such
relationships and understandings do not include aggression against the
Government of the Republic of the Philippines x x x." Under our
constitutional system, it is only the President who has that power. Pimentel
v. Executive Secretary155 instructs:
In our system of government, the President, being the head of state,
is regarded as the sole organ and authority in external relations
and is the country's sole representative with foreign nations. As
the chief architect of foreign policy, the President acts as the
country's mouthpiece with respect to international affairs. Hence, the
President is vested with the authority to deal with foreign states
and governments, extend or withhold recognition, maintain
diplomatic relations, enter into treaties, and otherwise transact
the business of foreign relations. In the realm of treaty-making,
the President has the sole authority to negotiate with other
states. (Emphasis and underscoring supplied)

(3) Ancestral domain and natural resources;

(4) Personal, family, and property relations;
(5) Regional urban and rural planning development;
(6) Economic, social, and tourism development;
(7) Educational policies;
(8) Preservation and development of the cultural heritage; and
(9) Such other matters as may be authorized by law for the
promotion of the general welfare of the people of the region.
(Underscoring supplied)
Again on the premise that the BJE may be regarded as an autonomous
region, the MOA-AD would require an amendment that would expand the

Article II, Section 22 of the Constitution must also be amended if the

scheme envisioned in the MOA-AD is to be effected. That constitutional
provision states: "The State recognizes and promotes the rights
ofindigenous cultural communities within the framework of national unity and
development." (Underscoring supplied) An associative arrangement does
not uphold national unity. While there may be a semblance of unity because
of the associative ties between the BJE and the national government, the act
of placing a portion of Philippine territory in a status which, in international
practice, has generally been a preparation for independence, is certainly not
conducive to national unity.
Besides being irreconcilable with the Constitution, the MOA-AD is
also inconsistent with prevailing statutory law, among which are R.A.
No. 9054156 or the Organic Act of the ARMM, and the IPRA.157
Article X, Section 3 of the Organic Act of the ARMM is a bar to the
adoption of the definition of "Bangsamoro people" used in the MOA-AD.
Paragraph 1 on Concepts and Principles states:

1. It is the birthright of all Moros and all Indigenous peoples of

Mindanao to identify themselves and be accepted as
"Bangsamoros". The Bangsamoro people refers to those who
are natives or original inhabitants of Mindanao and its adjacent
islands including Palawan and the Sulu archipelago at the time of
conquest or colonization of its descendants whether mixed or of full
blood. Spouses and their descendants are classified as
Bangsamoro. The freedom of choice of the Indigenous people shall
be respected. (Emphasis and underscoring supplied)
This use of the term Bangsamoro sharply contrasts with that found in
the Article X, Section 3 of the Organic Act, which, rather than lumping
together the identities of the Bangsamoro and other indigenous peoples
living in Mindanao, clearly distinguishes between Bangsamoro people
and Tribal peoples, as follows:
"As used in this Organic Act, the phrase "indigenous cultural
community" refers to Filipino citizens residing in the autonomous
region who are:
(a) Tribal peoples. These are citizens whose social, cultural and
economic conditions distinguish them from other sectors of the
national community; and
(b) Bangsa Moro people. These are citizens who are believers in
Islam and who have retained some or all of their own social,
economic, cultural, and political institutions."
Respecting the IPRA, it lays down the prevailing procedure for the
delineation and recognition of ancestral domains. The MOA-AD's manner of
delineating the ancestral domain of the Bangsamoro people is a clear
departure from that procedure. By paragraph 1 of Territory, the Parties
simply agree that, subject to the delimitations in the agreed Schedules, "[t]he
Bangsamoro homeland and historic territory refer to the land mass as well
as the maritime, terrestrial, fluvial and alluvial domains, and the aerial
domain, the atmospheric space above it, embracing the Mindanao-SuluPalawan geographic region."
Chapter VIII of the IPRA, on the other hand, lays down a detailed procedure,
as illustrated in the following provisions thereof:

SECTION 52. Delineation Process. - The identification and

delineation of ancestral domains shall be done in accordance with
the following procedures:
xxxx
b) Petition for Delineation. - The process of delineating a specific
perimeter may be initiated by the NCIP with the consent of the
ICC/IP concerned, or through a Petition for Delineation filed with the
NCIP, by a majority of the members of the ICCs/IPs;
c) Delineation Proper. - The official delineation of ancestral domain
boundaries including census of all community members therein,
shall be immediately undertaken by the Ancestral Domains Office
upon filing of the application by the ICCs/IPs concerned. Delineation
will be done in coordination with the community concerned and shall
at all times include genuine involvement and participation by the
members of the communities concerned;
d) Proof Required. - Proof of Ancestral Domain Claims shall include
the testimony of elders or community under oath, and other
documents directly or indirectly attesting to the possession or
occupation of the area since time immemorial by such ICCs/IPs in
the concept of owners which shall be any one (1) of the following
authentic documents:
1) Written accounts of the ICCs/IPs customs and traditions;
2) Written accounts of the ICCs/IPs political structure and
institution;
3) Pictures showing long term occupation such as those of
old improvements, burial grounds, sacred places and old
villages;
4) Historical accounts, including pacts and agreements
concerning boundaries entered into by the ICCs/IPs
concerned with other ICCs/IPs;
5) Survey plans and sketch maps;
6) Anthropological data;

7) Genealogical surveys;
8) Pictures and descriptive histories of traditional communal
forests and hunting grounds;
9) Pictures and descriptive histories of traditional landmarks
such as mountains, rivers, creeks, ridges, hills, terraces and
the like; and
10) Write-ups of names and places derived from the native
dialect of the community.
e) Preparation of Maps. - On the basis of such investigation and the
findings of fact based thereon, the Ancestral Domains Office of the
NCIP shall prepare a perimeter map, complete with technical
descriptions, and a description of the natural features and landmarks
embraced therein;
f) Report of Investigation and Other Documents. - A complete copy
of the preliminary census and a report of investigation, shall be
prepared by the Ancestral Domains Office of the NCIP;
g) Notice and Publication. - A copy of each document, including a
translation in the native language of the ICCs/IPs concerned shall be
posted in a prominent place therein for at least fifteen (15) days. A
copy of the document shall also be posted at the local, provincial
and regional offices of the NCIP, and shall be published in a
newspaper of general circulation once a week for two (2)
consecutive weeks to allow other claimants to file opposition thereto
within fifteen (15) days from date of such publication: Provided, That
in areas where no such newspaper exists, broadcasting in a radio
station will be a valid substitute: Provided, further, That mere posting
shall be deemed sufficient if both newspaper and radio station are
not available;
h) Endorsement to NCIP. - Within fifteen (15) days from publication,
and of the inspection process, the Ancestral Domains Office shall
prepare a report to the NCIP endorsing a favorable action upon a
claim that is deemed to have sufficient proof. However, if the proof is
deemed insufficient, the Ancestral Domains Office shall require the
submission of additional evidence: Provided, That the Ancestral
Domains Office shall reject any claim that is deemed patently false
or fraudulent after inspection and verification: Provided, further, That

in case of rejection, the Ancestral Domains Office shall give the

applicant due notice, copy furnished all concerned, containing the
grounds for denial. The denial shall be appealable to the NCIP:
Provided, furthermore, That in cases where there are conflicting
claims among ICCs/IPs on the boundaries of ancestral domain
claims, the Ancestral Domains Office shall cause the contending
parties to meet and assist them in coming up with a preliminary
resolution of the conflict, without prejudice to its full adjudication
according to the section below.
xxxx
To remove all doubts about the irreconcilability of the MOA-AD with the
present legal system, a discussion of not only the Constitution and domestic
statutes, but also of international law is in order, for
Article II, Section 2 of the Constitution states that the Philippines
"adopts the generally accepted principles of international law as part of
the law of the land."
Applying this provision of the Constitution, the Court, in Mejoff v. Director of
Prisons,158 held that the Universal Declaration of Human Rights is part of the
law of the land on account of which it ordered the release on bail of a
detained alien of Russian descent whose deportation order had not been
executed even after two years. Similarly, the Court in Agustin v.
Edu159 applied the aforesaid constitutional provision to the 1968 Vienna
Convention on Road Signs and Signals.
International law has long recognized the right to self-determination of
"peoples," understood not merely as the entire population of a State but also
a portion thereof. In considering the question of whether the people of
Quebec had a right to unilaterally secede from Canada, the Canadian
Supreme Court in REFERENCE RE SECESSION OF QUEBEC160 had
occasion to acknowledge that "the right of a people to self-determination is
now so widely recognized in international conventions that the principle has
acquired a status beyond convention' and is considered a general principle
of international law."
Among the conventions referred to are the International Covenant on Civil
and Political Rights161 and the International Covenant on Economic, Social
and Cultural Rights162 which state, in Article 1 of both covenants, that all
peoples, by virtue of the right of self-determination, "freely determine their

political status and freely pursue their economic, social, and cultural
development."
The people's right to self-determination should not, however, be understood
as extending to a unilateral right of secession. A distinction should be made
between the right of internal and external self-determination. REFERENCE
RE SECESSION OF QUEBEC is again instructive:
"(ii) Scope of the Right to Self-determination
126. The recognized sources of international law establish that
the right to self-determination of a people is normally fulfilled
through internal self-determination - a people's pursuit of its
political, economic, social and cultural development within the
framework of an existing state. A right toexternal selfdetermination (which in this case potentially takes the form of
the assertion of a right to unilateral secession) arises in only
the most extreme of cases and, even then, under carefully
defined circumstances. x x x
External self-determination can be defined as in the following
statement from the Declaration on Friendly Relations, supra, as
The establishment of a sovereign and independent State, the
free association or integration with an independent State or the
emergence into any other political status freely determined by
apeople constitute modes of implementing the right of selfdetermination by that people. (Emphasis added)
127. The international law principle of self-determination has
evolved within a framework of respect for the territorial
integrity of existing states. The various international documents
that support the existence of a people's right to self-determination
also contain parallel statements supportive of the conclusion that the
exercise of such a right must be sufficiently limited to prevent threats
to an existing state's territorial integrity or the stability of relations
between sovereign states.
x x x x (Emphasis, italics and underscoring supplied)
The Canadian Court went on to discuss the exceptional cases in which the
right to external self-determination can arise, namely, where a people is

under colonial rule, is subject to foreign domination or exploitation outside a

colonial context, and - less definitely but asserted by a number of
commentators - is blocked from the meaningful exercise of its right to
internal self-determination. The Court ultimately held that the population of
Quebec had no right to secession, as the same is not under colonial rule or
foreign domination, nor is it being deprived of the freedom to make political
choices and pursue economic, social and cultural development, citing that
Quebec is equitably represented in legislative, executive and judicial
institutions within Canada, even occupying prominent positions therein.
The exceptional nature of the right of secession is further exemplified in the
REPORT OF THE INTERNATIONAL COMMITTEE OF JURISTS ON THE
LEGAL ASPECTS OF THE AALAND ISLANDS QUESTION.163 There,
Sweden presented to the Council of the League of Nations the question of
whether the inhabitants of the Aaland Islands should be authorized to
determine by plebiscite if the archipelago should remain under Finnish
sovereignty or be incorporated in the kingdom of Sweden. The Council,
before resolving the question, appointed an International Committee
composed of three jurists to submit an opinion on the preliminary issue of
whether the dispute should, based on international law, be entirely left to the
domestic jurisdiction of Finland. The Committee stated the rule as follows:
x x x [I]n the absence of express provisions in international
treaties, the right of disposing of national territory is essentially
an attribute of the sovereignty of every State. Positive
International Law does not recognize the right of national
groups, as such, to separate themselves from the State of
which they form part by the simple expression of a wish, any
more than it recognizes the right of other States to claim such a
separation. Generally speaking, the grant or refusal of the right
to a portion of its population of determining its own political
fate by plebiscite or by some other method, is, exclusively, an
attribute of the sovereignty of every State which is definitively
constituted. A dispute between two States concerning such a
question, under normal conditions therefore, bears upon a question
which International Law leaves entirely to the domestic jurisdiction of
one of the States concerned. Any other solution would amount to an
infringement of sovereign rights of a State and would involve the risk
of creating difficulties and a lack of stability which would not only be
contrary to the very idea embodied in term "State," but would also
endanger the interests of the international community. If this right is
not possessed by a large or small section of a nation, neither can it
be held by the State to which the national group wishes to be

attached, nor by any other State. (Emphasis and underscoring

supplied)
The Committee held that the dispute concerning the Aaland Islands did not
refer to a question which is left by international law to the domestic
jurisdiction of Finland, thereby applying the exception rather than the rule
elucidated above. Its ground for departing from the general rule, however,
was a very narrow one, namely, the Aaland Islands agitation originated at a
time when Finland was undergoing drastic political transformation. The
internal situation of Finland was, according to the Committee, so abnormal
that, for a considerable time, the conditions required for the formation of a
sovereign State did not exist. In the midst of revolution, anarchy, and civil
war, the legitimacy of the Finnish national government was disputed by a
large section of the people, and it had, in fact, been chased from the capital
and forcibly prevented from carrying out its duties. The armed camps and
the police were divided into two opposing forces. In light of these
circumstances, Finland was not, during the relevant time period, a
"definitively constituted" sovereign state. The Committee, therefore, found
that Finland did not possess the right to withhold from a portion of its
population the option to separate itself - a right which sovereign nations
generally have with respect to their own populations.
Turning now to the more specific category of indigenous peoples, this term
has been used, in scholarship as well as international, regional, and state
practices, to refer to groups with distinct cultures, histories, and connections
to land (spiritual and otherwise) that have been forcibly incorporated into a
larger governing society. These groups are regarded as "indigenous" since
they are the living descendants of pre-invasion inhabitants of lands now
dominated by others. Otherwise stated, indigenous peoples, nations, or
communities are culturally distinctive groups that find themselves engulfed
by settler societies born of the forces of empire and conquest. 164 Examples
of groups who have been regarded as indigenous peoples are the Maori of
New Zealand and the aboriginal peoples of Canada.
As with the broader category of "peoples," indigenous peoples situated
within states do not have a general right to independence or secession from
those states under international law,165 but they do have rights amounting to
what was discussed above as the right to internal self-determination.
In a historic development last September 13, 2007, the UN General
Assembly adopted the United Nations Declaration on the Rights of
Indigenous Peoples (UN DRIP) through General Assembly Resolution
61/295. The vote was 143 to 4, the Philippines being included among those

in favor, and the four voting against being Australia, Canada, New Zealand,
and the U.S. The Declaration clearly recognized the right of indigenous
peoples to self-determination, encompassing the right to autonomy or
self-government, to wit:
Article 3
Indigenous peoples have the right to self-determination. By virtue
of that right they freely determine their political status and freely
pursue their economic, social and cultural development.
Article 4
Indigenous peoples, in exercising their right to self-determination,
have the right to autonomy or self-government in matters
relating to their internal and local affairs, as well as ways and
means for financing their autonomous functions.
Article 5
Indigenous peoples have the right to maintain and strengthen their
distinct political, legal, economic, social and cultural institutions,
while retaining their right to participate fully, if they so choose, in the
political, economic, social and cultural life of the State.
Self-government, as used in international legal discourse pertaining to
indigenous peoples, has been understood as equivalent to "internal selfdetermination."166 The extent of self-determination provided for in the UN
DRIP is more particularly defined in its subsequent articles, some of which
are quoted hereunder:
Article 8
1. Indigenous peoples and individuals have the right not to be
subjected to forced assimilation or destruction of their culture.
2. States shall provide effective mechanisms for prevention of,
and redress for:
(a) Any action which has the aim or effect of depriving them of
their integrity as distinct peoples, or of their cultural values or
ethnic identities;

(b) Any action which has the aim or effect of dispossessing

them of their lands, territories or resources;
(c) Any form of forced population transfer which has the aim or
effect of violating or undermining any of their rights;
(d) Any form of forced assimilation or integration;
(e) Any form of propaganda designed to promote or incite racial
or ethnic discrimination directed against them.
Article 21
1. Indigenous peoples have the right, without discrimination, to the
improvement of their economic and social conditions, including, inter
alia, in the areas of education, employment, vocational training and
retraining, housing, sanitation, health and social security.
2. States shall take effective measures and, where appropriate,
special measures to ensure continuing improvement of their
economic and social conditions. Particular attention shall be paid to
the rights and special needs of indigenous elders, women, youth,
children and persons with disabilities.
Article 26
1. Indigenous peoples have the right to the lands, territories
and resources which they have traditionally owned, occupied
or otherwise used or acquired.

1. Military activities shall not take place in the lands or territories of

indigenous peoples, unless justified by a relevant public interest or
otherwise freely agreed with or requested by the indigenous peoples
concerned.
2. States shall undertake effective consultations with the indigenous
peoples concerned, through appropriate procedures and in
particular through their representative institutions, prior to using their
lands or territories for military activities.
Article 32
1. Indigenous peoples have the right to determine and develop
priorities and strategies for the development or use of their lands or
territories and other resources.
2. States shall consult and cooperate in good faith with the
indigenous peoples concerned through their own representative
institutions in order to obtain their free and informed consent prior to
the approval of any project affecting their lands or territories and
other resources, particularly in connection with the development,
utilization or exploitation of mineral, water or other resources.
3. States shall provide effective mechanisms for just and fair redress
for any such activities, and appropriate measures shall be taken to
mitigate adverse environmental, economic, social, cultural or
spiritual impact.
Article 37

2. Indigenous peoples have the right to own, use, develop and

control the lands, territories and resources that they possess by
reason of traditional ownership or other traditional occupation or
use, as well as those which they have otherwise acquired.

1. Indigenous peoples have the right to the recognition, observance

and enforcement of treaties, agreements and other constructive
arrangements concluded with States or their successors and to have
States honour and respect such treaties, agreements and other
constructive arrangements.

3. States shall give legal recognition and protection to these lands,

territories and resources. Such recognition shall be conducted with
due respect to the customs, traditions and land tenure systems of
the indigenous peoples concerned.

2. Nothing in this Declaration may be interpreted as diminishing or

eliminating the rights of indigenous peoples contained in treaties,
agreements and other constructive arrangements.

Article 30

Article 38

States in consultation and cooperation with indigenous peoples,

shall take the appropriate measures, including legislative measures,
to achieve the ends of this Declaration.
Assuming that the UN DRIP, like the Universal Declaration on Human
Rights, must now be regarded as embodying customary international law - a
question which the Court need not definitively resolve here - the obligations
enumerated therein do not strictly require the Republic to grant the
Bangsamoro people, through the instrumentality of the BJE, the particular
rights and powers provided for in the MOA-AD. Even the more specific
provisions of the UN DRIP are general in scope, allowing for flexibility in its
application by the different States.
There is, for instance, no requirement in the UN DRIP that States now
guarantee indigenous peoples their own police and internal security force.
Indeed, Article 8 presupposes that it is the State which will provide protection
for indigenous peoples against acts like the forced dispossession of their
lands - a function that is normally performed by police officers. If the
protection of a right so essential to indigenous people's identity is
acknowledged to be the responsibility of the State, then surely the protection
of rights less significant to them as such peoples would also be the duty of
States. Nor is there in the UN DRIP an acknowledgement of the right of
indigenous peoples to the aerial domain and atmospheric space. What it
upholds, in Article 26 thereof, is the right of indigenous peoples to the lands,
territories and resources which they have traditionally owned, occupied or
otherwise used or acquired.
Moreover, the UN DRIP, while upholding the right of indigenous peoples to
autonomy, does not obligate States to grant indigenous peoples the nearindependent status of an associated state. All the rights recognized in that
document are qualified in Article 46 as follows:
1. Nothing in this Declaration may be interpreted as implying for
any State, people, group or person any right to engage in any
activity or to perform any act contrary to the Charter of the United
Nations orconstrued as authorizing or encouraging any action
which would dismember or impair, totally or in part, the
territorial integrity or political unity of sovereign and
independent States.
Even if the UN DRIP were considered as part of the law of the land pursuant
to Article II, Section 2 of the Constitution, it would not suffice to uphold the

validity of the MOA-AD so as to render its compliance with other laws

unnecessary.
It is, therefore, clear that the MOA-AD contains numerous provisions
that cannot be reconciled with the Constitution and the laws as
presently worded. Respondents proffer, however, that the signing of the
MOA-AD alone would not have entailed any violation of law or grave abuse
of discretion on their part, precisely because it stipulates that the provisions
thereof inconsistent with the laws shall not take effect until these laws are
amended. They cite paragraph 7 of the MOA-AD strand on GOVERNANCE
quoted earlier, but which is reproduced below for convenience:
7. The Parties agree that the mechanisms and modalities for the
actual implementation of this MOA-AD shall be spelt out in the
Comprehensive Compact to mutually take such steps to enable it to
occur effectively.
Any provisions of the MOA-AD requiring amendments to the existing
legal framework shall come into force upon signing of a
Comprehensive Compact and upon effecting the necessary changes
to the legal framework with due regard to non derogation of prior
agreements and within the stipulated timeframe to be contained in
the Comprehensive Compact.
Indeed, the foregoing stipulation keeps many controversial provisions of the
MOA-AD from coming into force until the necessary changes to the legal
framework are effected. While the word "Constitution" is not mentioned
in the provision now under consideration or anywhere else in the MOAAD, the term "legal framework" is certainly broad enough to include
the Constitution.
Notwithstanding the suspensive clause, however, respondents, by their mere
act of incorporating in the MOA-AD the provisions thereof regarding the
associative relationship between the BJE and the Central Government, have
already violated the Memorandum of Instructions From The President dated
March 1, 2001, which states that the "negotiations shall be conducted in
accordance with x x x the principles of the sovereignty and territorial
integrityof the Republic of the Philippines." (Emphasis supplied)
Establishing an associative relationship between the BJE and the Central
Government is, for the reasons already discussed, a preparation for
independence, or worse, an implicit acknowledgment of an independent
status already prevailing.

Even apart from the above-mentioned Memorandum, however, the MOA-AD

is defective because the suspensive clause is invalid, as discussed below.

legal framework, and which thus would require new legislation and
constitutional amendments.

The authority of the GRP Peace Negotiating Panel to negotiate with the
MILF is founded on E.O. No. 3, Section 5(c), which states that there shall be
established Government Peace Negotiating Panels for negotiations with
different rebel groups to be "appointed by the President as her official
emissaries to conduct negotiations, dialogues, and face-to-face discussions
with rebel groups." These negotiating panels are to report to the President,
through the PAPP on the conduct and progress of the negotiations.

The inquiry on the legality of the "suspensive clause," however, cannot stop
here, because it must be askedwhether the President herself may
exercise the power delegated to the GRP Peace Panel under E.O. No. 3,
Sec. 4(a).

It bears noting that the GRP Peace Panel, in exploring lasting solutions to
the Moro Problem through its negotiations with the MILF, was not restricted
by E.O. No. 3 only to those options available under the laws as they
presently stand. One of the components of a comprehensive peace process,
which E.O. No. 3 collectively refers to as the "Paths to Peace," is the pursuit
of social, economic, and political reforms which may require new legislation
or even constitutional amendments. Sec. 4(a) of E.O. No. 3, which reiterates
Section 3(a), of E.O. No. 125,167 states:
SECTION 4. The Six Paths to Peace. - The components of the
comprehensive peace process comprise the processes known as
the "Paths to Peace". These component processes are interrelated
and not mutually exclusive, and must therefore be pursued
simultaneously in a coordinated and integrated fashion. They shall
include, but may not be limited to, the following:
a. PURSUIT OF SOCIAL, ECONOMIC AND POLITICAL
REFORMS. This component involves the vigorous implementation
of various policies, reforms, programs and projects aimed at
addressing the root causes of internal armed conflicts and
social unrest. This may require administrative action, new
legislation or even constitutional amendments.
x x x x (Emphasis supplied)
The MOA-AD, therefore, may reasonably be perceived as an attempt of
respondents to address, pursuant to this provision of E.O. No. 3, the root
causes of the armed conflict in Mindanao. The E.O. authorized them to
"think outside the box," so to speak. Hence, they negotiated and were set on
signing the MOA-AD that included various social, economic, and political
reforms which cannot, however, all be accommodated within the present

The President cannot delegate a power that she herself does not possess.
May the President, in the course of peace negotiations, agree to pursue
reforms that would require new legislation and constitutional amendments,
or should the reforms be restricted only to those solutions which the present
laws allow? The answer to this question requires a discussion of the extent
of the President's power to conduct peace negotiations.
That the authority of the President to conduct peace negotiations with rebel
groups is not explicitly mentioned in the Constitution does not mean that she
has no such authority. In Sanlakas v. Executive Secretary,168 in issue was
the authority of the President to declare a state of rebellion - an authority
which is not expressly provided for in the Constitution. The Court held thus:
"In her ponencia in Marcos v. Manglapus, Justice Cortes put her
thesis into jurisprudence. There, the Court, by a slim 8-7 margin,
upheld the President's power to forbid the return of her exiled
predecessor. The rationale for the majority's ruling rested on the
President's
. . . unstated residual powers which are implied from the
grant of executive power and which are necessary for
her to comply with her duties under the
Constitution. The powers of the President are not
limited to what are expressly enumerated in the article
on the Executive Department and in scattered
provisions of the Constitution. This is so, notwithstanding
the avowed intent of the members of the Constitutional
Commission of 1986 to limit the powers of the President as
a reaction to the abuses under the regime of Mr. Marcos, for
the result was a limitation of specific powers of the
President, particularly those relating to the commander-inchief clause, but not a diminution of the general grant of
executive power.

Thus, the President's authority to declare a state of rebellion

springs in the main from her powers as chief executive and, at
the same time, draws strength from her Commander-in-Chief
powers. x x x (Emphasis and underscoring supplied)
Similarly, the President's power to conduct peace negotiations is implicitly
included in her powers as Chief Executive and Commander-in-Chief. As
Chief Executive, the President has the general responsibility to promote
public peace, and as Commander-in-Chief, she has the more specific duty to
prevent and suppress rebellion and lawless violence.169
As the experience of nations which have similarly gone through internal
armed conflict will show, however, peace is rarely attained by simply
pursuing a military solution. Oftentimes, changes as far-reaching as a
fundamental reconfiguration of the nation's constitutional structure is
required. The observations of Dr. Kirsti Samuels are enlightening, to wit:
x x x [T]he fact remains that a successful political and governance
transition must form the core of any post-conflict peace-building
mission. As we have observed in Liberia and Haiti over the last ten
years, conflict cessation without modification of the political
environment, even where state-building is undertaken through
technical electoral assistance and institution- or capacity-building, is
unlikely to succeed. On average, more than 50 percent of states
emerging from conflict return to conflict. Moreover, a substantial
proportion of transitions have resulted in weak or limited
democracies.
The design of a constitution and its constitution-making process can
play an important role in the political and governance transition.
Constitution-making after conflict is an opportunity to create a
common vision of the future of a state and a road map on how to get
there. The constitution can be partly a peace agreement and partly a
framework setting up the rules by which the new democracy will
operate.170
In the same vein, Professor Christine Bell, in her article on the nature and
legal status of peace agreements, observed that the typical way that peace
agreements establish or confirm mechanisms for demilitarization and
demobilization is by linking them to new constitutional
structures addressing governance, elections, and legal and human rights
institutions.171

In the Philippine experience, the link between peace agreements and

constitution-making has been recognized by no less than the framers of the
Constitution. Behind the provisions of the Constitution on autonomous
regions172is the framers' intention to implement a particular peace
agreement, namely, the Tripoli Agreement of 1976 between the GRP and the
MNLF, signed by then Undersecretary of National Defense Carmelo Z.
Barbero and then MNLF Chairman Nur Misuari.
MR. ROMULO. There are other speakers; so, although I have some
more questions, I will reserve my right to ask them if they are not
covered by the other speakers. I have only two questions.
I heard one of the Commissioners say that local autonomy
already exists in the Muslim region; it is working very well; it has,
in fact, diminished a great deal of the problems. So, my question
is: since that already exists, why do we have to go into
something new?
MR. OPLE. May I answer that on behalf of Chairman Nolledo.
Commissioner Yusup Abubakar is right thatcertain definite steps
have been taken to implement the provisions of the Tripoli
Agreement with respect to an autonomous region in Mindanao.
This is a good first step, but there is no question that this is
merely a partial response to the Tripoli Agreement itself and to
the fuller standard of regional autonomy contemplated in that
agreement, and now by state policy.173(Emphasis supplied)
The constitutional provisions on autonomy and the statutes enacted
pursuant to them have, to the credit of their drafters, been partly successful.
Nonetheless, the Filipino people are still faced with the reality of an on-going
conflict between the Government and the MILF. If the President is to be
expected to find means for bringing this conflict to an end and to achieve
lasting peace in Mindanao, then she must be given the leeway to explore, in
the course of peace negotiations, solutions that may require changes to the
Constitution for their implementation. Being uniquely vested with the power
to conduct peace negotiations with rebel groups, the President is in a
singular position to know the precise nature of their grievances which, if
resolved, may bring an end to hostilities.
The President may not, of course, unilaterally implement the solutions that
she considers viable, but she may not be prevented from submitting them as
recommendations to Congress, which could then, if it is minded, act upon
them pursuant to the legal procedures for constitutional amendment and

revision. In particular, Congress would have the option, pursuant to Article

XVII, Sections 1 and 3 of the Constitution, to propose the recommended
amendments or revision to the people, call a constitutional convention, or
submit to the electorate the question of calling such a convention.
While the President does not possess constituent powers - as those powers
may be exercised only by Congress, a Constitutional Convention, or the
people through initiative and referendum - she may submit proposals for
constitutional change to Congress in a manner that does not involve the
arrogation of constituent powers.
In Sanidad v. COMELEC,174 in issue was the legality of then President
Marcos' act of directly submitting proposals for constitutional amendments to
a referendum, bypassing the interim National Assembly which was the body
vested by the 1973 Constitution with the power to propose such
amendments. President Marcos, it will be recalled, never convened the
interim National Assembly. The majority upheld the President's act, holding
that "the urges of absolute necessity" compelled the President as the agent
of the people to act as he did, there being no interim National Assembly to
propose constitutional amendments. Against this ruling, Justices Teehankee
and Muoz Palma vigorously dissented. The Court's concern at present,
however, is not with regard to the point on which it was then divided in that
controversial case, but on that which was not disputed by either side.
Justice Teehankee's dissent,175 in particular, bears noting. While he
disagreed that the President may directly submit proposed constitutional
amendments to a referendum, implicit in his opinion is a recognition that he
would have upheld the President's action along with the majority had the
President convened the interim National Assembly and coursed his
proposals through it. Thus Justice Teehankee opined:
"Since the Constitution provides for the organization of the essential
departments of government, defines and delimits the powers of each
and prescribes the manner of the exercise of such powers, and the
constituent power has not been granted to but has been withheld
from the President or Prime Minister, it follows that the President's
questioned decrees proposing and submitting constitutional
amendments directly to the people (without the intervention of the
interim National Assembly in whom the power is expressly
vested) are devoid of constitutional and legal basis."176 (Emphasis
supplied)

From the foregoing discussion, the principle may be inferred that the
President - in the course of conducting peace negotiations - may validly
consider implementing even those policies that require changes to the
Constitution, but she may not unilaterally implement them without the
intervention of Congress, or act in any way as if the assent of that body
were assumed as a certainty.
Since, under the present Constitution, the people also have the power to
directly propose amendments through initiative and referendum, the
President may also submit her recommendations to the people, not as a
formal proposal to be voted on in a plebiscite similar to what President
Marcos did in Sanidad, but for their independent consideration of whether
these recommendations merit being formally proposed through initiative.
These recommendations, however, may amount to nothing more than the
President's suggestions to the people, for any further involvement in the
process of initiative by the Chief Executive may vitiate its character as a
genuine "people's initiative." The only initiative recognized by the
Constitution is that which truly proceeds from the people. As the Court stated
in Lambino v. COMELEC:177
"The Lambino Group claims that their initiative is the people's voice.'
However, the Lambino Group unabashedly states in ULAP
Resolution No. 2006-02, in the verification of their petition with the
COMELEC, that ULAP maintains its unqualified support to the
agenda of Her Excellency President Gloria Macapagal-Arroyo for
constitutional reforms.' The Lambino Group thus admits that their
people's' initiative is an unqualified support to the agenda' of the
incumbent President to change the Constitution. This forewarns the
Court to be wary of incantations of people's voice' or sovereign will'
in the present initiative."
It will be observed that the President has authority, as stated in her oath of
office,178 only to preserve and defend the Constitution. Such presidential
power does not, however, extend to allowing her to change the Constitution,
but simply to recommend proposed amendments or revision. As long as she
limits herself to recommending these changes and submits to the proper
procedure for constitutional amendments and revision, her mere
recommendation need not be construed as an unconstitutional act.
The foregoing discussion focused on the President's authority to
propose constitutional amendments, since her authority to propose
new legislation is not in controversy. It has been an accepted practice for

Presidents in this jurisdiction to propose new legislation. One of the more

prominent instances the practice is usually done is in the yearly State of the
Nation Address of the President to Congress. Moreover, the annual general
appropriations bill has always been based on the budget prepared by the
President, which - for all intents and purposes - is a proposal for new
legislation coming from the President.179

Plainly, stipulation-paragraph 7 on GOVERNANCE is inconsistent with the

limits of the President's authority to propose constitutional
amendments, it being a virtual guarantee that the Constitution and the laws
of the Republic of the Philippines will certainly be adjusted to conform to all
the "consensus points" found in the MOA-AD. Hence, it must be struck down
as unconstitutional.

The "suspensive clause" in the MOA-AD viewed in light of the abovediscussed standards

A comparison between the "suspensive clause" of the MOA-AD with a

similar provision appearing in the 1996 final peace agreement between the
MNLF and the GRP is most instructive.

Given the limited nature of the President's authority to propose constitutional

amendments, she cannot guarantee to any third party that the required
amendments will eventually be put in place, nor even be submitted to a
plebiscite. The most she could do is submit these proposals as
recommendations either to Congress or the people, in whom constituent
powers are vested.
Paragraph 7 on Governance of the MOA-AD states, however, that all
provisions thereof which cannot be reconciled with the present Constitution
and laws "shall come into force upon signing of a Comprehensive Compact
and upon effecting the necessary changes to the legal framework." This
stipulation does not bear the marks of a suspensive condition - defined in
civil law as a future and uncertain event - but of a term. It is not a question
of whether the necessary changes to the legal framework will be effected,
but when. That there is no uncertainty being contemplated is plain from what
follows, for the paragraph goes on to state that the contemplated changes
shall be "with due regard to non derogation of prior agreements and within
the stipulated timeframe to be contained in the Comprehensive Compact."
Pursuant to this stipulation, therefore, it is mandatory for the GRP to effect
the changes to the legal framework contemplated in the MOA-AD - which
changes would include constitutional amendments, as discussed earlier. It
bears noting that,
By the time these changes are put in place, the MOA-AD itself would be
counted among the "prior agreements" from which there could be no
derogation.
What remains for discussion in the Comprehensive Compact would merely
be the implementing details for these "consensus points" and, notably,
the deadline for effecting the contemplated changes to the legal framework.

As a backdrop, the parties to the 1996 Agreement stipulated that it would be

implemented in two phases. Phase Icovered a three-year transitional period
involving the putting up of new administrative structures through Executive
Order, such as the Special Zone of Peace and Development (SZOPAD) and
the Southern Philippines Council for Peace and Development (SPCPD),
while Phase II covered the establishment of the new regional autonomous
government through amendment or repeal of R.A. No. 6734, which was then
the Organic Act of the ARMM.
The stipulations on Phase II consisted of specific agreements on the
structure of the expanded autonomous region envisioned by the parties. To
that extent, they are similar to the provisions of the MOA-AD. There is,
however, a crucial difference between the two agreements. While the MOAAD virtually guarantees that the "necessary changes to the legal
framework" will be put in place, the GRP-MNLF final peace agreement
states thus: "Accordingly, these provisions [on Phase II] shall
be recommended by the GRP to Congress for incorporation in the
amendatory or repealing law."
Concerns have been raised that the MOA-AD would have given rise to a
binding international law obligation on the part of the Philippines to change
its Constitution in conformity thereto, on the ground that it may be
considered either as a binding agreement under international law, or a
unilateral declaration of the Philippine government to the international
community that it would grant to the Bangsamoro people all the concessions
therein stated. Neither ground finds sufficient support in international law,
however.
The MOA-AD, as earlier mentioned in the overview thereof, would have
included foreign dignitaries as signatories. In addition, representatives of
other nations were invited to witness its signing in Kuala Lumpur. These
circumstances readily lead one to surmise that the MOA-AD would have had

the status of a binding international agreement had it been signed. An

examination of the prevailing principles in international law, however, leads
to the contrary conclusion.
The Decision on Challenge to Jurisdiction: Lom Accord Amnesty180 (the
Lom Accord case) of the Special Court of Sierra Leone is enlightening. The
Lom Accord was a peace agreement signed on July 7, 1999 between the
Government of Sierra Leone and the Revolutionary United Front (RUF), a
rebel group with which the Sierra Leone Government had been in armed
conflict for around eight years at the time of signing. There were noncontracting signatories to the agreement, among which were the
Government of the Togolese Republic, the Economic Community of West
African States, and the UN.
On January 16, 2002, after a successful negotiation between the UN
Secretary-General and the Sierra Leone Government, another agreement
was entered into by the UN and that Government whereby the Special Court
of Sierra Leone was established. The sole purpose of the Special Court, an
international court, was to try persons who bore the greatest responsibility
for serious violations of international humanitarian law and Sierra Leonean
law committed in the territory of Sierra Leone since November 30, 1996.
Among the stipulations of the Lom Accord was a provision for the full
pardon of the members of the RUF with respect to anything done by them in
pursuit of their objectives as members of that organization since the conflict
began.
In the Lom Accord case, the Defence argued that the Accord created
an internationally binding obligation not to prosecute the beneficiaries of
the amnesty provided therein, citing, among other things, the participation of
foreign dignitaries and international organizations in the finalization of that
agreement. The Special Court, however, rejected this argument, ruling that
the Lome Accord is not a treaty and that it can only create binding
obligations and rights between the parties in municipal law, not in
international law. Hence, the Special Court held, it is ineffective in depriving
an international court like it of jurisdiction.
"37. In regard to the nature of a negotiated settlement of
an internal armed conflict it is easy to assume and to argue with
some degree of plausibility, as Defence counsel for the
defendants seem to have done, that the mere fact that in
addition to the parties to the conflict, the document formalizing
the settlement is signed by foreign heads of state or their

representatives and representatives of international

organizations, means the agreement of the parties is
internationalized so as to create obligations in international
law.
xxxx
40. Almost every conflict resolution will involve the parties to the
conflict and the mediator or facilitator of the settlement, or persons
or bodies under whose auspices the settlement took place but who
are not at all parties to the conflict, are not contracting parties and
who do not claim any obligation from the contracting parties or incur
any obligation from the settlement.
41. In this case, the parties to the conflict are the lawful
authority of the State and the RUF which has no status of
statehood and is to all intents and purposes a faction within the
state. The non-contracting signatories of the Lom Agreement
were moral guarantors of the principle that, in the terms of
Article XXXIV of the Agreement, "this peace agreement is
implemented with integrity and in good faith by both parties".
The moral guarantors assumed no legal obligation. It is recalled
that the UN by its representative appended, presumably for
avoidance of doubt, an understanding of the extent of the agreement
to be implemented as not including certain international crimes.
42. An international agreement in the nature of a treaty must create
rights and obligations regulated by international law so that a breach
of its terms will be a breach determined under international law
which will also provide principle means of enforcement. The Lom
Agreement created neither rights nor obligations capable of
being regulated by international law. An agreement such as the
Lom Agreement which brings to an end an internal armed
conflict no doubt creates a factual situation of restoration of
peace that the international community acting through the
Security Council may take note of. That, however, will not
convert it to an international agreement which creates an
obligation enforceable in international, as distinguished from
municipal, law. A breach of the terms of such a peace agreement
resulting in resumption of internal armed conflict or creating a threat
to peace in the determination of the Security Council may indicate a
reversal of the factual situation of peace to be visited with possible
legal consequences arising from the new situation of conflict

created. Such consequences such as action by the Security Council

pursuant to Chapter VII arise from the situation and not from the
agreement, nor from the obligation imposed by it. Such action
cannot be regarded as a remedy for the breach. A peace
agreement which settles an internal armed conflict cannot be
ascribed the same status as one which settles an international
armed conflict which, essentially, must be between two or more
warring States. The Lom Agreement cannot be characterised
as an international instrument. x x x" (Emphasis, italics and
underscoring supplied)
Similarly, that the MOA-AD would have been signed by representatives of
States and international organizations not parties to the Agreement would
not have sufficed to vest in it a binding character under international law.
In another vein, concern has been raised that the MOA-AD would amount to
a unilateral declaration of the Philippine State, binding under international
law, that it would comply with all the stipulations stated therein, with the
result that it would have to amend its Constitution accordingly regardless of
the true will of the people. Cited as authority for this view is Australia v.
France,181 also known as the Nuclear Tests Case, decided by the
International Court of Justice (ICJ).
In the Nuclear Tests Case, Australia challenged before the ICJ the legality of
France's nuclear tests in the South Pacific. France refused to appear in the
case, but public statements from its President, and similar statements from
other French officials including its Minister of Defence, that its 1974 series of
atmospheric tests would be its last, persuaded the ICJ to dismiss the
case.182 Those statements, the ICJ held, amounted to a legal undertaking
addressed to the international community, which required no acceptance
from other States for it to become effective.
Essential to the ICJ ruling is its finding that the French government intended
to be bound to the international community in issuing its public statements,
viz:
43. It is well recognized that declarations made by way
of unilateral acts, concerning legal or factual situations, may have
the effect of creating legal obligations. Declarations of this kind may
be, and often are, very specific. When it is the intention of the
State making the declaration that it should become bound
according to its terms, that intention confers on the declaration
the character of a legal undertaking, the State being

thenceforth legally required to follow a course of conduct

consistent with the declaration. An undertaking of this kind, if
given publicly, and with an intent to be bound, even though not made
within the context of international negotiations, is binding. In these
circumstances, nothing in the nature of a quid pro quo nor any
subsequent acceptance of the declaration, nor even any reply or
reaction from other States, is required for the declaration to take
effect, since such a requirement would be inconsistent with the
strictly unilateral nature of the juridical act by which the
pronouncement by the State was made.
44. Of course, not all unilateral acts imply obligation; but a State
may choose to take up a certain position in relation to a
particular matter with the intention of being bound-the intention
is to be ascertained by interpretation of the act. When States
make statements by which their freedom of action is to be limited, a
restrictive interpretation is called for.
xxxx
51. In announcing that the 1974 series of atmospheric tests
would be the last, the French Government conveyed to the
world at large, including the Applicant, its intention effectively
to terminate these tests. It was bound to assume that other
States might take note of these statements and rely on their
being effective. The validity of these statements and their legal
consequences must be considered within the general
framework of the security of international intercourse, and the
confidence and trust which are so essential in the relations among
States. It is from the actual substance of these statements, and
from the circumstances attending their making, that the legal
implications of the unilateral act must be deduced. The objects
of these statements are clear and they were addressed to the
international community as a whole, and the Court holds that
they constitute an undertaking possessing legal effect. The
Court considers *270 that the President of the Republic, in deciding
upon the effective cessation of atmospheric tests, gave an
undertaking to the international community to which his words were
addressed. x x x (Emphasis and underscoring supplied)
As gathered from the above-quoted ruling of the ICJ, public statements of a
state representative may be construed as a unilateral declaration only when
the following conditions are present: the statements were clearly addressed

to the international community, the state intended to be bound to that

community by its statements, and that not to give legal effect to those
statements would be detrimental to the security of international intercourse.
Plainly, unilateral declarations arise only in peculiar circumstances.
The limited applicability of the Nuclear Tests Case ruling was recognized in a
later case decided by the ICJ entitled Burkina Faso v. Mali,183 also known as
the Case Concerning the Frontier Dispute. The public declaration subject of
that case was a statement made by the President of Mali, in an interview by
a foreign press agency, that Mali would abide by the decision to be issued by
a commission of the Organization of African Unity on a frontier dispute then
pending between Mali and Burkina Faso.

Assessing the MOA-AD in light of the above criteria, it would not have
amounted to a unilateral declaration on the part of the Philippine State to the
international community. The Philippine panel did not draft the same with the
clear intention of being bound thereby to the international community as a
whole or to any State, but only to the MILF. While there were States and
international organizations involved, one way or another, in the negotiation
and projected signing of the MOA-AD, they participated merely as witnesses
or, in the case of Malaysia, as facilitator. As held in the Lom Accord case,
the mere fact that in addition to the parties to the conflict, the peace
settlement is signed by representatives of states and international
organizations does not mean that the agreement is internationalized so as to
create obligations in international law.

Unlike in the Nuclear Tests Case, the ICJ held that the statement of Mali's
President was not a unilateral act with legal implications. It clarified that its
ruling in the Nuclear Tests case rested on the peculiar circumstances
surrounding the French declaration subject thereof, to wit:

Since the commitments in the MOA-AD were not addressed to States, not to
give legal effect to such commitments would not be detrimental to the
security of international intercourse - to the trust and confidence essential in
the relations among States.

40. In order to assess the intentions of the author of a unilateral act,

account must be taken of all the factual circumstances in which the
act occurred. For example, in the Nuclear Tests cases, the Court
took the view that since the applicant States were not the only
ones concerned at the possible continuance of atmospheric
testing by the French Government, that Government's unilateral
declarations had conveyed to the world at large, including the
Applicant, its intention effectively to terminate these
tests (I.C.J. Reports 1974, p. 269, para. 51; p. 474, para. 53). In
the particular circumstances of those cases, the French
Government could not express an intention to be bound
otherwise than by unilateral declarations. It is difficult to see
how it could have accepted the terms of a negotiated solution
with each of the applicants without thereby jeopardizing its
contention that its conduct was lawful. The circumstances of
the present case are radically different. Here, there was nothing
to hinder the Parties from manifesting an intention to accept
the binding character of the conclusions of the Organization of
African Unity Mediation Commission by the normal method: a
formal agreement on the basis of reciprocity. Since no
agreement of this kind was concluded between the Parties, the
Chamber finds that there are no grounds to interpret the declaration
made by Mali's head of State on 11 April 1975 as a unilateral act
with legal implications in regard to the present case. (Emphasis and
underscoring supplied)

In one important respect, the circumstances surrounding the MOA-AD are

closer to that of Burkina Faso wherein, as already discussed, the Mali
President's statement was not held to be a binding unilateral declaration by
the ICJ. As in that case, there was also nothing to hinder the Philippine
panel, had it really been its intention to be bound to other States, to manifest
that intention by formal agreement. Here, that formal agreement would have
come about by the inclusion in the MOA-AD of a clear commitment to be
legally bound to the international community, not just the MILF, and by an
equally clear indication that the signatures of the participating statesrepresentatives would constitute an acceptance of that commitment.
Entering into such a formal agreement would not have resulted in a loss of
face for the Philippine government before the international community, which
was one of the difficulties that prevented the French Government from
entering into a formal agreement with other countries. That the Philippine
panel did not enter into such a formal agreement suggests that it had no
intention to be bound to the international community. On that ground, the
MOA-AD may not be considered a unilateral declaration under international
law.
The MOA-AD not being a document that can bind the Philippines under
international law notwithstanding, respondents' almost consummated act
of guaranteeing amendments to the legal framework is, by itself,
sufficient to constitute grave abuse of discretion. The grave abuse lies
not in the fact that they considered, as a solution to the Moro Problem, the
creation of a state within a state, but in their brazen willingness

toguarantee that Congress and the sovereign Filipino people would

give their imprimatur to their solution. Upholding such an act would
amount to authorizing a usurpation of the constituent powers vested only in
Congress, a Constitutional Convention, or the people themselves through
the process of initiative, for the only way that the Executive can ensure the
outcome of the amendment process is through an undue influence or
interference with that process.
The sovereign people may, if it so desired, go to the extent of giving up a
portion of its own territory to the Moros for the sake of peace, for it can
change the Constitution in any it wants, so long as the change is not
inconsistent with what, in international law, is known as Jus
Cogens.184 Respondents, however, may not preempt it in that decision.
SUMMARY
The petitions are ripe for adjudication. The failure of respondents to consult
the local government units or communities affected constitutes a departure
by respondents from their mandate under E.O. No. 3. Moreover,
respondents exceeded their authority by the mere act of guaranteeing
amendments to the Constitution. Any alleged violation of the Constitution by
any branch of government is a proper matter for judicial review.
As the petitions involve constitutional issues which are of paramount public
interest or of transcendental importance, the Court grants the petitioners,
petitioners-in-intervention and intervening respondents the requisitelocus
standi in keeping with the liberal stance adopted in David v. MacapagalArroyo.
Contrary to the assertion of respondents that the non-signing of the MOA-AD
and the eventual dissolution of the GRP Peace Panel mooted the present
petitions, the Court finds that the present petitions provide an exception to
the "moot and academic" principle in view of (a) the grave violation of the
Constitution involved; (b) the exceptional character of the situation and
paramount public interest; (c) the need to formulate controlling principles to
guide the bench, the bar, and the public; and (d) the fact that the case is
capable of repetition yet evading review.
The MOA-AD is a significant part of a series of agreements necessary to
carry out the GRP-MILF Tripoli Agreement on Peace signed by the
government and the MILF back in June 2001. Hence, the present MOA-AD
can be renegotiated or another one drawn up that could contain similar or
significantly dissimilar provisions compared to the original.

The Court, however, finds that the prayers for mandamus have been
rendered moot in view of the respondents' action in providing the Court and
the petitioners with the official copy of the final draft of the MOA-AD and its
annexes.
The people's right to information on matters of public concern under Sec. 7,
Article III of the Constitution is insplendid symmetry with the state policy of
full public disclosure of all its transactions involving public interest under
Sec. 28, Article II of the Constitution. The right to information guarantees the
right of the people to demand information, while Section 28 recognizes the
duty of officialdom to give information even if nobody demands. The
complete and effective exercise of the right to information necessitates that
its complementary provision on public disclosure derive the same selfexecutory nature, subject only to reasonable safeguards or limitations as
may be provided by law.
The contents of the MOA-AD is a matter of paramount public concern
involving public interest in the highest order. In declaring that the right to
information contemplates steps and negotiations leading to the
consummation of the contract, jurisprudence finds no distinction as to the
executory nature or commercial character of the agreement.
An essential element of these twin freedoms is to keep a continuing dialogue
or process of communication between the government and the people.
Corollary to these twin rights is the design for feedback mechanisms. The
right to public consultation was envisioned to be a species of these public
rights.
At least three pertinent laws animate these constitutional imperatives and
justify the exercise of the people's right to be consulted on relevant matters
relating to the peace agenda.
One, E.O. No. 3 itself is replete with mechanics for continuing consultations
on both national and local levels and for a principal forum for consensusbuilding. In fact, it is the duty of the Presidential Adviser on the Peace
Process to conduct regular dialogues to seek relevant information,
comments, advice, and recommendations from peace partners and
concerned sectors of society.
Two, Republic Act No. 7160 or the Local Government Code of 1991 requires
all national offices to conduct consultations before any project or program
critical to the environment and human ecology including those that may call
for the eviction of a particular group of people residing in such locality, is

implemented therein. The MOA-AD is one peculiar program that

unequivocally and unilaterally vests ownership of a vast territory to the
Bangsamoro people, which could pervasively and drastically result to the
diaspora or displacement of a great number of inhabitants from their total
environment.
Three, Republic Act No. 8371 or the Indigenous Peoples Rights Act of 1997
provides for clear-cut procedure for the recognition and delineation of
ancestral domain, which entails, among other things, the observance of the
free and prior informed consent of the Indigenous Cultural
Communities/Indigenous Peoples. Notably, the statute does not grant the
Executive Department or any government agency the power to delineate
and recognize an ancestral domain claim by mere agreement or
compromise.

addressed to the government peace panel. Moreover, as the clause is

worded, it virtually guarantees that the necessary amendments to the
Constitution and the laws will eventually be put in place. Neither the GRP
Peace Panel nor the President herself is authorized to make such a
guarantee. Upholding such an act would amount to authorizing a usurpation
of the constituent powers vested only in Congress, a Constitutional
Convention, or the people themselves through the process of initiative, for
the only way that the Executive can ensure the outcome of the amendment
process is through an undue influence or interference with that process.
While the MOA-AD would not amount to an international agreement or
unilateral declaration binding on the Philippines under international law,
respondents' act of guaranteeing amendments is, by itself, already a
constitutional violation that renders the MOA-AD fatally defective.

The invocation of the doctrine of executive privilege as a defense to the

general right to information or the specific right to consultation is untenable.
The various explicit legal provisions fly in the face of executive secrecy. In
any event, respondents effectively waived such defense after it
unconditionally disclosed the official copies of the final draft of the MOA-AD,
for judicial compliance and public scrutiny.

WHEREFORE, respondents' motion to dismiss is DENIED. The main and

intervening petitions are GIVEN DUE COURSE and hereby GRANTED.

In sum, the Presidential Adviser on the Peace Process committed grave

abuse of discretion when he failed to carry out the pertinent consultation
process, as mandated by E.O. No. 3, Republic Act No. 7160, and Republic
Act No. 8371. The furtive process by which the MOA-AD was designed and
crafted runs contrary to and in excess of the legal authority, and amounts to
a whimsical, capricious, oppressive, arbitrary and despotic exercise thereof.
It illustrates a gross evasion of positive duty and a virtual refusal to perform
the duty enjoined.

SO ORDERED.

The MOA-AD cannot be reconciled with the present Constitution and laws.
Not only its specific provisions but the very concept underlying them,
namely, the associative relationship envisioned between the GRP and the
BJE, areunconstitutional, for the concept presupposes that the associated
entity is a state and implies that the same is on its way to independence.

WE CONCUR:

While there is a clause in the MOA-AD stating that the provisions thereof
inconsistent with the present legal framework will not be effective until that
framework is amended, the same does not cure its defect. The inclusion of
provisions in the MOA-AD establishing an associative relationship between
the BJE and the Central Government is, itself, a violation of the
Memorandum of Instructions From The President dated March 1, 2001,

The Memorandum of Agreement on the Ancestral Domain Aspect of the

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

CONCHITA CARPIO MORALES

Associate Justice

REYNATO S. PUNO
Chief Justice

LEONARDO A. QUISUMBING
Associate Justice

CONSUELO YNARES-SANTIAGO
Associate Justice

ANTONIO T. CARPIO
Associate Justice

MA. ALICIA AUSTRIA-MARTINEZ

Associate Justice

RENATO C. CORONA
Associate Justice

ADOLFO S. AZCUNA
Associate Justice

DANTE O. TINGA
Associate Justice

MINITA V. CHICO-NAZARIO
Associate Justice

Separate Concurring Opinion - C.J. Puno, J. Ynares-Santiago, J. Carpio

Separate Concurring and Dissenting Opinion - J. Leonardo-De
Castro, J. Brion
Separate Opinion - J. Azcuna, J. Tinga, J. Chico-Nazario, J. Reyes
Dissenting Opinion - J. Velasco, Jr., J. Nachura

Footnotes
1

PRESBITERO J. VELASCO, JR.

Associate Justice

ANTONIO EDUARDO B. NACHURA

Associate Justice

Eric Gutierrez and Abdulwahab Guialal, The Unfinished Jihad: The

Moro Islamic Liberation Front and Peace in Mindanao in Rebels,
Warlords and Ulama: A Reader on Muslim Separatism and the War
in Southern Philippines 275 (1999).
2

RUBEN T. REYES
Associate Justice

TERESITA J. LEONARDO-DE CASTRO

Associate Justice

Memorandum of Respondents dated September 24, 2008, p. 10.

Memorandum of Respondents dated September 24, 2008, pp. 1011.

4

Vide Salah Jubair, The Long Road to Peace: Inside the GRP-MILF
Peace Process 35-36 (2007).
ARTURO D. BRION
Associate Justice

Memorandum of Respondents dated September 24, 2008, p. 12.

Vide Salah Jubair, The Long Road to Peace: Inside the GRP-MILF
Peace Process 40-41 (2007).
7

CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified
that the conclusions in the above Decision were reached in consultation
before the case was assigned to the writer of the opinion of the Court.
REYNATO S. PUNO
Chief Justice

Composed of its Chairperson, Sec. Rodolfo Garcia, and members,

Atty. Leah Armamento, Atty. Sedfrey Candelaria, with Mark Ryan
Sullivan as Secretariat head.
8

Represented by Governor Jesus Sacdalan and/or Vice-Governor

Emmanuel Piol.
9

Rollo (G.R. No. 183591), pp. 3-33.

10

Supplement to Petition (with motion for leave) of August 11,

2008, rollo (G.R. No. 183591), pp. 143-162.
11

Rollo (G.R. No. 183752), pp. 3-28.

12

Represented by Mayor Celso L. Lobregat.

13

Rollo (G.R. No. 183591), pp. 132-135; rollo (G.R. No. 183752),
pp. 68-71.
14

Rollo (G.R. No. 183591), pp. 130-131; rollo (G.R. No. 183752),
pp. 66-67.
15

Rollo (G.R. No. 183752), pp. 173-246.

16

Represented by Mayor Lawrence Lluch Cruz.

17

Represented by Governor Rolando Yebes.

18

Namely, Seth Frederick Jaloslos, Fernando Cabigon, Jr., Uldarico

Mejorada II, Edionar Zamoras, Edgar Baguio, Cedric Adriatico,
Felixberto Bolando, Joseph Brendo Ajero, Norbideiri Edding, Anecito
Darunday, Angelica Carreon, and Luzviminda Torrino.

26

R.A. No. 8371, An act to recognize, protect and promote the rights
of indigenous cultural communities/indigenous peoples, creating a
national commission on indigenous peoples, establishing
implementing mechanisms, appropriating funds therefor, and for
other purposes, October 29, 1997.
27

Cesar Adib Majul, The General Nature of Islamic Law and its
Application in the Philippines, lecture delivered as part of the
Ricardo Paras Lectures, a series jointly sponsored by the
Commission on Bar Integration of the Supreme Court, the Integrated
Bar of the Philippines and the U.P. Law Center, September 24, 1977.
28

Ibid., vide M.A. Muqtedar Khan Ph.D., immigrant American

Muslims and the Moral Dilemmas of
Citizenship, http://www.islamfortoday.com/khan04.htm, visited on
September 18, 2008, and Syed Shahabuddin, Muslim World and the
contemporary Ijma' on rules of governance ii,http://www.milligazette.com/Archives/2004/01-15May04-PrintEdition/0105200471.htm, visited on September 18, 2008.
29

MOA-AD Terms of Reference.

30

MOA-AD, Concepts and Principles, par. 1.

31
19

Rollo (G.R. No. 183951), pp. 3-33.

20

Rollo (G.R. No. 183962), pp. 3- 20.

21

Represented by Mayor Cherrylyn Santos-Akbar.

22

Represented by Gov. Suharto Mangudadatu.

23

Represented by Mayor Noel Deano.

24

25

Rollo (G.R. No. 183591), pp. 451-453.

R.A. No. 6734, as amended by R.A. 9054 entitled An Act to

Strengthen and Expand the organic act for the Autonomous Region
in Muslim Mindanao, Amending for the purpose republic act no.
6734, entitled an act of providing for the autonomous region in
muslim mindanao, as amended.

A traditional Muslim historical account of the acts of Shariff

Kabungsuwan is quoted by historian Cesar Adib Majul in his book,
Muslims in the Philippines (1973):
After a time it came to pass that Mamalu, who was the chief
man next to Kabungsuwan, journeyed to Cotabato. He
found there that many of the people had ceased to regard
the teachings of the Koran and had fallen into evil ways.
Mamamlu sent to Kabungsuwan word of these things.
Kabungsuwan with a portion of his warriors went from
Malabang to Cotabato and found that the word sent to him
by Mamamlu was true. Then he assembled together all the
people. Those of them, who had done evilly and disregarded
the teachings of the Koran thenceforth, he drove out of the
town into the hills, with their wives and children.

Those wicked one who were thus cast out were the
beginnings of the tribes of the Tirurais and Manobos, who
live to the east of Cotabato in the country into which their
evil forefathers were driven. And even to this day they
worship not God; neither do they obey the teachings of the
Koran . . . But the people of Kabungsuwan, who regarded
the teachings of the Koran and lived in fear of God,
prospered and increased, and we Moros of today are their
descendants. (Citation omitted, emphasis supplied).
32

33

34

Id., par. 2.
Id., par. 3.
Id., par. 4.

43

Id., par, 2(g)(1).

44

Id., par. 2(h).

45

Id., par. 2(i).

46

MOA-AD, Resources, par. 4.

47

Ibid.

48

Id., par. 5.

49

Id., par. 6.

50

Id., par. 7.

51

Id., par. 9.

52

MOA-AD, Governance, par. 3.

35

Francisco L. Gonzales, Sultans of a Violent Land, in Rebels,

Warlords and Ulama: A Reader on Muslim Separatism and the War
in Southern Philippines 99, 103 (1999).
36

The Charter of the Assembly of First Nations, the leading

advocacy group for the indigenous peoples of Canada, adopted in
1985, begins thus:
"WE THE CHIEFS OF THE INDIAN FIRST NATIONS IN
CANADA HAVING DECLARED:
THAT our peoples are the original peoples of this land
having been put here by the Creator; x x x."
37

Id., par. 6.

38

MOA-AD, Territory, par. 1.

39

Id., par. 2(c).

53

"IN WITNESS WHEREOF, the undersigned, being the

representatives of the Parties[,] hereby affix their signatures."
54

Vide 1987 Constitution, Article VIII, Section 1.

55

Vide Muskrat v. US, 219 US 346 (1911).

56

Flast v. Cohen, 88 S.Ct. 1942, 1950 (1968).

57

40

Id., par. 2(d).

41

Id., par. 2(e).

Didipio Earth Savers' Multi-Purpose Association, Incorporated

(DESAMA) v. Gozun, G.R. No. 157882, March 30, 2006, 485 SCRA
286.
58

Vide U.S. v. Muskrat, 219 U.S. 346, 357 (1902).

59

Guingona, Jr. v. Court of Appeals, 354 Phil. 415, 427-428 (1998).

60
42

Id., par. 2(f).

Francisco, Jr. v. House of Representatives, 460 Phil. 830, 901-902

(2003) (citation omitted).

61

Vide Warth v. Seldin, 422 US 490, 511 (1975).

62

Vide id. at 526.

79

Vicente V. Mendoza , Judicial Review of Constitutional Questions

137 (2004).
80

63

Solicitor General's Comment to G.R. No. 183752, pp. 9-11.

64

MOA-AD, pp. 3-7, 10.

65

391 Phil. 43 (2000).

66

Id. at 107-108.

67

530 US 290 (2000).

68

Id. at 292.

69

505 U.S. 144 (1992).

70

Id. at 175.

Francisco, Jr. v. The House of Representatives, 460 Phil. 830, 896

(2003).
81

David v. Macapagal-Arroyo, G.R. No. 171396, May 3, 2006, 489

SCRA 160, 223.
82

83

Macasiano v. NHA, G.R. No. 107921, July 1, 1993, 224 SCRA

236.
84

Del Mar v. Phil. Amusement and Gaming Corp., 400 Phil. 307,
328-329 (2000) citing Phil. Constitution Ass'n., Inc. v. Mathay, et al.,
124 Phil. 890 (1966).
85

Vide NAACP v. Alabama, 357 U.S. 449 (1958).

86

Francisco, Jr. v. The House of Representatives, supra note 80.

71

Although only one petition is denominated a petition for certiorari,

most petitions pray that the MOA-AD be declared
unconstitutional/null and void.
72

Vide Rules of Court, Rule 65, Secs. 1 and 2.

73

Vide Rules of Court, Rule 65, Sec. 3.

74

Taada v. Angara, 338 Phil. 546, 575 (1997).

87

Province of Batangas v. Romulo, G.R. No. 152774, May 27, 2004,

429 SCRA 736.
88

Firestone Ceramics, Inc. v. Court of Appeals, 372 Phil. 401 (1999)

citing Gibson v. Judge Revilla, 180 Phil. 645 (1979).
89

Supra note 81.

90

Integrated Bar of the Phils. v. Hon. Zamora, 392 Phil. 618 (2000).

91

Tatad v. Secretary of Energy, 346 Phil. 321 (1997).

92

Vide Compliance of September 1, 2008 of respondents.

93

Vide Manifestation of September 4, 2008 of respondents.

94

Supra note 81.

95

Id. citing Province of Batangas v. Romulo, supra note 87.

75

Entitled Defining Policy and Administrative Structure for

Government's Peace Efforts which reaffirms and reiterates
Executive Order No. 125 of September 15, 1993.
76

E.O. No. 3, (2001), Sec. 1.

77

Vide Taada v. Angara, supra note 74.

78

Baker v. Carr, 369 U.S. 186 (1962).

Kilosbayan, Inc. v. Morato, 320 Phil. 171 (1995).

96

Id. citing Lacson v. Perez, 410 Phil. 78 (2001).

112

Legaspi v. Civil Service Commission, supra note 109.

97

Id. citing Province of Batangas v. Romulo, supra note 87.

113

Chavez v. PCGG, 360 Phil 133, 164 (1998).

98

Id. citing Albaa v. Comelec, 478 Phil. 941 (2004); Chief Supt.
Acop v. Guingona Jr., 433 Phil. 62 (2002); SANLAKAS v. Executive
Secretary Reyes, 466 Phil. 482 (2004).
99

US v. W.T. Grant Co., 345 U.S. 629 (1953); US v. Trans-Missouri

Freight Assn, 166 U.S. 290, 308-310 (1897); Walling v. Helmerich &
Payne, Inc., 323 U.S. 37, 43 (1944); Gray v. Sanders, 372 U.S. 368,
376 (1963); Defunis v. Odegaard, 416 U.S. 312 (1974).
100

Supra note 87.

101

G.R. No. 178920, October 15, 2007, 536 SCRA 290.

102

Chavez v. PCGG, 366 Phil. 863, 871 (1999).

103

G.R. No. 178830, July 14, 2008.

104

Supra note 98.

114

In Legaspi v. Civil Service Commission, supra note 109 at 541, it

was held that:
In determining whether or not a particular information is of public
concern there is no rigid test which can be applied. `Public concern'
like `public interest' is a term that eludes exact definition. Both terms
embrace a broad spectrum of subjects which the public may want to
know, either because these directly affect their lives, or simply
because such matters naturally arouse the interest of an ordinary
citizen. In the final analysis, it is for the courts to determine on a
case by case basis whether the matter at issue is of interest or
importance, as it relates to or affects the public.
115

Respondents' Comment of August 4, 2008, p. 9.

116

Subido v. Ozaeta, supra note 108.

117

Taada, et al. v. Hon. Tuvera, et al., 220 Phil. 422

(1985); Taada, v. Hon. Tuvera, 230 Phil. 528 (1986).

105

Ortega v. Quezon City Government, G.R. No. 161400, September

2, 2005, 469 SCRA 388.
106

Alunan III v. Mirasol, 342 Phil. 476 (1997); Viola v. Alunan III, 343
Phil. 184 (1997); Chief Superintendent Acop v. Guingona, Jr., supra
note 98; Roble Arrastre, Inc. v. Villaflor, G.R. No. 128509, August 22,
2006, 499 SCRA 434, 447.
107

108

Constitution, Article III, Sec. 7.

80 Phil. 383 (1948).

109

Legaspi v. Civil Service Commission, G.R. No. L-72119, May 29,

1987, 150 SCRA 530.
110

162 Phil. 868 (1976).

111

Baldoza v. Dimaano, supra at 876.

118

Legaspi v. Civil Service Commission, supra note 109.

119

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

170 SCRA 256.
120

Chavez v. PCGG, supra note 113; Chavez v. PCGG, supra note

102.
121

Bantay Republic Act or BA-RA 7941 v. Commission on Elections,

G.R. 177271, May 4, 2007, 523 SCRA 1.
122

Chavez v. Public Estates Authority, 433 Phil. 506, 532-533

(2002).
123

Vide V Record, Constitutional Commission 26-28 (September 24,

1986) which is replete with such descriptive phrase used by
Commissioner Blas Ople.

124

Constitution, Article II, Sec. 28.

125

Bernas, Joaquin, The 1987 Constitution of the Republic of the

Philippines: A Commentary 100 (2003).

137

Executive Order No. 3 (2001), Sec. 5 (b), par. 6.

138

Executive Order No. 3 (2001), Sec. 8, see also Sec. 10.

139
126

Vide Bernas, Joaquin, The Intent of the 1986 Constitution Writers

155 (1995).
127

Vide Chavez v. Public Estates Authority, supra note 122.

128

V Record, Constitutional Commission 25 (September 24, 1986).

129

V Record, Constitutional Commission 28-29 (September 24,

1986). The phrase "safeguards on national interest" that may be
provided by law was subsequently replaced by "reasonable
conditions," as proposed by Commissioner Davide [vide V Record,
Constitutional Commission 30 (September 24, 1986)].

Cf. Garcia v. Board of Investments, G.R. No. 88637, September

7, 1989, 177 SCRA 374, 382-384 where it was held that the
Omnibus Investment Code of 1987 mandates the holding of
consultations with affected communities, whenever necessary, on
the acceptability of locating the registered enterprise within the
community.
140

In their Memorandum, respondents made allegations purporting

to show that consultations were conducted on August 30, 2001 in
Marawi City and Iligan City, on September 20, 2001 in Midsayap,
Cotabato, and on January 18-19, 2002 in Metro Manila.
(Memorandum of September 24, 2008, p. 13)
141

Cf. Chavez v. Public Estates Authority, supra note 120.

142

Republic Act No. 7160, Sec. 2(c).

143

Republic Act No. 7160, Sec. 27.

144

416 Phil. 438 (2001).

130

In Chavez v. National Housing Authority, G.R. No. 164527,

August 15, 2007, 530 SCRA 235, 331, the Court stated:
x x x The duty to disclose covers only transactions involving
public interest, while the duty to allow access has
a broader scope of information which embraces not only
transactions involving public interest, but any matter
contained in official communications and public documents
of the government agency. (Underscoring supplied)
131

145

Id.; vide Alvarez v. PICOP Resources, Inc., G.R. No. 162243,

November 29, 2006, 508 SCRA 498; Cf.Bangus Fry Fisherfolk v.
Lanzanas, 453 Phil. 479 (2002).

Valmonte v. Belmonte, Jr., supra note 119.

146

132

V Record, Constitutional Commission 28, 30 (September 24,

1986).
133

Vide MOA-AD "Concepts and Principles," pars. 2 & 7 in relation

to "Resources," par. 9 where vested property rights are made
subject to the cancellation, modification and review by the
Bangsamoro Juridical Entity.

Supra note 55.

147

Republic Act No. 8371 or "The Indigenous Peoples Rights Act of

1997," Sec. 16.

134

Executive Order No. 3 (2001), Sec. 3 (a).

135

Executive Order No. 3 (2001), Sec. 4 (b).

148

136

Respondents' Memorandum of September 24, 2008, p. 44.

149

Id., Sec. 3 (g), Chapter VIII, inter alia.

Taada v. Tuvera, No. L-63915, December 29, 1986, 146 SCRA

446, 456.

150

C.I. Keitner and W.M. Reisman, Free Association: The United

States Experience, 39 Tex. Int'l L.J. 1 (2003).

163

151

164

"The former Trust Territory of the Pacific Islands is made up of the

Caroline Islands, the Marshall Islands, and the Northern Mariana
Islands, which extend east of the Philippines and northeast of
Indonesia in the North Pacific Ocean." (Ibid.)
152

H. Hills, Free Association for Micronesia and the Marshall islands:

A Political Status Model, 27 U. Haw. L. Rev. 1 (2004).
153

Henkin, et al., International Law: Cases and Materials, 2nd ed.,

274 (1987).
154

Convention on Rights and Duties of States, Dec. 26, 1933, 49

Stat. 3097, 165 L.N.T.S. 19.
155

G.R. No. 158088, July 6, 2005, 462 SCRA 622, 632.

156

An Act to Strengthen and Expand the Organic Act for the

Autonomous Region in Muslim Mindanao, Amending for the purpose
Republic Act No. 6734, Entitled An Act Providing for the
Autonomous Region in Muslim Mindanao,' as Amended, March 31,
2001.
157

An Act To Recognize, Protect And Promote The Rights Of

Indigenous Cultural Communities/Indigenous Peoples, Creating A
National Commission On Indigenous Peoples, Establishing
Implementing Mechanisms, Appropriating Funds Therefor, And For
Other Purposes, October 29, 1997.
158

League of Nations Official Journal, Special Supp. No. 3 (October

1920).
Lorie M. Graham, Resolving Indigenous Claims To SelfDetermination, 10 ILSA J. Int'l & Comp. L. 385 (2004). Vide S.
James Anaya, Superpower Attitudes Toward Indigenous Peoples
And Group Rights, 93 Am. Soc'y Int'l L. Proc. 251 (1999): "In
general, the term indigenous is used in association with groups that
maintain a continuity of cultural identity with historical communities
that suffered some form of colonial invasion, and that by virtue of
that continuity of cultural identity continue to distinguish themselves
from others."
165

Catherine J. Iorns, Indigenous Peoples And Self Determination:

Challenging State Sovereignty, 24 Case W. Res. J. Int'l L. 199
(1992).
166

Federico Lenzerini, "Sovereignty Revisited: International Law And

Parallel Sovereignty Of Indigenous Peoples," 42 Tex. Int'l L.J. 155
(2006). Vide Christopher J. Fromherz, Indigenous Peoples' Courts:
Egalitarian Juridical Pluralism, Self-Determination, And The United
Nations Declaration On The Rights Of Indigenous Peoples, 156 U.
Pa. L. Rev. 1341 (2008): "While Australia and the United States
made much of the distinction between self-government' and selfdetermination' on September 13, 2007, the U.S. statement to the UN
on May 17, 2004, seems to use these two concepts interchangeably.
And, indeed, under the DRIP [Declaration on the Rights of
Indigenous Peoples], all three terms should be considered virtually
synonymous. Self-determination under the DRIP means internal
self-determination' when read in conjunction with Article 46, and
self-government,' articulated in Article 4, is the core of the selfdetermination.'"

90 Phil. 70, 73-74 (1951).

167

Defining The Approach And Administrative Structure For

Government's Comprehensive Peace Efforts, September 15, 1993.

159

177 Phil. 160, 178-179 (1979).

160

2 S.C.R. 217 (1998).

168

466 Phil. 482, 519-520 (2004).

161

999 U.N.T.S. 171 (March 23, 1976).

169

Constitution, Article VII, Sec. 18.

162

993 U.N.T.S. 3 (January 3, 1976).

170

Kirsti Samuels, Post-Conflict Peace-Building And ConstitutionMaking, 6 Chi. J. Int'l L. 663 (2006).

171

Christine Bell, Peace Agreements: Their Nature And Legal Status,

100 Am. J. Int'l L. 373 (2006).
172

Constitution, Article X, Sections 15-21.

173

III Record, Constitutional Commission, 180 (August 11, 1986).

174

165 Phil. 303 (1976).

175

Id. at 412.

176

Id. at 413.

177

G.R. No. 174153, October 25, 2006, 505 SCRA 160, 264-265.

178

Constitution, Art. VII, Sec. 5.

179

Article VI, Section 25 (1) of the Constitution states as follows:

"The Congress may not increase the appropriations recommended
by the President for the operation of the Government as specified in
the budget. The form, content, and manner of preparation of the
budget shall be prescribed by law."
180

Prosecutor v. Kallon and Kamara [Case No. SCSL-2004-15AR72(E), SCSL-2004-16-AR72(E), March 13, 2004].
181

1974 I.C.J. 253, 1974 WL 3 (I.C.J.).

182

M. Janis and J. Noyes, International Law, Cases and

Commentary, 3rd ed. 280 (2006).
183

1986 I.C.J. 554, 1986 WL 15621 (I.C.J.), December 22, 1986.

184

Planas v. COMELEC, 151 Phil. 217, 249 (1973).

Republic of the Philippines

SUPREME COURT
Manila

EN BANC
G.R. No. 118295 May 2, 1997
WIGBERTO E. TAADA and ANNA DOMINIQUE COSETENG, as
members of the Philippine Senate and as taxpayers; GREGORIO
ANDOLANA and JOKER ARROYO as members of the House of
Representatives and as taxpayers; NICANOR P. PERLAS and HORACIO
R. MORALES, both as taxpayers; CIVIL LIBERTIES UNION, NATIONAL
ECONOMIC PROTECTIONISM ASSOCIATION, CENTER FOR
ALTERNATIVE DEVELOPMENT INITIATIVES, LIKAS-KAYANG
KAUNLARAN FOUNDATION, INC., PHILIPPINE RURAL
RECONSTRUCTION MOVEMENT, DEMOKRATIKONG KILUSAN NG
MAGBUBUKID NG PILIPINAS, INC., and PHILIPPINE PEASANT
INSTITUTE, in representation of various taxpayers and as nongovernmental organizations, petitioners,
vs.
EDGARDO ANGARA, ALBERTO ROMULO, LETICIA RAMOS-SHAHANI,
HEHERSON ALVAREZ, AGAPITO AQUINO, RODOLFO BIAZON,
NEPTALI GONZALES, ERNESTO HERRERA, JOSE LINA, GLORIA.
MACAPAGAL-ARROYO, ORLANDO MERCADO, BLAS OPLE, JOHN
OSMEA, SANTANINA RASUL, RAMON REVILLA, RAUL ROCO,
FRANCISCO TATAD and FREDDIE WEBB, in their respective capacities
as members of the Philippine Senate who concurred in the ratification
by the President of the Philippines of the Agreement Establishing the
World Trade Organization; SALVADOR ENRIQUEZ, in his capacity as
Secretary of Budget and Management; CARIDAD VALDEHUESA, in her
capacity as National Treasurer; RIZALINO NAVARRO, in his capacity as
Secretary of Trade and Industry; ROBERTO SEBASTIAN, in his
capacity as Secretary of Agriculture; ROBERTO DE OCAMPO, in his
capacity as Secretary of Finance; ROBERTO ROMULO, in his capacity
as Secretary of Foreign Affairs; and TEOFISTO T. GUINGONA, in his
capacity as Executive Secretary, respondents.
PANGANIBAN, J.:
The emergence on January 1, 1995 of the World Trade Organization,
abetted by the membership thereto of the vast majority of countries has

revolutionized international business and economic relations amongst

states. It has irreversibly propelled the world towards trade liberalization and
economic globalization. Liberalization, globalization, deregulation and
privatization, the third-millennium buzz words, are ushering in a new
borderless world of business by sweeping away as mere historical relics the
heretofore traditional modes of promoting and protecting national economies
like tariffs, export subsidies, import quotas, quantitative restrictions, tax
exemptions and currency controls. Finding market niches and becoming the
best in specific industries in a market-driven and export-oriented global
scenario are replacing age-old "beggar-thy-neighbor" policies that
unilaterally protect weak and inefficient domestic producers of goods and
services. In the words of Peter Drucker, the well-known management guru,
"Increased participation in the world economy has become the key to
domestic economic growth and prosperity."
Brief Historical Background
To hasten worldwide recovery from the devastation wrought by the Second
World War, plans for the establishment of three multilateral institutions
inspired by that grand political body, the United Nations were discussed at
Dumbarton Oaks and Bretton Woods. The first was the World Bank (WB)
which was to address the rehabilitation and reconstruction of war-ravaged
and later developing countries; the second, the International Monetary Fund
(IMF) which was to deal with currency problems; and the third, the
International Trade Organization (ITO), which was to foster order and
predictability in world trade and to minimize unilateral protectionist policies
that invite challenge, even retaliation, from other states. However, for a
variety of reasons, including its non-ratification by the United States, the ITO,
unlike the IMF and WB, never took off. What remained was only GATT
the General Agreement on Tariffs and Trade. GATT was a collection of
treaties governing access to the economies of treaty adherents with no
institutionalized body administering the agreements or dependable system of
dispute settlement.

After half a century and several dizzying rounds of negotiations, principally

the Kennedy Round, the Tokyo Round and the Uruguay Round, the world
finally gave birth to that administering body the World Trade Organization
with the signing of the "Final Act" in Marrakesh, Morocco and the
ratification of the WTO Agreement by its members. 1
Like many other developing countries, the Philippines joined WTO as a
founding member with the goal, as articulated by President Fidel V. Ramos
in two letters to the Senate (infra), of improving "Philippine access to foreign
markets, especially its major trading partners, through the reduction of tariffs
on its exports, particularly agricultural and industrial products." The President
also saw in the WTO the opening of "new opportunities for the services
sector . . . , (the reduction of) costs and uncertainty associated with
exporting . . . , and (the attraction of) more investments into the country."
Although the Chief Executive did not expressly mention it in his letter, the
Philippines and this is of special interest to the legal profession will
benefit from the WTO system of dispute settlement by judicial adjudication
through the independent WTO settlement bodies called (1) Dispute
Settlement Panels and (2) Appellate Tribunal. Heretofore, trade disputes
were settled mainly through negotiations where solutions were arrived at
frequently on the basis of relative bargaining strengths, and where naturally,
weak and underdeveloped countries were at a disadvantage.
The Petition in Brief
Arguing mainly (1) that the WTO requires the Philippines "to place nationals
and products of member-countries on the same footing as Filipinos and local
products" and (2) that the WTO "intrudes, limits and/or impairs" the
constitutional powers of both Congress and the Supreme Court, the instant
petition before this Court assails the WTO Agreement for violating the
mandate of the 1987 Constitution to "develop a self-reliant and independent
national economy effectively controlled by Filipinos . . . (to) give preference
to qualified Filipinos (and to) promote the preferential use of Filipino labor,
domestic materials and locally produced goods."
Simply stated, does the Philippine Constitution prohibit Philippine
participation in worldwide trade liberalization and economic globalization?
Does it proscribe Philippine integration into a global economy that is

liberalized, deregulated and privatized? These are the main questions raised
in this petition for certiorari, prohibition andmandamus under Rule 65 of the
Rules of Court praying (1) for the nullification, on constitutional grounds, of
the concurrence of the Philippine Senate in the ratification by the President
of the Philippines of the Agreement Establishing the World Trade
Organization (WTO Agreement, for brevity) and (2) for the prohibition of its
implementation and enforcement through the release and utilization of public
funds, the assignment of public officials and employees, as well as the use
of government properties and resources by respondent-heads of various
executive offices concerned therewith. This concurrence is embodied in
Senate Resolution No. 97, dated December 14, 1994.
The Facts
On April 15, 1994, Respondent Rizalino Navarro, then Secretary of The
Department of Trade and Industry (Secretary Navarro, for brevity),
representing the Government of the Republic of the Philippines, signed in
Marrakesh, Morocco, the Final Act Embodying the Results of the Uruguay
Round of Multilateral Negotiations (Final Act, for brevity).
By signing the Final Act, 2 Secretary Navarro on behalf of the Republic of the
Philippines, agreed:
(a) to submit, as appropriate, the WTO Agreement for the
consideration of their respective competent authorities, with
a view to seeking approval of the Agreement in accordance
with their procedures; and
(b) to adopt the Ministerial Declarations and Decisions.
On August 12, 1994, the members of the Philippine Senate received a letter
dated August 11, 1994 from the President of the Philippines, 3 stating among
others that "the Uruguay Round Final Act is hereby submitted to the Senate
for its concurrence pursuant to Section 21, Article VII of the Constitution."
On August 13, 1994, the members of the Philippine Senate received another
letter from the President of the Philippines 4 likewise dated August 11, 1994,
which stated among others that "the Uruguay Round Final Act, the

Agreement Establishing the World Trade Organization, the Ministerial

Declarations and Decisions, and the Understanding on Commitments in
Financial Services are hereby submitted to the Senate for its concurrence
pursuant to Section 21, Article VII of the Constitution."
On December 9, 1994, the President of the Philippines certified the
necessity of the immediate adoption of P.S. 1083, a resolution entitled
"Concurring in the Ratification of the Agreement Establishing the World
Trade Organization." 5
On December 14, 1994, the Philippine Senate adopted Resolution No. 97
which "Resolved, as it is hereby resolved, that the Senate concur, as it
hereby concurs, in the ratification by the President of the Philippines of the
Agreement Establishing the World Trade Organization." 6 The text of the
WTO Agreement is written on pages 137 et seq. of Volume I of the 36volume Uruguay Round of Multilateral Trade Negotiations and includes
various agreements and associated legal instruments (identified in the said
Agreement as Annexes 1, 2 and 3 thereto and collectively referred to as
Multilateral Trade Agreements, for brevity) as follows:
ANNEX 1
Annex 1A: Multilateral Agreement on Trade in Goods
General Agreement on Tariffs and Trade 1994
Agreement on Agriculture
Agreement on the Application of Sanitary and
Phytosanitary Measures
Agreement on Textiles and Clothing
Agreement on Technical Barriers to Trade
Agreement on Trade-Related Investment Measures
Agreement on Implementation of Article VI of he
General Agreement on Tariffs and Trade
1994
Agreement on Implementation of Article VII of the
General on Tariffs and Trade 1994
Agreement on Pre-Shipment Inspection
Agreement on Rules of Origin
Agreement on Imports Licensing Procedures

Agreement on Subsidies and Coordinating

Measures
Agreement on Safeguards
Annex 1B: General Agreement on Trade in Services and
Annexes
Annex 1C: Agreement on Trade-Related Aspects of
Intellectual
Property Rights
ANNEX 2
Understanding on Rules and Procedures
Governing
the Settlement of Disputes
ANNEX 3
Trade Policy Review Mechanism
On December 16, 1994, the President of the Philippines signed 7 the
Instrument of Ratification, declaring:
NOW THEREFORE, be it known that I, FIDEL V. RAMOS,
President of the Republic of the Philippines, after having
seen and considered the aforementioned Agreement
Establishing the World Trade Organization and the
agreements and associated legal instruments included in
Annexes one (1), two (2) and three (3) of that Agreement
which are integral parts thereof, signed at Marrakesh,
Morocco on 15 April 1994, do hereby ratify and confirm the
same and every Article and Clause thereof.
To emphasize, the WTO Agreement ratified by the President of the
Philippines is composed of the Agreement Proper and "the associated legal
instruments included in Annexes one (1), two (2) and three (3) of that
Agreement which are integral parts thereof."

On the other hand, the Final Act signed by Secretary Navarro embodies not
only the WTO Agreement (and its integral annexes aforementioned) but also
(1) the Ministerial Declarations and Decisions and (2) the Understanding on
Commitments in Financial Services. In his Memorandum dated May 13,
1996, 8 the Solicitor General describes these two latter documents as
follows:
The Ministerial Decisions and Declarations are twenty-five
declarations and decisions on a wide range of matters, such
as measures in favor of least developed countries,
notification procedures, relationship of WTO with the
International Monetary Fund (IMF), and agreements on
technical barriers to trade and on dispute settlement.
The Understanding on Commitments in Financial Services
dwell on, among other things, standstill or limitations and
qualifications of commitments to existing non-conforming
measures, market access, national treatment, and
definitions of non-resident supplier of financial services,
commercial presence and new financial service.
On December 29, 1994, the present petition was filed. After careful
deliberation on respondents' comment and petitioners' reply thereto, the
Court resolved on December 12, 1995, to give due course to the petition,
and the parties thereafter filed their respective memoranda. The court also
requested the Honorable Lilia R. Bautista, the Philippine Ambassador to the
United Nations stationed in Geneva, Switzerland, to submit a paper,
hereafter referred to as "Bautista Paper," 9 for brevity, (1) providing a
historical background of and (2) summarizing the said agreements.
During the Oral Argument held on August 27, 1996, the Court directed:
(a) the petitioners to submit the (1) Senate Committee
Report on the matter in controversy and (2) the transcript of
proceedings/hearings in the Senate; and
(b) the Solicitor General, as counsel for respondents, to file
(1) a list of Philippine treaties signed prior to the Philippine

adherence to the WTO Agreement, which derogate from

Philippine sovereignty and (2) copies of the multi-volume
WTO Agreement and other documents mentioned in the
Final Act, as soon as possible.
After receipt of the foregoing documents, the Court said it would consider the
case submitted for resolution. In a Compliance dated September 16, 1996,
the Solicitor General submitted a printed copy of the 36-volume Uruguay
Round of Multilateral Trade Negotiations, and in another Compliance dated
October 24, 1996, he listed the various "bilateral or multilateral treaties or
international instruments involving derogation of Philippine sovereignty."
Petitioners, on the other hand, submitted their Compliance dated January
28, 1997, on January 30, 1997.
The Issues
In their Memorandum dated March 11, 1996, petitioners summarized the
issues as follows:
A. Whether the petition presents a political question or is
otherwise not justiciable.
B. Whether the petitioner members of the Senate who
participated in the deliberations and voting leading to the
concurrence are estopped from impugning the validity of the
Agreement Establishing the World Trade Organization or of
the validity of the concurrence.
C. Whether the provisions of the Agreement Establishing the
World Trade Organization contravene the provisions of Sec.
19, Article II, and Secs. 10 and 12, Article XII, all of the 1987
Philippine Constitution.
D. Whether provisions of the Agreement Establishing the
World Trade Organization unduly limit, restrict and impair
Philippine sovereignty specifically the legislative power
which, under Sec. 2, Article VI, 1987 Philippine Constitution
is "vested in the Congress of the Philippines";

E. Whether provisions of the Agreement Establishing the

World Trade Organization interfere with the exercise of
judicial power.
F. Whether the respondent members of the Senate acted in
grave abuse of discretion amounting to lack or excess of
jurisdiction when they voted for concurrence in the
ratification of the constitutionally-infirm Agreement
Establishing the World Trade Organization.
G. Whether the respondent members of the Senate acted in
grave abuse of discretion amounting to lack or excess of
jurisdiction when they concurred only in the ratification of the
Agreement Establishing the World Trade Organization, and
not with the Presidential submission which included the
Final Act, Ministerial Declaration and Decisions, and the
Understanding on Commitments in Financial Services.
On the other hand, the Solicitor General as counsel for respondents
"synthesized the several issues raised by petitioners into the following":

10

1. Whether or not the provisions of the "Agreement

Establishing the World Trade Organization and the
Agreements and Associated Legal Instruments included in
Annexes one (1), two (2) and three (3) of that agreement"
cited by petitioners directly contravene or undermine the
letter, spirit and intent of Section 19, Article II and Sections
10 and 12, Article XII of the 1987 Constitution.
2. Whether or not certain provisions of the Agreement
unduly limit, restrict or impair the exercise of legislative
power by Congress.
3. Whether or not certain provisions of the Agreement impair
the exercise of judicial power by this Honorable Court in
promulgating the rules of evidence.

4. Whether or not the concurrence of the Senate "in the

ratification by the President of the Philippines of the
Agreement establishing the World Trade Organization"
implied rejection of the treaty embodied in the Final Act.
By raising and arguing only four issues against the seven presented by
petitioners, the Solicitor General has effectively ignored three, namely: (1)
whether the petition presents a political question or is otherwise not
justiciable; (2) whether petitioner-members of the Senate (Wigberto E.
Taada and Anna Dominique Coseteng) are estopped from joining this suit;
and (3) whether the respondent-members of the Senate acted in grave
abuse of discretion when they voted for concurrence in the ratification of the
WTO Agreement. The foregoing notwithstanding, this Court resolved to deal
with these three issues thus:
(1) The "political question" issue being very fundamental and vital, and
being a matter that probes into the very jurisdiction of this Court to hear and
decide this case was deliberated upon by the Court and will thus be ruled
upon as the first issue;
(2) The matter of estoppel will not be taken up because this defense is
waivable and the respondents have effectively waived it by not pursuing it in
any of their pleadings; in any event, this issue, even if ruled in respondents'
favor, will not cause the petition's dismissal as there are petitioners other
than the two senators, who are not vulnerable to the defense of estoppel;
and

To recapitulate, the issues that will be ruled upon shortly are:

(1) DOES THE PETITION PRESENT A JUSTICIABLE
CONTROVERSY? OTHERWISE STATED, DOES THE
PETITION INVOLVE A POLITICAL QUESTION OVER
WHICH THIS COURT HAS NO JURISDICTION?
(2) DO THE PROVISIONS OF THE WTO AGREEMENT
AND ITS THREE ANNEXES CONTRAVENE SEC. 19,
ARTICLE II, AND SECS. 10 AND 12, ARTICLE XII, OF THE
PHILIPPINE CONSTITUTION?
(3) DO THE PROVISIONS OF SAID AGREEMENT AND ITS
ANNEXES LIMIT, RESTRICT, OR IMPAIR THE EXERCISE
OF LEGISLATIVE POWER BY CONGRESS?
(4) DO SAID PROVISIONS UNDULY IMPAIR OR
INTERFERE WITH THE EXERCISE OF JUDICIAL POWER
BY THIS COURT IN PROMULGATING RULES ON
EVIDENCE?
(5) WAS THE CONCURRENCE OF THE SENATE IN THE
WTO AGREEMENT AND ITS ANNEXES SUFFICIENT
AND/OR VALID, CONSIDERING THAT IT DID NOT
INCLUDE THE FINAL ACT, MINISTERIAL DECLARATIONS
AND DECISIONS, AND THE UNDERSTANDING ON
COMMITMENTS IN FINANCIAL SERVICES?

(3) The issue of alleged grave abuse of discretion on the part of the
respondent senators will be taken up as an integral part of the disposition of
the four issues raised by the Solicitor General.

The First Issue: Does the Court

Have Jurisdiction Over the Controversy?

During its deliberations on the case, the Court noted that the respondents
did not question the locus standi of petitioners. Hence, they are also deemed
to have waived the benefit of such issue. They probably realized that grave
constitutional issues, expenditures of public funds and serious international
commitments of the nation are involved here, and that transcendental public
interest requires that the substantive issues be met head on and decided on
the merits, rather than skirted or deflected by procedural matters. 11

In seeking to nullify an act of the Philippine Senate on the ground that it

contravenes the Constitution, the petition no doubt raises a justiciable
controversy. Where an action of the legislative branch is seriously alleged to
have infringed the Constitution, it becomes not only the right but in fact the
duty of the judiciary to settle the dispute. "The question thus posed is judicial
rather than political. The duty (to adjudicate) remains to assure that the
supremacy of the Constitution is upheld." 12 Once a "controversy as to the

application or interpretation of a constitutional provision is raised before this

Court (as in the instant case), it becomes a legal issue which the Court is
bound by constitutional mandate to decide." 13
The jurisdiction of this Court to adjudicate the matters 14 raised in the petition
is clearly set out in the 1987 Constitution, 15 as follows:
Judicial power includes the duty of the courts of justice to
settle actual controversies involving rights which are legally
demandable and enforceable, and to determine whether or
not there has been a grave abuse of discretion amounting to
lack or excess of jurisdiction on the part of any branch or
instrumentality of the government.
The foregoing text emphasizes the judicial department's duty and power to
strike down grave abuse of discretion on the part of any branch or
instrumentality of government including Congress. It is an innovation in our
political law. 16 As explained by former Chief Justice Roberto
Concepcion, 17 "the judiciary is the final arbiter on the question of whether or
not a branch of government or any of its officials has acted without
jurisdiction or in excess of jurisdiction or so capriciously as to constitute an
abuse of discretion amounting to excess of jurisdiction. This is not only a
judicial power but a duty to pass judgment on matters of this nature."
As this Court has repeatedly and firmly emphasized in many cases, 18 it will
not shirk, digress from or abandon its sacred duty and authority to uphold
the Constitution in matters that involve grave abuse of discretion brought
before it in appropriate cases, committed by any officer, agency,
instrumentality or department of the government.
As the petition alleges grave abuse of discretion and as there is no other
plain, speedy or adequate remedy in the ordinary course of law, we have no
hesitation at all in holding that this petition should be given due course and
the vital questions raised therein ruled upon under Rule 65 of the Rules of
Court. Indeed, certiorari, prohibition andmandamus are appropriate
remedies to raise constitutional issues and to review and/or prohibit/nullify,
when proper, acts of legislative and executive officials. On this, we have no
equivocation.

We should stress that, in deciding to take jurisdiction over this petition, this
Court will not review the wisdom of the decision of the President and the
Senate in enlisting the country into the WTO, or pass upon the merits of
trade liberalization as a policy espoused by said international body. Neither
will it rule on the propriety of the government's economic policy of
reducing/removing tariffs, taxes, subsidies, quantitative restrictions, and
other import/trade barriers. Rather, it will only exercise its constitutional duty
"to determine whether or not there had been a grave abuse of discretion
amounting to lack or excess of jurisdiction" on the part of the Senate in
ratifying the WTO Agreement and its three annexes.
Second Issue: The WTO Agreement
and Economic Nationalism
This is the lis mota, the main issue, raised by the petition.
Petitioners vigorously argue that the "letter, spirit and intent" of the
Constitution mandating "economic nationalism" are violated by the so-called
"parity provisions" and "national treatment" clauses scattered in various
parts not only of the WTO Agreement and its annexes but also in the
Ministerial Decisions and Declarations and in the Understanding on
Commitments in Financial Services.
Specifically, the "flagship" constitutional provisions referred to are Sec 19,
Article II, and Secs. 10 and 12, Article XII, of the Constitution, which are
worded as follows:
Article II
DECLARATION OF PRINCIPLES
AND STATE POLICIES
xxx xxx xxx
Sec. 19. The State shall develop a self-reliant and
independent national economy effectively controlled by
Filipinos.

xxx xxx xxx

Article XII
NATIONAL ECONOMY AND PATRIMONY
xxx xxx xxx
Sec. 10. . . . The Congress shall enact measures that will
encourage the formation and operation of enterprises whose
capital is wholly owned by Filipinos.
In the grant of rights, privileges, and concessions covering
the national economy and patrimony, the State shall give
preference to qualified Filipinos.
xxx xxx xxx
Sec. 12. The State shall promote the preferential use of
Filipino labor, domestic materials and locally produced
goods, and adopt measures that help make them
competitive.
Petitioners aver that these sacred constitutional principles are desecrated by
the following WTO provisions quoted in their memorandum: 19
a) In the area of investment measures related to trade in
goods (TRIMS, for brevity):
Article 2
National Treatment and Quantitative Restrictions.
1. Without prejudice to other rights and
obligations under GATT 1994, no Member
shall apply any TRIM that is inconsistent
with the provisions of Article II or Article XI
of GATT 1994.

2. An illustrative list of TRIMS that are

inconsistent with the obligations of general
elimination of quantitative restrictions
provided for in paragraph I of Article XI of
GATT 1994 is contained in the Annex to this
Agreement." (Agreement on Trade-Related
Investment Measures, Vol. 27, Uruguay
Round, Legal Instruments, p. 22121,
emphasis supplied).
The Annex referred to reads as follows:
ANNEX
Illustrative List
1. TRIMS that are inconsistent with the obligation of national
treatment provided for in paragraph 4 of Article III of GATT
1994 include those which are mandatory or enforceable
under domestic law or under administrative rulings, or
compliance with which is necessary to obtain an advantage,
and which require:
(a) the purchase or use by an enterprise of
products of domestic origin or from any
domestic source, whether specified in terms
of particular products, in terms of volume or
value of products, or in terms of proportion
of volume or value of its local production; or
(b) that an enterprise's purchases or use of
imported products be limited to an amount
related to the volume or value of local
products that it exports.
2. TRIMS that are inconsistent with the obligations of
general elimination of quantitative restrictions provided for in
paragraph 1 of Article XI of GATT 1994 include those which

are mandatory or enforceable under domestic laws or under

administrative rulings, or compliance with which is
necessary to obtain an advantage, and which restrict:
(a) the importation by an enterprise of
products used in or related to the local
production that it exports;
(b) the importation by an enterprise of
products used in or related to its local
production by restricting its access to
foreign exchange inflows attributable to the
enterprise; or
(c) the exportation or sale for export
specified in terms of particular products, in
terms of volume or value of products, or in
terms of a preparation of volume or value of
its local production. (Annex to the
Agreement on Trade-Related Investment
Measures, Vol. 27, Uruguay Round Legal
Documents, p. 22125, emphasis supplied).
The paragraph 4 of Article III of GATT 1994 referred to is
quoted as follows:
The products of the territory of any
contracting party imported into the territory
of any other contracting party shall be
accorded treatment no less favorable than
that accorded to like products of national
origin in respect of laws, regulations and
requirements affecting their internal sale,
offering for sale, purchase, transportation,
distribution or use, the provisions of this
paragraph shall not prevent the application
of differential internal transportation charges
which are based exclusively on the

economic operation of the means of

transport and not on the nationality of the
product." (Article III, GATT 1947, as
amended by the Protocol Modifying Part II,
and Article XXVI of GATT, 14 September
1948, 62 UMTS 82-84 in relation to
paragraph 1(a) of the General Agreement
on Tariffs and Trade 1994, Vol. 1, Uruguay
Round, Legal Instruments p. 177, emphasis
supplied).
(b) In the area of trade related aspects of intellectual
property rights (TRIPS, for brevity):
Each Member shall accord to the nationals
of other Members treatment no less
favourable than that it accords to its own
nationals with regard to the protection of
intellectual property. . . (par. 1 Article 3,
Agreement on Trade-Related Aspect of
Intellectual Property rights, Vol. 31, Uruguay
Round, Legal Instruments, p. 25432
(emphasis supplied)
(c) In the area of the General Agreement on Trade in
Services:
National Treatment
1. In the sectors inscribed in its schedule,
and subject to any conditions and
qualifications set out therein, each Member
shall accord to services and service
suppliers of any other Member, in respect of
all measures affecting the supply of
services, treatment no less favourable than
it accords to its own like services and
service suppliers.

2. A Member may meet the requirement of

paragraph I by according to services and
service suppliers of any other Member,
either formally suppliers of any other
Member, either formally identical treatment
or formally different treatment to that it
accords to its own like services and service
suppliers.
3. Formally identical or formally different
treatment shall be considered to be less
favourable if it modifies the conditions of
completion in favour of services or service
suppliers of the Member compared to like
services or service suppliers of any other
Member. (Article XVII, General Agreement
on Trade in Services, Vol. 28, Uruguay
Round Legal Instruments, p. 22610
emphasis supplied).
It is petitioners' position that the foregoing "national treatment" and "parity
provisions" of the WTO Agreement "place nationals and products of member
countries on the same footing as Filipinos and local products," in
contravention of the "Filipino First" policy of the Constitution. They allegedly
render meaningless the phrase "effectively controlled by Filipinos." The
constitutional conflict becomes more manifest when viewed in the context of
the clear duty imposed on the Philippines as a WTO member to ensure the
conformity of its laws, regulations and administrative procedures with its
obligations as provided in the annexed agreements. 20 Petitioners further
argue that these provisions contravene constitutional limitations on the role
exports play in national development and negate the preferential treatment
accorded to Filipino labor, domestic materials and locally produced goods.
On the other hand, respondents through the Solicitor General counter (1)
that such Charter provisions are not self-executing and merely set out
general policies; (2) that these nationalistic portions of the Constitution
invoked by petitioners should not be read in isolation but should be related to
other relevant provisions of Art. XII, particularly Secs. 1 and 13 thereof; (3)

that read properly, the cited WTO clauses do not conflict with Constitution;
and (4) that the WTO Agreement contains sufficient provisions to protect
developing countries like the Philippines from the harshness of sudden trade
liberalization.
We shall now discuss and rule on these arguments.
Declaration of Principles
Not Self-Executing
By its very title, Article II of the Constitution is a "declaration of principles and
state policies." The counterpart of this article in the 1935 Constitution 21 is
called the "basic political creed of the nation" by Dean Vicente
Sinco. 22 These principles in Article II are not intended to be self-executing
principles ready for enforcement through the courts. 23 They are used by the
judiciary as aids or as guides in the exercise of its power of judicial review,
and by the legislature in its enactment of laws. As held in the leading case
of Kilosbayan, Incorporated vs. Morato, 24 the principles and state policies
enumerated in Article II and some sections of Article XII are not "selfexecuting provisions, the disregard of which can give rise to a cause of
action in the courts. They do not embody judicially enforceable constitutional
rights but guidelines for legislation."
In the same light, we held in Basco vs. Pagcor 25 that broad constitutional
principles need legislative enactments to implement the, thus:
On petitioners' allegation that P.D. 1869 violates Sections 11
(Personal Dignity) 12 (Family) and 13 (Role of Youth) of
Article II; Section 13 (Social Justice) of Article XIII and
Section 2 (Educational Values) of Article XIV of the 1987
Constitution, suffice it to state also that these are merely
statements of principles and policies. As such, they are
basically not self-executing, meaning a law should be
passed by Congress to clearly define and effectuate such
principles.
In general, therefore, the 1935 provisions
were not intended to be self-executing

principles ready for enforcement through

the courts. They were rather directives
addressed to the executive and to the
legislature. If the executive and the
legislature failed to heed the directives of
the article, the available remedy was not
judicial but political. The electorate could
express their displeasure with the failure of
the executive and the legislature through
the language of the ballot. (Bernas, Vol. II,
p. 2).
The reasons for denying a cause of action to an alleged infringement of
board constitutional principles are sourced from basic considerations of due
process and the lack of judicial authority to wade "into the uncharted ocean
of social and economic policy making." Mr. Justice Florentino P. Feliciano in
his concurring opinion inOposa vs. Factoran, Jr., 26 explained these reasons
as follows:
My suggestion is simply that petitioners must, before the
trial court, show a more specific legal right a right cast in
language of a significantly lower order of generality than
Article II (15) of the Constitution that is or may be violated
by the actions, or failures to act, imputed to the public
respondent by petitioners so that the trial court can validly
render judgment grating all or part of the relief prayed for. To
my mind, the court should be understood as simply saying
that such a more specific legal right or rights may well exist
in our corpus of law, considering the general policy
principles found in the Constitution and the existence of the
Philippine Environment Code, and that the trial court should
have given petitioners an effective opportunity so to
demonstrate, instead of aborting the proceedings on a
motion to dismiss.
It seems to me important that the legal right which is an
essential component of a cause of action be a specific,
operable legal right, rather than a constitutional or statutory

policy, for at least two (2) reasons. One is that unless the
legal right claimed to have been violated or disregarded is
given specification in operational terms, defendants may
well be unable to defend themselves intelligently and
effectively; in other words, there are due process
dimensions to this matter.
The second is a broader-gauge consideration where a
specific violation of law or applicable regulation is not
alleged or proved, petitioners can be expected to fall back
on the expanded conception of judicial power in the second
paragraph of Section 1 of Article VIII of the Constitution
which reads:
Sec. 1. . . .
Judicial power includes the duty of the
courts of justice to settle actual
controversies involving rights which are
legally demandable and enforceable, and to
determine whether or not there has been a
grave abuse of discretion amounting to lack
or excess of jurisdiction on the part of any
branch or instrumentality of the
Government. (Emphasis supplied)
When substantive standards as general as "the right to a
balanced and healthy ecology" and "the right to health" are
combined with remedial standards as broad ranging as "a
grave abuse of discretion amounting to lack or excess of
jurisdiction," the result will be, it is respectfully submitted, to
propel courts into the uncharted ocean of social and
economic policy making. At least in respect of the vast area
of environmental protection and management, our courts
have no claim to special technical competence and
experience and professional qualification. Where no
specific, operable norms and standards are shown to exist,
then the policy making departments the legislative and

executive departments must be given a real and effective

opportunity to fashion and promulgate those norms and
standards, and to implement them before the courts should
intervene.
Economic Nationalism Should Be Read with
Other Constitutional Mandates to Attain
Balanced Development of Economy
On the other hand, Secs. 10 and 12 of Article XII, apart from merely laying
down general principles relating to the national economy and patrimony,
should be read and understood in relation to the other sections in said
article, especially Secs. 1 and 13 thereof which read:
Sec. 1. The goals of the national economy are a more
equitable distribution of opportunities, income, and wealth; a
sustained increase in the amount of goods and services
produced by the nation for the benefit of the people; and an
expanding productivity as the key to raising the quality of life
for all especially the underprivileged.
The State shall promote industrialization and full
employment based on sound agricultural development and
agrarian reform, through industries that make full and
efficient use of human and natural resources, and which are
competitive in both domestic and foreign markets. However,
the State shall protect Filipino enterprises against unfair
foreign competition and trade practices.
In the pursuit of these goals, all sectors of the economy and
all regions of the country shall be given optimum opportunity
to develop. . . .
xxx xxx xxx
Sec. 13. The State shall pursue a trade policy that serves
the general welfare and utilizes all forms and arrangements
of exchange on the basis of equality and reciprocity.

As pointed out by the Solicitor General, Sec. 1 lays down the basic goals of
national economic development, as follows:
1. A more equitable distribution of opportunities, income and wealth;
2. A sustained increase in the amount of goods and services provided by the
nation for the benefit of the people; and
3. An expanding productivity as the key to raising the quality of life for all
especially the underprivileged.
With these goals in context, the Constitution then ordains the ideals of
economic nationalism (1) by expressing preference in favor of qualified
Filipinos "in the grant of rights, privileges and concessions covering the
national economy and patrimony" 27 and in the use of "Filipino labor,
domestic materials and locally-produced goods"; (2) by mandating the State
to "adopt measures that help make them competitive; 28 and (3) by requiring
the State to "develop a self-reliant and independent national economy
effectively controlled by Filipinos." 29 In similar language, the Constitution
takes into account the realities of the outside world as it requires the pursuit
of "a trade policy that serves the general welfare and utilizes all forms and
arrangements of exchange on the basis of equality ad reciprocity"; 30 and
speaks of industries "which are competitive in both domestic
and foreign markets" as well as of the protection of "Filipino enterprises
against unfair foreign competition and trade practices."
It is true that in the recent case of Manila Prince Hotel vs. Government
Service Insurance System, et al., 31 this Court held that "Sec. 10, second
par., Art. XII of the 1987 Constitution is a mandatory, positive command
which is complete in itself and which needs no further guidelines or
implementing laws or rule for its enforcement. From its very words the
provision does not require any legislation to put it in operation. It is per
se judicially enforceable." However, as the constitutional provision itself
states, it is enforceable only in regard to "the grants of rights, privileges and
concessions covering national economy and patrimony" and not to every
aspect of trade and commerce. It refers to exceptions rather than the rule.
The issue here is not whether this paragraph of Sec. 10 of Art. XII is selfexecuting or not. Rather, the issue is whether, as a rule, there are enough

balancing provisions in the Constitution to allow the Senate to ratify the

Philippine concurrence in the WTO Agreement. And we hold that there are.
All told, while the Constitution indeed mandates a bias in favor of Filipino
goods, services, labor and enterprises, at the same time, it recognizes the
need for business exchange with the rest of the world on the bases of
equality and reciprocity and limits protection of Filipino enterprises only
against foreign competition and trade practices that are unfair. 32 In other
words, the Constitution did not intend to pursue an isolationist policy. It did
not shut out foreign investments, goods and services in the development of
the Philippine economy. While the Constitution does not encourage the
unlimited entry of foreign goods, services and investments into the country, it
does not prohibit them either. In fact, it allows an exchange on the basis of
equality and reciprocity, frowning only on foreign competition that is unfair.
WTO Recognizes Need to
Protect Weak Economies
Upon the other hand, respondents maintain that the WTO itself has some
built-in advantages to protect weak and developing economies, which
comprise the vast majority of its members. Unlike in the UN where major
states have permanent seats and veto powers in the Security Council, in the
WTO, decisions are made on the basis of sovereign equality, with each
member's vote equal in weight to that of any other. There is no WTO
equivalent of the UN Security Council.
WTO decides by consensus whenever possible, otherwise,
decisions of the Ministerial Conference and the General
Council shall be taken by the majority of the votes cast,
except in cases of interpretation of the Agreement or waiver
of the obligation of a member which would require three
fourths vote. Amendments would require two thirds vote in
general. Amendments to MFN provisions and the
Amendments provision will require assent of all members.
Any member may withdraw from the Agreement upon the
expiration of six months from the date of notice of
withdrawals. 33

Hence, poor countries can protect their common interests more effectively
through the WTO than through one-on-one negotiations with developed
countries. Within the WTO, developing countries can form powerful blocs to
push their economic agenda more decisively than outside the Organization.
This is not merely a matter of practical alliances but a negotiating strategy
rooted in law. Thus, the basic principles underlying the WTO Agreement
recognize the need of developing countries like the Philippines to "share in
the growth in international trade commensurate with the needs of their
economic development." These basic principles are found in the
preamble 34 of the WTO Agreement as follows:
The Parties to this Agreement,
Recognizing that their relations in the field of trade and
economic endeavour should be conducted with a view to
raising standards of living, ensuring full employment and a
large and steadily growing volume of real income and
effective demand, and expanding the production of and
trade in goods and services, while allowing for the optimal
use of the world's resources in accordance with the
objective of sustainable development, seeking both to
protect and preserve the environment and to enhance the
means for doing so in a manner consistent with their
respective needs and concerns at different levels of
economic development,
Recognizing further that there is need for positive efforts
designed to ensure that developing countries, and
especially the least developed among them, secure a share
in the growth in international trade commensurate with the
needs of their economic development,
Being desirous of contributing to these objectives by
entering into reciprocal and mutually advantageous
arrangements directed to the substantial reduction of tariffs
and other barriers to trade and to the elimination of
discriminatory treatment in international trade relations,

Resolved, therefore, to develop an integrated, more viable

and durable multilateral trading system encompassing the
General Agreement on Tariffs and Trade, the results of past
trade liberalization efforts, and all of the results of the
Uruguay Round of Multilateral Trade Negotiations,
Determined to preserve the basic principles and to further
the objectives underlying this multilateral trading system, . . .
(emphasis supplied.)
Specific WTO Provisos
Protect Developing Countries
So too, the Solicitor General points out that pursuant to and consistent with
the foregoing basic principles, the WTO Agreement grants developing
countries a more lenient treatment, giving their domestic industries some
protection from the rush of foreign competition. Thus, with respect to tariffs in
general, preferential treatment is given to developing countries in terms of
the amount of tariff reduction and the period within which the reduction is to
be spread out. Specifically, GATT requires an average tariff reduction rate of
36% for developed countries to be effected within a period of six (6)
years while developing countries including the Philippines are required
to effect an average tariff reduction of only 24% within ten (10) years.
In respect to domestic subsidy, GATT requires developed countries to
reduce domestic support to agricultural products by 20% over six (6) years,
as compared to only 13% for developing countries to be effected within ten
(10) years.
In regard to export subsidy for agricultural products, GATT requires
developed countries to reduce their budgetary outlays for export subsidy by
36% and export volumes receiving export subsidy by 21% within a period of
six (6) years. For developing countries, however, the reduction rate is
only two-thirds of that prescribed for developed countries and a
longer period of ten (10) years within which to effect such reduction.
Moreover, GATT itself has provided built-in protection from unfair foreign
competition and trade practices including anti-dumping measures,

countervailing measures and safeguards against import surges. Where local

businesses are jeopardized by unfair foreign competition, the Philippines can
avail of these measures. There is hardly therefore any basis for the
statement that under the WTO, local industries and enterprises will all be
wiped out and that Filipinos will be deprived of control of the economy. Quite
the contrary, the weaker situations of developing nations like the Philippines
have been taken into account; thus, there would be no basis to say that in
joining the WTO, the respondents have gravely abused their discretion.
True, they have made a bold decision to steer the ship of state into the yet
uncharted sea of economic liberalization. But such decision cannot be set
aside on the ground of grave abuse of discretion, simply because we
disagree with it or simply because we believe only in other economic
policies. As earlier stated, the Court in taking jurisdiction of this case will not
pass upon the advantages and disadvantages of trade liberalization as an
economic policy. It will only perform its constitutional duty of determining
whether the Senate committed grave abuse of discretion.
Constitution Does Not
Rule Out Foreign Competition
Furthermore, the constitutional policy of a "self-reliant and independent
national economy" 35 does not necessarily rule out the entry of foreign
investments, goods and services. It contemplates neither "economic
seclusion" nor "mendicancy in the international community." As explained by
Constitutional Commissioner Bernardo Villegas, sponsor of this
constitutional policy:
Economic self-reliance is a primary objective of a
developing country that is keenly aware of overdependence
on external assistance for even its most basic needs. It
does not mean autarky or economic seclusion; rather, it
means avoiding mendicancy in the international community.
Independence refers to the freedom from undue foreign
control of the national economy, especially in such strategic
industries as in the development of natural resources and
public utilities. 36

The WTO reliance on "most favored nation," "national treatment," and "trade
without discrimination" cannot be struck down as unconstitutional as in fact
they are rules of equality and reciprocity that apply to all WTO members.
Aside from envisioning a trade policy based on "equality and
reciprocity," 37 the fundamental law encourages industries that are
"competitive in both domestic and foreign markets," thereby demonstrating a
clear policy against a sheltered domestic trade environment, but one in favor
of the gradual development of robust industries that can compete with the
best in the foreign markets. Indeed, Filipino managers and Filipino
enterprises have shown capability and tenacity to compete internationally.
And given a free trade environment, Filipino entrepreneurs and managers in
Hongkong have demonstrated the Filipino capacity to grow and to prosper
against the best offered under a policy of laissez faire.
Constitution Favors Consumers,
Not Industries or Enterprises
The Constitution has not really shown any unbalanced bias in favor of any
business or enterprise, nor does it contain any specific pronouncement that
Filipino companies should be pampered with a total proscription of foreign
competition. On the other hand, respondents claim that WTO/GATT aims to
make available to the Filipino consumer the best goods and services
obtainable anywhere in the world at the most reasonable prices.
Consequently, the question boils down to whether WTO/GATT will favor the
general welfare of the public at large.
Will adherence to the WTO treaty bring this ideal (of favoring the general
welfare) to reality?
Will WTO/GATT succeed in promoting the Filipinos' general welfare because
it will as promised by its promoters expand the country's exports and
generate more employment?
Will it bring more prosperity, employment, purchasing power and quality
products at the most reasonable rates to the Filipino public?
The responses to these questions involve "judgment calls" by our policy
makers, for which they are answerable to our people during appropriate

electoral exercises. Such questions and the answers thereto are not subject
to judicial pronouncements based on grave abuse of discretion.
Constitution Designed to Meet
Future Events and Contingencies
No doubt, the WTO Agreement was not yet in existence when the
Constitution was drafted and ratified in 1987. That does not mean however
that the Charter is necessarily flawed in the sense that its framers might not
have anticipated the advent of a borderless world of business. By the same
token, the United Nations was not yet in existence when the 1935
Constitution became effective. Did that necessarily mean that the then
Constitution might not have contemplated a diminution of the absoluteness
of sovereignty when the Philippines signed the UN Charter, thereby
effectively surrendering part of its control over its foreign relations to the
decisions of various UN organs like the Security Council?
It is not difficult to answer this question. Constitutions are designed to meet
not only the vagaries of contemporary events. They should be interpreted to
cover even future and unknown circumstances. It is to the credit of its
drafters that a Constitution can withstand the assaults of bigots and infidels
but at the same time bend with the refreshing winds of change necessitated
by unfolding events. As one eminent political law writer and respected
jurist 38 explains:
The Constitution must be quintessential rather than
superficial, the root and not the blossom, the base and
frame-work only of the edifice that is yet to rise. It is but the
core of the dream that must take shape, not in a twinkling by
mandate of our delegates, but slowly "in the crucible of
Filipino minds and hearts," where it will in time develop its
sinews and gradually gather its strength and finally achieve
its substance. In fine, the Constitution cannot, like the
goddess Athena, rise full-grown from the brow of the
Constitutional Convention, nor can it conjure by mere fiat an
instant Utopia. It must grow with the society it seeks to restructure and march apace with the progress of the race,
drawing from the vicissitudes of history the dynamism and

vitality that will keep it, far from becoming a petrified rule, a
pulsing, living law attuned to the heartbeat of the nation.
Third Issue: The WTO Agreement and Legislative Power
The WTO Agreement provides that "(e)ach Member shall ensure the
conformity of its laws, regulations and administrative procedures with its
obligations as provided in the annexed Agreements." 39 Petitioners maintain
that this undertaking "unduly limits, restricts and impairs Philippine
sovereignty, specifically the legislative power which under Sec. 2, Article VI
of the 1987 Philippine Constitution is vested in the Congress of the
Philippines. It is an assault on the sovereign powers of the Philippines
because this means that Congress could not pass legislation that will be
good for our national interest and general welfare if such legislation will not
conform with the WTO Agreement, which not only relates to the trade in
goods . . . but also to the flow of investments and money . . . as well as to a
whole slew of agreements on socio-cultural matters . . . 40
More specifically, petitioners claim that said WTO proviso derogates from the
power to tax, which is lodged in the Congress. 41 And while the Constitution
allows Congress to authorize the President to fix tariff rates, import and
export quotas, tonnage and wharfage dues, and other duties or imposts,
such authority is subject to "specified limits and . . . such limitations and
restrictions" as Congress may provide, 42 as in fact it did under Sec. 401 of
the Tariff and Customs Code.
Sovereignty Limited by
International Law and Treaties
This Court notes and appreciates the ferocity and passion by which
petitioners stressed their arguments on this issue. However, while
sovereignty has traditionally been deemed absolute and all-encompassing
on the domestic level, it is however subject to restrictions and limitations
voluntarily agreed to by the Philippines, expressly or impliedly, as a member
of the family of nations. Unquestionably, the Constitution did not envision a
hermit-type isolation of the country from the rest of the world. In its
Declaration of Principles and State Policies, the Constitution "adopts the
generally accepted principles of international law as part of the law of the

land, and adheres to the policy of peace, equality, justice, freedom,

cooperation and amity, with all nations." 43 By the doctrine of incorporation,
the country is bound by generally accepted principles of international law,
which are considered to be automatically part of our own laws. 44 One of the
oldest and most fundamental rules in international law is pacta sunt
servanda international agreements must be performed in good faith. "A
treaty engagement is not a mere moral obligation but creates a legally
binding obligation on the parties . . . A state which has contracted valid
international obligations is bound to make in its legislations such
modifications as may be necessary to ensure the fulfillment of the
obligations undertaken." 45
By their inherent nature, treaties really limit or restrict the absoluteness of
sovereignty. By their voluntary act, nations may surrender some aspects of
their state power in exchange for greater benefits granted by or derived from
a convention or pact. After all, states, like individuals, live with coequals, and
in pursuit of mutually covenanted objectives and benefits, they also
commonly agree to limit the exercise of their otherwise absolute rights. Thus,
treaties have been used to record agreements between States concerning
such widely diverse matters as, for example, the lease of naval bases, the
sale or cession of territory, the termination of war, the regulation of conduct
of hostilities, the formation of alliances, the regulation of commercial
relations, the settling of claims, the laying down of rules governing conduct in
peace and the establishment of international organizations. 46 The
sovereignty of a state therefore cannot in fact and in reality be considered
absolute. Certain restrictions enter into the picture: (1) limitations imposed by
the very nature of membership in the family of nations and (2) limitations
imposed by treaty stipulations. As aptly put by John F. Kennedy, "Today, no
nation can build its destiny alone. The age of self-sufficient nationalism is
over. The age of interdependence is here." 47
UN Charter and Other Treaties
Limit Sovereignty
Thus, when the Philippines joined the United Nations as one of its 51 charter
members, it consented to restrict its sovereign rights under the "concept of
sovereignty as auto-limitation." 47-A Under Article 2 of the UN Charter, "(a)ll
members shall give the United Nations every assistance in any action it

takes in accordance with the present Charter, and shall refrain from giving
assistance to any state against which the United Nations is taking preventive
or enforcement action." Such assistance includes payment of its
corresponding share not merely in administrative expenses but also in
expenditures for the peace-keeping operations of the organization. In its
advisory opinion of July 20, 1961, the International Court of Justice held that
money used by the United Nations Emergency Force in the Middle East and
in the Congo were "expenses of the United Nations" under Article 17,
paragraph 2, of the UN Charter. Hence, all its members must bear their
corresponding share in such expenses. In this sense, the Philippine
Congress is restricted in its power to appropriate. It is compelled to
appropriate funds whether it agrees with such peace-keeping expenses or
not. So too, under Article 105 of the said Charter, the UN and its
representatives enjoy diplomatic privileges and immunities, thereby limiting
again the exercise of sovereignty of members within their own territory.
Another example: although "sovereign equality" and "domestic jurisdiction"
of all members are set forth as underlying principles in the UN Charter, such
provisos are however subject to enforcement measures decided by the
Security Council for the maintenance of international peace and security
under Chapter VII of the Charter. A final example: under Article 103, "(i)n the
event of a conflict between the obligations of the Members of the United
Nations under the present Charter and their obligations under any other
international agreement, their obligation under the present charter shall
prevail," thus unquestionably denying the Philippines as a member the
sovereign power to make a choice as to which of conflicting obligations, if
any, to honor.
Apart from the UN Treaty, the Philippines has entered into many other
international pacts both bilateral and multilateral that involve limitations
on Philippine sovereignty. These are enumerated by the Solicitor General in
his Compliance dated October 24, 1996, as follows:
(a) Bilateral convention with the United States regarding
taxes on income, where the Philippines agreed, among
others, to exempt from tax, income received in the
Philippines by, among others, the Federal Reserve Bank of
the United States, the Export/Import Bank of the United
States, the Overseas Private Investment Corporation of the

United States. Likewise, in said convention, wages, salaries

and similar remunerations paid by the United States to its
citizens for labor and personal services performed by them
as employees or officials of the United States are exempt
from income tax by the Philippines.
(b) Bilateral agreement with Belgium, providing, among
others, for the avoidance of double taxation with respect to
taxes on income.
(c) Bilateral convention with the Kingdom of Sweden for the
avoidance of double taxation.
(d) Bilateral convention with the French Republic for the
avoidance of double taxation.
(e) Bilateral air transport agreement with Korea where the
Philippines agreed to exempt from all customs duties,
inspection fees and other duties or taxes aircrafts of South
Korea and the regular equipment, spare parts and supplies
arriving with said aircrafts.
(f) Bilateral air service agreement with Japan, where the
Philippines agreed to exempt from customs duties, excise
taxes, inspection fees and other similar duties, taxes or
charges fuel, lubricating oils, spare parts, regular
equipment, stores on board Japanese aircrafts while on
Philippine soil.
(g) Bilateral air service agreement with Belgium where the
Philippines granted Belgian air carriers the same privileges
as those granted to Japanese and Korean air carriers under
separate air service agreements.
(h) Bilateral notes with Israel for the abolition of transit and
visitor visas where the Philippines exempted Israeli
nationals from the requirement of obtaining transit or visitor
visas for a sojourn in the Philippines not exceeding 59 days.

(i) Bilateral agreement with France exempting French

nationals from the requirement of obtaining transit and
visitor visa for a sojourn not exceeding 59 days.
(j) Multilateral Convention on Special Missions, where the
Philippines agreed that premises of Special Missions in the
Philippines are inviolable and its agents can not enter said
premises without consent of the Head of Mission concerned.
Special Missions are also exempted from customs duties,
taxes and related charges.
(k) Multilateral convention on the Law of Treaties. In this
convention, the Philippines agreed to be governed by the
Vienna Convention on the Law of Treaties.
(l) Declaration of the President of the Philippines accepting
compulsory jurisdiction of the International Court of Justice.
The International Court of Justice has jurisdiction in all legal
disputes concerning the interpretation of a treaty, any
question of international law, the existence of any fact
which, if established, would constitute a breach "of
international obligation."
In the foregoing treaties, the Philippines has effectively agreed to limit the
exercise of its sovereign powers of taxation, eminent domain and police
power. The underlying consideration in this partial surrender of sovereignty
is the reciprocal commitment of the other contracting states in granting the
same privilege and immunities to the Philippines, its officials and its citizens.
The same reciprocity characterizes the Philippine commitments under WTOGATT.
International treaties, whether relating to nuclear
disarmament, human rights, the environment, the law of the
sea, or trade, constrain domestic political sovereignty
through the assumption of external obligations. But unless
anarchy in international relations is preferred as an
alternative, in most cases we accept that the benefits of the
reciprocal obligations involved outweigh the costs

associated with any loss of political sovereignty. (T)rade

treaties that structure relations by reference to durable, welldefined substantive norms and objective dispute resolution
procedures reduce the risks of larger countries exploiting
raw economic power to bully smaller countries, by
subjecting power relations to some form of legal ordering. In
addition, smaller countries typically stand to gain
disproportionately from trade liberalization. This is due to the
simple fact that liberalization will provide access to a larger
set of potential new trading relationship than in case of the
larger country gaining enhanced success to the smaller
country's market. 48
The point is that, as shown by the foregoing treaties, a portion of sovereignty
may be waived without violating the Constitution, based on the rationale that
the Philippines "adopts the generally accepted principles of international law
as part of the law of the land and adheres to the policy of . . . cooperation
and amity with all nations."
Fourth Issue: The WTO Agreement and Judicial Power
Petitioners aver that paragraph 1, Article 34 of the General Provisions and
Basic Principles of the Agreement on Trade-Related Aspects of Intellectual
Property Rights (TRIPS) 49 intrudes on the power of the Supreme Court to
promulgate rules concerning pleading, practice and procedures. 50
To understand the scope and meaning of Article 34, TRIPS,
fruitful to restate its full text as follows:

51

it will be

Article 34
Process Patents: Burden of Proof
1. For the purposes of civil proceedings in respect of the
infringement of the rights of the owner referred to in
paragraph 1 (b) of Article 28, if the subject matter of a patent
is a process for obtaining a product, the judicial authorities
shall have the authority to order the defendant to prove that

the process to obtain an identical product is different from

the patented process. Therefore, Members shall provide, in
at least one of the following circumstances, that any
identical product when produced without the consent of the
patent owner shall, in the absence of proof to the contrary,
be deemed to have been obtained by the patented process:
(a) if the product obtained by the patented
process is new;
(b) if there is a substantial likelihood that the
identical product was made by the process
and the owner of the patent has been
unable through reasonable efforts to
determine the process actually used.
2. Any Member shall be free to provide that the burden of
proof indicated in paragraph 1 shall be on the alleged
infringer only if the condition referred to in subparagraph (a)
is fulfilled or only if the condition referred to in subparagraph
(b) is fulfilled.
3. In the adduction of proof to the contrary, the legitimate
interests of defendants in protecting their manufacturing and
business secrets shall be taken into account.
From the above, a WTO Member is required to provide a rule of disputable
(not the words "in the absence of proof to the contrary") presumption that a
product shown to be identical to one produced with the use of a patented
process shall be deemed to have been obtained by the (illegal) use of the
said patented process, (1) where such product obtained by the patented
product is new, or (2) where there is "substantial likelihood" that the identical
product was made with the use of the said patented process but the owner
of the patent could not determine the exact process used in obtaining such
identical product. Hence, the "burden of proof" contemplated by Article 34
should actually be understood as the duty of the alleged patent infringer to
overthrow such presumption. Such burden, properly understood, actually
refers to the "burden of evidence" (burden of going forward) placed on the

producer of the identical (or fake) product to show that his product was
produced without the use of the patented process.
The foregoing notwithstanding, the patent owner still has the "burden of
proof" since, regardless of the presumption provided under paragraph 1 of
Article 34, such owner still has to introduce evidence of the existence of the
alleged identical product, the fact that it is "identical" to the genuine one
produced by the patented process and the fact of "newness" of the genuine
product or the fact of "substantial likelihood" that the identical product was
made by the patented process.
The foregoing should really present no problem in changing the rules of
evidence as the present law on the subject, Republic Act No. 165, as
amended, otherwise known as the Patent Law, provides a similar
presumption in cases of infringement of patented design or utility model,
thus:
Sec. 60. Infringement. Infringement of a design patent or
of a patent for utility model shall consist in unauthorized
copying of the patented design or utility model for the
purpose of trade or industry in the article or product and in
the making, using or selling of the article or product copying
the patented design or utility model. Identity or substantial
identity with the patented design or utility model shall
constitute evidence of copying. (emphasis supplied)
Moreover, it should be noted that the requirement of Article 34 to provide a
disputable presumption applies only if (1) the product obtained by the
patented process in NEW or (2) there is a substantial likelihood that the
identical product was made by the process and the process owner has not
been able through reasonable effort to determine the process used. Where
either of these two provisos does not obtain, members shall be free to
determine the appropriate method of implementing the provisions of TRIPS
within their own internal systems and processes.
By and large, the arguments adduced in connection with our disposition of
the third issue derogation of legislative power will apply to this fourth
issue also. Suffice it to say that the reciprocity clause more than justifies

such intrusion, if any actually exists. Besides, Article 34 does not contain an
unreasonable burden, consistent as it is with due process and the concept of
adversarial dispute settlement inherent in our judicial system.
So too, since the Philippine is a signatory to most international conventions
on patents, trademarks and copyrights, the adjustment in legislation and
rules of procedure will not be substantial. 52
Fifth Issue: Concurrence Only in the WTO Agreement and
Not in Other Documents Contained in the Final Act
Petitioners allege that the Senate concurrence in the WTO Agreement and
its annexes but not in the other documents referred to in the Final Act,
namely the Ministerial Declaration and Decisions and the Understanding on
Commitments in Financial Services is defective and insufficient and thus
constitutes abuse of discretion. They submit that such concurrence in the
WTO Agreement alone is flawed because it is in effect a rejection of the
Final Act, which in turn was the document signed by Secretary Navarro, in
representation of the Republic upon authority of the President. They contend
that the second letter of the President to the Senate 53 which enumerated
what constitutes the Final Act should have been the subject of concurrence
of the Senate.
"A final act, sometimes called protocol de cloture, is an instrument which
records the winding up of the proceedings of a diplomatic conference and
usually includes a reproduction of the texts of treaties, conventions,
recommendations and other acts agreed upon and signed by the
plenipotentiaries attending the conference." 54 It is not the treaty itself. It is
rather a summary of the proceedings of a protracted conference which may
have taken place over several years. The text of the "Final Act Embodying
the Results of the Uruguay Round of Multilateral Trade Negotiations" is
contained in just one page 55 in Vol. I of the 36-volume Uruguay Round of
Multilateral Trade Negotiations. By signing said Final Act, Secretary Navarro
as representative of the Republic of the Philippines undertook:

(a) to submit, as appropriate, the WTO Agreement for the

consideration of their respective competent authorities with
a view to seeking approval of the Agreement in accordance
with their procedures; and
(b) to adopt the Ministerial Declarations and Decisions.
The assailed Senate Resolution No. 97 expressed concurrence in exactly
what the Final Act required from its signatories, namely, concurrence of the
Senate in the WTO Agreement.
The Ministerial Declarations and Decisions were deemed adopted without
need for ratification. They were approved by the ministers by virtue of Article
XXV: 1 of GATT which provides that representatives of the members can
meet "to give effect to those provisions of this Agreement which invoke joint
action, and generally with a view to facilitating the operation and furthering
the objectives of this Agreement." 56
The Understanding on Commitments in Financial Services also approved in
Marrakesh does not apply to the Philippines. It applies only to those 27
Members which "have indicated in their respective schedules of
commitments on standstill, elimination of monopoly, expansion of operation
of existing financial service suppliers, temporary entry of personnel, free
transfer and processing of information, and national treatment with respect
to access to payment, clearing systems and refinancing available in the
normal course of business." 57
On the other hand, the WTO Agreement itself expresses what multilateral
agreements are deemed included as its integral parts, 58 as follows:
Article II
Scope of the WTO
1. The WTO shall provide the common institutional framework for the conduct of trade relations among its Members
in matters to the agreements and associated legal
instruments included in the Annexes to this Agreement.

2. The Agreements and associated legal instruments

included in Annexes 1, 2, and 3, (hereinafter referred to as
"Multilateral Agreements") are integral parts of this
Agreement, binding on all Members.
3. The Agreements and associated legal instruments
included in Annex 4 (hereinafter referred to as "Plurilateral
Trade Agreements") are also part of this Agreement for
those Members that have accepted them, and are binding
on those Members. The Plurilateral Trade Agreements do
not create either obligation or rights for Members that have
not accepted them.
4. The General Agreement on Tariffs and Trade 1994 as
specified in annex 1A (hereinafter referred to as "GATT
1994") is legally distinct from the General Agreement on
Tariffs and Trade, dated 30 October 1947, annexed to the
Final Act adopted at the conclusion of the Second Session
of the Preparatory Committee of the United Nations
Conference on Trade and Employment, as subsequently
rectified, amended or modified (hereinafter referred to as
"GATT 1947").
It should be added that the Senate was well-aware of what it was concurring
in as shown by the members' deliberation on August 25, 1994. After reading
the letter of President Ramos dated August 11, 1994, 59 the senators
of the Republic minutely dissected what the Senate was concurring in, as
follows: 60
THE CHAIRMAN: Yes. Now, the question of the validity of
the submission came up in the first day hearing of this
Committee yesterday. Was the observation made by
Senator Taada that what was submitted to the Senate was
not the agreement on establishing the World Trade
Organization by the final act of the Uruguay Round which is
not the same as the agreement establishing the World Trade
Organization? And on that basis, Senator Tolentino raised a
point of order which, however, he agreed to withdraw upon

understanding that his suggestion for an alternative solution

at that time was acceptable. That suggestion was to treat
the proceedings of the Committee as being in the nature of
briefings for Senators until the question of the submission
could be clarified.
And so, Secretary Romulo, in effect, is the President
submitting a new . . . is he making a new submission which
improves on the clarity of the first submission?
MR. ROMULO: Mr. Chairman, to make sure that it is clear
cut and there should be no misunderstanding, it was his
intention to clarify all matters by giving this letter.
THE CHAIRMAN: Thank you.
Can this Committee hear from Senator Taada and later on
Senator Tolentino since they were the ones that raised this
question yesterday?
Senator Taada, please.
SEN. TAADA: Thank you, Mr. Chairman.
Based on what Secretary Romulo has read, it would now
clearly appear that what is being submitted to the Senate for
ratification is not the Final Act of the Uruguay Round, but
rather the Agreement on the World Trade Organization as
well as the Ministerial Declarations and Decisions, and the
Understanding and Commitments in Financial Services.
I am now satisfied with the wording of the new submission
of President Ramos.
SEN. TAADA. . . . of President Ramos, Mr. Chairman.

THE CHAIRMAN. Thank you, Senator Taada. Can we hear

from Senator Tolentino? And after him Senator Neptali
Gonzales and Senator Lina.
SEN. TOLENTINO, Mr. Chairman, I have not seen the new
submission actually transmitted to us but I saw the draft of
his earlier, and I think it now complies with the provisions of
the Constitution, and with the Final Act itself . The
Constitution does not require us to ratify the Final Act. It
requires us to ratify the Agreement which is now being
submitted. The Final Act itself specifies what is going to be
submitted to with the governments of the participants.
In paragraph 2 of the Final Act, we read and I quote:
By signing the present Final Act, the representatives
agree: (a) to submit as appropriate the WTO Agreement for
the consideration of the respective competent authorities
with a view to seeking approval of the Agreement in
accordance with their procedures.
In other words, it is not the Final Act that was agreed to be
submitted to the governments for ratification or acceptance
as whatever their constitutional procedures may provide but
it is the World Trade Organization Agreement. And if that is
the one that is being submitted now, I think it satisfies both
the Constitution and the Final Act itself .
Thank you, Mr. Chairman.
THE CHAIRMAN. Thank you, Senator Tolentino, May I call
on Senator Gonzales.
SEN. GONZALES. Mr. Chairman, my views on this matter
are already a matter of record. And they had been
adequately reflected in the journal of yesterday's session
and I don't see any need for repeating the same.

Now, I would consider the new submission as an act ex

abudante cautela.
THE CHAIRMAN. Thank you, Senator Gonzales. Senator
Lina, do you want to make any comment on this?
SEN. LINA. Mr. President, I agree with the observation just
made by Senator Gonzales out of the abundance of
question. Then the new submission is, I believe, stating the
obvious and therefore I have no further comment to make.
Epilogue
In praying for the nullification of the Philippine ratification of the WTO
Agreement, petitioners are invoking this Court's constitutionally imposed
duty "to determine whether or not there has been grave abuse of discretion
amounting to lack or excess of jurisdiction" on the part of the Senate in
giving its concurrence therein via Senate Resolution No. 97. Procedurally, a
writ of certiorari grounded on grave abuse of discretion may be issued by the
Court under Rule 65 of the Rules of Court when it is amply shown that
petitioners have no other plain, speedy and adequate remedy in the ordinary
course of law.
By grave abuse of discretion is meant such capricious and whimsical
exercise of judgment as is equivalent to lack of jurisdiction. 61 Mere abuse of
discretion is not enough. It must be grave abuse of discretion as when the
power is exercised in an arbitrary or despotic manner by reason of passion
or personal hostility, and must be so patent and so gross as to amount to an
evasion of a positive duty or to a virtual refusal to perform the duty enjoined
or to act at all in contemplation of law. 62 Failure on the part of the petitioner
to show grave abuse of discretion will result in the dismissal of the petition. 63
In rendering this Decision, this Court never forgets that the Senate, whose
act is under review, is one of two sovereign houses of Congress and is thus
entitled to great respect in its actions. It is itself a constitutional body
independent and coordinate, and thus its actions are presumed regular and
done in good faith. Unless convincing proof and persuasive arguments are
presented to overthrow such presumptions, this Court will resolve every

doubt in its favor. Using the foregoing well-accepted definition of grave

abuse of discretion and the presumption of regularity in the Senate's
processes, this Court cannot find any cogent reason to impute grave abuse
of discretion to the Senate's exercise of its power of concurrence in the WTO
Agreement granted it by Sec. 21 of Article VII of the Constitution. 64
It is true, as alleged by petitioners, that broad constitutional principles require
the State to develop an independent national economy effectively controlled
by Filipinos; and to protect and/or prefer Filipino labor, products, domestic
materials and locally produced goods. But it is equally true that such
principles while serving as judicial and legislative guides are not in
themselves sources of causes of action. Moreover, there are other equally
fundamental constitutional principles relied upon by the Senate which
mandate the pursuit of a "trade policy that serves the general welfare and
utilizes all forms and arrangements of exchange on the basis of equality and
reciprocity" and the promotion of industries "which are competitive in both
domestic and foreign markets," thereby justifying its acceptance of said
treaty. So too, the alleged impairment of sovereignty in the exercise of
legislative and judicial powers is balanced by the adoption of the generally
accepted principles of international law as part of the law of the land and the
adherence of the Constitution to the policy of cooperation and amity with all
nations.
That the Senate, after deliberation and voting, voluntarily and
overwhelmingly gave its consent to the WTO Agreement thereby making it "a
part of the law of the land" is a legitimate exercise of its sovereign duty and
power. We find no "patent and gross" arbitrariness or despotism "by reason
of passion or personal hostility" in such exercise. It is not impossible to
surmise that this Court, or at least some of its members, may even agree
with petitioners that it is more advantageous to the national interest to strike
down Senate Resolution No. 97. But that is not a legal reason to attribute
grave abuse of discretion to the Senate and to nullify its decision. To do so
would constitute grave abuse in the exercise of our own judicial power and
duty. Ineludably, what the Senate did was a valid exercise of its authority. As
to whether such exercise was wise, beneficial or viable is outside the realm
of judicial inquiry and review. That is a matter between the elected policy
makers and the people. As to whether the nation should join the worldwide
march toward trade liberalization and economic globalization is a matter that

our people should determine in electing their policy makers. After all, the
WTO Agreement allows withdrawal of membership, should this be the
political desire of a member.
The eminent futurist John Naisbitt, author of the best seller Megatrends,
predicts an Asian Renaissance 65 where "the East will become the dominant
region of the world economically, politically and culturally in the next
century." He refers to the "free market" espoused by WTO as the "catalyst"
in this coming Asian ascendancy. There are at present about 31 countries
including China, Russia and Saudi Arabia negotiating for membership in the
WTO. Notwithstanding objections against possible limitations on national
sovereignty, the WTO remains as the only viable structure for multilateral
trading and the veritable forum for the development of international trade
law. The alternative to WTO is isolation, stagnation, if not economic selfdestruction. Duly enriched with original membership, keenly aware of the
advantages and disadvantages of globalization with its on-line experience,
and endowed with a vision of the future, the Philippines now straddles the
crossroads of an international strategy for economic prosperity and stability
in the new millennium. Let the people, through their duly authorized elected
officers, make their free choice.
WHEREFORE, the petition is DISMISSED for lack of merit.
SO ORDERED.
Narvasa, C.J., Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno,
Kapunan, Mendoza, Francisco, Hermosisima, Jr. and Torres, Jr., JJ., concur.
Padilla and Vitug, JJ., concur in the result.
Footnotes
1 In Annex "A" of her Memorandum, dated August 8, 1996, received by this
Court on August 12, 1996, Philippine Ambassador to the United Nations,
World Trade Organization and other international organizations Lilia R.
Bautista (hereafter referred to as "Bautista Paper") submitted a "46-year
Chronology" of GATT as follows:

1947 The birth of GATT. On 30 October 1947, the General Agreement on

Tariffs and Trade (GATT) was signed by 23 nations at the Palais des Nations
in Geneva. The Agreement contained tariff concessions agreed to in the first
multilateral trade negotiations and a set of rules designed to prevent these
concessions from being frustrated by restrictive trade measures.
The 23 founding contracting parties were members of the Preparatory
Committee established by the United Nations Economic and Social Council
in 1946 to draft the charter of the International Trade Organization (ITO). The
ITO was envisaged as the final leg of a triad of post-War economic agencies
(the other two were the International Monetary Fund and the International
Bank for Reconstruction later the World Bank).
In parallel with this task, the Committee members decided to negotiate tariff
concessions among themselves. From April to October 1947, the
participants completed some 123 negotiations and established 20 schedules
containing the tariff reductions and bindings which became an integral part
of GATT. These schedules resulting from the first Round covered some
45,000 tariff concessions and about $10 billion in trade.
GATT was conceived as an interim measure that put into effect the
commercial-policy provisions of the ITO. In November, delegations from 56
countries met in Havana, Cuba, to consider the to ITO draft as a whole. After
long and difficult negotiations, some 53 countries signed the Final Act
authenticating the text of the Havana Charter in March 1948. There was no
commitment, however, from governments to ratification and, in the end, the
ITO was stillborn, leaving GATT as the only international instrument
governing the conduct of world trade.

1948 Entry into force. On 1 January 1948, GATT entered into force. The 23
founding members were: Australia, Belgium, Brazil, Burma, Canada, Ceylon,
Chile, China, Cuba, Czechoslovakia, France, India, Lebanon, Luxembourg,
Netherlands, New Zealand, Norway, Pakistan, Southern Rhodesia, Syria,
South Africa, United Kingdom and the United States. The first Session of the
Contracting Parties was held from February to March in Havana, Cuba. The
secretariat of the Interim Commission for the ITO, which served as the ad
hoc secretariat of GATT, moved from Lake Placid, New York, to Geneva. The
Contracting Parties held their second session in Geneva from August to
September.
1949 Second Round at Annecy. During the second Round of trade
negotiations, held from April to August at Annecy, France, the contracting
parties exchanged some 5,000 tariff concessions. At their third Session, they
also dealt with the accession of ten more countries.
1950 Third Round at Torquay. From September 1950 to April 1951, the
contracting parties exchanged some 8,700 tariff concessions in the English
town, yielding tariff reduction of about 25 per cent in relation to the 1948
level. Four more countries acceded to GATT. During the fifth Session of the
Contracting Parties, the United States indicated that the ITO Charter would
not be re-submitted to the US Congress; this, in effect, meant that ITO would
not come into operation.
1956 Fourth Round at Geneva. The fourth Round was completed in May and
produced some $2.5 billion worth of tariff reductions. At the beginning of the
year, the GATT commercial policy course for officials of developing countries
was inaugurated.
1958 The Haberler Report. GATT published Trends in International Trade in
October. Known as the "Haberler Report" in honour of Professor Gottfried
Haberler, the chairman of the panel of eminent economists, it provided initial
guidelines for the work of GATT. The Contracting Parties at their 13th
Sessions, attended by Ministers, subsequently established three committees
in GATT: Committee I to convene a further tariff negotiating conference;
Committee II to review the agricultural policies of member governments and
Committee III to tackle the problem facing developing countries in their
trade. The establishment ofthe European Economic Community during the

previous year also demanded large-scale tariff negotiations under Article

XXIV: 6 of the General Agreement.
1960 The Dillon Round. The fifth Round opened in September and was
divided into two phases: the first was concerned with negotiations with EEC
member states for the creation of a single schedule of concessions for the
Community based on its Common External Tariff; and the second was a
further general round of tariff negotiations. Named in honour of US UnderSecretary of State Douglas Dillon who proposed the negotiations, the Round
was concluded in July 1962 and resulted in about 4,400 tariff concessions
covering $4.9 billion of trade.
1961 The Short-Term Arrangement covering cotton textiles was agreed as
an exception to the GATT rules. The arrangement permitted the negotiation
of quota restrictions affecting the exports of cotton-producing countries. In
1962 the "Short Term" Arrangement became the "Long term" Arrangement,
lasting until 1974 when the Multifibre Arrangement entered into force.

identification of potential markets. Since 1968, the ITC had been jointly
operated by GATT and the UN Conference on Trade and Development
(UNCTAD).
1973 The Tokyo Round. The seventh Round was launched by Ministers in
September at the Japanese capital. Some 99 countries participated in
negotiating a comprehensive body of agreements covering both tariff and
non-tariff matters. At the end of the Round in November 1979, participants
exchanged tariff reductions and bindings which covered more than $300
billion of trade. As a result of these cuts, the weighted average tariff on
manufactured goods in the world's nine major industrial markets declined
from 7.0 to 4.7 per cent. Agreements were reached in the following areas:
subsidies and countervailing measures, technical barriers to trade, import
licensing procedures, government procurement, customs valuation, a
revised anti-dumping code, trade in bovine meat, trade in dairy products and
trade in civil aircraft. The first concrete result of the Round was the reduction
of import duties and other trade barriers by industrial countries on tropical
products exported by developing countries.

1964 The Kennedy Round. Meeting at Ministerial level, a Trade Negotiations

Committee formally opened the Kennedy Round in May. In June 1967, the
Round's Final Act was signed by some 50 participating countries which
together accounted for 75 per cent of world trade. For the first time,
negotiations departed from the product-by-product approach used in the
previous Rounds to an across-the-board or linear method of cutting tariffs for
industrial goods. The working hypothesis of a 50 per cent target cut in tariff
levels was achieved in many areas. Concessions covered an estimated total
value of trade of about $410 billion. Separate agreements were reached on
grains, chemical products and a Code on Anti-Dumping.

1974 On 1 January 1974, the Arrangement Regarding International Trade in

Textiles, otherwise known as the Multifibre Arrangement (MFA), entered into
force. It superseded the arrangements that had been governing trade in
cotton textiles since 1961. The MFA seeks to promote the expansion and
progressive liberalization of trade in textile products while at the same time
avoiding disruptive effects in individual markets and lines of production. The
MFA was extended in 1978, 1982, 1986, 1991 and 1992. MFA members
account for most of the world exports of textiles and clothing which in 1986
amounted to US$128 billion.

1965 A New Chapter. The early 1960s marked the accession to the general
Agreement of many newly-independent developing countries. In February,
the Contracting Parties, meeting in a special session, adopted the text of
Part IV on Trade and Development. The additional chapter to the GATT
required developed countries to accord high priority to the reduction of trade
barriers to products of developing countries. A Committee on Trade and
Development was established to oversee the functioning of the new GATT
provisions. In the preceding year, GATT had established the International
Trade Centre (ITC) to help developing countries in trade promotion and

1982 Ministerial Meeting. Meeting for the first time in nearly ten years, the
GATT Ministers in November at Geneva reaffirmed the validity of GATT rules
for the conduct of international trade and committed themselves to
combating protectionist pressures. They also established a wide-ranging
work programme for the GATT which was to lay down the groundwork for a
new Round 1986. The Uruguay Round. The GATT Trade Ministers meeting
at Punta del Este, Uruguay, launched the eighth Round of trade negotiations
on 20 September. The Punta del Este Declaration, while representing a
single political undertaking, was divided into two sections. The first covered

negotiations on trade in goods and the second initiated negotiation on trade

in services. In the area of trade in goods, the Ministers committed
themselves to a "standstill" on new trade measures inconsistent with their
GATT obligations and to a "rollback" programme aimed at phasing out
existing inconsistent measures. Envisaged to last four years, negotiations
started in early February 1987 in the following areas tariffs, non-tariff
measures, tropical products, natural resource-based products, textiles and
clothing, agriculture, subsidies, safe-guards, trade-related aspects of
intellectual property rights including trade in counterfeit goods, and traderelated investment measures. The work of other groups included a review of
GATT articles, the GATT dispute settlement procedure, the Tokyo Round
agreements, as well as the functioning of the GATT system as a whole.
1994 "GATT 1994" is the updated version of GATT 1947 and takes into
account the substantive and institutional changes negotiated in the Uruguay
Round GATT 1994 is an integral part of the World Trade Organization
established on 1 January 1995. It is agreed that there be a one year
transition period during which certain GATT 1947 bodies and commitments
would co-exist with those of the World Trade Organization.
2 The Final Act was signed by representatives of 125 entities, namely
Algeria, Angola, Antigua and Barbuda, Argentine Republic, Australia,
Republic of Austria, State of Bahrain, People's Republic of Bangladesh,
Barbados, The Kingdom of Belgium Belize, Republic of Benin, Bolivia,
Botswana, Brazil, Brunei Darussalam, Burkina Faso, Burundi, Cameroon,
Canada, Central African Republic, Chad, Chile, People's Republic of China,
Colombia, Congo, Costa Rica, Republic of Cote d'Ivoire, Cuba, Cyprus,
Czech Republic, Kingdom of Denmark, Commonwealth of Dominica,
Dominican Republic, Arab Republic of Egypt, El Salvador, European
Communities, Republic of Fiji, Finland, French Republic, Gabonese
Republic, Gambia, Federal Republic of Germany, Ghana, Hellenic Republic,
Grenada, Guatemala, Republic of Guinea-Bissau, Republic of Guyana, Haiti,
Honduras, Hong Kong, Hungary, Iceland, India, Indonesia, Ireland, State of
Israel, Italian Republic, Jamaica, Japan, Kenya, Korea, State of Kuwait,
Kingdom of Lesotho, Principality of Liechtenstein, Grand Duchy of
Luxembourg, Macau, Republic of Madagascar, Republic of Malawi,
Malaysia, Republic of Maldives, Republic of Mali, Republic of Malta, Islamic
Republic of Mauritania, Republic of Mauritius, United Mexican States,

Kingdom of Morocco, Republic of Mozambique, Union of Myanmar, Republic

of Namibia, Kingdom of the Netherlands, New Zealand, Nicaragua, Republic
of Niger, Federal Republic of Nigeria, Kingdom of Norway, Islamic Republic
of Pakistan, Paraguay, Peru, Philippines, Poland, Potuguese Republic, State
of Qatar, Romania, Rwandese Republic, Saint Kitts and Nevis, Saint Lucia,
Saint Vincent and the Grenadines, Senegal, Sierra Leone, Singapore,
Slovak Republic, South Africa, Kingdom of Spain, Democratic Socialist
Republic of Sri Lanka, Republic of Surinam, Kingdom of Swaziland,
Kingdom of Sweden, Swiss Confederation, United Republic of Tanzania,
Kingdom of Thailand, Togolese Republic, Republic of Trinidad and Tobago,
Tunisia, Turkey, Uganda, United Arab Emirates, United Kingdom of Great
Britain and Northern Ireland, United States of America, Eastern Republic of
Uruguay, Venezuela, Republic of Zaire, Republic of Zambia, Republic of
Zimbabwe; see pp. 6-25, Vol. 1, Uruguay Round of Multilateral Trade
Negotiations.
3 11 August 1994
The Honorable Members
Senate
Through Senate President Edgardo Angara
Manila
Ladies and Gentlemen:
I have the honor to forward herewith an authenticated copy
of the Uruguay Round Final Act signed by Department of
Trade and Industry Secretary Rizalino S. Navarro for the
Philippines on 15 April 1994 in Marrakesh, Morocco.
The Uruguay Round Final Act aims to liberalize and expand
world trade and strengthen the interrelationship between
trade and economic policies affecting growth and
development.

The Final Act will improve Philippine access to foreign

markets, especially its major trading partners through the
reduction of tariffs on its exports particularly agricultural and
industrial products. These concessions may be availed of by
the Philippines, only if it is a member of the World Trade
Organization. By GATT estimates, the Philippines can
acquire additional export from $2.2 to $2.7 Billion annually
under Uruguay Round. This will be on top of the normal
increase in exports that the Philippines may experience.
The Final Act will also open up new opportunities for the
services sector in such areas as the movement of
personnel, (e.g. professional services and construction
services), cross-border supply (e.g. computer-related
services), consumption abroad (e.g. tourism, convention
services, etc.) and commercial presence.
The clarified and improved rules and disciplines on antidumping and countervailing measures will also benefit
Philippine exporters by reducing the costs ad uncertainty
associated with exporting while at the same time providing
means for domestic industries to safeguard themselves
against unfair imports.
Likewise, the provision of adequate protection for intellectual
property rights is expected to attract more investments into
the country and to make it less vulnerable to unilateral
actions by its trading partners (e.g. Sec. 301 of the United
States' Omnibus Trade Law).

(SGD.) FIDEL V. RAMOS

4 11 August 1994
The Honorable Members
Senate
Through Senate President Edgardo Angara
Manila
Ladies and Gentlemen:
I have the honor to forward herewith an authenticated copy
of the Uruguay Round Final Act signed by Department of
Trade and Industry Secretary Rizalino S. Navarro for the
Philippines on 13 April 1994 in Marrakech (sic), Morocco.
Members of the trade negotiations committee, which
included the Philippines, agreed that the Agreement
Establishing the World Trade Organization, the Ministerial
Declarations and Decisions, and the Understanding on
Commitments in Financial Services embody the results of
their negotiations and form an integral part of the Uruguay
Round Final Act.

In view of the foregoing, the Uruguay Round Final Act is

hereby submitted to the Senate for its concurrence pursuant
to Section 21, Article VII of the Constitution.

By signing the Uruguay Round Final Act, the Philippines,

through Secretary Navarro, agreed:

A draft of a proposed Resolution giving its concurrence to

the aforesaid Agreement is enclosed.

(a) To submit the Agreement Establishing the World Trade

Organization to the Senate for its concurrence pursuant to
Section 21, Article VII of the Constitution; and

Very truly yours,

(b) To adopt the Ministerial Declarations and Decisions.

The Uruguay Round Final Act aims to liberalize and expand

world trade and strengthen the interrelationship between
trade and economic policies affecting growth and
development.
The Final Act will improve Philippine access to foreign
markets, especially its major trading partners through the
reduction of tariffs on its exports particularly agricultural and
industrial products. These concessions may be availed of by
the Philippines, only if it is a member of the World Trade
Organization. By GATT estimates, the Philippines can
acquire additional export revenues from $2.2 to $2.7 Billion
annually under Uruguay Round. This will be on top of the
normal increase in the exports that the Philippines may
experience.
The Final Act will also open up new opportunities for the
services sector in such areas as the movement of
personnel, (e.g., professional services and construction
services), cross-border supply (e.g., computer-related
services), consumption abroad (e.g., tourism, convention
services, etc.) and commercial presence.
The clarified and improved rules ad disciplines on antidumping and countervailing measures will also benefit
Philippine exporters by reducing the costs and uncertainty
associated with exporting while at the same time providing a
means for domestic industries to safeguard themselves
against unfair imports.
Likewise, the provision of adequate protection for intellectual
property rights is expected to attract more investments into
the country and to make it a less vulnerable to unilateral
actions by its trading partners (e.g., Sec. 301 of the United
States Omnibus Trade Law).
In view of the foregoing, the Uruguay Round Final Act, the
Agreement Establishing the World Trade Organization, the

Ministerial Declarations and Decisions, and the

Understanding on Commitments in Financial Services, as
embodied in the Uruguay Round Final Act and forming and
integral part thereof are hereby submitted to the Senate for
its concurrence pursuant to Section 21, Article VII of the
Constitution.
A draft of a proposed Resolution giving its concurrence to
the aforesaid Agreement is enclosed.
Very truly yours,
(SGD.) FIDEL V. RAMOS
5 December 9, 1994
HON. EDGARDO J. ANGARA
Senate President
Senate Manila
Dear Senate President Angara:
Pursuant to the provisions of Sec. 26 (2) Article VI of the
Constitution, I hereby certify to the necessity of the
immediate adoption of P.S. 1083 entitled:
CONCURRING IN THE RATIFICATION OF
THE AGREEMENT ESTABLISHING THE
WORLD TRADE ORGANIZATION
to meet a public emergency consisting of the need for
immediate membership in the WTO in order to assure the
benefits to the Philippine economy arising from such
membership.
Very truly yours,

(SGD.) FIDEL V. RAMOS

6 Attached as Annex A, Petition; rollo, p. 52. P.S. 1083 is the forerunner of
assailed Senate Resolution No. 97. It was prepared by the Committee of the
Whole on the General Agreement on Tariffs and Trade chaired by Sen. Blas
F. Ople and co-chaired by Sen. Gloria Macapagal-Arroyo; seeAnnex C,
Compliance of petitioners dated January 28, 1997.
7 The Philippines is thus considered an original or founding member of
WTO, which as of July 26, 1996 had 123 members as follows: Antigua and
Barbuda, Argentina, Australia, Austria, Bahrain, Bangladesh, Barbados,
Belguim, Belize, Benin, Bolivia, Botswana, Brazil, Brunei Darussalam,
Burkina Faso, Burundi, Cameroon, Canada, Central African Republic, Chili,
Colombia, Costa Rica, Cote d'Ivoire, Cuba, Cyprus, Czech Republic,
Denmark, Djibouti, Dominica, Dominican Republic, Ecuador, Egypt, El
Salvador, European Community, Fiji, Finland, France, Gabon, Germany,
Ghana, Greece, Grenada, Guatemala, Guinea, Guinea Bissau, Guyana,
Haiti, Honduras, Honkong, Hungary, Iceland, India, Indonesia, Ireland,
Israel, Italy, Jamaica, Japan, Kenya, Korea, Kuwait, Lesotho, Liechtenstein,
Luxembourg, Macau, Madagascar, Malawi, Malaysia, Maldives, Mali, Malta,
Mauritania, Mauritius, Mexico, Morocco, Mozambique, Myanmar, Namibia,
Netherlands for the Kingdom in Europe and for the Netherlands Antilles,
New Zealand, Nicaragua, Nigeria, Norway, Pakistan, Papua New Guinea,
Paraguay, Peru, Philippines, Poland, Portugal, Qatar, Romania, Rwanda,
Saint Kitts and Nevis, Saint Lucia, Saint Vincent & the Grenadines, Senegal,
Sierra Leone, Singapore, Slovak Republic, Slovenia, Solomon Islands,
South Africa, Spain, Sri Lanka, Surinam, Swaziland, Sweden, Switzerland,
Tanzania, Thailand, Togo, Trinidad and Tobago, Tunisia, Turkey, Uganda,
United Arab Emirates, United Kingdom, United States, Uruguay, Venezuela,
Zambia, and Zimbabwe. See Annex A, Bautista Paper, infra.
8 Page 6; rollo p. 261.
9 In compliance, Ambassador Bautista submitted to the Court on August 12,
1996, a Memorandum (the "Bautista Paper") consisting of 56 pages
excluding annexes. This is the same document mentioned in footnote no. 1.
10 Memorandum for Respondents, p. 13; rollo, p. 268.

11 Cf . Kilosbayan Incorporated vs. Morato, 246 SCRA 540, July 17, 1995
for a discussion on locus standi. See also the Concurring Opinion of Mr.
Justice Vicente V. Mendoza in Tatad vs. Garcia, Jr., 243 SCRA 473, April 6,
1995, as well as Kilusang Mayo Uno Labor Center vs. Garcia, Jr., 239 SCRA
386, 414, December 23, 1994.
12 Aquino, Jr. vs. Ponce Enrile, 59 SCRA 183, 196, September 17, 1974,
cited in Bondoc vs. Pineda, 201 SCRA 792, 795, September 26, 1991.
13 Guingona, Jr. vs. Gonzales, 219 SCRA 326, 337, March 1, 1993.
14 See Taada and Macapagal vs. Cuenco, et al., 103 Phil. 1051 for a
discussion on the scope of "political question."
15 Section 1, Article VIII, (par. 2).
16 In a privilege speech on May 17, 1993, entitled "Supreme Court
Potential Tyrant?" Senator Arturo Tolentino concedes that this new provision
gives the Supreme Court a duty "to intrude into the jurisdiction of the
Congress or the President."
17 I Record of the Constitutional Commission 436.
18 Cf . Daza vs. Singson, 180 SCRA 496, December 21, 1989.
19 Memorandum for Petitioners, pp. 14-16; rollo, pp. 204-206.
20 Par. 4, Article XVI, WTO Agreement, Uruguay Round of Multilateral Trade
Negotiations, Vol. 1. p. 146.
21 Also entitled "Declaration of Principles." The nomenclature in the 1973
Charter is identical with that in the 1987's.
22 Philippine Political Law, 1962 Ed., p. 116.
23 Bernas, The Constitution of the Philippines: A Commentary, Vol. II, 1988
Ed., p. 2. In the very recent case of Manila Prince Hotel v. GSIS, G.R. No.
122156, February 3, 1997, p. 8, it was held that "A provision which lays

down a general principle, such as those found in Art. II of the 1987

Constitution, is usually not self-executing."

39 Par. 4, Article XVI (Miscellaneous Provisions), WTO Agreement, p. 146,

Vol. 1, Uruguay Round of Multilateral Trade Negotiations.

24 246 SCRA 540, 564, July 17, 1995. See also Tolentino vs. Secretary of
Finance, G.R. No. 115455 and consolidated cases, August 25, 1995.

40 Memorandum for the Petitioners, p. 29; rollo, p. 219.

41 Sec. 24, Article VI, Constitution.

25 197 SCRA 52, 68, May 14, 1991.

42 Subsection (2), Sec. 28, Article VI, Constitution.
26 224 SCRA 792, 817, July 30, 1993.
43 Sec. 2, Article II, Constitution.
27 Sec. 10, Article XII.
44 Cruz, Philippine Political Law, 1995 Ed., p. 55.
28 Sec. 12, Article XII.
45 Salonga and Yap, op cit 305.
29 Sec. 19, Art. II.
46 Salonga, op. cit., p. 287.
30 Sec. 13, Art. XII.
31 G.R. No. 122156, February 3, 1997, pp. 13-14.
32 Sec. 1, Art. XII.

47 Quoted in Paras and Paras, Jr., International Law and World Politics,
1994 Ed., p. 178.
47-A Reagan vs. Commission of Internal Revenue, 30 SCRA 968, 973,
December 27, 1969.

33 Bautista Paper, p. 19.

34 Preamble, WTO Agreement p. 137, Vol. 1, Uruguay Round of Multilateral
Trade Negotiations. Emphasis supplied.

48 Trebilcock and Howse. The Regulation of International Trade, p. 14,

London, 1995, cited on p. 55-56, Bautista Paper.
49 Uruguay Round of Multilateral Trade Negotiations, Vol. 31, p. 25445.

35 Sec. 19, Article II, Constitution.

50 Item 5, Sec. 5, Article VIII, Constitution.
36 III Records of the Constitutional Commission 252.
51 Uruguay Round of Multilateral Trade Negotiations, Vol. 31, p. 25445.
37 Sec. 13, Article XII, Constitution.
52 Bautista Paper, p. 13.
38 Justice Isagani A. Cruz, Philippine Political Law, 1995 Ed., p. 13, quoting
his own article entitled, "A Quintessential Constitution" earlier published in
the San Beda Law Journal, April 1972; emphasis supplied.

53 See footnote 3 of the text of this letter.

54 Salonga and Yap, op cit., pp. 289-290.

55 The full text, without the signatures, of the Final Act is as follows:
Final Act Embodying the Results of the
Uruguay Round of Multilateral Trade Negotiations
1. Having met in order to conclude the Uruguay Round of Multilateral Trade
Negotiations, representatives of the governments and of the European
Communities, members of the Trade Negotiations Committee, agree that the
Agreement Establishing the World Trade Organization (referred to in the
Final Act as the "WTO Agreement"), the Ministerial Declarations and
Decisions, and the Understanding on Commitments in Financial Services, as
annexed hereto, embody the results of their negotiations and form an
integral part of this Final Act.

5. Before accepting the WTO Agreement, participants which are not

contracting parties to the General Agreement on Tariffs and Trade must first
have concluded negotiations for their accession to the General Agreement
and become contracting parties thereto. For participants which are not
contracting parties to the general Agreement as of the date of the Final Act,
the Schedules are not definitive and shall be subsequently completed for the
purpose of their accession to the General Agreement and acceptance of the
WTO Agreement.
6. This Final Act and the texts annexed hereto shall be deposited with the
Director-General to the CONTRACTING PARTIES to the General Agreement
on Tariffs and Trade who shall promptly furnish to each participant a certified
copy thereof.

2. By signing to the present Final Act, the representatives agree.

DONE at Marrakesh this fifteenth day of April one thousand nine hundred
and ninety-four, in a single copy, in the English, French and Spanish
languages, each text being authentic.

(a) to submit, as appropriate, the WTO Agreement for the consideration of

their respective competent authorities with a view to seeking approval of the
Agreement in accordance with their procedures; and

56 Bautista Paper, p. 16.

57 Baustista Paper, p. 16.

(b) to adopt the Ministerial Declarations and Decisions.

58 Uruguay Round of Multilateral Trade Negotiations, Vol. I, pp. 137-138.
3. The representatives agree on the desirability of acceptance of the WTO
Agreement by all participants in the Uruguay Round of Multilateral Trade
Negotiations (hereinafter referred to as "participants") with a view to its entry
into force by 1 January 1995, or as early as possible thereafter. Not later
than late 1994, Ministers will meet, in accordance with the final paragraph of
the Punta del Este Ministerial Declarations, to decide on the international
implementation of the results, including the timing of their entry into force.
4. the representatives agree that the WTO Agreement shall be open for
acceptance as a whole, by signature or otherwise, by all participants
pursuant to Article XIV thereof. The acceptance and entry into force of a
Plurilateral Trade Agreement included in Annex 4 of the WTO Agreement
shall be governed by the provisions of that Plurilateral Trade Agreement.

59 See footnote 3 for complete text.

60 Taken from pp. 63-85, "Respondent" Memorandum.
61 Zarate vs. Olegario, G.R. No. 90655, October 7, 1996.
62 San Sebastian College vs. Court of Appeals, 197 SCRA 138, 144, May
15, 1991; Commissioner of Internal Revenue vs. Court of Tax Appeals, 195
SCRA 444, 458 March 20, 1991; Simon vs. Civil Service Commission, 215
SCRA 410, November 5, 1992; Bustamante vs. Commissioner on Audit, 216
SCRA 134, 136, November 27, 1992.
63 Paredes vs. Civil Service Commission, 192 SCRA 84, 94, December 4,
1990.

64 Sec. 21. No treaty or international agreement shall be valid and effective

unless concurred in by at least two-thirds of all the Members of the Senate."

65 Reader's Digest, December 1996 issue, p. 28.