Positive Thinking  That in all things, God may be glorified. Ora et Labora!
NOTES: Constitutional Law I, Judge Ma. Elisa Sempio-Diy
For I-B (B for Beautiful) Given last September 25, 2010, Saturday.
Coverage: Cover to Cover
Treat your booklet as a work of art.
Problems with 15 points should be answered accordingly
Give laws, jurisprudence, or just state “according to the SC”.
1) Doctrine of Purposeful Hesitation
- Symbolic function of the court
- The court would not decide on matters which are considered
political questions
-Necessity of resolving Judicial Review
-In questions of constitutionality, Supreme Court will not rule right
away
-SC assumes that the Law passed the 2 departments already, thus, it
went through process of determining its constitutionality
G.R. No. 122241 July 30, 1996, BOARD OF
OPTOMETRY v. HON. ANGEL B. COLET
Petitioners seek to annul and set aside for having
been rendered with grave abuse of discretion the order
of 25 August 1995 issued by public respondent Judge
Angel V. Colet in Civil Case No. 95-74770 which granted
a writ of preliminary injunction restraining, enjoining,
and prohibiting the petitioners herein "from undertaking
in any form of manner, the enforcement or
implementation of the Revised Optometry Law [R.A. No.
8050] or any regulations or Code of Ethics issued
thereunder."
The background facts are not disputed.
R.A. No. 8050, 1 entitled "An Act Regulating the
Practice of Optometry Education, Integrating
Optometrists, and for Other Purposes," otherwise known
as the Revised Optometry Law of 1995, was
consolidation of House Bill (HBO.) No. 14100 2 and
Senate Bill (SB) No. 1998, 3 which were respectively
approved by both Houses Committee. 4 The Reconciled
Bill 5 was then separately ratified by both the Senate
and the House of Representatives 6 and approved into
law by the President on 7 June 1995.
On 31 July 1995, the private respondents filed
with the Regional Trial Court (RTC) of Manila a petition
Finals_Constitutional Law
Cortes, Ann Rosselle S.
for declaratory relief and for prohibition and injunction,
with a prayer for a temporary restraining order. 7 As
grounds for their petition, the private respondents
alleged that:
1. There were surreptitious and unauthorized
insertion and addition of provisions in the
Reconciled bill which were made without the
knowledge and conformity of the Senate panel,
thereby derogating the orderly procedure
essential to the legislative process and vitiating
legislative consent;
2. R.A. No. 8050 derogates and violates the
fundamental right of ever Filipino to reasonable
safeguards against deprivation of life, liberty and
property without due process of law in that it
authorizes optometrists to engage in acts of
practice within the zone of medical practice
through permitted use in certain kinds of
diagnostic pharmaceutical agents thereby
exposing and subjecting those who avail of the
services of optometrists to definite hazards which
would inflict upon them impairment of vision,
resultant blindness, or possible loss of life;
3. R.A, No. 8050 derogates and violates the
principle against undue delegation of legislative
power when it provides for a penalty of
imprisonment for a maximum of eight years and
a fine not exceeding P40,000.00 upon any person
found violating any rule or regulation
promulgated pursuant to said law;
4. R.A. No. 8050 suppresses truthful advertising
concerning optical goods and services in violation
of the guaranty of freedom of speech and press;
and
5. R.A. No. 8050 employs vague ambiguous terms
in defining prohibitions and restrictions, hence, it
falls within the ambit of void-for-vagueness
doctrine which safeguards the guaranty of due
process of law
They then prayed that after due notice and
hearing, an order be issued granting a writ of
preliminary injunction enjoining, restraining,
restricting, and forbidding the respondents
1
Positive Thinking  That in all things, God may be glorified. Ora et Labora!
therein (herein petitioners), their agents, officers,
and employees from performing or undertaking
any act in implementation or enforcement of R.A.
No. 8050, or any of its provisions, or its Code of
Ethics, during the pendency of the case, until
further orders of the court; and that after trial on
the merits, judgment be rendered: (a) declaring
R.A. No. 8050 and its Code of Ethics null and void
due to constitutional violations and
transgressions; (b) granting a writ of prohibition
against all the respondents therein enjoining and
restraining them from enforcing or implementing
R.A. No. 8050 or its Code of Ethics in whole or in
part; and (c) making permanent the writ or
preliminary injunction.
An examination of the petition, docketed as Civil
Case No. 95-74770 in Branch 29 of the RTC of Manila,
disclosed that among the petitioners included in the
caption of the petition were Acebedo Optical Co., Inc.;
Optometry Practitioner Association of the Philippines
(OPAP); Cenevis Optometrist Association (COA);
Association of Christian-Muslim Optometrist (ACMO); and
Southern Mindanao Optometrist Association of the
Philippine (SMOAP) — each allegedly represented by its
president. The body of the petition, however, gave no
details as to the juridical personality and addresses of
these alleged associations, save for Acebedo Optical Co.,
Inc. It merely listed the names of the alleged presidents
as well as their profession and home addresses.
As likewise disclosed in the petitioners'
Compliance 8 filed with the trial court on 18 August
1995, the names of Miguel Acebedo, representing
Acebedo Optical Co., Inc.; Miriam F. Llave, representing
the OPAP; and Republica A. Panol, another petitioner in
Civil Case No. 95-74770, did not appear in the
registration books of the Board of Optometry to be
authorized optometry practitioners in the Philippines, as
evidence by certifications issued by the Professionals
Regulation Commission (PRC). Private respondents CAO
and ACMO were neither registered with the Securities
and Exchange Commission (SEC), as evidence by the
certifications issued by the latter.
Finals_Constitutional Law
Cortes, Ann Rosselle S.
On 1 August 1995, the trial court, per respondent
Judge Angel V. Colet, issued a Temporary Restraining
Order 9 enjoining the respondents from enforcing or
implementing R.A. No. 8050 or its Code of Ethics, until
further orders of the court; directing that summons, with
a copy of the petition and of the temporary restraining
order, be served immediately; and setting the
application for a writ of preliminary injunction for hearing
on 15 August 1995.
On 11 August 1995, the petitioners herein, as
respondents below, filed an Opposition 10 to the
application for preliminary injunction and alleged that:
(1) No proper ground exists to warrant the
issuance of a writ as
(a) petitioners therein do not possess the
requisite right as would entitle them to the relief
demanded;
(b) petitioners have unquestionably not shown
their Legal existence or capacity to file the case,
much Less their authority to file it in a
representative capacity; and
(c) petitioners have misled the court into
believing that an act is being done in the
implementation of R.A. No. 8050 tending to make
the judgment ineffectual;
(2) The implementation of R.A. No. 8050 carries
no injurious effect; and
(3) Petitioners failed to overcome the
presumption of constitutionally in favor of R.A.
No. 8050.
At the hearing of the application for a writ of
preliminary injunction, the parties indicated their
intention to present witnesses in support of their
respective positions. Nevertheless, the trial court,
finding such procedure "not [to be] conducive to
the summary procedure appropriate to the
auxiliary remedy of preliminary injunction,"
merely directed the parties to submit their other
arguments in writing with supporting evidence,
after which the application for a writ of
preliminary injunction would be deemed
submitted for resolution. 11 The parties complied
therewith.
2
Positive Thinking  That in all things, God may be glorified. Ora et Labora!
On 25 August 1995, the trial court issued the
challenged order, 12 the dispositive portion of which
reads as follows:
PREMISES CONSIDERED, the Court grants the writ
of preliminary injunction prayed for until further orders
of the Court, respondents and their officials, agents and
employees, are restrained, enjoined, and prohibited from
undertaking in any form or manner, the enforcement or
implementation of the Revised Optometry Law [R.A.
8050] or any regulation or Code of Ethics issued
thereunder.
Let the writ issue upon filing with this Court a
bond in the amount of ONE HUNDRED THOUSAND
[P100,000.00] PESOS in favor of respondents,
conditioned upon payment of damages sustained by
respondents in case the writ is later adjudge to have
been improvidently or improperly issued.
We quote its ratiocinations to support the above
disposition:
Viewing the petition as a whole, which is duly
verified, particularly the constitutional infirmities alleged
by the petitioners, and the supporting exhibits, the court
is inclined to find prima facie, that petitioners have legal
rights affected by the Revised Optometry Law, and that
in its operation, said Law is likely to inflict serious and
irreparable injury to such legal rights.
There is clear public right that laws enacted for
the governance of citizens should be the product of the
untrammeled will of the people's representatives in
Congress, Petitioners content and have adduced at least
sufficient evidence to support this order that, in the
Revised Optometry Law, approved by the two Houses of
Congress, there is a showing that at least one major
paragraph imposing penalties on corporate officers, was
surreptitiously "smuggled" into the measure, because
the clear tenor and the content of the provision (Sec. 33)
as agreed upon in the Bicameral Conference Committee,
duly reflected in its Minutes (Exhs. "S" and "T") did not
include such paragraph. The fraud upon the legislative
process thus practiced through surreptitious and
insidious tampering, manifestly contravenes and violates
said public right, which violation petitioners as members
of the Philippine body politic, have the status and
Finals_Constitutional Law
Cortes, Ann Rosselle S.
standing to vindicate by the present petition for
extraordinary legal remedies. (See the rulings in Tanada
v. Tuvera, 136 SCRA 27, particularly pp. 36-37, citing
Severino v. Governor-General, Phil. 366, 378).
Similarly, there is likewise a public right that the
laws enacted for the public good should in truth and in
fact promote the public good. Such public right would be
negated and violated if, as petitioners allege. The
Revised Optometry Law which is intended to provide our
people with better opportunities and better facilities for
better vision, institutes a practice which in its actual
operation, exposes persons availing of optometric
services to serious risk of impairment of vision, possible
loss of sight and even possible loss of life, through
administration by optometrists of DPA's. If this be true,
the law under question violates that public right,
because it permits inflicting of serious injury upon our
people using services of optometrists. After examining
the different exhibits submitted by petitioners, in which
trained experts in our government agencies themselves
attest to the dire consequences that persons on whom
DPA's are used may suffer, the Court finds prima facie
basis for danger of irreparable injury to public health,
which the Court should forestall in the exercise of
prudence by a preliminary writ of injunction, pending full
inquiry and thorough determination after trial. Apart
from the public rights, which petitioners are entitled to
assert in this action, there are also private individual
rights of petitioners which the Revised Optometry law
tends to injure, and which would be injured irreparably
with the actual operation of said law.
Hardest hit in this regard are the optometrists,
whose vested right to continue in the practice is virtually
bludgeoned by the Revised Optometrist Law, as virtually
admitted by respondents in their Opposition. On the one
hand, the revised concept of the practice of optometry
[Sec. 4] mandates as standard, the use of DPA's in
optometric examination. For this reason, said Law
authorizes virtual suspension of the licenses of the
present crop of optometrists insists on practicing without
the mandatory training, their practice could be viewed
as substandard if they would avoid use of DPA's [Sec. 4].
Alternatively, if they use DPA's before they are qualified
3
Positive Thinking  That in all things, God may be glorified. Ora et Labora!
through mandatory training, they could incur criminal
liability [Secs. 32 and 33]. In either case, their use DPA's
without or after qualifying training, would expose them
to malpractice suits from persons who might have
sustained injury through the use of DPA's. Again, they
might not have the option of refraining from the use of
DPA's, since they could face an ethics charge for
substandard practice in not using DPA's in their practice.
Finally, even petitioner Acebedo Co. would suffer
injury in its operations because its activities, based on
the affidavits submitted as exhibits, would surely touch
the boundaries of conduct prohibited and penalized in
the Revised Optometry Law. For one thing, its right to
continue in employment, the optometrists working in its
optical shop clinics [including affiant petitioners] might
be injured through a criminal charge that such
employment constitutes a prohibited indirect practice of
optometry within the strictures of Section 5 in relation to
Sec. 32. Or its advertising of optical goods and wares,
which is its right under the general law and the
Constitution, could be charged as an offense under
Section 32. and subjected to penalty under Section 33.
These restraints, which could seriously prejudice existing
legal rights, entitle the petitioner corporation to the
extraordinary remedy of declaratory relief, and to
preliminary injunction pending the holding of a trial on
the merits. The Court understands that petitioner could
have adduced more evidence than what appears
especially on the matter of the jeopardy to public health
as a result of changes of optometric practice introduced
by the Revised Optometry Law. But as the Court
understands it, preponderance is not required for
evidentiary support for the grant of preliminary
injunction. As the rule stands, a "sampling" of relevant
evidence is enough, so as to give the Court a justification
for the issuance of the writ [See Olalio v. Hizon, 196
SCRA 665; Syndicated Media Access vs. C.A. 219 SCRA
794].
Jurisprudence likewise supports the grant of
preliminary writs of injunction, to maintain the status
quo, in suits questioning the constitutionality of laws
with demonstrable prejudice of legal rights [J.M. & Co. v.
C.A., 3 SCRA 696].
Finals_Constitutional Law
Cortes, Ann Rosselle S.
On the basis of the main petition, which is for
declaratory relief directed at the nullification of R.A.
8050 on constitutional grounds, and for a writ of
prohibition, likewise premised on the nullity of said law
due to constitutional infirmities, the Court finds that the
whole or part of the relief which petitioners are seeking
and to which prima facie they are entitled, consists in
restraining the enforcement or implementation of the
law.
The Court likewise concludes, on its finding that
both public rights would be prejudiced by the operation
of R.A. 8050, that its enforcement pendente would inflict
substantial injustice to petitioners. 13
On 1 September 1995, respondent Judge Colet issued a
Writ of Preliminary Injunction, 14 the dispositive portion
of which reads:
IT IS HEREBY ORDERED by the undersigned that,
until further orders, you, the said defendants, and all
your attorneys, representatives, agents, and any other
person assisting you refrain from enforcing and/or
implementing R.A. No. 8050 or its Code of Ethics.
The petitioners then filed this special civil action
for certiorari and prohibition with a prayer for a writ of
preliminary injunction and/or temporary restraining
order and alleged that:
I RESPONDENT JUDGE GRAVELY HIS DISCRETION
AND/OR ACTED WITHOUT OR IN EXCESS OF
JURISDICTION IN FINDING THAT PRIVATE
RESPONDENTS HAVE LOCUS STANDI TO FILE THE
PETITION A QUO.
II RESPONDENT JUDGE GRAVELY ABUSED HIS
DISCRETION AND/OR ACTED IN EXCESS OF
JURISDICTION IN DECREEING THAT PRIMA FACIE
EVIDENCE OF UNCONSTITUTIONALITY/INVALIDITY
OF R.A. 8050 EXISTS WHICH WARRANT THE
ENJOINMENT OF ITS IMPLEMENTATION.
III RESPONDENT JUDGE GRAVELY ABUSED HIS
DISCRETION AND/OR ACTED IN EXCESS OF
JURISDICTION IN PRELIMINARILY ENJOINING R.A.
8050 ON MERE ALLEGATIONS BY PRIVATE
RESPONDENTS THAT THE SAME WOULD BRING
INJURIOUS EFFECTS TO THE HEALTH AND SAFETY
OF THE PUBLIC.
4
Positive Thinking  That in all things, God may be glorified. Ora et Labora!
IV RESPONDENT JUDGE GRAVELY ABUSED HIS
DISCRETION AND/OR ACTED WITHOUT OR IN
EXCESS OF JURISDICTION IS ISSUING THE WRIT
OF PRELIMINARY INJUNCTION.
As we see it, the assigned errors quoted above
may be reduced to two key issues, viz.:
(1) The locus standi of the private respondents to
question the Constitutionality of R.A. No. 8050; and
(2) The absence of a valid cause of action for either
declaratory relief or prohibition.
The petitioners maintain that for a party to have locus
standi to question the validity of a statute, he must have
a personal and substantial interest in the case such that
he has sustained or will sustain direct injury as a result
of its enforcement. 15 In this light, the private
respondents do not have the requisite personal and
substantial interest to assail the constitutionality of R.A.
No. 8050 for, per the certifications of the SEC, private
respondents COA and ACMO are not registered
associations; and two of the alleged presidents of the
respondent associations are not duly registered
optometrists as certified to by the PRC. Finally, the
petitioners aver, the private respondents did not allege
in their petition in Civil Case No. 95-74770, and in their
Rejoinder to the Opposition therein, their capacity to
bring suit as required by Section 4, Rule 8 of the Rules of
Court.
Refuting this charge, the private respondents
claim in their Comment on the petition that they have,
as held by the trial court, locus standi "under the rule of
Public Right" pursuant to Tañada vs. Tuvera, 16 citing
Severino vs. Governor General; 17 moreover, as also
found by the trial court, their rights as optometrists or
optical companies would be adversely affected by the
assailed law. They further claim that they seek to protect
their Constitutional rights to property and freedom of
expression from enforcement of the provisions of the
challenged law, which bar truthful advertisements and
impose vague and unreasonable conditions for the
continued practice of their profession. Insofar as private
respondents Acebedo Optical Co., Inc., and Panol are
concerned, the said law would likewise adversely affect
the conduct of their business of maintaining optical
Finals_Constitutional Law
Cortes, Ann Rosselle S.
shops and expose them to threats of criminal
prosecution. Finally, they contend that they also seek,
"as taxpayers and citizens, under the concepts of Public
Right, to bar the enforcement of the law because it
endangers the Public's health," a danger "clearly seen
from the oppositions to the law filed before both houses"
of Congress.
I Only natural and juridical persons or entities authorized
by law may be parties in a civil action, and every action
must be prosecuted or defended in the name of the real
party in interest. 18 Under Article 44 of the Civil Code,
an association is considered a juridical person if the law
grants it a personality separate and distinct from that of
its members.
There is serious doubt as to the existence of private
respondents OPAP, COA, ACMO, and SMOAP. For one, the
body of the petition in Civil Case No. 95-74770 makes no
mention of these associations nor state their addresses.
Further, nowhere is it claimed therein that they are
juridical entities. These run counter to Section 4, Rule 8
of the Rules of Court, which provides that facts showing
the capacity of a party to sue or the legal existence of an
organized association of persons that is made a party
must be averred. Second, not even in the sworn
statements. 19 of the alleged presidents representing
the "associations," which were offered in evidence in
support of the application for a writ of preliminary
injunction, were such "associations" mentioned or
named. Finally, in their Comment on the instant petition,
the private respondents chose to remain silent on the
issue of the juridical personality of their "associations."
For having failed to show that they are juridical entities,
private respondents OPAP, COA, ACMO, and SMOAP must
then be deemed to be devoid of legal personality to
bring an action, such as Civil Case No. 95-74770.
A real party in interest under Section 2, Rule 3 of
the Rules of Court is a party who stands to be benefited
or injured by the judgment in the suit, or the party
entitled to the avails of the suit. 20
In the case at bench, since OPAP, COA, ACMO, and
SMOAP were not shown to be juridical entities, they
cannot, for obvious reasons, be deemed real parties in
interest. Moreover, since the names of private
5
Positive Thinking  That in all things, God may be glorified. Ora et Labora!
respondents Miguel Acebedo, Miriam F. Llave, and
Republica A. Panol do not appear in the registration
books of the Board of Optometry as authorized
optometry practitioners in the Philippines, 21 they do not
have requisite personal and substantial interest in the
case. Even further, although private respondents
Roberto Rodis, Jr., Cyril Corales, and Elmer Villarosa
claim to be practicing optometrist, the petition in Civil
Case No. 95-74770 is bereft of any allegation to make
them real parties in interest to challenge the
constitutionality of R.A. No. 8050.
As an attempt in extremis, the private
respondents now assert in their comment that the
petition for declaratory relief, prohibition, and injunction
was filed in their capacity as "taxpayers and citizens,
under the concept of Public Right, to bar the
enforcement of the law because it endangers public
health." 22 They thus suggest that their petition is in the
nature of a taxpayers' class suit.
As a class suit, Civil Case No. 95-74770 must fail. Not
only did the private respondents fail to allege this in
their petition, they likewise failed to allege the existence
and prove the requisites of a class suit, viz., the subject
matter of the controversy is one of common or general
interest to many persons, and the parties are so
numerous that it is impracticable to bring them all
before the court. 23
Courts must exercise utmost caution before allowing a
class suit, which is the exception to the requirements of
joinder of all indispensable parties. For while no difficulty
may arise if the decision secured is favorable to the
plaintiffs, a quandary would result if the decision were
otherwise as those who were deemed impleaded by their
self-appointed representatives would certainly claim
denial of due process. 24
Neither may the private respondents be allowed at this
late stage to seek refuge under the doctrine allowing
taxpayers' suits. While they claimed their petition in Civil
Case No. 95-74770 was taxpayers' suit, and although
this Court, in a catena of cases, has shown liberality in
granting locus standi to taxpayers in taxpayers' suits, 25
the private respondents have not adequately shown that
this liberality must be extended to them. Their plea of
Finals_Constitutional Law
Cortes, Ann Rosselle S.
injury or damage is nothing but a sweeping
generalization.
Civil Case No. 95-74770 must fail for yet another reason.
As a special civil action for declaratory relief, 26 its
requisites are: (1) the existence of a justiciable
controversy; (2) the controversy is between persons
whose interests are adverse; (3) that the party seeking
the relief has a legal interest in the controversy; and (4)
that the issue invoked is ripe for judicial determination.
27 On this score, we find no difficulty holding that at
least the first and fourth requisites are wanting.
Then there is the unbending rule in constitutional
law that courts will not assume jurisdiction over a
constitutional question unless the following requisites
are first satisfied: (1) there must be an actual case or
controversy involving a conflict or rights susceptible of
judicial determination; (2) the constitutional question
must be raised by a proper party; (3) the constitutional
question must be raised at the earliest opportunity; and
(4) the resolution of the constitutional question must be
necessary to the resolution of the case. 28
An actual case or controversy means as existing
case or controversy that is appropriate or ripe for
determination, not conjectural or anticipatory. 29 It
cannot be disputed that there is yet no actual case or
controversy involving all or any of the private
respondents on one hand, and all or any of the
petitioners on the other, with respect to rights or
obligations under R.A. No. 8050. This is plain because
Civil Case No. 95-74770 is for declaratory relief. Then,
too, as adverted to earlier, the private respondents have
not sufficiently established their locus standi to question
the validity of R.A. No. 8050.
The conclusion then is inevitable that the respondent
Judge acted with grave abuse of discretion when he
issued a writ of preliminary injunction restraining the
implementation of R.A. No. 8050, as well as of the Code
of Ethics promulgated thereunder, if one has been
issued. Even if there was before him a case involving the
law, prudence dictated that the respondent Judge should
not have issued the writ with undue haste, bearing in
mind our decision, penned by Mr. Justice Isagani A. Cruz,
in Drilon vs. Lim, 30 where we stated:
6
Positive Thinking  That in all things, God may be glorified. Ora et Labora!
We stress at the outset that the lower court had
jurisdiction to consider the constitutionality of Section
187, this authority being embraced in the general
definition of the judicial power to determine what are the
valid and binding laws by the criterion of BP 129 vests in
the regional trial courts jurisdiction over all civil cases in
which the subject of the litigation is incapable of
pecuniary estimation, even as the accused in a criminal
action has the right to question in his defense the
constitutionality of a law he is charge with violating and
of the proceedings taken against him, particularly as
they contravene the Bill of Rights. Moreover, Article X,
Section 5(2), of the Constitution vests in the Supreme
Court appellate jurisdiction over 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.
In the exercise of this jurisdiction, lower courts
are advised to act with the utmost circumspection,
bearing in mind the consequences of a declaration of
unconstitutionality upon the stability of laws, no less
than on the doctrine of separation of powers. As the
questioned act is usually the handiwork of the legislative
or the executive departments, or both, it will be prudent
for such courts, if only out of a becoming modesty, to
defer to the higher judgment of this Court in the
consideration of its validity, which is better determined
after a through deliberation of a collegiate body and with
the concurrence of the majority of those who
participated in its discussion.
It is also emphasized that every court, including
this Court, is charged with the duty of a purposeful
hesitation before declaring a law unconstitutional, on the
theory that the measure was first carefully studied by
the executive and legislative departments and
determined by them to be in accordance with the
fundamental law before it was finally approved. To doubt
is to sustain. The presumption of constitutionality can be
overcome only by the clearest showing that there was
indeed an infraction of the Constitution, and only when
such a conclusion is reached by the required majority
Finals_Constitutional Law
Cortes, Ann Rosselle S.
may the Court pronounce, in the discharge of the duty it
cannot escape, that the challenged act be struck down.
WHEREFORE, the instant petition is GRANTED.
The challenged order of 25 August 1995 of respondent
Judge Angel V. Colet in Civil Case No. 95-74770 granting
the application for the issuance of a writ of preliminary
injunction, and the writ of preliminary injunction issued
on 1 September 1995 are hereby ANNULLED and SET
ASIDE.
The respondent Judge is further DIRECTED to
DISMISS Civil Case No. 95-74770.
Cost against private respondents Acebedo Optical Co.,
Inc., Republica A. Panol, and the alleged "presidents" of
Optometry Practitioner Association of the Philippines,
Cenevis Optometrist Association, Association of
Christian-Muslim Optometrist, Southern Mindanao
Optometrist Association of the Philippines.
SO ORDERED.
2) Operative Fact
-W/N a law is constitutional or not
-Example: Manila v. Flores – Rights of creditor depends on the Law
-Effects of the law, rights considered operative fact
- Effects of Declaration of Unconstitutionality:
2 Views:
a. ORTHODOX VIEW— i. an unconstitutional act is not a
law;
ii. it confers no rights;
iii. it imposes no duties;
iv. it affords no protection;
v. it creates no office;
vi. it is inoperative, as if it had not been passed at all.
b. MODERN VIEW—Courts simply refuse to recognize
the law and determine
the rights of the parties as if the statute had no
existence. Certain legal effects of the statute prior to
its declaration of unconstitutionality may be
recognized. Thus, a public officer who implemented an
unconstitutional law prior to the declaration of
unconstitutionality cannot be held liable(Ynot vs. IAC ).
7
Positive Thinking  That in all things, God may be glorified. Ora et Labora!
G.R. No. 79732 November 8, 1993, REPUBLIC OF THE
PHILIPPINES, vs. COURT OF APPEALS, HENRICO UVERO,
ET AL.,
The Republic of the Philippines has sought the
expropriation of certain portions of land owned by the private
respondents for the widening and concreting of the Nabua-
Bato-Agos Section, Philippine-Japan Highway Loan (PJHL) road.
While the right of the Republic is not now disputed, the
private respondents, however, demand that the just
compensation for the property should be based on fair market
value and not that set by Presidential Decree No. 76, as
amended, which fixes payment on the basis of the
assessment by the assessor or the declared valuation by the
owner, whichever is lower. The Regional, Trial Court ruled for
the private respondents. When elevated to it, the Court of
Appeals affirmed the trial court's decision.
Hence, the instant petition by the Republic.
In Export Processing Zone Authority ("EPZA") vs.
Dulay, etc. et al., 1 this Court held the determination of just
compensation in eminent domain to be a judicial function and
it thereby declared Presidential Decree No. 76, as well as
related decrees, including Presidential Decree No. 1533, to
the contrary extent, as unconstitutional and as an
impermissible encroachment of judicial prerogatives. The
ruling, now conceded by the Republic was reiterated in
subsequent cases. 2
The petition for review, despite the aforesaid pronouncement
by this Court, has been given due course upon the pleas of
the Solicitor General to have us address the following
concerns:
I EFFECT OF JUDICIAL DECLARATION OF PD
1533 AS UNCONSTITUTIONAL AND VOID; UP TO
WHEN RETROACTIVELY; EFFECT ON A PENDING
APPEALED CASE WHERE CONSTITUTIONALITY
OF PD 1533 NOT ASSAILED BEFORE COURT A
QUO.
II WHETHER OR NOT THE DECISION OF THIS
HONORABLE COURT IN EPZA VS. HON. DULAY,
ETC., ET AL. (G.R. NO. 59603, APRIL 29, 1987)
DECLARING PD 1533 UNCONSTITUTIONAL AND
VOID, BE APPLIED IN THIS CASE.
III WHETHER OR NOT VALUATION OF LAND
SOUGHT FOR EXPROPRIATION AS APPEARING
Finals_Constitutional Law
Cortes, Ann Rosselle S.
ON THE TAX DECLARATION BE USED AS
PRELIMINARY BASIS FOR THE TEN PER CENT
(10%) DEPOSIT REQUIRED UNDER RULE 67 OF
THE REVISED RULES OF COURT, AS AMENDED
BEFORE PLAINTIFF IS PERMITTED ENTRY
THEREON.
The last item is not an issue; being merely provisional
in character, the matter has not been questioned by the
private respondents. 3 We will thus limit ourselves to the first
two issues which, in turn, really boil down to whether the
declaration of nullity of the law in question should have
prospective, not retroactive, application. The petitioner
proposes the affirmative.
Instruction is the brief treatise made by Mr. Justice Isagani A.
Cruz, whose words we quote —
There are two views on the effects of a declaration of
the unconstitutionality of a statute.
The first is the orthodox view. Under this rule, as
announced in Norton v. Shelby, an unconstitutional act is not
a law; it confers no right; it imposes no duties; it affords no
protection; it creates no office; it is, in legal contemplation,
inoperative, as if it had not been passed. It is therefore
stricken from the statute books and considered never to have
existed at all. Not only the parties but all persons are bound
by the declaration of unconstitutionality, which means that no
one may thereafter invoke it nor may the courts be permitted
to apply it in subsequent cases. It is, in other words, a total
nullity.
The second or modern view is less stringent. Under
this view, the court in passing upon the question of
constitutionality does not annul or repeal the statute if it finds
it in conflict with the Constitution. It simply refuses to
recognize it and determines the rights of the parties just as if
such statute had no existence. The court may give its reasons
for ignoring or disregarding the law, but the decision affects
the parties only and there is no judgment against the statute.
The opinion or reasons of the court may operate as a
precedent for the determination of other similar cases, but it
does not strike the statute from the statute books; it does not
repeal, supersede, revoke, or annul the statute. The parties to
the suit are concluded by the judgment, but no one else is
bound.
8
Positive Thinking  That in all things, God may be glorified. Ora et Labora!
The orthodox view is expressed in Article 7 of the Civil
Code, providing that "when the courts declare a law to be
inconsistent with the Constitution, the former shall be void
and the latter shall govern. . . . 4
The strict view considers a legislative enactment which
is declared unconstitutional as being, for all legal intents and
purposes, a total nullity, and it is deemed as if had never
existed. Here, of course, we refer to the law itself being per se
repugnant to the Constitution. It is not always the case,
however, that a law is constitutionally faulty per se. Thus, it
may well be valid in its general import. but invalid in its
application to certain factual situations. To exemplify, an
otherwise valid law may be held unconstitutional only insofar
as it is allowed to operate retrospectively such as, in pertinent
cases, when it vitiates contractually vested rights. To that
extent, its retroactive application may be so declared invalid
as impairing the obligations of contracts. 5
A judicial declaration of invalidity, it is also true, may
not necessarily obliterate all the effects and consequences of
a void act occurring prior to such a declaration. Thus, in our
decisions on the moratorium laws, 6 we have been
constrained to recognize the interim effects of said laws prior
to their declaration of unconstitutionality, but there we have
likewise been unable to simply ignore strong considerations of
equity and fair play. So also, even as a practical matter, a
situation that may aptly be described as fait accompli may no
longer be open for further inquiry, let alone to be unsettled by
a subsequent declaration of nullity of a governing statute.
The instant controversy, however, is too far distant
away from any of the above exceptional cases. To this day,
the controversy between the petitioner and the private
respondents on the issue of just compensation is still
unresolved, partly attributable to the instant petition that has
prevented the finality of the decision appealed from. The fact
of the matter is that the expropriation cases, involved in this
instance, were still pending appeal when the EPZA ruling was
rendered and forthwith invoked by said parties.
In fine, we hold that the appellate court in this
particular case committed no error in its appealed decision.
WHEREFORE, the instant petition is dismissed. No
costs.
SO ORDERED.
Finals_Constitutional Law
Cortes, Ann Rosselle S.
3) Article 2, all self executing?
- Self-executing provision—one which is complete in itself and
becomes operative without the aid of supplementary or enabling
legislation, or that which supplies a sufficient rule by means of which
the right it grants may be enjoyed or protected.
GR 183591, Province of Cotabato v. Republic
Subject of these consolidated cases is the extent of the
powers of the President in pursuing the peace process. While
the facts surrounding this controversy center on the armed
conflict in Mindanao between the government and the Moro
Islamic Liberation Front (MILF), the legal issue involved has a
bearing on all areas in the country where there has been a
long-standing armed conflict. Yet again, the Court is tasked to
perform a delicate balancing act. It must uncompromisingly
delineate the bounds within which the President may lawfully
exercise her discretion, but it must do so in strict adherence
to the Constitution, lest its ruling unduly restricts the freedom
of action vested by that same Constitution in the Chief
Executive precisely to enable her to pursue the peace process
effectively.
I. FACTUAL ANTECEDENTS OF THE PETITIONS
On August 5, 2008, the Government of the Republic of the
Philippines (GRP) and the MILF, through the Chairpersons of
their respective peace negotiating panels, were scheduled to
sign a Memorandum of Agreement on the Ancestral Domain
(MOA-AD) Aspect of the GRP-MILF Tripoli Agreement on Peace
of 2001 in Kuala Lumpur, Malaysia.
The MILF is a rebel group which was established in March
1984 when, under the leadership of the late Salamat Hashim,
it splintered from the Moro National Liberation Front (MNLF)
then headed by Nur Misuari, on the ground, among others, of
what Salamat perceived to be the manipulation of the MNLF
away from an Islamic basis towards Marxist-Maoist
orientations.1
The signing of the MOA-AD between the GRP and the MILF
was not to materialize, however, for upon motion of
9
Positive Thinking  That in all things, God may be glorified. Ora et Labora!
petitioners, specifically those who filed their cases before the
scheduled signing of the MOA-AD, this Court issued a
Temporary Restraining Order enjoining the GRP from signing
the same.
The MOA-AD was preceded by a long process of negotiation
and the concluding of several prior agreements between the
two parties beginning in 1996, when the GRP-MILF peace
negotiations began. On July 18, 1997, the GRP and MILF Peace
Panels signed the Agreement on General Cessation of
Hostilities. The following year, they signed the General
Framework of Agreement of Intent on August 27, 1998.
The Solicitor General, who represents respondents,
summarizes the MOA-AD by stating that the same contained,
among others, the commitment of the parties to pursue peace
negotiations, protect and respect human rights, negotiate
with sincerity in the resolution and pacific settlement of the
conflict, and refrain from the use of threat or force to attain
undue advantage while the peace negotiations on the
substantive agenda are on-going.2
Early on, however, it was evident that there was not going to
be any smooth sailing in the GRP-MILF peace process.
Towards the end of 1999 up to early 2000, the MILF attacked
a number of municipalities in Central Mindanao and, in March
2000, it took control of the town hall of Kauswagan, Lanao del
Norte.3 In response, then President Joseph Estrada declared
and carried out an "all-out-war" against the MILF.
When President Gloria Macapagal-Arroyo assumed office, the
military offensive against the MILF was suspended and the
government sought a resumption of the peace talks. The
MILF, according to a leading MILF member, initially responded
with deep reservation, but when President Arroyo asked the
Government of Malaysia through Prime Minister Mahathir
Mohammad to help convince the MILF to return to the
negotiating table, the MILF convened its Central Committee to
seriously discuss the matter and, eventually, decided to meet
with the GRP.4
Finals_Constitutional Law
Cortes, Ann Rosselle S.
The parties met in Kuala Lumpur on March 24, 2001, with the
talks being facilitated by the Malaysian government, the
parties signing on the same date the Agreement on the
General Framework for the Resumption of Peace Talks
Between the GRP and the MILF. The MILF thereafter
suspended all its military actions.5
Formal peace talks between the parties were held in Tripoli,
Libya from June 20-22, 2001, the outcome of which was the
GRP-MILF Tripoli Agreement on Peace (Tripoli Agreement
2001) containing the basic principles and agenda on the
following aspects of the negotiation: Security Aspect,
Rehabilitation Aspect, and Ancestral Domain Aspect. With
regard to the Ancestral Domain Aspect, the parties in Tripoli
Agreement 2001 simply agreed "that the same be discussed
further by the Parties in their next meeting."
A second round of peace talks was held in Cyberjaya, Malaysia
on August 5-7, 2001 which ended with the signing of the
Implementing Guidelines on the Security Aspect of the Tripoli
Agreement 2001 leading to a ceasefire status between the
parties. This was followed by the Implementing Guidelines on
the Humanitarian Rehabilitation and Development Aspects of
the Tripoli Agreement 2001, which was signed on May 7, 2002
at Putrajaya, Malaysia. Nonetheless, there were many
incidence of violence between government forces and the
MILF from 2002 to 2003.
Meanwhile, then MILF Chairman Salamat Hashim passed away
on July 13, 2003 and he was replaced by Al Haj Murad, who
was then the chief peace negotiator of the MILF. Murad's
position as chief peace negotiator was taken over by
Mohagher Iqbal.6
In 2005, several exploratory talks were held between the
parties in Kuala Lumpur, eventually leading to the crafting of
the draft MOA-AD in its final form, which, as mentioned, was
set to be signed last August 5, 2008.
II. STATEMENT OF THE PROCEEDINGS
10
Positive Thinking  That in all things, God may be glorified. Ora et Labora!
Before the Court is what is perhaps the most contentious
"consensus" ever embodied in an instrument - the MOA-AD
which is assailed principally by the present petitions bearing
docket numbers 183591, 183752, 183893, 183951 and
183962.
Commonly impleaded as respondents are the GRP Peace
Panel on Ancestral Domain7 and the Presidential Adviser on
the Peace Process (PAPP) Hermogenes Esperon, Jr.
On July 23, 2008, the Province of North Cotabato8 and Vice-
Governor Emmanuel Piñol filed a petition, docketed as G.R.
No. 183591, for Mandamus and Prohibition with Prayer for
the Issuance of Writ of Preliminary Injunction and Temporary
Restraining Order.9 Invoking the right to information on
matters of public concern, petitioners seek to compel
respondents to disclose and furnish them the complete and
official copies of the MOA-AD including its attachments, and to
prohibit the slated signing of the MOA-AD, pending the
disclosure of the contents of the MOA-AD and the holding of a
public consultation thereon. Supplementarily, petitioners pray
that the MOA-AD be declared unconstitutional.10
This initial petition was followed by another one, docketed as
G.R. No. 183752, also for Mandamus and Prohibition11 filed
by the City of Zamboanga,12 Mayor Celso Lobregat, Rep. Ma.
Isabelle Climaco and Rep. Erico Basilio Fabian who likewise
pray for similar injunctive reliefs. Petitioners herein moreover
pray that the City of Zamboanga be excluded from the
Bangsamoro Homeland and/or Bangsamoro Juridical Entity
and, in the alternative, that the MOA-AD be declared null and
void.
By Resolution of August 4, 2008, the Court issued a
Temporary Restraining Order commanding and directing
public respondents and their agents to cease and desist from
formally signing the MOA-AD.13 The Court also required the
Solicitor General to submit to the Court and petitioners the
official copy of the final draft of the MOA-AD,14 to which she
complied.15
Finals_Constitutional Law
Cortes, Ann Rosselle S.
Meanwhile, the City of Iligan16 filed a petition for Injunction
and/or Declaratory Relief, docketed as G.R. No. 183893,
praying that respondents be enjoined from signing the MOA-
AD or, if the same had already been signed, from
implementing the same, and that the MOA-AD be declared
unconstitutional. Petitioners herein additionally implead
Executive Secretary Eduardo Ermita as respondent.
The Province of Zamboanga del Norte,17 Governor Rolando
Yebes, Vice-Governor Francis Olvis, Rep. Cecilia Jalosjos-
Carreon, Rep. Cesar Jalosjos, and the members 18 of the
Sangguniang Panlalawigan of Zamboanga del Norte filed on
August 15, 2008 a petition for Certiorari, Mandamus and
Prohibition,19 docketed as G.R. No. 183951. They pray, inter
alia, that the MOA-AD be declared null and void and without
operative effect, and that respondents be enjoined from
executing the MOA-AD.
On August 19, 2008, Ernesto Maceda, Jejomar Binay, and
Aquilino Pimentel III filed a petition for Prohibition, 20 docketed
as G.R. No. 183962, praying for a judgment prohibiting and
permanently enjoining respondents from formally signing and
executing the MOA-AD and or any other agreement derived
therefrom or similar thereto, and nullifying the MOA-AD for
being unconstitutional and illegal. Petitioners herein
additionally implead as respondent the MILF Peace
Negotiating Panel represented by its Chairman Mohagher
Iqbal.
Various parties moved to intervene and were granted leave of
court to file their petitions-/comments-in-intervention.
Petitioners-in-Intervention include Senator Manuel A. 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-
11
Positive Thinking  That in all things, God may be glorified. Ora et Labora!
Sectoral Movement for Peace and Development (MMMPD)
filed their respective Comments-in-Intervention.
By subsequent Resolutions, the Court ordered the
consolidation of the petitions. Respondents filed Comments on
the petitions, while some of petitioners submitted their
respective Replies.
Respondents, by Manifestation and Motion of August 19,
2008, stated that the Executive Department shall thoroughly
review the MOA-AD and pursue further negotiations to
address the issues hurled against it, and thus moved to
dismiss the cases. In the succeeding exchange of pleadings,
respondents' motion was met with vigorous opposition from
petitioners.
The cases were heard on oral argument on August 15, 22 and
29, 2008 that tackled the following principal issues:
1. Whether the petitions have become moot and
academic
(i) insofar as the mandamus aspect is
concerned, in view of the disclosure of official
copies of the final draft of the Memorandum of
Agreement (MOA); and
(ii) insofar as the prohibition aspect involving
the Local Government Units is concerned, if it is
considered that consultation has become fait
accompli with the finalization of the draft;
2. Whether the constitutionality and the legality of the
MOA is ripe for adjudication;
3. Whether respondent Government of the Republic of
the Philippines Peace Panel committed grave abuse of
discretion amounting to lack or excess of jurisdiction
when it negotiated and initiated the MOA vis-à-vis
ISSUES Nos. 4 and 5;
Finals_Constitutional Law
Cortes, Ann Rosselle S.
4. Whether there is a violation of the people's right to
information on matters of public concern (1987
Constitution, Article III, Sec. 7) under a state policy of
full disclosure of all its transactions involving public
interest (1987 Constitution, Article II, Sec. 28) including
public consultation under Republic Act No. 7160
(LOCAL GOVERNMENT CODE OF 1991)[;]
If it is in the affirmative, whether prohibition under
Rule 65 of the 1997 Rules of Civil Procedure is an
appropriate remedy;
5. Whether by signing the MOA, the Government of the
Republic of the Philippines would be BINDING itself
a) to create and recognize the Bangsamoro
Juridical Entity (BJE) as a separate state, or a
juridical, territorial or political subdivision not
recognized by law;
b) to revise or amend the Constitution and
existing laws to conform to the MOA;
c) to concede to or recognize the claim of the
Moro Islamic Liberation Front for ancestral
domain in violation of Republic Act No. 8371
(THE INDIGENOUS PEOPLES RIGHTS ACT OF
1997), particularly Section 3(g) & Chapter VII
(DELINEATION, RECOGNITION OF ANCESTRAL
DOMAINS)[;]
If in the affirmative, whether the Executive Branch has
the authority to so bind the Government of the
Republic of the Philippines;
6. Whether the inclusion/exclusion of the Province of
North Cotabato, Cities of Zamboanga, Iligan and
Isabela, and the Municipality of Linamon, Lanao del
Norte in/from the areas covered by the projected
Bangsamoro Homeland is a justiciable question; and
12
Positive Thinking  That in all things, God may be glorified. Ora et Labora!
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."
Finals_Constitutional Law
Cortes, Ann Rosselle S.
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.
13
Positive Thinking  That in all things, God may be glorified. Ora et Labora!
A. CONCEPTS AND PRINCIPLES
This strand begins with the statement that it is "the birthright
of all Moros and all Indigenous peoples of Mindanao to identify
themselves and be accepted as ‘Bangsamoros.'" It defines
"Bangsamoro people" as the natives or original inhabitants
of Mindanao and its adjacent islands including Palawan and
the Sulu archipelago at the time of conquest or colonization,
and their descendants whether mixed or of full blood,
including their spouses.30
Thus, the concept of "Bangsamoro," as defined in this strand
of the MOA-AD, includes not only "Moros" as traditionally
understood even by Muslims,31 but all indigenous peoples of
Mindanao and its adjacent islands. The MOA-AD adds that the
freedom of choice of indigenous peoples shall be respected.
What this freedom of choice consists in has not been
specifically defined.
The MOA-AD proceeds to refer to the "Bangsamoro
homeland," the ownership of which is vested exclusively in
the Bangsamoro people by virtue of their prior rights of
occupation.32 Both parties to the MOA-AD acknowledge that
ancestral domain does not form part of the public domain.33
The Bangsamoro people are acknowledged as having the right
to self-governance, which right is said to be rooted on
ancestral territoriality exercised originally under the suzerain
authority of their sultanates and the Pat a Pangampong ku
Ranaw. The sultanates were described as states or
"karajaan/kadatuan" resembling a body politic endowed with
all the elements of a nation-state in the modern sense.34
The MOA-AD thus grounds the right to self-governance of the
Bangsamoro people on the past suzerain authority of the
sultanates. As gathered, the territory defined as the
Bangsamoro homeland was ruled by several sultanates and,
specifically in the case of the Maranao, by the Pat a
Pangampong ku Ranaw, a confederation of independent
principalities (pangampong) each ruled by datus and sultans,
none of whom was supreme over the others.35
Finals_Constitutional Law
Cortes, Ann Rosselle S.
The MOA-AD goes on to describe the Bangsamoro people as
"the ‘First Nation' with defined territory and with a system of
government having entered into treaties of amity and
commerce with foreign nations."
The term "First Nation" is of Canadian origin referring to the
indigenous peoples of that territory, particularly those known
as Indians. In Canada, each of these indigenous peoples is
equally entitled to be called "First Nation," hence, all of them
are usually described collectively by the plural "First
Nations."36 To that extent, the MOA-AD, by identifying the
Bangsamoro people as "the First Nation" - suggesting its
exclusive entitlement to that designation - departs from the
Canadian usage of the term.
The MOA-AD then mentions for the first time the
"Bangsamoro Juridical Entity" (BJE) to which it grants the
authority and jurisdiction over the Ancestral Domain and
Ancestral Lands of the Bangsamoro.37
B. TERRITORY
The territory of the Bangsamoro homeland is described as the
land mass as well as the maritime, terrestrial, fluvial and
alluvial domains, including the aerial domain and the
atmospheric space above it, embracing the Mindanao-Sulu-
Palawan geographic region.38
More specifically, the core of the BJE is defined as the present
geographic area of the ARMM - thus constituting the following
areas: Lanao del Sur, Maguindanao, Sulu, Tawi-Tawi, Basilan,
and Marawi City. Significantly, this core also includes certain
municipalities of Lanao del Norte that voted for inclusion in
the ARMM in the 2001 plebiscite.39
Outside of this core, the BJE is to cover other provinces, cities,
municipalities and barangays, which are grouped into two
categories, Category A and Category B. Each of these areas is
to be subjected to a plebiscite to be held on different dates,
years apart from each other. Thus, Category A areas are to be
subjected to a plebiscite not later than twelve (12) months
following the signing of the MOA-AD.40 Category B areas, also
14
Positive Thinking  That in all things, God may be glorified. Ora et Labora!
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 territorial waters, the BJE and the "Central
Government" (used interchangeably with RP) shall exercise
joint jurisdiction, authority and management over all natural
resources.43 Notably, the jurisdiction over the internal waters
is not similarly described as "joint."
The MOA-AD further provides for the sharing of minerals on
the territorial waters between the Central Government and
the BJE, in favor of the latter, through production sharing and
economic cooperation agreement.44 The activities which the
Parties are allowed to conduct on the territorial waters are
enumerated, among which are the exploration and utilization
of natural resources, regulation of shipping and fishing
activities, and the enforcement of police and safety
measures.45 There is no similar provision on the sharing of
minerals and allowed activities with respect to the internal
waters of the BJE.
C. RESOURCES
The MOA-AD states that the BJE is free to enter into any
economic cooperation and trade relations with foreign
countries and shall have the option to establish trade missions
in those countries. Such relationships and understandings,
however, are not to include aggression against the GRP. The
BJE may also enter into environmental cooperation
agreements.46
The external defense of the BJE is to remain the duty and
obligation of the Central Government. The Central
Finals_Constitutional Law
Cortes, Ann Rosselle S.
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
15
Positive Thinking  That in all things, God may be glorified. Ora et Labora!
Comprehensive Compact. This compact is to embody the
"details for the effective enforcement" and "the mechanisms
and modalities for the actual implementation" of the MOA-AD.
The MOA-AD explicitly provides that the participation of the
third party shall not in any way affect the status of the
relationship between the Central Government and the BJE.52
The "associative" relationship
between the Central Government
and the BJE
The MOA-AD describes the relationship of the Central
Government and the BJE as "associative," characterized by
shared authority and responsibility. And it states that the
structure of governance is to be based on executive,
legislative, judicial, and administrative institutions with
defined powers and functions in the Comprehensive Compact.
The MOA-AD provides that its provisions requiring
"amendments to the existing legal framework" shall take
effect upon signing of the Comprehensive Compact and upon
effecting the aforesaid amendments, with due regard to the
non-derogation of prior agreements and within the
stipulated timeframe to be contained in the Comprehensive
Compact. As will be discussed later, much of the
present controversy hangs on the legality of this
provision.
The BJE is granted the power to build, develop and maintain
its own institutions inclusive of civil service, electoral, financial
and banking, education, legislation, legal, economic, police
and internal security force, judicial system and correctional
institutions, the details of which shall be discussed in the
negotiation of the comprehensive compact.
As stated early on, the MOA-AD was set to be signed on
August 5, 2008 by Rodolfo Garcia and Mohagher Iqbal,
Chairpersons of the Peace Negotiating Panels of the GRP and
the MILF, respectively. Notably, the penultimate paragraph of
the MOA-AD identifies the signatories as "the representatives
of the Parties," meaning the GRP and MILF themselves, and
not merely of the negotiating panels.53 In addition, the
Finals_Constitutional Law
Cortes, Ann Rosselle S.
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.57 The Court can decide the
constitutionality of an act or treaty only when a proper case
between opposing parties is submitted for judicial
determination.58
Related to the requirement of an actual case or controversy is
the requirement of ripeness. A question is ripe for adjudication
when the act being challenged has had a direct adverse effect
16
Positive Thinking  That in all things, God may be glorified. Ora et Labora!
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
Finals_Constitutional Law
Cortes, Ann Rosselle S.
xxxx
2. Toward this end, the Parties enter into the following
stipulations:
xxxx
d. Without derogating from the requirements of prior
agreements, the Government stipulates to conduct
and deliver, using all possible legal measures, within
twelve (12) months following the signing of the MOA-
AD, a plebiscite covering the areas as enumerated in
the list and depicted in the map as Category A
attached herein (the "Annex"). The Annex constitutes
an integral part of this framework agreement. Toward
this end, the Parties shall endeavor to complete the
negotiations and resolve all outstanding issues on the
Comprehensive Compact within fifteen (15) months
from the signing of the MOA-AD.
xxxx
GOVERNANCE
xxxx
7. The Parties agree that mechanisms and modalities
for the actual implementation of this MOA-AD shall be
spelt out in the Comprehensive Compact to mutually
take such steps to enable it to occur effectively.
Any provisions of the MOA-AD requiring amendments
to the existing legal framework shall come into force
upon the signing of a Comprehensive Compact and
upon effecting the necessary changes to the legal
framework with due regard to non-derogation of prior
agreements and within the stipulated timeframe to be
contained in the Comprehensive Compact. 64
(Underscoring supplied)
The Solicitor General's arguments fail to persuade.
17
Positive Thinking  That in all things, God may be glorified. Ora et Labora!
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
Finals_Constitutional Law
Cortes, Ann Rosselle S.
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
18
Positive Thinking  That in all things, God may be glorified. Ora et Labora!
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
Finals_Constitutional Law
Cortes, Ann Rosselle S.
An organization may be granted standing to assert the rights
of its members,85 but the mere invocation by the Integrated
Bar of the Philippines or any member of the legal profession of
the duty to preserve the rule of law does not suffice to clothe
it with standing.86
As regards a local government unit (LGU), it can seek relief in
order to protect or vindicate an interest of its own, and of the
other LGUs.87
Intervenors, meanwhile, may be given legal standing upon
showing of facts that satisfy the requirements of the law
authorizing intervention,88 such as a legal interest in the
matter in litigation, or in the success of either of the parties.
In any case, the Court has discretion to relax the procedural
technicality on locus standi, given the liberal attitude it has
exercised, highlighted in the case of David v. Macapagal-
Arroyo,89 where technicalities of procedure were brushed
aside, the constitutional issues raised being of paramount
public interest or of transcendental importance deserving the
attention of the Court in view of their seriousness, novelty and
weight as precedents.90 The Court's forbearing stance on
locus standi on issues involving constitutional issues has for
its purpose the protection of fundamental rights.
In not a few cases, the Court, in keeping with its duty under
the Constitution to determine whether the other branches of
government have kept themselves within the limits of the
Constitution and the laws and have not abused the discretion
given them, has brushed aside technical rules of procedure.91
In the petitions at bar, petitioners Province of North
Cotabato (G.R. No. 183591) Province of Zamboanga del
Norte (G.R. No. 183951), City of Iligan (G.R. No. 183893)
and City of Zamboanga (G.R. No. 183752) and petitioners-
in-intervention Province of Sultan Kudarat, City of
Isabela and Municipality of Linamon have locus standi in
view of the direct and substantial injury that they, as LGUs,
would suffer as their territories, whether in whole or in part,
are to be included in the intended domain of the BJE. These
petitioners allege that they did not vote for their inclusion in
19
Positive Thinking  That in all things, God may be glorified. Ora et Labora!
the ARMM which would be expanded to form the BJE territory.
Petitioners' legal standing is thus beyond doubt.
In G.R. No. 183962, petitioners Ernesto Maceda, Jejomar
Binay and Aquilino Pimentel III would have no standing as
citizens and taxpayers for their failure to specify that they
would be denied some right or privilege or there would be
wastage of public funds. The fact that they are a former
Senator, an incumbent mayor of Makati City, and a resident of
Cagayan de Oro, respectively, is of no consequence.
Considering their invocation of the transcendental importance
of the issues at hand, however, the Court grants them
standing.
Intervenors Franklin Drilon and Adel Tamano, in alleging
their standing as taxpayers, assert that government funds
would be expended for the conduct of an illegal and
unconstitutional plebiscite to delineate the BJE territory. On
that score alone, they can be given legal standing. Their
allegation that the issues involved in these petitions are of
"undeniable transcendental importance" clothes them with
added basis for their personality to intervene in these
petitions.
With regard to Senator Manuel Roxas, his standing is
premised on his being a member of the Senate and a citizen
to enforce compliance by respondents of the public's
constitutional right to be informed of the MOA-AD, as well as
on a genuine legal interest in the matter in litigation, or in the
success or failure of either of the parties. He thus possesses
the requisite standing as an intervenor.
With respect to Intervenors Ruy Elias Lopez, as a former
congressman of the 3rd district of Davao City, a taxpayer and
a member of the Bagobo tribe; Carlo B. Gomez, et al., as
members of the IBP Palawan chapter, citizens and taxpayers;
Marino Ridao, as taxpayer, resident and member of the
Sangguniang Panlungsod of Cotabato City; and Kisin Buxani,
as taxpayer, they failed to allege any proper legal interest in
the present petitions. Just the same, the Court exercises its
discretion to relax the procedural technicality on locus standi
given the paramount public interest in the issues at hand.
Finals_Constitutional Law
Cortes, Ann Rosselle S.
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
20
Positive Thinking  That in all things, God may be glorified. Ora et Labora!
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
Finals_Constitutional Law
Cortes, Ann Rosselle S.
There is no gainsaying that the petitions are imbued with
paramount public interest, involving a significant part of the
country's territory and the wide-ranging political modifications
of affected LGUs. The assertion that the MOA-AD is subject
to further legal enactments including possible
Constitutional amendments more than ever provides
impetus for the Court to formulate controlling
principles to guide the bench, the bar, the public and,
in this case, the government and its negotiating entity.
Respondents cite Suplico v. NEDA, et al.103 where the Court
did not "pontificat[e] on issues which no longer legitimately
constitute an actual case or controversy [as this] will do more
harm than good to the nation as a whole."
The present petitions must be differentiated from Suplico.
Primarily, in Suplico, what was assailed and eventually
cancelled was a stand-alone government procurement
contract for a national broadband network involving a one-
time contractual relation between two parties-the government
and a private foreign corporation. As the issues therein
involved specific government procurement policies and
standard principles on contracts, the majority opinion in
Suplico found nothing exceptional therein, the factual
circumstances being peculiar only to the transactions and
parties involved in the controversy.
The MOA-AD is part of a series of agreements
In the present controversy, the MOA-AD is a significant part
of a series of agreements necessary to carry out the Tripoli
Agreement 2001. The MOA-AD which dwells on the Ancestral
Domain Aspect of said Tripoli Agreement is the third such
component to be undertaken following the implementation of
the Security Aspect in August 2001 and the Humanitarian,
Rehabilitation and Development Aspect in May 2002.
Accordingly, even if the Executive Secretary, in his
Memorandum of August 28, 2008 to the Solicitor General, has
stated that "no matter what the Supreme Court ultimately
decides[,] the government will not sign the MOA[-AD],"
21
Positive Thinking  That in all things, God may be glorified. Ora et Labora!
mootness will not set in in light of the terms of the Tripoli
Agreement 2001.
Need to formulate principles-guidelines
Surely, the present MOA-AD can be renegotiated or another
one will be drawn up to carry out the Ancestral Domain
Aspect of the Tripoli Agreement 2001, in another or in
any form, which could contain similar or significantly drastic
provisions. While the Court notes the word of the Executive
Secretary that the government "is committed to securing an
agreement that is both constitutional and equitable because
that is the only way that long-lasting peace can be assured," it
is minded to render a decision on the merits in the present
petitions to formulate controlling principles to guide the
bench, the bar, the public and, most especially, the
government in negotiating with the MILF regarding
Ancestral Domain.
Respondents invite the Court's attention to the separate
opinion of then Chief Justice Artemio Panganiban in Sanlakas
v. Reyes104 in which he stated that the doctrine of "capable of
repetition yet evading review" can override mootness,
"provided the party raising it in a proper case has been and/or
continue to be prejudiced or damaged as a direct result of
their issuance." They contend that the Court must have
jurisdiction over the subject matter for the doctrine to be
invoked.
The present petitions all contain prayers for Prohibition over
which this Court exercises original jurisdiction. While G.R. No.
183893 (City of Iligan v. GRP) is a petition for Injunction and
Declaratory Relief, the Court will treat it as one for Prohibition
as it has far reaching implications and raises questions that
need to be resolved.105 At all events, the Court has jurisdiction
over most if not the rest of the petitions.
Indeed, the present petitions afford a proper venue for the
Court to again apply the doctrine immediately referred to as
what it had done in a number of landmark cases.106 There is a
reasonable expectation that petitioners, particularly the
Provinces of North Cotabato, Zamboanga del Norte and Sultan
Finals_Constitutional Law
Cortes, Ann Rosselle S.
Kudarat, the Cities of Zamboanga, Iligan and Isabela, and the
Municipality of Linamon, will again be subjected to the same
problem in the future as respondents' actions are capable of
repetition, in another or any form.
It is with respect to the prayers for Mandamus that the
petitions have become moot, respondents having, by
Compliance of August 7, 2008, provided this Court and
petitioners with official copies of the final draft of the MOA-AD
and its annexes. Too, intervenors have been furnished, or
have procured for themselves, copies of the MOA-AD.
V. SUBSTANTIVE ISSUES
As culled from the Petitions and Petitions-in-Intervention,
there are basically two SUBSTANTIVE issues to be resolved,
one relating to the manner in which the MOA-AD was
negotiated and finalized, the other relating to its provisions,
viz:
1. Did respondents violate constitutional and statutory
provisions on public consultation and the right to information
when they negotiated and later initialed the MOA-AD?
2. Do the contents of the MOA-AD violate the Constitution and
the laws?
ON THE FIRST SUBSTANTIVE ISSUE
Petitioners invoke their constitutional right to information
on matters of public concern, as provided in Section 7,
Article III on the Bill of Rights:
Sec. 7. The right of the people to information on
matters of public concern shall be recognized. Access
to official records, and to documents, and papers
pertaining to official acts, transactions, or decisions, as
well as to government research data used as basis for
policy development, shall be afforded the citizen,
subject to such limitations as may be provided by
law.107
22
Positive Thinking  That in all things, God may be glorified. Ora et Labora!
As early as 1948, in Subido v. Ozaeta,108 the Court has
recognized the statutory right to examine and inspect public
records, a right which was eventually accorded constitutional
status.
The right of access to public documents, as enshrined in both
the 1973 Constitution and the 1987 Constitution, has been
recognized as a self-executory constitutional right.109
In the 1976 case of Baldoza v. Hon. Judge Dimaano,110 the
Court ruled that access to public records is predicated on the
right of the people to acquire information on matters of public
concern since, undoubtedly, in a democracy, the pubic has a
legitimate interest in matters of social and political
significance.
x x x The incorporation of this right in the Constitution is a
recognition of the fundamental role of free exchange of
information in a democracy. There can be no realistic
perception by the public of the nation's problems, nor a
meaningful democratic decision-making if they are denied
access to information of general interest. Information is
needed to enable the members of society to cope with the
exigencies of the times. As has been aptly observed:
"Maintaining the flow of such information depends on
protection for both its acquisition and its dissemination since,
if either process is interrupted, the flow inevitably ceases." x x
x111
In the same way that free discussion enables members of
society to cope with the exigencies of their time, access to
information of general interest aids the people in democratic
decision-making by giving them a better perspective of the
vital issues confronting the nation112 so that they may be able
to criticize and participate in the affairs of the government in
a responsible, reasonable and effective manner. It is by
ensuring an unfettered and uninhibited exchange of ideas
among a well-informed public that a government remains
responsive to the changes desired by the people.113
The MOA-AD is a matter of public concern
Finals_Constitutional Law
Cortes, Ann Rosselle S.
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
23
Positive Thinking  That in all things, God may be glorified. Ora et Labora!
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.
Finals_Constitutional Law
Cortes, Ann Rosselle S.
MR. DAVIDE. I would like to get some clarifications on
this. Mr. Presiding Officer, did I get the Gentleman
correctly as having said that this is not a self-executing
provision? It would require a legislation by Congress to
implement?
MR. OPLE. Yes. Originally, it was going to be self-
executing, but I accepted an amendment from
Commissioner Regalado, so that the safeguards on
national interest are modified by the clause "as may be
provided by law"
MR. DAVIDE. But as worded, does it not mean that
this will immediately take effect and Congress
may provide for reasonable safeguards on the
sole ground national interest?
MR. OPLE. Yes. I think so, Mr. Presiding Officer, I
said earlier that it should immediately influence
the climate of the conduct of public affairs but, of
course, Congress here may no longer pass a law
revoking it, or if this is approved, revoking this
principle, which is inconsistent with this policy.129
(Emphasis supplied)
Indubitably, the effectivity of the policy of public
disclosure need not await the passing of a statute. As
Congress cannot revoke this principle, it is merely directed to
provide for "reasonable safeguards." The complete and
effective exercise of the right to information necessitates that
its complementary provision on public disclosure derive the
same self-executory nature. Since both provisions go hand-in-
hand, it is absurd to say that the broader130 right to
information on matters of public concern is already
enforceable while the correlative duty of the State to disclose
its transactions involving public interest is not enforceable
until there is an enabling law. Respondents cannot thus point
to the absence of an implementing legislation as an excuse in
not effecting such policy.
An essential element of these freedoms is to keep open a
continuing dialogue or process of communication between the
24
Positive Thinking  That in all things, God may be glorified. Ora et Labora!
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.131 Envisioned to be corollary to the twin
rights to information and disclosure is the design for feedback
mechanisms.
MS. ROSARIO BRAID. Yes. And lastly, Mr. Presiding
Officer, will the people be able to participate?
Will the government provide feedback
mechanisms so that the people can participate
and can react where the existing media facilities
are not able to provide full feedback
mechanisms to the government? I suppose this
will be part of the government implementing
operational mechanisms.
MR. OPLE. Yes. I think through their elected
representatives and that is how these courses take
place. There is a message and a feedback, both ways.
xxxx
MS. ROSARIO BRAID. Mr. Presiding Officer, may I just
make one last sentence?
I think when we talk about the feedback
network, we are not talking about public officials
but also network of private business o[r]
community-based organizations that will be
reacting. As a matter of fact, we will put more
credence or credibility on the private network of
volunteers and voluntary community-based
organizations. So I do not think we are afraid that there
will be another OMA in the making.132 (Emphasis
supplied)
The imperative of a public consultation, as a species of the
right to information, is evident in the "marching orders" to
respondents. The mechanics for the duty to disclose
information and to conduct public consultation regarding the
peace agenda and process is manifestly provided by E.O. No.
Finals_Constitutional Law
Cortes, Ann Rosselle S.
3.133 The preambulatory clause of E.O. No. 3 declares that
there is a need to further enhance the contribution of civil
society to the comprehensive peace process by
institutionalizing the people's participation.
One of the three underlying principles of the comprehensive
peace process is that it "should be community-based,
reflecting the sentiments, values and principles important to
all Filipinos" and "shall be defined not by the government
alone, nor by the different contending groups only, but by all
Filipinos as one community."134 Included as a component of
the comprehensive peace process is consensus-building and
empowerment for peace, which includes "continuing
consultations on both national and local levels to build
consensus for a peace agenda and process, and the
mobilization and facilitation of people's participation in the
peace process."135
Clearly, E.O. No. 3 contemplates not just the conduct of
a plebiscite to effectuate "continuing" consultations,
contrary to respondents' position that plebiscite is
"more than sufficient consultation."136
Further, E.O. No. 3 enumerates the functions and
responsibilities of the PAPP, one of which is to "[c]onduct
regular dialogues with the National Peace Forum (NPF) and
other peace partners to seek relevant information, comments,
recommendations as well as to render appropriate and timely
reports on the progress of the comprehensive peace
process."137 E.O. No. 3 mandates the establishment of the NPF
to be "the principal forum for the PAPP to consult with and
seek advi[c]e from the peace advocates, peace partners and
concerned sectors of society on both national and local levels,
on the implementation of the comprehensive peace process,
as well as for government[-]civil society dialogue and
consensus-building on peace agenda and initiatives."138
In fine, E.O. No. 3 establishes petitioners' right to be
consulted on the peace agenda, as a corollary to the
constitutional right to information and disclosure.
PAPP Esperon committed grave abuse of discretion
25
Positive Thinking  That in all things, God may be glorified. Ora et Labora!
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.
Finals_Constitutional Law
Cortes, Ann Rosselle S.
Petitioners' assertion that the Local Government Code (LGC)
of 1991 declares it a State policy to "require all national
agencies and offices to conduct periodic consultations with
appropriate local government units, non-governmental and
people's organizations, and other concerned sectors of the
community before any project or program is implemented in
their respective jurisdictions"142 is well-taken. The LGC chapter
on intergovernmental relations puts flesh into this avowed
policy:
Prior Consultations Required. - No project or program
shall be implemented by government authorities
unless the consultations mentioned in Sections 2 (c)
and 26 hereof are complied with, and prior approval of
the sanggunian concerned is obtained: Provided, That
occupants in areas where such projects are to be
implemented shall not be evicted unless appropriate
relocation sites have been provided, in accordance
with the provisions of the Constitution.143 (Italics and
underscoring supplied)
In Lina, Jr. v. Hon. Paño,144 the Court held that the above-
stated policy and above-quoted provision of the LGU apply
only to national programs or projects which are to be
implemented in a particular local community. Among the
programs and projects covered are those that are critical to
the environment and human ecology including those that may
call for the eviction of a particular group of people residing in
the locality where these will be implemented.145 The MOA-AD
is one peculiar program that unequivocally and
unilaterally vests ownership of a vast territory to the
Bangsamoro people,146 which could pervasively and
drastically result to the diaspora or displacement of a
great number of inhabitants from their total
environment.
With respect to the indigenous cultural
communities/indigenous peoples (ICCs/IPs), whose interests
are represented herein by petitioner Lopez and are adversely
affected by the MOA-AD, the ICCs/IPs have, under the IPRA,
the right to participate fully at all levels of decision-making in
matters which may affect their rights, lives and destinies.147
The MOA-AD, an instrument recognizing ancestral domain,
26
Positive Thinking  That in all things, God may be glorified. Ora et Labora!
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
Finals_Constitutional Law
Cortes, Ann Rosselle S.
The MOA-AD is inconsistent with the Constitution and
laws as presently worded.
In general, the objections against the MOA-AD center on the
extent of the powers conceded therein to the BJE. Petitioners
assert that the powers granted to the BJE exceed those
granted to any local government under present laws, and
even go beyond those of the present ARMM. Before assessing
some of the specific powers that would have been vested in
the BJE, however, it would be useful to turn first to a general
idea that serves as a unifying link to the different provisions of
the MOA-AD, namely, the international law concept of
association. Significantly, the MOA-AD explicitly alludes to this
concept, indicating that the Parties actually framed its
provisions with it in mind.
Association is referred to in paragraph 3 on TERRITORY,
paragraph 11 on RESOURCES, and paragraph 4 on
GOVERNANCE. It is in the last mentioned provision, however,
that the MOA-AD most clearly uses it to describe the
envisioned relationship between the BJE and the Central
Government.
4. The relationship between the Central
Government and the Bangsamoro juridical entity
shall be associative characterized by shared
authority and responsibility with a structure of
governance based on executive, legislative, judicial
and administrative institutions with defined powers
and functions in the comprehensive compact. A period
of transition shall be established in a comprehensive
peace compact specifying the relationship between the
Central Government and the BJE. (Emphasis and
underscoring supplied)
The nature of the "associative" relationship may have been
intended to be defined more precisely in the still to be forged
Comprehensive Compact. Nonetheless, given that there is a
concept of "association" in international law, and the MOA-AD
- by its inclusion of international law instruments in its TOR-
placed itself in an international legal context, that concept of
association may be brought to bear in understanding the use
of the term "associative" in the MOA-AD.
27
Positive Thinking  That in all things, God may be glorified. Ora et Labora!
Keitner and Reisman state that
[a]n association is formed when two states of
unequal power voluntarily establish durable links. In
the basic model, one state, the associate,
delegates certain responsibilities to the other,
the principal, while maintaining its international
status as a state. Free associations represent a
middle ground between integration and
independence. x x x150 (Emphasis and underscoring
supplied)
For purposes of illustration, the Republic of the Marshall
Islands and the Federated States of Micronesia (FSM),
formerly part of the U.S.-administered Trust Territory of the
Pacific Islands,151 are associated states of the U.S. pursuant to
a Compact of Free Association. The currency in these
countries is the U.S. dollar, indicating their very close ties with
the U.S., yet they issue their own travel documents, which is a
mark of their statehood. Their international legal status as
states was confirmed by the UN Security Council and by their
admission to UN membership.
According to their compacts of free association, the Marshall
Islands and the FSM generally have the capacity to conduct
foreign affairs in their own name and right, such capacity
extending to matters such as the law of the sea, marine
resources, trade, banking, postal, civil aviation, and cultural
relations. The U.S. government, when conducting its foreign
affairs, is obligated to consult with the governments of the
Marshall Islands or the FSM on matters which it (U.S.
government) regards as relating to or affecting either
government.
In the event of attacks or threats against the Marshall Islands
or the FSM, the U.S. government has the authority and
obligation to defend them as if they were part of U.S. territory.
The U.S. government, moreover, has the option of
establishing and using military areas and facilities within
these associated states and has the right to bar the military
personnel of any third country from having access to these
territories for military purposes.
Finals_Constitutional Law
Cortes, Ann Rosselle S.
It bears noting that in U.S. constitutional and international
practice, free association is understood as an international
association between sovereigns. The Compact of Free
Association is a treaty which is subordinate to the associated
nation's national constitution, and each party may terminate
the association consistent with the right of independence. It
has been said that, with the admission of the U.S.-associated
states to the UN in 1990, the UN recognized that the
American model of free association is actually based on an
underlying status of independence.152
In international practice, the "associated state" arrangement
has usually been used as a transitional device of former
colonies on their way to full independence. Examples of states
that have passed through the status of associated states as a
transitional phase are Antigua, St. Kitts-Nevis-Anguilla,
Dominica, St. Lucia, St. Vincent and Grenada. All have since
become independent states.153
Back to the MOA-AD, it contains many provisions which are
consistent with the international legal concept of association,
specifically the following: the BJE's capacity to enter into
economic and trade relations with foreign countries, the
commitment of the Central Government to ensure the BJE's
participation in meetings and events in the ASEAN and the
specialized UN agencies, and the continuing responsibility of
the Central Government over external defense. Moreover, the
BJE's right to participate in Philippine official missions bearing
on negotiation of border agreements, environmental
protection, and sharing of revenues pertaining to the bodies
of water adjacent to or between the islands forming part of
the ancestral domain, resembles the right of the governments
of FSM and the Marshall Islands to be consulted by the U.S.
government on any foreign affairs matter affecting them.
These provisions of the MOA indicate, among other things,
that the Parties aimed to vest in the BJE the status of an
associated state or, at any rate, a status closely
approximating it.
The concept of association is not recognized under the
present Constitution
28
Positive Thinking  That in all things, God may be glorified. Ora et Labora!
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
Finals_Constitutional Law
Cortes, Ann Rosselle S.
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.
29
Positive Thinking  That in all things, God may be glorified. Ora et Labora!
The MOA-AD, moreover, would
comply with Article X, Section 20
the Constitution
since that provision defines the powers of autonomous
regions as follows:
SECTION 20. Within its territorial jurisdiction and
subject to the provisions of this Constitution and
national laws, the organic act of autonomous regions
shall provide for legislative powers over:
(1) Administrative organization;
(2) Creation of sources of revenues;
(3) Ancestral domain and natural resources;
(4) Personal, family, and property relations;
(5) Regional urban and rural planning development;
(6) Economic, social, and tourism development;
(7) Educational policies;
(8) Preservation and development of the cultural
heritage; and
(9) Such other matters as may be authorized by law for
the promotion of the general welfare of the people of
the region. (Underscoring supplied)
Again on the premise that the BJE may be regarded as an
autonomous region, the MOA-AD would require an
amendment that would expand the above-quoted provision.
The mere passage of new legislation pursuant to sub-
paragraph No. 9 of said constitutional provision would not
suffice, since any new law that might vest in the BJE the
powers found in the MOA-AD must, itself, comply with other
provisions of the Constitution. It would not do, for instance, to
Finals_Constitutional Law
Cortes, Ann Rosselle S.
not merely pass legislation vesting the BJE with treaty-making
of 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)
Article II, Section 22 of the Constitution must also be
amended if the scheme envisioned in the MOA-AD is to
be effected. That constitutional provision states: "The State
recognizes and promotes the rights of indigenous cultural
communities within the framework of national unity and
development." (Underscoring supplied) An associative
arrangement does not uphold national unity. While there may
be a semblance of unity because of the associative ties
between the BJE and the national government, the act of
placing a portion of Philippine territory in a status which, in
international practice, has generally been a preparation for
independence, is certainly not conducive to national unity.
Besides being irreconcilable with the Constitution, the MOA-
AD is also inconsistent with prevailing statutory law,
among which are R.A. No. 9054156 or the Organic Act of
the ARMM, and the IPRA.157
30
Positive Thinking  That in all things, God may be glorified. Ora et Labora!
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,
Finals_Constitutional Law
Cortes, Ann Rosselle S.
subject to the delimitations in the agreed Schedules, "[t]he
Bangsamoro homeland and historic territory refer to the land
mass as well as the maritime, terrestrial, fluvial and alluvial
domains, and the aerial domain, the atmospheric space above
it, embracing the Mindanao-Sulu-Palawan geographic region."
Chapter VIII of the IPRA, on the other hand, lays down a
detailed procedure, as illustrated in the following provisions
thereof:
SECTION 52. Delineation Process. - The identification
and delineation of ancestral domains shall be done in
accordance with the following procedures:
xxxx
b) Petition for Delineation. - The process of delineating
a specific perimeter may be initiated by the NCIP with
the consent of the ICC/IP concerned, or through a
Petition for Delineation filed with the NCIP, by a
majority of the members of the ICCs/IPs;
c) Delineation Proper. - The official delineation of
ancestral domain boundaries including census of all
community members therein, shall be immediately
undertaken by the Ancestral Domains Office upon filing
of the application by the ICCs/IPs concerned.
Delineation will be done in coordination with the
community concerned and shall at all times include
genuine involvement and participation by the
members of the communities concerned;
d) Proof Required. - Proof of Ancestral Domain Claims
shall include the testimony of elders or community
under oath, and other documents directly or indirectly
attesting to the possession or occupation of the area
since time immemorial by such ICCs/IPs in the concept
of owners which shall be any one (1) of the following
authentic documents:
1) Written accounts of the ICCs/IPs customs and
traditions;
31
Positive Thinking  That in all things, God may be glorified. Ora et Labora!
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;
Finals_Constitutional Law
Cortes, Ann Rosselle S.
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
32
Positive Thinking  That in all things, God may be glorified. Ora et Labora!
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
Finals_Constitutional Law
Cortes, Ann Rosselle S.
126. The recognized sources of international law
establish that the right to self-determination of a
people is normally fulfilled through internal self-
determination - a people's pursuit of its political,
economic, social and cultural development
within the framework of an existing state. A
right to external self-determination (which in
this case potentially takes the form of the
assertion of a right to unilateral secession)
arises in only the most extreme of cases and,
even then, under carefully defined
circumstances. x x x
External self-determination can be defined as in
the following statement from the Declaration on
Friendly Relations, supra, as
The establishment of a sovereign and
independent State, the free association or
integration with an independent State or the
emergence into any other political status freely
determined by a people constitute modes of
implementing the right of self-determination by that
people. (Emphasis added)
127. The international law principle of self-
determination has evolved within a framework
of respect for the territorial integrity of existing
states. The various international documents that
support the existence of a 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,
33
Positive Thinking  That in all things, God may be glorified. Ora et Labora!
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
Finals_Constitutional Law
Cortes, Ann Rosselle S.
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-
34
Positive Thinking  That in all things, God may be glorified. Ora et Labora!
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
Finals_Constitutional Law
Cortes, Ann Rosselle S.
Indigenous peoples have the right to maintain and
strengthen their distinct political, legal, economic,
social and cultural institutions, while retaining their
right to participate fully, if they so choose, in the
political, economic, social and cultural life of the State.
Self-government, as used in international legal discourse
pertaining to indigenous peoples, has been understood as
equivalent to "internal self-determination."166 The extent of
self-determination provided for in the UN DRIP is more
particularly defined in its subsequent articles, some of which
are quoted hereunder:
Article 8
1. Indigenous peoples and individuals have the right
not to be subjected to forced assimilation or
destruction of their culture.
2. States shall provide effective mechanisms for
prevention of, and redress for:
(a) Any action which has the aim or effect of
depriving them of their integrity as distinct
peoples, or of their cultural values or ethnic
identities;
(b) Any action which has the aim or effect of
dispossessing them of their lands, territories or
resources;
(c) Any form of forced population transfer which
has the aim or effect of violating or undermining
any of their rights;
(d) Any form of forced assimilation or integration;
(e) Any form of propaganda designed to promote
or incite racial or ethnic discrimination directed
against them.
35
Positive Thinking  That in all things, God may be glorified. Ora et Labora!
Article 21
1. Indigenous peoples have the right, without
discrimination, to the improvement of their economic
and social conditions, including, inter alia, in the areas
of education, employment, vocational training and
retraining, housing, sanitation, health and social
security.
2. States shall take effective measures and, where
appropriate, special measures to ensure continuing
improvement of their economic and social conditions.
Particular attention shall be paid to the rights and
special needs of indigenous elders, women, youth,
children and persons with disabilities.
Article 26
1. Indigenous peoples have the right to the
lands, territories and resources which they have
traditionally owned, occupied or otherwise used
or acquired.
2. Indigenous peoples have the right to own, use,
develop and control the lands, territories and
resources that they possess by reason of traditional
ownership or other traditional occupation or use, as
well as those which they have otherwise acquired.
3. States shall give legal recognition and protection to
these lands, territories and resources. Such recognition
shall be conducted with due respect to the customs,
traditions and land tenure systems of the indigenous
peoples concerned.
Article 30
1. Military activities shall not take place in the lands or
territories of indigenous peoples, unless justified by a
relevant public interest or otherwise freely agreed with
or requested by the indigenous peoples concerned.
Finals_Constitutional Law
Cortes, Ann Rosselle S.
2. States shall undertake effective consultations with
the indigenous peoples concerned, through
appropriate procedures and in particular through their
representative institutions, prior to using their lands or
territories for military activities.
Article 32
1. Indigenous peoples have the right to determine and
develop priorities and strategies for the development
or use of their lands or territories and other resources.
2. States shall consult and cooperate in good faith with
the indigenous peoples concerned through their own
representative institutions in order to obtain their free
and informed consent prior to the approval of any
project affecting their lands or territories and other
resources, particularly in connection with the
development, utilization or exploitation of mineral,
water or other resources.
3. States shall provide effective mechanisms for just
and fair redress for any such activities, and
appropriate measures shall be taken to mitigate
adverse environmental, economic, social, cultural or
spiritual impact.
Article 37
1. Indigenous peoples have the right to the
recognition, observance and enforcement of treaties,
agreements and other constructive arrangements
concluded with States or their successors and to have
States honour and respect such treaties, agreements
and other constructive arrangements.
2. Nothing in this Declaration may be interpreted as
diminishing or eliminating the rights of indigenous
peoples contained in treaties, agreements and other
constructive arrangements.
Article 38
36
Positive Thinking  That in all things, God may be glorified. Ora et Labora!
States in consultation and cooperation with indigenous
peoples, shall take the appropriate measures,
including legislative measures, to achieve the ends of
this Declaration.
Assuming that the UN DRIP, like the Universal Declaration on
Human Rights, must now be regarded as embodying
customary international law - a question which the Court need
not definitively resolve here - the obligations enumerated
therein do not strictly require the Republic to grant the
Bangsamoro people, through the instrumentality of the BJE,
the particular rights and powers provided for in the MOA-AD.
Even the more specific provisions of the UN DRIP are general
in scope, allowing for flexibility in its application by the
different States.
There is, for instance, no requirement in the UN DRIP that
States now guarantee indigenous peoples their own police
and internal security force. Indeed, Article 8 presupposes that
it is the State which will provide protection for indigenous
peoples against acts like the forced dispossession of their
lands - a function that is normally performed by police
officers. If the protection of a right so essential to indigenous
people's identity is acknowledged to be the responsibility of
the State, then surely the protection of rights less significant
to them as such peoples would also be the duty of States. Nor
is there in the UN DRIP an acknowledgement of the right of
indigenous peoples to the aerial domain and atmospheric
space. What it upholds, in Article 26 thereof, is the right of
indigenous peoples to the lands, territories and resources
which they have traditionally owned, occupied or otherwise
used or acquired.
Moreover, the UN DRIP, while upholding the right of
indigenous peoples to autonomy, does not obligate States to
grant indigenous peoples the near-independent status of an
associated state. All the rights recognized in that document
are qualified in Article 46 as follows:
1. Nothing in this Declaration may be interpreted
as implying for any State, people, group or person any
right to engage in any activity or to perform any act
contrary to the Charter of the United Nations or
Finals_Constitutional Law
Cortes, Ann Rosselle S.
construed as authorizing or encouraging any
action which would dismember or impair, totally
or in part, the territorial integrity or political
unity of sovereign and independent States.
Even if the UN DRIP were considered as part of the law of the
land pursuant to Article II, Section 2 of the Constitution, it
would not suffice to uphold the validity of the MOA-AD so as to
render its compliance with other laws unnecessary.
It is, therefore, clear that the MOA-AD contains
numerous provisions that cannot be reconciled with
the Constitution and the laws as presently worded.
Respondents proffer, however, that the signing of the MOA-AD
alone would not have entailed any violation of law or grave
abuse of discretion on their part, precisely because it
stipulates that the provisions thereof inconsistent with the
laws shall not take effect until these laws are amended. They
cite paragraph 7 of the MOA-AD strand on GOVERNANCE
quoted earlier, but which is reproduced below for
convenience:
7. The Parties agree that the mechanisms and
modalities for the actual implementation of this MOA-
AD shall be spelt out in the Comprehensive Compact to
mutually take such steps to enable it to occur
effectively.
Any provisions of the MOA-AD requiring amendments
to the existing legal framework shall come into force
upon signing of a Comprehensive Compact and upon
effecting the necessary changes to the legal
framework with due regard to non derogation of prior
agreements and within the stipulated timeframe to be
contained in the Comprehensive Compact.
Indeed, the foregoing stipulation keeps many controversial
provisions of the MOA-AD from coming into force until the
necessary changes to the legal framework are effected.
While the word "Constitution" is not mentioned in the
provision now under consideration or anywhere else in
37
Positive Thinking  That in all things, God may be glorified. Ora et Labora!
the MOA-AD, the term "legal framework" is certainly
broad enough to include the Constitution.
Notwithstanding the suspensive clause, however,
respondents, by their mere act of incorporating in the MOA-AD
the provisions thereof regarding the associative relationship
between the BJE and the Central Government, have already
violated the Memorandum of Instructions From The President
dated March 1, 2001, which states that the "negotiations shall
be conducted in accordance with x x x the principles of the
sovereignty and territorial integrity of the Republic of the
Philippines." (Emphasis supplied) Establishing an associative
relationship between the BJE and the Central Government is,
for the reasons already discussed, a preparation for
independence, or worse, an implicit acknowledgment of an
independent status already prevailing.
Even apart from the above-mentioned Memorandum,
however, the MOA-AD is defective because the suspensive
clause is invalid, as discussed below.
The authority of the GRP Peace Negotiating Panel to negotiate
with the MILF is founded on E.O. No. 3, Section 5(c), which
states that there shall be established Government Peace
Negotiating Panels for negotiations with different rebel groups
to be "appointed by the President as her official emissaries to
conduct negotiations, dialogues, and face-to-face discussions
with rebel groups." These negotiating panels are to report to
the President, through the PAPP on the conduct and progress
of the negotiations.
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:
Finals_Constitutional Law
Cortes, Ann Rosselle S.
SECTION 4. The Six Paths to Peace. - The components
of the comprehensive peace process comprise the
processes known as the "Paths to Peace". These
component processes are interrelated and not
mutually exclusive, and must therefore be pursued
simultaneously in a coordinated and integrated
fashion. They shall include, but may not be limited to,
the following:
a. PURSUIT OF SOCIAL, ECONOMIC AND POLITICAL
REFORMS. This component involves the vigorous
implementation of various policies, reforms,
programs and projects aimed at addressing the
root causes of internal armed conflicts and
social unrest. This may require administrative
action, new legislation or even constitutional
amendments.
x x x x (Emphasis supplied)
The MOA-AD, therefore, may reasonably be perceived as an
attempt of respondents to address, pursuant to this provision
of E.O. No. 3, the root causes of the armed conflict in
Mindanao. The E.O. authorized them to "think outside the
box," so to speak. Hence, they negotiated and were set on
signing the MOA-AD that included various social, economic,
and political reforms which cannot, however, all be
accommodated within the present legal framework, and which
thus would require new legislation and constitutional
amendments.
The inquiry on the legality of the "suspensive clause,"
however, cannot stop here, because it must be asked
whether the President herself may exercise the power
delegated to the GRP Peace Panel under E.O. No. 3,
Sec. 4(a).
The President cannot delegate a power that she herself does
not possess. May the President, in the course of peace
negotiations, agree to pursue reforms that would require new
legislation and constitutional amendments, or should the
reforms be restricted only to those solutions which the
38
Positive Thinking  That in all things, God may be glorified. Ora et Labora!
present laws allow? The answer to this question requires a
discussion of the extent of the President's power to
conduct peace negotiations.
That the authority of the President to conduct peace
negotiations with rebel groups is not explicitly mentioned in
the Constitution does not mean that she has no such
authority. In Sanlakas v. Executive Secretary,168 in issue was
the authority of the President to declare a state of rebellion -
an authority which is not expressly provided for in the
Constitution. The Court held thus:
"In her ponencia in Marcos v. Manglapus, Justice Cortes
put her thesis into jurisprudence. There, the Court, by
a slim 8-7 margin, upheld the President's power to
forbid the return of her exiled predecessor. The
rationale for the majority's ruling rested on the
President's
. . . unstated residual powers which are
implied from the grant of executive power
and which are necessary for her to comply
with her duties under the Constitution.
The powers of the President are not
limited to what are expressly enumerated
in the article on the Executive Department
and in scattered provisions of the
Constitution. This is so, notwithstanding the
avowed intent of the members of the
Constitutional Commission of 1986 to limit the
powers of the President as a reaction to the
abuses under the regime of Mr. Marcos, for the
result was a limitation of specific powers of the
President, particularly those relating to the
commander-in-chief clause, but not
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)
Finals_Constitutional Law
Cortes, Ann Rosselle S.
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
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
39
Positive Thinking  That in all things, God may be glorified. Ora et Labora!
governance, elections, and legal and human
institutions.171
In the Philippine experience, the link between peace
agreements and constitution-making has been recognized by
no less than the framers of the Constitution. Behind the
provisions of the Constitution on autonomous regions172 is the
framers' intention to implement a particular peace
agreement, namely, the Tripoli Agreement of 1976 between
the GRP and the MNLF, signed by then Undersecretary of
National Defense Carmelo Z. Barbero and then MNLF
Chairman Nur Misuari.
MR. ROMULO. There are other speakers; so, although I
have some more questions, I will reserve my right to
ask them if they are not covered by the other
speakers. I have only two questions.
I heard one of the Commissioners say that local
autonomy already exists in the Muslim region; it
is working very well; it has, in fact, diminished a great
deal of the problems. So, my question is: since that
already exists, why do we have to go into
something new?
MR. OPLE. May I answer that on behalf of Chairman
Nolledo. Commissioner Yusup Abubakar is right that
certain definite steps have been taken to
implement the provisions of the Tripoli
Agreement with respect to an autonomous
region in Mindanao. This is a good first step, but
there is no question that this is merely a partial
response to the Tripoli Agreement itself and to
the fuller standard of regional autonomy
contemplated in that agreement, and now by
state policy.173(Emphasis supplied)
The constitutional provisions on autonomy and the statutes
enacted pursuant to them have, to the credit of their drafters,
been partly successful. Nonetheless, the Filipino people are
still faced with the reality of an on-going conflict between the
Government and the MILF. If the President is to be expected
Finals_Constitutional Law
Cortes, Ann Rosselle S.
rights to find means for bringing this conflict to an end and to
achieve lasting peace in Mindanao, then she must be given
the leeway to explore, in the course of peace negotiations,
solutions that may require changes to the Constitution for
their implementation. Being uniquely vested with the power to
conduct peace negotiations with rebel groups, the President is
in a singular position to know the precise nature of their
grievances which, if resolved, may bring an end to hostilities.
The President may not, of course, unilaterally implement the
solutions that she considers viable, but she may not be
prevented from submitting them as recommendations to
Congress, which could then, if it is minded, act upon them
pursuant to the legal procedures for constitutional
amendment and revision. In particular, Congress would have
the option, pursuant to Article XVII, Sections 1 and 3 of the
Constitution, to propose the recommended amendments or
revision to the people, call a constitutional convention, or
submit to the electorate the question of calling such a
convention.
While the President does not possess constituent powers - as
those powers may be exercised only by Congress, a
Constitutional Convention, or the people through initiative and
referendum - she may submit proposals for constitutional
change to Congress in a manner that does not involve the
arrogation of constituent powers.
In Sanidad v. COMELEC,174 in issue was the legality of then
President Marcos' act of directly submitting proposals for
constitutional amendments to a referendum, bypassing the
interim National Assembly which was the body vested by the
1973 Constitution with the power to propose such
amendments. President Marcos, it will be recalled, never
convened the interim National Assembly. The majority upheld
the President's act, holding that "the urges of absolute
necessity" compelled the President as the agent of the people
to act as he did, there being no interim National Assembly to
propose constitutional amendments. Against this ruling,
Justices Teehankee and Muñoz Palma vigorously dissented.
The Court's concern at present, however, is not with regard to
the point on which it was then divided in that controversial
case, but on that which was not disputed by either side.
40
Positive Thinking  That in all things, God may be glorified. Ora et Labora!
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
Finals_Constitutional Law
Cortes, Ann Rosselle S.
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
The "suspensive clause" in the MOA-AD viewed in light
of the above-discussed standards
41
Positive Thinking  That in all things, God may be glorified. Ora et Labora!
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.
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
Finals_Constitutional Law
Cortes, Ann Rosselle S.
of the Philippines will certainly be adjusted to conform to all
the "consensus points" found in the MOA-AD. Hence, it must
be struck down as unconstitutional.
A comparison between the "suspensive clause" of the MOA-AD
with a similar provision appearing in the 1996 final peace
agreement between the MNLF and the GRP is most
instructive.
As a backdrop, the parties to the 1996 Agreement stipulated
that it would be implemented in two phases. Phase I covered
a three-year transitional period involving the putting up of
new administrative structures through Executive Order, such
as the Special Zone of Peace and Development (SZOPAD) and
the Southern Philippines Council for Peace and Development
(SPCPD), while Phase II covered the establishment of the new
regional autonomous government through amendment or
repeal of R.A. No. 6734, which was then the Organic Act of the
ARMM.
The stipulations on Phase II consisted of specific agreements
on the structure of the expanded autonomous region
envisioned by the parties. To that extent, they are similar to
the provisions of the MOA-AD. There is, however, a crucial
difference between the two agreements. While the MOA-AD
virtually guarantees that the "necessary changes to
the legal framework" will be put in place, the GRP-MNLF
final peace agreement states thus: "Accordingly, these
provisions [on Phase II] shall be recommended by the GRP to
Congress for incorporation in the amendatory or repealing
law."
Concerns have been raised that the MOA-AD would have
given rise to a binding international law obligation on the part
of the Philippines to change its Constitution in conformity
thereto, on the ground that it may be considered either as a
binding agreement under international law, or a unilateral
declaration of the Philippine government to the international
community that it would grant to the Bangsamoro people all
the concessions therein stated. Neither ground finds sufficient
support in international law, however.
42
Positive Thinking  That in all things, God may be glorified. Ora et Labora!
The MOA-AD, as earlier mentioned in the overview thereof,
would have included foreign dignitaries as signatories. In
addition, representatives of other nations were invited to
witness its signing in Kuala Lumpur. These circumstances
readily lead one to surmise that the MOA-AD would have had
the status of a binding international agreement had it been
signed. An examination of the prevailing principles in
international law, however, leads to the contrary conclusion.
The Decision on Challenge to Jurisdiction: Lomé Accord
Amnesty180 (the Lomé Accord case) of the Special Court of
Sierra Leone is enlightening. The Lomé Accord was a peace
agreement signed on July 7, 1999 between the Government of
Sierra Leone and the Revolutionary United Front (RUF), a
rebel group with which the Sierra Leone Government had
been in armed conflict for around eight years at the time of
signing. There were non-contracting signatories to the
agreement, among which were the Government of the
Togolese Republic, the Economic Community of West African
States, and the UN.
On January 16, 2002, after a successful negotiation between
the UN Secretary-General and the Sierra Leone Government,
another agreement was entered into by the UN and that
Government whereby the Special Court of Sierra Leone was
established. The sole purpose of the Special Court, an
international court, was to try persons who bore the greatest
responsibility for serious violations of international
humanitarian law and Sierra Leonean law committed in the
territory of Sierra Leone since November 30, 1996.
Among the stipulations of the Lomé Accord was a provision for
the full pardon of the members of the RUF with respect to
anything done by them in pursuit of their objectives as
members of that organization since the conflict began.
In the Lomé Accord case, the Defence argued that the Accord
created an internationally binding obligation not to
prosecute the beneficiaries of the amnesty provided therein,
citing, among other things, the participation of foreign
dignitaries and international organizations in the finalization
of that agreement. The Special Court, however, rejected this
argument, ruling that the Lome Accord is not a treaty and that
Finals_Constitutional Law
Cortes, Ann Rosselle S.
it can only create binding obligations and rights between the
parties in municipal law, not in international law. Hence, the
Special Court held, it is ineffective in depriving an
international court like it of jurisdiction.
"37. In regard to the nature of a negotiated settlement
of an internal armed conflict it is easy to assume
and to argue with some degree of plausibility, as
Defence counsel for the defendants seem to
have done, that the mere fact that in addition to
the parties to the conflict, the document
formalizing the settlement is signed by foreign
heads of state or their representatives and
representatives of international organizations,
means the agreement of the parties is
internationalized so as to create obligations in
international law.
xxxx
40. Almost every conflict resolution will involve the
parties to the conflict and the mediator or facilitator of
the settlement, or persons or bodies under whose
auspices the settlement took place but who are not at
all parties to the conflict, are not contracting parties
and who do not claim any obligation from the
contracting parties or incur any obligation from the
settlement.
41. In this case, the parties to the conflict are
the lawful authority of the State and the RUF
which has no status of statehood and is to all
intents and purposes a faction within the state.
The non-contracting signatories of the Lomé
Agreement were moral guarantors of the
principle that, in the terms of Article XXXIV of
the Agreement, "this peace agreement is
implemented with integrity and in good faith by
both parties". The moral guarantors assumed no
legal obligation. It is recalled that the UN by its
representative appended, presumably for avoidance of
doubt, an understanding of the extent of the
43
Positive Thinking  That in all things, God may be glorified. Ora et Labora!
agreement to be implemented as not including certain
international crimes.
42. An international agreement in the nature of a
treaty must create rights and obligations regulated by
international law so that a breach of its terms will be a
breach determined under international law which will
also provide principle means of enforcement. The
Lomé Agreement created neither rights nor
obligations capable of being regulated by
international law. An agreement such as the
Lomé Agreement which brings to an end an
internal armed conflict no doubt creates a
factual situation of restoration of peace that the
international community acting through the
Security Council may take note of. That,
however, will not convert it to an international
agreement which creates an obligation
enforceable in international, as distinguished
from municipal, law. A breach of the terms of such a
peace agreement resulting in resumption of internal
armed conflict or creating a threat to peace in the
determination of the Security Council may indicate a
reversal of the factual situation of peace to be visited
with possible legal consequences arising from the new
situation of conflict created. Such consequences such
as action by the Security Council pursuant to Chapter
VII arise from the situation and not from the
agreement, nor from the obligation imposed by it.
Such action cannot be regarded as a remedy for the
breach. A peace agreement which settles an
internal armed conflict cannot be ascribed the
same status as one which settles an
international armed conflict which, essentially,
must be between two or more warring States.
The Lomé Agreement cannot be characterised as
an international instrument. x x x" (Emphasis,
italics and underscoring supplied)
Similarly, that the MOA-AD would have been signed by
representatives of States and international organizations not
parties to the Agreement would not have sufficed to vest in it
a binding character under international law.
Finals_Constitutional Law
Cortes, Ann Rosselle S.
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
44
Positive Thinking  That in all things, God may be glorified. Ora et Labora!
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
Finals_Constitutional Law
Cortes, Ann Rosselle S.
unilateral declaration only when the following conditions are
present: the statements were clearly addressed to the
international community, the state intended to be bound to
that community by its statements, and that not to give legal
effect to those statements would be detrimental to the
security of international intercourse. Plainly, unilateral
declarations arise only in peculiar circumstances.
The limited applicability of the Nuclear Tests Case ruling was
recognized in a later case decided by the ICJ entitled Burkina
Faso v. Mali,183 also known as the Case Concerning the
Frontier Dispute. The public declaration subject of that case
was a statement made by the President of Mali, in an
interview by a foreign press agency, that Mali would abide by
the decision to be issued by a commission of the Organization
of African Unity on a frontier dispute then pending between
Mali and Burkina Faso.
Unlike in the Nuclear Tests Case, the ICJ held that the
statement of Mali's President was not a unilateral act with
legal implications. It clarified that its ruling in the Nuclear
Tests case rested on the peculiar circumstances surrounding
the French declaration subject thereof, to wit:
40. In order to assess the intentions of the author of a
unilateral act, account must be taken of all the factual
circumstances in which the act occurred. For example,
in the Nuclear Tests cases, the Court took the
view that since the applicant States were not
the only ones concerned at the possible
continuance of atmospheric testing by the
French Government, that Government's
unilateral declarations had ‘conveyed to the
world at large, including the Applicant, its
intention effectively to terminate these tests‘
(I.C.J. Reports 1974, p. 269, para. 51; p. 474, para. 53).
In the particular circumstances of those cases,
the French Government could not express an
intention to be bound otherwise than by
unilateral declarations. It is difficult to see how
it could have accepted the terms of a negotiated
solution with each of the applicants without
thereby jeopardizing its contention that its
45
Positive Thinking  That in all things, God may be glorified. Ora et Labora!
conduct was lawful. The circumstances of the
present case are radically different. Here, there
was nothing to hinder the Parties from
manifesting an intention to accept the binding
character of the conclusions of the Organization
of African Unity Mediation Commission by the
normal method: a formal agreement on the basis
of reciprocity. Since no agreement of this kind was
concluded between the Parties, the Chamber finds that
there are no grounds to interpret the declaration made
by Mali's head of State on 11 April 1975 as a unilateral
act with legal implications in regard to the present
case. (Emphasis and underscoring supplied)
Assessing the MOA-AD in light of the above criteria, it would
not have amounted to a unilateral declaration on the part of
the Philippine State to the international community. The
Philippine panel did not draft the same with the clear intention
of being bound thereby to the international community as a
whole or to any State, but only to the MILF. While there were
States and international organizations involved, one way or
another, in the negotiation and projected signing of the MOA-
AD, they participated merely as witnesses or, in the case of
Malaysia, as facilitator. As held in the Lomé Accord case, the
mere fact that in addition to the parties to the conflict, the
peace settlement is signed by representatives of states and
international organizations does not mean that the agreement
is internationalized so as to create obligations in international
law.
Since the commitments in the MOA-AD were not addressed to
States, not to give legal effect to such commitments would
not be detrimental to the security of international intercourse
- to the trust and confidence essential in the relations among
States.
In one important respect, the circumstances surrounding the
MOA-AD are closer to that of Burkina Faso wherein, as already
discussed, the Mali President's statement was not held to be a
binding unilateral declaration by the ICJ. As in that case, there
was also nothing to hinder the Philippine panel, had it really
been its intention to be bound to other States, to manifest
that intention by formal agreement. Here, that formal
Finals_Constitutional Law
Cortes, Ann Rosselle S.
agreement would have come about by the inclusion in the
MOA-AD of a clear commitment to be legally bound to the
international community, not just the MILF, and by an equally
clear indication that the signatures of the participating states-
representatives would constitute an acceptance of that
commitment. Entering into such a formal agreement would
not have resulted in a loss of face for the Philippine
government before the international community, which was
one of the difficulties that prevented the French Government
from entering into a formal agreement with other countries.
That the Philippine panel did not enter into such a formal
agreement suggests that it had no intention to be bound to
the international community. On that ground, the MOA-AD
may not be considered a unilateral declaration under
international law.
The MOA-AD not being a document that can bind the
Philippines under international law notwithstanding,
respondents' almost consummated act of guaranteeing
amendments to the legal framework is, by itself,
sufficient to constitute grave abuse of discretion. The
grave abuse lies not in the fact that they considered, as a
solution to the Moro Problem, the creation of a state within a
state, but in their brazen willingness to guarantee that
Congress and the sovereign Filipino people would give
their imprimatur to their solution. Upholding such an act
would amount to authorizing a usurpation of the constituent
powers vested only in Congress, a Constitutional Convention,
or the people themselves through the process of initiative, for
the only way that the Executive can ensure the outcome of
the amendment process is through an undue influence or
interference with that process.
The sovereign people may, if it so desired, go to the extent of
giving up a portion of its own territory to the Moros for the
sake of peace, for it can change the Constitution in any it
wants, so long as the change is not inconsistent with what, in
international law, is known as Jus Cogens.184 Respondents,
however, may not preempt it in that decision.
SUMMARY
46
Positive Thinking  That in all things, God may be glorified. Ora et Labora!
The petitions are ripe for adjudication. The failure of
respondents to consult the local government units or
communities affected constitutes a departure by respondents
from their mandate under E.O. No. 3. Moreover, respondents
exceeded their authority by the mere act of guaranteeing
amendments to the Constitution. Any alleged violation of the
Constitution by any branch of government is a proper matter
for judicial review.
As the petitions involve constitutional issues which are of
paramount public interest or of transcendental importance,
the Court grants the petitioners, petitioners-in-intervention
and intervening respondents the requisite locus standi in
keeping with the liberal stance adopted in David v.
Macapagal-Arroyo.
Contrary to the assertion of respondents that the non-signing
of the MOA-AD and the eventual dissolution of the GRP Peace
Panel mooted the present petitions, the Court finds that the
present petitions provide an exception to the "moot and
academic" principle in view of (a) the grave violation of the
Constitution involved; (b) the exceptional character of the
situation and paramount public interest; (c) the need to
formulate controlling principles to guide the bench, the bar,
and the public; and (d) the fact that the case is capable of
repetition yet evading review.
The MOA-AD is a significant part of a series of agreements
necessary to carry out the GRP-MILF Tripoli Agreement on
Peace signed by the government and the MILF back in June
2001. Hence, the present MOA-AD can be renegotiated or
another one drawn up that could contain similar or
significantly dissimilar provisions compared to the original.
The Court, however, finds that the prayers for mandamus
have been rendered moot in view of the respondents' action
in providing the Court and the petitioners with the official
copy of the final draft of the MOA-AD and its annexes.
The people's right to information on matters of public concern
under Sec. 7, Article III of the Constitution is in splendid
symmetry with the state policy of full public disclosure of all
Finals_Constitutional Law
Cortes, Ann Rosselle S.
its transactions involving public interest under Sec. 28, Article
II of the Constitution. The right to information guarantees the
right of the people to demand information, while Section 28
recognizes the duty of officialdom to give information even if
nobody demands. The complete and effective exercise of the
right to information necessitates that its complementary
provision on public disclosure derive the same self-executory
nature, subject only to reasonable safeguards or limitations as
may be provided by law.
The contents of the MOA-AD is a matter of paramount public
concern involving public interest in the highest order. In
declaring that the right to information contemplates steps and
negotiations leading to the consummation of the contract,
jurisprudence finds no distinction as to the executory nature
or commercial character of the agreement.
An essential element of these twin freedoms is to keep a
continuing dialogue or process of communication between the
government and the people. Corollary to these twin rights is
the design for feedback mechanisms. The right to public
consultation was envisioned to be a species of these public
rights.
At least three pertinent laws animate these constitutional
imperatives and justify the exercise of the people's right to be
consulted on relevant matters relating to the peace agenda.
One, E.O. No. 3 itself is replete with mechanics for continuing
consultations on both national and local levels and for a
principal forum for consensus-building. In fact, it is the duty of
the Presidential Adviser on the Peace Process to conduct
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
47
Positive Thinking  That in all things, God may be glorified. Ora et Labora!
that unequivocally and unilaterally vests ownership of a vast
territory to the Bangsamoro people, which could pervasively
and drastically result to the diaspora or displacement of a
great number of inhabitants from their total environment.
Three, Republic Act No. 8371 or the Indigenous Peoples Rights
Act of 1997 provides for clear-cut procedure for the
recognition and delineation of ancestral domain, which
entails, among other things, the observance of the free and
prior informed consent of the Indigenous Cultural
Communities/Indigenous Peoples. Notably, the statute does
not grant the Executive Department or any government
agency the power to delineate and recognize an ancestral
domain claim by mere agreement or compromise.
The invocation of the doctrine of executive privilege as a
defense to the general right to information or the specific
right to consultation is untenable. The various explicit legal
provisions fly in the face of executive secrecy. In any event,
respondents effectively waived such defense after it
unconditionally disclosed the official copies of the final draft of
the MOA-AD, for judicial compliance and public scrutiny.
In sum, the Presidential Adviser on the Peace Process
committed grave abuse of discretion when he failed to carry
out the pertinent consultation process, as mandated by E.O.
No. 3, Republic Act No. 7160, and Republic Act No. 8371. The
furtive process by which the MOA-AD was designed and
crafted runs contrary to and in excess of the legal authority,
and amounts to a whimsical, capricious, oppressive, arbitrary
and despotic exercise thereof. It illustrates a gross evasion of
positive duty and a virtual refusal to perform the duty
enjoined.
The MOA-AD cannot be reconciled with the present
Constitution and laws. Not only its specific provisions but the
very concept underlying them, namely, the associative
relationship envisioned between the GRP and the BJE, are
unconstitutional, for the concept presupposes that the
associated entity is a state and implies that the same is on its
way to independence.
Finals_Constitutional Law
Cortes, Ann Rosselle S.
While there is a clause in the MOA-AD stating that the
provisions thereof inconsistent with the present legal
framework will not be effective until that framework is
amended, the same does not cure its defect. The inclusion of
provisions in the MOA-AD establishing an associative
relationship between the BJE and the Central Government is,
itself, a violation of the Memorandum of Instructions From The
President dated March 1, 2001, addressed to the government
peace panel. Moreover, as the clause is worded, it virtually
guarantees that the necessary amendments to the
Constitution and the laws will eventually be put in place.
Neither the GRP Peace Panel nor the President herself is
authorized to make such a guarantee. Upholding such an act
would amount to authorizing a usurpation of the constituent
powers vested only in Congress, a Constitutional Convention,
or the people themselves through the process of initiative, for
the only way that the Executive can ensure the outcome of
the amendment process is through an undue influence or
interference with that process.
While the MOA-AD would not amount to an international
agreement or unilateral declaration binding on the Philippines
under international law, respondents' act of guaranteeing
amendments is, by itself, already a constitutional violation
that renders the MOA-AD fatally defective.
WHEREFORE, respondents' motion to dismiss is DENIED.
The main and intervening petitions are GIVEN DUE COURSE
and hereby GRANTED.
The Memorandum of Agreement on the Ancestral Domain
Aspect of the GRP-MILF Tripoli Agreement on Peace of 2001 is
declared contrary to law and the Constitution.
SO ORDERED.
4) Can an ACTING PRESIDENT be removed? What are the
MODES?
-Does not apply to removal of acting president
-Acting = Temporary
5) Overbreadth Doctrine
-Challenge a law on its face.
48
Positive Thinking  That in all things, God may be glorified. Ora et Labora!
-Look on the wordings, not on the application
-Looking on facial is void
General rule: A party can question the validity of a statute only if,
as applied to him, it is unconstitutional.
Exception: FACIAL CHALLENGE. The statute is absolutely
unconstitutional under no circumstance. But the only time a facial
challenge to a statute is allowed is when it operates in the area of
freedom of expression. Invalidation of the statute “on its face”,
rather than “as applied” is permitted in the interest of preventing a
chilling effect on freedom of expression.
Overbreadth Doctrine—permits a party to challenge the validity of
a statute even though as applied to him, it is not unconstitutional,
but it might be if applied to others not before the Courts whose
activities are constitutionally protected.
In Francisco, Jr. vs. Bayani Fernando, G.R. No. 166501, November 16,
2006, a citizen can raise a constitutional question only when 1) he
can show that he has personally suffered some actual or threatened
injury because of the allegedly illegal conduct of the government; 2)
the injury is fairly traceable to the challenged action; and 3) a
favorable action will likely redress the injury.
G.R. No. 148560. November 19, 2001, JOSEPH EJERCITO
ESTRADA, v SANDIGANBAYAN
JOHN STUART MILL, in his essay On Liberty, unleashes
the full fury of his pen in defense of the rights of the individual
from the vast powers of the State and the inroads of societal
pressure. But even as he draws a sacrosanct line
demarcating the limits on individuality beyond which the
State cannot tread - asserting that "individual spontaneity"
must be allowed to flourish with very little regard to social
interference - he veritably acknowledges that the exercise of
rights and liberties is imbued with a civic obligation, which
society is justified in enforcing at all cost, against those who
would endeavor to withhold fulfillment. Thus he says -
The sole end for which mankind is warranted, individually or
collectively, in interfering with the liberty of action of any of
their number, is self-protection. The only purpose for which
power can be rightfully exercised over any member of a
Finals_Constitutional Law
Cortes, Ann Rosselle S.
civilized community, against his will, is to prevent harm to
others.
Parallel to individual liberty is the natural and
illimitable right of the State to self-preservation. With the end
of maintaining the integrity and cohesiveness of the body
politic, it behooves the State to formulate a system of laws
that would compel obeisance to its collective wisdom and
inflict punishment for non-observance.
The movement from Mill's individual liberalism to
unsystematic collectivism wrought changes in the social
order, carrying with it a new formulation of fundamental rights
and duties more attuned to the imperatives of contemporary
socio-political ideologies. In the process, the web of rights
and State impositions became tangled and obscured,
enmeshed in threads of multiple shades and colors, the skein
irregular and broken. Antagonism, often outright collision,
between the law as the expression of the will of the State, and
the zealous attempts by its members to preserve their
individuality and dignity, inevitably followed. It is when
individual rights are pitted against State authority that judicial
conscience is put to its severest test.
Petitioner Joseph Ejercito Estrada, the highest-ranking
official to be prosecuted under RA 7080 (An Act Defining and
Penalizing the Crime of Plunder), as amended by RA 7659,
wishes to impress upon us that the assailed law is so
defectively fashioned that it crosses that thin but distinct line
which divides the valid from the constitutionally infirm. He
therefore makes a stringent call for this Court to subject the
Plunder Law to the crucible of constitutionality mainly
because, according to him, (a) it suffers from the vice of
vagueness; (b) it dispenses with the "reasonable doubt"
standard in criminal prosecutions; and, (c) it abolishes the
element of mens rea in crimes already punishable under The
Revised Penal Code, all of which are purportedly clear
violations of the fundamental rights of the accused to due
process and to be informed of the nature and cause of the
accusation against him.
Specifically, the provisions of the Plunder Law claimed by
petitioner to have transgressed constitutional boundaries are
Secs. 1, par. (d), 2 and 4 which are reproduced hereunder:
Section 1. x x x x (d) "Ill-gotten wealth" means any asset,
property, business, enterprise or material possession of any
person within the purview of Section Two (2) hereof, acquired
49
Positive Thinking  That in all things, God may be glorified. Ora et Labora!
by him directly or indirectly through dummies, nominees,
agents, subordinates and/or business associates by any
combination or series of the following means or similar
schemes:
(1) Through misappropriation, conversion, misuse, or
malversation of public funds or raids on the public treasury;
(2) By receiving, directly or indirectly, any
commission, gift, share, percentage, kickbacks
or any other form of pecuniary benefit from any
person and/or entity in connection with any
government contract or project or by reason of
the office or position of the public office
concerned;
(3) By the illegal or fraudulent conveyance or
disposition of assets belonging to the National
Government or any of its subdivisions, agencies
or instrumentalities, or government owned or
controlled corporations and their subsidiaries;
(4) By obtaining, receiving or accepting directly
or indirectly any shares of stock, equity or any
other form of interest or participation including
the promise of future employment in any
business enterprise or undertaking;
(5) By establishing agricultural, industrial or
commercial monopolies or other combinations
and/or implementation of decrees and orders
intended to benefit particular persons or special
interests; or
(6) By taking advantage of official position,
authority, relationship, connection or influence
to unjustly enrich himself or themselves at the
expense and to the damage and prejudice of
the Filipino people and the Republic of the
Philippines.
Section 2. Definition of the Crime of Plunder,
Penalties. - Any public officer who, by himself or
in connivance with members of his family,
relatives by affinity or consanguinity, business
associates, subordinates or other persons,
amasses, accumulates or acquires ill-gotten
wealth through a combination or series of overt
or criminal acts as described in Section 1 (d)
hereof, in the aggregate amount or total value
Finals_Constitutional Law
Cortes, Ann Rosselle S.
of at least fifty million pesos (P50,000,000.00)
shall be guilty of the crime of plunder and shall
be punished by reclusion perpetua to death.
Any person who participated with the said
public officer in the commission of an offense
contributing to the crime of plunder shall
likewise be punished for such offense. In the
imposition of penalties, the degree of
participation and the attendance of mitigating
and extenuating circumstances as provided by
the Revised Penal Code shall be considered by
the court. The court shall declare any and all
ill-gotten wealth and their interests and other
incomes and assets including the properties
and shares of stocks derived from the deposit
or investment thereof forfeited in favor of the
State (underscoring supplied).
Section 4. Rule of Evidence. - For purposes of
establishing the crime of plunder, it shall not be
necessary to prove each and every criminal act
done by the accused in furtherance of the
scheme or conspiracy to amass, accumulate or
acquire ill-gotten wealth, it being sufficient to
establish beyond reasonable doubt a pattern of
overt or criminal acts indicative of the overall
unlawful scheme or conspiracy (underscoring
supplied).
On 4 April 2001 the Office of the Ombudsman filed
before the Sandiganbayan eight (8) separate Informations,
docketed as: (a) Crim. Case No. 26558, for violation of RA
7080, as amended by RA 7659; (b) Crim. Cases Nos. 26559 to
26562, inclusive, for violation of Secs. 3, par. (a), 3, par. (a), 3,
par. (e) and 3, par. (e), of RA 3019 (Anti-Graft and Corrupt
Practices Act), respectively; (c) Crim. Case No. 26563, for
violation of Sec. 7, par. (d), of RA 6713 (The Code of Conduct
and Ethical Standards for Public Officials and Employees); (d)
Crim. Case No. 26564, for Perjury (Art. 183 of The Revised
Penal Code); and, (e) Crim. Case No. 26565, for Illegal Use Of
An Alias (CA No. 142, as amended by RA 6085).
On 11 April 2001 petitioner filed an Omnibus Motion for
the remand of the case to the Ombudsman for preliminary
investigation with respect to specification "d" of the charges
in the Information in Crim. Case No. 26558; and, for
50
Positive Thinking  That in all things, God may be glorified. Ora et Labora!
reconsideration/reinvestigation of the offenses under
specifications "a," "b," and "c" to give the accused an
opportunity to file counter-affidavits and other documents
necessary to prove lack of probable cause. Noticeably, the
grounds raised were only lack of preliminary investigation,
reconsideration/reinvestigation of offenses, and opportunity to
prove lack of probable cause. The purported ambiguity of
the charges and the vagueness of the law under which they
are charged were never raised in that Omnibus Motion thus
indicating the explicitness and comprehensibility of the
Plunder Law.
On 25 April 2001 the Sandiganbayan, Third Division,
issued a Resolution in Crim. Case No. 26558 finding that "a
probable cause for the offense of PLUNDER exists to justify
the issuance of warrants for the arrest of the accused." On
25 June 2001 petitioner's motion for reconsideration was
denied by the Sandiganbayan.
On 14 June 2001 petitioner moved to quash the
Information in Crim. Case No. 26558 on the ground that the
facts alleged therein did not constitute an indictable offense
since the law on which it was based was unconstitutional for
vagueness, and that the Amended Information for Plunder
charged more than one (1) offense. On 21 June 2001 the
Government filed its Opposition to the Motion to Quash, and
five (5) days later or on 26 June 2001 petitioner submitted his
Reply to the Opposition. On 9 July 2001 the Sandiganbayan
denied petitioner's Motion to Quash.
As concisely delineated by this Court during the oral
arguments on 18 September 2001, the issues for resolution in
the instant petition for certiorari are: (a) The Plunder Law is
unconstitutional for being vague; (b) The Plunder Law requires
less evidence for proving the predicate crimes of plunder and
therefore violates the rights of the accused to due process;
and, (c) Whether Plunder as defined in RA 7080 is a malum
prohibitum, and if so, whether it is within the power of
Congress to so classify it.
Preliminarily, the whole gamut of legal concepts
pertaining to the validity of legislation is predicated on the
basic principle that a legislative measure is presumed to be in
harmony with the Constitution. Courts invariably train their
sights on this fundamental rule whenever a legislative act is
under a constitutional attack, for it is the postulate of
constitutional adjudication. This strong predilection for
Finals_Constitutional Law
Cortes, Ann Rosselle S.
constitutionality takes its bearings on the idea that it is
forbidden for one branch of the government to encroach upon
the duties and powers of another. Thus it has been said that
the presumption is based on the deference the judicial branch
accords to its coordinate branch - the legislature.
If there is any reasonable basis upon which the
legislation may firmly rest, the courts must assume that the
legislature is ever conscious of the borders and edges of its
plenary powers, and has passed the law with full knowledge of
the facts and for the purpose of promoting what is right and
advancing the welfare of the majority. Hence in determining
whether the acts of the legislature are in tune with the
fundamental law, courts should proceed with judicial restraint
and act with caution and forbearance. Every intendment of
the law must be adjudged by the courts in favor of its
constitutionality, invalidity being a measure of last resort. In
construing therefore the provisions of a statute, courts must
first ascertain whether an interpretation is fairly possible to
sidestep the question of constitutionality.
In La Union Credit Cooperative, Inc. v. Yaranon we held
that as long as there is some basis for the decision
of the court, the constitutionality of the challenged law will
not be touched and the case will be decided on other
available grounds. Yet the force of the presumption is not
sufficient to catapult a fundamentally deficient law into the
safe environs of constitutionality. Of course, where the law
clearly and palpably transgresses the hallowed domain of the
organic law, it must be struck down on sight lest the positive
commands of the fundamental law be unduly eroded.
Verily, the onerous task of rebutting the presumption
weighs heavily on the party challenging the validity of the
statute. He must demonstrate beyond any tinge of doubt
that there is indeed an infringement of the constitution, for
absent such a showing, there can be no finding of
unconstitutionality. A doubt, even if well-founded, will hardly
suffice. As tersely put by Justice Malcolm, "To doubt is to
sustain." And petitioner has miserably failed in the instant
case to discharge his burden and overcome the presumption
of constitutionality of the Plunder Law.
As it is written, the Plunder Law contains ascertainable
standards and well-defined parameters which would enable
the accused to determine the nature of his violation. Section
2 is sufficiently explicit in its description of the acts,
51
Positive Thinking  That in all things, God may be glorified. Ora et Labora!
conduct and conditions required or forbidden, and prescribes
the elements of the crime with reasonable certainty and
particularity. Thus -
1. That the offender is a public officer who acts
by himself or in connivance with members of
his family, relatives by affinity or consanguinity,
business associates, subordinates or other
persons;
2. That he amassed, accumulated or acquired
ill-gotten wealth through a combination or
series of the following overt or criminal acts: (a)
through misappropriation, conversion, misuse,
or malversation of public funds or raids on the
public treasury; (b) by receiving, directly or
indirectly, any commission, gift, share,
percentage, kickback or any other form of
pecuniary benefits from any person and/or
entity in connection with any government
contract or project or by reason of the office or
position of the public officer; (c) by the illegal or
fraudulent conveyance or disposition of assets
belonging to the National Government or any
of its subdivisions, agencies or instrumentalities
of Government owned or controlled
corporations or their subsidiaries; (d) by
obtaining, receiving or accepting directly or
indirectly any shares of stock, equity or any
other form of interest or participation including
the promise of future employment in any
business enterprise or undertaking; (e) by
establishing agricultural, industrial or
commercial monopolies or other combinations
and/or implementation of decrees and orders
intended to benefit particular persons or special
interests; or (f) by taking advantage of official
position, authority, relationship, connection or
influence to unjustly enrich himself or
themselves at the expense and to the damage
and prejudice of the Filipino people and the
Republic of the Philippines; and,
3. That the aggregate amount or total value of
the ill-gotten wealth amassed, accumulated or
acquired is at least P50,000,000.00.
Finals_Constitutional Law
Cortes, Ann Rosselle S.
As long as the law affords some comprehensible
guide or rule that would inform those who are
subject to it what conduct would render them
liable to its penalties, its validity will be
sustained. It must sufficiently guide the judge
in its application; the counsel, in defending one
charged with its violation; and more
importantly, the accused, in identifying the
realm of the proscribed conduct. Indeed, it can
be understood with little difficulty that what the
assailed statute punishes is the act of a public
officer in amassing or accumulating ill-gotten
wealth of at least P50,000,000.00 through a
series or combination of acts enumerated in
Sec. 1, par. (d), of the Plunder Law.
In fact, the amended Information itself closely tracks
the language of the law, indicating with reasonable certainty
the various elements of the offense which petitioner is alleged
to have committed:
"The undersigned Ombudsman, Prosecutor and OIC-
Director, EPIB, Office of the Ombudsman, hereby accuses
former PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES,
Joseph Ejercito Estrada, a.k.a. 'ASIONG SALONGA' and a.k.a.
'JOSE VELARDE,' together with Jose 'Jinggoy' Estrada, Charlie
'Atong' Ang, Edward Serapio, Yolanda T. Ricaforte, Alma
Alfaro, JOHN DOE a.k.a. Eleuterio Tan OR Eleuterio Ramos
Tan or Mr. Uy, Jane Doe a.k.a. Delia Rajas, and John DOES &
Jane Does, of the crime of Plunder, defined and penalized
under R.A. No. 7080, as amended by Sec. 12 of R.A. No. 7659,
committed as follows:
That during the period from June, 1998 to January
2001, in the Philippines, and within the jurisdiction of this
Honorable Court, accused Joseph Ejercito Estrada, THEN A
PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES, by himself
AND/OR in CONNIVANCE/CONSPIRACY with his co-accused,
WHO ARE MEMBERS OF HIS FAMILY, RELATIVES BY AFFINITY
OR CONSANGUINITY, BUSINESS ASSOCIATES, SUBORDINATES
AND/OR OTHER PERSONS, BY TAKING UNDUE ADVANTAGE OF
HIS OFFICIAL POSITION, AUTHORITY, RELATIONSHIP,
CONNECTION, OR INFLUENCE, did then and there willfully,
unlawfully and criminally amass, accumulate and acquire BY
HIMSELF, DIRECTLY OR INDIRECTLY, ill-gotten wealth in the
aggregate amount or TOTAL VALUE of FOUR BILLION NINETY
52
Positive Thinking  That in all things, God may be glorified. Ora et Labora!
SEVEN MILLION EIGHT HUNDRED FOUR THOUSAND ONE
HUNDRED SEVENTY THREE PESOS AND SEVENTEEN
CENTAVOS (P4,097,804,173.17), more or less, THEREBY
UNJUSTLY ENRICHING HIMSELF OR THEMSELVES AT THE
EXPENSE AND TO THE DAMAGE OF THE FILIPINO PEOPLE AND
THE REPUBLIC OF THE PHILIPPINES, through ANY OR A
combination OR A series of overt OR criminal acts, OR SIMILAR
SCHEMES OR MEANS, described as follows:
(a) by receiving OR collecting, directly or
indirectly, on SEVERAL INSTANCES, MONEY IN
THE AGGREGATE AMOUNT OF FIVE HUNDRED
FORTY-FIVE MILLION PESOS (P545,000,000.00),
MORE OR LESS, FROM ILLEGAL GAMBLING IN
THE FORM OF GIFT, SHARE, PERCENTAGE,
KICKBACK OR ANY FORM OF PECUNIARY
BENEFIT, BY HIMSELF AND/OR in connection
with co-accused CHARLIE 'ATONG' ANG, Jose
'Jinggoy' Estrada, Yolanda T. Ricaforte, Edward
Serapio, AND JOHN DOES AND JANE DOES, in
consideration OF TOLERATION OR PROTECTION
OF ILLEGAL GAMBLING;
(b) by DIVERTING, RECEIVING,
misappropriating, converting OR misusing
DIRECTLY OR INDIRECTLY, for HIS OR THEIR
PERSONAL gain and benefit, public funds in the
amount of ONE HUNDRED THIRTY MILLION
PESOS (P130,000,000.00), more or less,
representing a portion of the TWO HUNDRED
MILLION PESOS (P200,000,000.00) tobacco
excise tax share allocated for the province of
Ilocos Sur under R.A. No. 7171, by himself
and/or in connivance with co-accused Charlie
'Atong' Ang, Alma Alfaro, JOHN DOE a.k.a.
Eleuterio Ramos Tan or Mr. Uy, Jane Doe a.k.a.
Delia Rajas, AND OTHER JOHN DOES & JANE
DOES; (italic supplied).
(c) by directing, ordering and compelling, FOR
HIS PERSONAL GAIN AND BENEFIT, the
Government Service Insurance System (GSIS)
TO PURCHASE 351,878,000 SHARES OF
STOCKS, MORE OR LESS, and the Social
Security System (SSS), 329,855,000 SHARES OF
STOCK, MORE OR LESS, OF THE BELLE
Finals_Constitutional Law
Cortes, Ann Rosselle S.
CORPORATION IN THE AMOUNT OF MORE OR
LESS ONE BILLION ONE HUNDRED TWO MILLION
NINE HUNDRED SIXTY FIVE THOUSAND SIX
HUNDRED SEVEN PESOS AND FIFTY CENTAVOS
(P1,102,965,607.50) AND MORE OR LESS
SEVEN HUNDRED FORTY FOUR MILLION SIX
HUNDRED TWELVE THOUSAND AND FOUR
HUNDRED FIFTY PESOS (P744,612,450.00),
RESPECTIVELY, OR A TOTAL OF MORE OR LESS
ONE BILLION EIGHT HUNDRED FORTY SEVEN
MILLION FIVE HUNDRED SEVENTY EIGHT
THOUSAND FIFTY SEVEN PESOS AND FIFTY
CENTAVOS (P1,847,578,057.50); AND BY
COLLECTING OR RECEIVING, DIRECTLY OR
INDIRECTLY, BY HIMSELF AND/OR IN
CONNIVANCE WITH JOHN DOES AND JANE
DOES, COMMISSIONS OR PERCENTAGES BY
REASON OF SAID PURCHASES OF SHARES OF
STOCK IN THE AMOUNT OF ONE HUNDRED
EIGHTY NINE MILLION SEVEN HUNDRED
THOUSAND PESOS (P189,700,000.00) MORE OR
LESS, FROM THE BELLE CORPORATION WHICH
BECAME PART OF THE DEPOSIT IN THE
EQUITABLE-PCI BANK UNDER THE ACCOUNT
NAME 'JOSE VELARDE;'
(d) by unjustly enriching himself FROM
COMMISSIONS, GIFTS, SHARES, PERCENTAGES,
KICKBACKS, OR ANY FORM OF PECUNIARY
BENEFITS, IN CONNIVANCE WITH JOHN DOES
AND JANE DOES, in the amount of MORE OR
LESS THREE BILLION TWO HUNDRED THIRTY
THREE MILLION ONE HUNDRED FOUR
THOUSAND ONE HUNDRED SEVENTY THREE
PESOS AND SEVENTEEN CENTAVOS
(P3,233,104,173.17) AND DEPOSITING THE
SAME UNDER HIS ACCOUNT NAME 'JOSE
VELARDE' AT THE EQUITABLE-PCI BANK."
We discern nothing in the foregoing that is vague or
ambiguous - as there is obviously none - that will confuse
petitioner in his defense. Although subject to proof, these
factual assertions clearly show that the elements of the crime
are easily understood and provide adequate contrast between
the innocent and the prohibited acts. Upon such unequivocal
53
Positive Thinking  That in all things, God may be glorified. Ora et Labora!
assertions, petitioner is completely informed of the
accusations against him as to enable him to prepare for an
intelligent defense.
Petitioner, however, bewails the failure of the law to provide
for the statutory definition of the terms "combination" and
"series" in the key phrase "a combination or series of overt or
criminal acts" found in Sec. 1, par. (d), and Sec. 2, and the
word "pattern" in Sec. 4. These omissions, according to
petitioner, render the Plunder Law unconstitutional for being
impermissibly vague and overbroad and deny him the right to
be informed of the nature and cause of the accusation against
him, hence, violative of his fundamental right to due process.
The rationalization seems to us to be pure sophistry. A
statute is not rendered uncertain and void merely because
general terms are used therein, or because of the
employment of terms without defining them; much less do we
have to define every word we use. Besides, there is no
positive constitutional or statutory command requiring the
legislature to define each and every word in an enactment.
Congress is not restricted in the form of expression of its will,
and its inability to so define the words employed in a statute
will not necessarily result in the vagueness or ambiguity of
the law so long as the legislative will is clear, or at least, can
be gathered from the whole act, which is distinctly expressed
in the Plunder Law.
Moreover, it is a well-settled principle of legal
hermeneutics that words of a statute will be interpreted in
their natural, plain and ordinary acceptation and signification,
unless it is evident that the legislature intended a technical or
special legal meaning to those words. The intention of the
lawmakers - who are, ordinarily, untrained philologists and
lexicographers - to use statutory phraseology in such a
manner is always presumed. Thus, Webster's New Collegiate
Dictionary contains the following commonly accepted
definition of the words "combination" and "series:"
Combination - the result or product of combining; the
act or process of combining. To combine is to bring
into such close relationship as to obscure individual
characters.
Series - a number of things or events of the same class
coming one after another in spatial and temporal
succession.
Finals_Constitutional Law
Cortes, Ann Rosselle S.
That Congress intended the words "combination" and
"series" to be understood in their popular meanings is
pristinely evident from the legislative deliberations on the bill
which eventually became RA 7080 or the Plunder Law:
DELIBERATIONS OF THE BICAMERAL COMMITTEE ON JUSTICE,
7 May 1991
REP. ISIDRO: I am just intrigued again by our definition of
plunder. We say THROUGH A COMBINATION OR SERIES OF
OVERT OR CRIMINAL ACTS AS MENTIONED IN SECTION ONE
HEREOF. Now when we say combination, we actually mean
to say, if there are two or more means, we mean to say that
number one and two or number one and something else are
included, how about a series of the same act? For example,
through misappropriation, conversion, misuse, will these be
included also?
REP. GARCIA: Yeah, because we say a series.
REP. ISIDRO: Series.
REP. GARCIA: Yeah, we include series.
REP. ISIDRO: But we say we begin with a combination.
REP. GARCIA: Yes.
REP. ISIDRO: When we say combination, it seems that -
REP. GARCIA: Two.
REP. ISIDRO: Not only two but we seem to mean that two of
the enumerated means not twice of one enumeration.
REP. GARCIA: No, no, not twice.
REP. ISIDRO: Not twice?
REP. GARCIA: Yes. Combination is not twice - but combination,
two acts.
REP. ISIDRO: So in other words, that’s it. When we say
combination, we mean, two different acts. It cannot be a
repetition of the same act.
REP. GARCIA: That be referred to series, yeah.
REP. ISIDRO: No, no. Supposing one act is repeated, so there
are two.
REP. GARCIA: A series.
REP. ISIDRO: That’s not series. Its a combination. Because
when we say combination or series, we seem to say that two
or more, di ba?
REP. GARCIA: Yes, this distinguishes it really from ordinary
crimes. That is why, I said, that is a very good suggestion
because if it is only one act, it may fall under ordinary crime
but we have here a combination or series of overt or criminal
acts. So x x x x
54
Positive Thinking  That in all things, God may be glorified. Ora et Labora!
REP. GARCIA: Series. One after the other eh di....
SEN. TANADA: So that would fall under the term “series?”
REP. GARCIA: Series, oo.
REP. ISIDRO: Now, if it is a combination, ano, two
misappropriations....
REP. GARCIA: Its not... Two misappropriations will not be
combination. Series.
REP. ISIDRO: So, it is not a combination?
REP. GARCIA: Yes.
REP. ISIDRO: When you say combination, two different?
REP. GARCIA: Yes.
SEN. TANADA: Two different.
REP. ISIDRO: Two different acts.
REP. GARCIA: For example, ha...
REP. ISIDRO: Now a series, meaning, repetition...
DELIBERATIONS ON SENATE BILL NO. 733, 6 June 1989
SENATOR MACEDA: In line with our interpellations that
sometimes “one” or maybe even “two” acts may already
result in such a big amount, on line 25, would the
Sponsor consider deleting the words “a series of overt or,” to
read, therefore: “or conspiracy COMMITTED by criminal acts
such as.” Remove the idea of necessitating “a series.”
Anyway, the criminal acts are in the plural.
SENATOR TANADA: That would mean a combination of two or
more of the acts mentioned in this.
THE PRESIDENT: Probably two or more would be....
SENATOR MACEDA: Yes, because “a series” implies several or
many; two or more.
SENATOR TANADA: Accepted, Mr. President x x x x
THE PRESIDENT: If there is only one, then he has to be
prosecuted under the particular crime. But when we say “acts
of plunder” there should be, at least, two or more.
SENATOR ROMULO: In other words, that is already covered by
existing laws, Mr. President.
Thus when the Plunder Law speaks of "combination," it is
referring to at least two (2) acts falling under different
categories of enumeration provided in Sec. 1, par. (d), e.g.,
raids on the public treasury in Sec. 1, par. (d), subpar. (1), and
fraudulent conveyance of assets belonging to the National
Government under Sec. 1, par. (d), subpar. (3).
On the other hand, to constitute a series" there must be two
(2) or more overt or criminal acts falling under the same
category of enumeration found in Sec. 1, par. (d), say,
Finals_Constitutional Law
Cortes, Ann Rosselle S.
misappropriation, malversation and raids on the public
treasury, all of which fall under Sec. 1, par. (d), subpar. (1).
Verily, had the legislature intended a technical or distinctive
meaning for "combination" and "series," it would have taken
greater pains in specifically providing for it in the law.
As for "pattern," we agree with the observations of the
Sandiganbayan that this term is sufficiently defined in Sec. 4,
in relation to Sec. 1, par. (d), and Sec. 2 -
x x x x under Sec. 1 (d) of the law, a 'pattern' consists of at
least a combination or series of overt or criminal acts
enumerated in subsections (1) to (6) of Sec. 1 (d). Secondly,
pursuant to Sec. 2 of the law, the pattern of overt or criminal
acts is directed towards a common purpose or goal which is to
enable the public officer to amass, accumulate or acquire ill-
gotten wealth. And thirdly, there must either be an 'overall
unlawful scheme' or 'conspiracy' to achieve said common
goal. As commonly understood, the term 'overall unlawful
scheme' indicates a 'general plan of action or method' which
the principal accused and public officer and others conniving
with him follow to achieve the aforesaid common goal. In the
alternative, if there is no such overall scheme or where the
schemes or methods used by multiple accused vary, the overt
or criminal acts must form part of a conspiracy to attain a
common goal.
Hence, it cannot plausibly be contended that the law
does not give a fair warning and sufficient notice of what it
seeks to penalize. Under the circumstances, petitioner's
reliance on the "void-for-vagueness" doctrine is manifestly
misplaced. The doctrine has been formulated in various
ways, but is most commonly stated to the effect that a statute
establishing a criminal offense must define the offense with
sufficient definiteness that persons of ordinary intelligence
can understand what conduct is prohibited by the statute. It
can only be invoked against that specie of legislation that is
utterly vague on its face, i.e., that which cannot be clarified
either by a saving clause or by construction.
A statute or act may be said to be vague when it lacks
comprehensible standards that men of common intelligence
must necessarily guess at its meaning and differ in its
application. In such instance, the statute is repugnant to the
Constitution in two (2) respects - it violates due process for
failure to accord persons, especially the parties targeted by it,
fair notice of what conduct to avoid; and, it leaves law
55
Positive Thinking  That in all things, God may be glorified. Ora et Labora!
enforcers unbridled discretion in carrying out its provisions
and becomes an arbitrary flexing of the Government muscle.
But the doctrine does not apply as against legislations that
are merely couched in imprecise language but which
nonetheless specify a standard though defectively phrased;
or to those that are apparently ambiguous yet fairly
applicable to certain types of activities. The first may be
"saved" by proper construction, while no challenge may be
mounted as against the second whenever directed against
such activities. With more reason, the doctrine cannot be
invoked where the assailed statute is clear and free from
ambiguity, as in this case.
The test in determining whether a criminal statute is
void for uncertainty is whether the language conveys a
sufficiently definite warning as to the proscribed conduct
when measured by common understanding and practice. It
must be stressed, however, that the "vagueness" doctrine
merely requires a reasonable degree of certainty for the
statute to be upheld - not absolute precision or mathematical
exactitude, as petitioner seems to suggest. Flexibility, rather
than meticulous specificity, is permissible as long as the
metes and bounds of the statute are clearly delineated. An
act will not be held invalid merely because it might have been
more explicit in its wordings or detailed in its provisions,
especially where, because of the nature of the act, it would be
impossible to provide all the details in advance as in all other
statutes.
Moreover, we agree with, hence we adopt, the
observations of Mr. Justice Vicente V. Mendoza during the
deliberations of the Court that the allegations that the Plunder
Law is vague and overbroad do not justify a facial review of its
validity -
The void-for-vagueness doctrine states that "a statute which
either forbids or requires the doing of an act in terms so
vague that men of common intelligence must necessarily
guess at its meaning and differ as to its application, violates
the first essential of due process of law." The overbreadth
doctrine, on the other hand, decrees that "a governmental
purpose may not be achieved by means which sweep
unnecessarily broadly and thereby invade the area of
protected freedoms."
A facial challenge is allowed to be made to a vague
statute and to one which is overbroad because of possible
Finals_Constitutional Law
Cortes, Ann Rosselle S.
"chilling effect" upon protected speech. The theory is that
"[w]hen statutes regulate or proscribe speech and no readily
apparent construction suggests itself as a vehicle for
rehabilitating the statutes in a single prosecution, the
transcendent value to all society of constitutionally protected
expression is deemed to justify allowing attacks on overly
broad statutes with no requirement that the person making
the attack demonstrate that his own conduct could not be
regulated by a statute drawn with narrow specificity." The
possible harm to society in permitting some unprotected
speech to go unpunished is outweighed by the possibility that
the protected speech of others may be deterred and
perceived grievances left to fester because of possible
inhibitory effects of overly broad statutes.
This rationale does not apply to penal statutes.
Criminal statutes have general in terrorem effect resulting
from their very existence, and, if facial challenge is allowed
for this reason alone, the State may well be prevented from
enacting laws against socially harmful conduct. In the area of
criminal law, the law cannot take chances as in the area of
free speech.
The overbreadth and vagueness doctrines then have special
application only to free speech cases. They are inapt for
testing the validity of penal statutes. As the U.S. Supreme
Court put it, in an opinion by Chief Justice Rehnquist, "we
have not recognized an 'overbreadth' doctrine outside the
limited context of the First Amendment." In Broadrick v.
Oklahoma, the Court ruled that "claims of facial overbreadth
have been entertained in cases involving statutes which, by
their terms, seek to regulate only spoken words" and, again,
that "overbreadth claims, if entertained at all, have been
curtailed when invoked against ordinary criminal laws that are
sought to be applied to protected conduct." For this reason, it
has been held that "a facial challenge to a legislative act is
the most difficult challenge to mount successfully, since the
challenger must establish that no set of circumstances exists
under which the Act would be valid." As for the vagueness
doctrine, it is said that a litigant may challenge a statute on
its face only if it is vague in all its possible applications. "A
plaintiff who engages in some conduct that is clearly
proscribed cannot complain of the vagueness of the law as
applied to the conduct of others."
56
Positive Thinking  That in all things, God may be glorified. Ora et Labora!
In sum, the doctrines of strict scrutiny, overbreadth,
and vagueness are analytical tools developed for testing "on
their faces" statutes in free speech cases or, as they are
called in American law, First Amendment cases. They cannot
be made to do service when what is involved is a criminal
statute. With respect to such statute, the established rule is
that "one to whom application of a statute is constitutional will
not be heard to attack the statute on the ground that
impliedly it might also be taken as applying to other persons
or other situations in which its application might be
unconstitutional." As has been pointed out, "vagueness
challenges in the First Amendment context, like overbreadth
challenges typically produce facial invalidation, while statutes
found vague as a matter of due process typically are
invalidated [only] 'as applied' to a particular defendant."
Consequently, there is no basis for petitioner's claim that this
Court review the Anti-Plunder Law on its face and in its
entirety.
Indeed, "on its face" invalidation of statutes results in striking
them down entirely on the ground that they might be applied
to parties not before the Court whose activities are
constitutionally protected. It constitutes a departure from the
case and controversy requirement of the Constitution and
permits decisions to be made without concrete factual
settings and in sterile abstract contexts. But, as the U.S.
Supreme Court pointed out in Younger v. Harris
[T]he task of analyzing a proposed statute, pinpointing
its deficiencies, and requiring correction of these deficiencies
before the statute is put into effect, is rarely if ever an
appropriate task for the judiciary. The combination of the
relative remoteness of the controversy, the impact on the
legislative process of the relief sought, and above all the
speculative and amorphous nature of the required line-by-line
analysis of detailed statutes, . . . ordinarily results in a kind
of case that is wholly unsatisfactory for deciding constitutional
questions, whichever way they might be decided.
For these reasons, "on its face" invalidation of statutes
has been described as "manifestly strong medicine," to be
employed "sparingly and only as a last resort," and is
generally disfavored. In determining the constitutionality of a
statute, therefore, its provisions which are alleged to have
been violated in a case must be examined in the light of the
conduct with which the defendant is charged.
Finals_Constitutional Law
Cortes, Ann Rosselle S.
In light of the foregoing disquisition, it is evident that
the purported ambiguity of the Plunder Law, so tenaciously
claimed and argued at length by petitioner, is more imagined
than real. Ambiguity, where none exists, cannot be created
by dissecting parts and words in the statute to furnish support
to critics who cavil at the want of scientific precision in the
law. Every provision of the law should be construed in
relation and with reference to every other part. To be sure, it
will take more than nitpicking to overturn the well-entrenched
presumption of constitutionality and validity of the Plunder
Law. A fortiori, petitioner cannot feign ignorance of what the
Plunder Law is all about. Being one of the Senators who voted
for its passage, petitioner must be aware that the law was
extensively deliberated upon by the Senate and its
appropriate committees by reason of which he even
registered his affirmative vote with full knowledge of its legal
implications and sound constitutional anchorage.
The parallel case of Gallego v. Sandiganbayan must be
mentioned if only to illustrate and emphasize the point that
courts are loathed to declare a statute void for uncertainty
unless the law itself is so imperfect and deficient in its details,
and is susceptible of no reasonable construction that will
support and give it effect. In that case, petitioners Gallego
and Agoncillo challenged the constitutionality of Sec. 3, par.
(e), of The Anti-Graft and Corrupt Practices Act for being
vague. Petitioners posited, among others, that the term
"unwarranted" is highly imprecise and elastic with no common
law meaning or settled definition by prior judicial or
administrative precedents; that, for its vagueness, Sec. 3, par.
(e), violates due process in that it does not give fair warning
or sufficient notice of what it seeks to penalize. Petitioners
further argued that the Information charged them with three
(3) distinct offenses, to wit: (a) giving of "unwarranted"
benefits through manifest partiality; (b) giving of
"unwarranted" benefits through evident bad faith; and, (c)
giving of "unwarranted" benefits through gross inexcusable
negligence while in the discharge of their official function and
that their right to be informed of the nature and cause of the
accusation against them was violated because they were left
to guess which of the three (3) offenses, if not all, they were
being charged and prosecuted.
In dismissing the petition, this Court held that Sec. 3,
par. (e), of The Anti-Graft and Corrupt Practices Act does not
57
Positive Thinking  That in all things, God may be glorified. Ora et Labora!
suffer from the constitutional defect of vagueness. The
phrases "manifest partiality," "evident bad faith," and "gross
and inexcusable negligence" merely describe the different
modes by which the offense penalized in Sec. 3, par. (e), of
the statute may be committed, and the use of all these
phrases in the same Information does not mean that the
indictment charges three (3) distinct offenses.
The word 'unwarranted' is not uncertain. It seems lacking
adequate or official support; unjustified; unauthorized
(Webster, Third International Dictionary, p. 2514); or without
justification or adequate reason (Philadelphia Newspapers,
Inc. v. US Dept. of Justice, C.D. Pa., 405 F. Supp. 8, 12, cited in
Words and Phrases, Permanent Edition, Vol. 43-A 1978,
Cumulative Annual Pocket Part, p. 19).
The assailed provisions of the Anti-Graft and Corrupt Practices
Act consider a corrupt practice and make unlawful the act of
the public officer in:
x x x or giving any private party any unwarranted benefits,
advantage or preference in the discharge of his official,
administrative or judicial functions through manifest partiality,
evident bad faith or gross inexcusable negligence, x x x
(Section 3 [e], Rep. Act 3019, as amended).
It is not at all difficult to comprehend that what the
aforequoted penal provisions penalize is the act of a public
officer, in the discharge of his official, administrative or
judicial functions, in giving any private party benefits,
advantage or preference which is unjustified, unauthorized or
without justification or adequate reason, through manifest
partiality, evident bad faith or gross inexcusable negligence.
In other words, this Court found that there was nothing
vague or ambiguous in the use of the term "unwarranted" in
Sec. 3, par. (e), of The Anti-Graft and Corrupt Practices Act,
which was understood in its primary and general acceptation.
Consequently, in that case, petitioners' objection thereto was
held inadequate to declare the section unconstitutional.
On the second issue, petitioner advances the highly stretched
theory that Sec. 4 of the Plunder Law circumvents the
immutable obligation of the prosecution to prove beyond
reasonable doubt the predicate acts constituting the crime of
plunder when it requires only proof of a pattern of overt or
criminal acts showing unlawful scheme or conspiracy -
SEC. 4. Rule of Evidence. - For purposes of establishing the
crime of plunder, it shall not be necessary to prove each and
Finals_Constitutional Law
Cortes, Ann Rosselle S.
every criminal act done by the accused in furtherance of the
scheme or conspiracy to amass, accumulate or acquire ill-
gotten wealth, it being sufficient to establish beyond
reasonable doubt a pattern of overt or criminal acts indicative
of the overall unlawful scheme or conspiracy.
The running fault in this reasoning is obvious even to the
simplistic mind. In a criminal prosecution for plunder, as in
all other crimes, the accused always has in his favor the
presumption of innocence which is guaranteed by the Bill of
Rights, and unless the State succeeds in demonstrating by
proof beyond reasonable doubt that culpability lies, the
accused is entitled to an acquittal. The use of the "reasonable
doubt" standard is indispensable to command the respect
and confidence of the community in the application of
criminal law. It is critical that the moral force of criminal law
be not diluted by a standard of proof that leaves people in
doubt whether innocent men are being condemned. It is also
important in our free society that every individual going about
his ordinary affairs has confidence that his government
cannot adjudge him guilty of a criminal offense without
convincing a proper factfinder of his guilt with utmost
certainty. This "reasonable doubt" standard has acquired
such exalted stature in the realm of constitutional law as it
gives life to the Due Process Clause which protects the
accused against conviction except upon proof beyond
reasonable doubt of every fact necessary to constitute the
crime with which he is charged. The following exchanges
between Rep. Rodolfo Albano and Rep. Pablo Garcia on this
score during the deliberations in the floor of the House of
Representatives are elucidating -
DELIBERATIONS OF THE HOUSE OF REPRESENTATIVES ON RA
7080, 9 October 1990
MR. ALBANO: Now, Mr. Speaker, it is also elementary in our
criminal law that what is alleged in the information must be
proven beyond reasonable doubt. If we will prove only one
act and find him guilty of the other acts enumerated in the
information, does that not work against the right of the
accused especially so if the amount committed, say, by
falsification is less than P100 million, but the totality of the
crime committed is P100 million since there is malversation,
bribery, falsification of public document, coercion, theft?
MR. GARCIA: Mr. Speaker, not everything alleged in the
information needs to be proved beyond reasonable doubt.
58
Positive Thinking  That in all things, God may be glorified. Ora et Labora!
What is required to be proved beyond reasonable doubt is
every element of the crime charged. For example, Mr.
Speaker, there is an enumeration of the things taken by the
robber in the information – three pairs of pants, pieces of
jewelry. These need not be proved beyond reasonable doubt,
but these will not prevent the conviction of a crime for which
he was charged just because, say, instead of 3 pairs of
diamond earrings the prosecution proved two. Now, what is
required to be proved beyond reasonable doubt is the
element of the offense.
MR. ALBANO: I am aware of that, Mr. Speaker, but
considering that in the crime of plunder the totality of the
amount is very important, I feel that such a series of overt
criminal acts has to be taken singly. For instance, in the act
of bribery, he was able to accumulate only P50,000 and in the
crime of extortion, he was only able to accumulate P1 million.
Now, when we add the totality of the other acts as required
under this bill through the interpretation on the rule of
evidence, it is just one single act, so how can we now convict
him?
MR. GARCIA: With due respect, Mr. Speaker, for purposes of
proving an essential element of the crime, there is a need to
prove that element beyond reasonable doubt. For example,
one essential element of the crime is that the amount
involved is P100 million. Now, in a series of defalcations and
other acts of corruption in the enumeration the total amount
would be P110 or P120 million, but there are certain acts that
could not be proved, so, we will sum up the amounts involved
in those transactions which were proved. Now, if the amount
involved in these transactions, proved beyond reasonable
doubt, is P100 million, then there is a crime of plunder
(underscoring supplied).
It is thus plain from the foregoing that the legislature did not
in any manner refashion the standard quantum of proof in the
crime of plunder. The burden still remains with the
prosecution to prove beyond any iota of doubt every fact or
element necessary to constitute the crime.
The thesis that Sec. 4 does away with proof of each and every
component of the crime suffers from a dismal misconception
of the import of that provision. What the prosecution needs
to prove beyond reasonable doubt is only a number of acts
sufficient to form a combination or series which would
constitute a pattern and involving an amount of at least
Finals_Constitutional Law
Cortes, Ann Rosselle S.
P50,000,000.00. There is no need to prove each and every
other act alleged in the Information to have been committed
by the accused in furtherance of the overall unlawful scheme
or conspiracy to amass, accumulate or acquire ill-gotten
wealth. To illustrate, supposing that the accused is charged in
an Information for plunder with having committed fifty (50)
raids on the public treasury. The prosecution need not
prove all these fifty (50) raids, it being sufficient to prove
by pattern at least two (2) of the raids beyond reasonable
doubt provided only that they amounted to at least
P50,000,000.00.
A reading of Sec. 2 in conjunction with Sec. 4, brings us to the
logical conclusion that "pattern of overt or criminal acts
indicative of the overall unlawful scheme or conspiracy"
inheres in the very acts of accumulating, acquiring or
amassing hidden wealth. Stated otherwise, such pattern
arises where the prosecution is able to prove beyond
reasonable doubt the predicate acts as defined in Sec. 1, par.
(d). Pattern is merely a by-product of the proof of the
predicate acts. This conclusion is consistent with reason and
common sense. There would be no other explanation for a
combination or series of
overt or criminal acts to stash P50,000,000.00 or more, than
"a scheme or conspiracy to amass, accumulate or acquire ill
gotten wealth." The prosecution is therefore not required to
make a deliberate and conscious effort to prove pattern as it
necessarily follows with the establishment of a series or
combination of the predicate acts.
Relative to petitioner's contentions on the purported defect of
Sec. 4 is his submission that "pattern" is "a very important
element of the crime of plunder;" and that Sec. 4 is "two
pronged, (as) it contains a rule of evidence and a substantive
element of the crime," such that without it the accused
cannot be convicted of plunder -
JUSTICE BELLOSILLO: In other words, cannot an accused be
convicted under the Plunder Law without applying Section 4
on the Rule of Evidence if there is proof beyond reasonable
doubt of the commission of the acts complained of?
ATTY. AGABIN: In that case he can be convicted of individual
crimes enumerated in the Revised Penal Code, but not
plunder.
JUSTICE BELLOSILLO: In other words, if all the elements of the
crime are proved beyond reasonable doubt without applying
59
Positive Thinking  That in all things, God may be glorified. Ora et Labora!
Section 4, can you not have a conviction under the Plunder
Law?
ATTY. AGABIN: Not a conviction for plunder, your Honor.
JUSTICE BELLOSILLO: Can you not disregard the application of
Sec. 4 in convicting an accused charged for violation of the
Plunder Law?
ATTY. AGABIN: Well, your Honor, in the first place Section 4
lays down a substantive element of the law x x x x
JUSTICE BELLOSILLO: What I said is - do we have to avail of
Section 4 when there is proof beyond reasonable doubt on the
acts charged constituting plunder?
ATTY. AGABIN: Yes, your Honor, because Section 4 is two
pronged, it contains a rule of evidence and it contains a
substantive element of the crime of plunder. So, there is no
way by which we can avoid Section 4.
JUSTICE BELLOSILLO: But there is proof beyond reasonable
doubt insofar as the predicate crimes charged are concerned
that you do not have to go that far by applying Section 4?
ATTY. AGABIN: Your Honor, our thinking is that Section 4
contains a very important element of the crime of plunder and
that cannot be avoided by the prosecution.
We do not subscribe to petitioner's stand. Primarily, all the
essential elements of plunder can be culled and understood
from its definition in Sec. 2, in relation to Sec. 1, par. (d), and
"pattern" is not one of them. Moreover, the epigraph and
opening clause of Sec. 4 is clear and unequivocal:
SEC. 4. Rule of Evidence. - For purposes of establishing the
crime of plunder x x x x
It purports to do no more than prescribe a rule of procedure
for the prosecution of a criminal case for plunder. Being a
purely procedural measure, Sec. 4 does not define or
establish any substantive right in favor of the accused but
only operates in furtherance of a remedy. It is only a means
to an end, an aid to substantive law. Indubitably, even
without invoking Sec. 4, a conviction for plunder may be had,
for what is crucial for the prosecution is to present sufficient
evidence to engender that moral certitude exacted by the
fundamental law to prove the guilt of the accused beyond
reasonable doubt. Thus, even granting for the sake of
argument that Sec. 4 is flawed and vitiated for the reasons
advanced by petitioner, it may simply be severed from the
rest of the provisions without necessarily resulting in the
demise of the law; after all, the existing rules on evidence can
Finals_Constitutional Law
Cortes, Ann Rosselle S.
supplant Sec. 4 more than enough. Besides, Sec. 7 of RA
7080 provides for a separability clause -
Sec. 7. Separability of Provisions. - If any provisions of this
Act or the application thereof to any person or circumstance
is held invalid, the remaining provisions of this Act and
the application of such provisions to other persons or
circumstances shall not be affected thereby.
Implicit in the foregoing section is that to avoid the whole act
from being declared invalid as a result of the nullity of some
of its provisions, assuming that to be the case although it is
not really so, all the provisions thereof should accordingly be
treated independently of each other, especially if by doing so,
the objectives of the statute can best be achieved.
As regards the third issue, again we agree with Justice
Mendoza that plunder is a malum in se which requires proof of
criminal intent. Thus, he says, in his Concurring Opinion -
x x x Precisely because the constitutive crimes are mala in se
the element of mens rea must be proven in a prosecution for
plunder. It is noteworthy that the amended information
alleges that the crime of plunder was committed "willfully,
unlawfully and criminally." It thus alleges guilty knowledge on
the part of petitioner.
In support of his contention that the statute eliminates the
requirement of mens rea and that is the reason he claims the
statute is void, petitioner cites the following remarks of
Senator Tañada made during the deliberation on S.B. No. 733:
SENATOR TAÑADA . . . And the evidence that will be required
to convict him would not be evidence for each and every
individual criminal act but only evidence sufficient to establish
the conspiracy or scheme to commit this crime of plunder.
However, Senator Tañada was discussing §4 as shown by the
succeeding portion of the transcript quoted by petitioner:
SENATOR ROMULO: And, Mr. President, the Gentleman feels
that it is contained in Section 4, Rule of Evidence, which, in
the Gentleman's view, would provide for a speedier and faster
process of attending to this kind of cases?
SENATOR TAÑADA: Yes, Mr. President . . .
Senator Tañada was only saying that where the charge is
conspiracy to commit plunder, the prosecution need not prove
each and every criminal act done to further the scheme or
conspiracy, it being enough if it proves beyond reasonable
doubt a pattern of overt or ciminal acts indicative of the
overall unlawful scheme or conspiracy. As far as the acts
60
Positive Thinking  That in all things, God may be glorified. Ora et Labora!
constituting the pattern are concerned, however, the
elements of the crime must be proved and the requisite mens
rea must be shown.
Indeed, §2 provides that -
Any person who participated with the said public officer in the
commission of an offense contributing to the crime of plunder
shall likewise be punished for such offense. In the imposition
of penalties, the degree of participation and the attendance of
mitigating and extenuating circumstances, as provided by the
Revised Penal Code, shall be considered by the court.
The application of mitigating and extenuating circumstances
in the Revised Penal Code to prosecutions under the Anti-
Plunder Law indicates quite clearly that mens rea is an
element of plunder since the degree of responsibility of the
offender is determined by his criminal intent. It is true that
§2 refers to "any person who participates with the said public
officer in the commission of an offense contributing to the
crime of plunder." There is no reason to believe, however,
that it does not apply as well to the public officer as principal
in the crime. As Justice Holmes said: "We agree to all the
generalities about not supplying criminal laws with what they
omit, but there is no canon against using common sense in
construing laws as saying what they obviously mean."
Finally, any doubt as to whether the crime of plunder is a
malum in se must be deemed to have been resolved in the
affirmative by the decision of Congress in 1993 to include it
among the heinous crimes punishable by reclusion perpetua
to death. Other heinous crimes are punished with death as a
straight penalty in R.A. No. 7659. Referring to these groups of
heinous crimes, this Court held in People v. Echegaray:
The evil of a crime may take various forms. There are crimes
that are, by their very nature, despicable, either because life
was callously taken or the victim is treated like an animal and
utterly dehumanized as to completely disrupt the normal
course of his or her growth as a human being . . . . Seen in
this light, the capital crimes of kidnapping and serious illegal
detention for ransom resulting in the death of the victim or
the victim is raped, tortured, or subjected to dehumanizing
acts; destructive arson resulting in death; and drug offenses
involving minors or resulting in the death of the victim in the
case of other crimes; as well as murder, rape, parricide,
infanticide, kidnapping and serious illegal detention,
where the victim is detained for more than three days or
Finals_Constitutional Law
Cortes, Ann Rosselle S.
serious physical injuries were inflicted on the victim or threats
to kill him were made or the victim is a minor, robbery with
homicide, rape or intentional mutilation, destructive arson,
and carnapping where the owner, driver or occupant of the
carnapped vehicle is killed or raped, which are penalized by
reclusion perpetua to death, are clearly heinous by their very
nature.
There are crimes, however, in which the abomination lies in
the significance and implications of the subject criminal acts
in the scheme of the larger socio-political and economic
context in which the state finds itself to be struggling to
develop and provide for its poor and underprivileged masses.
Reeling from decades of corrupt tyrannical rule that
bankrupted the government and impoverished the population,
the Philippine Government must muster the political will to
dismantle the culture of corruption, dishonesty, greed and
syndicated criminality that so deeply entrenched itself in the
structures of society and the psyche of the populace. [With
the government] terribly lacking the money to provide even
the most basic services to its people, any form of
misappropriation or misapplication of government funds
translates to an actual threat to the very existence of
government, and in turn, the very survival of the people it
governs over. Viewed in this context, no less heinous are the
effects and repercussions of crimes like qualified bribery,
destructive arson resulting in death, and drug offenses
involving government officials, employees or officers, that
their perpetrators must not be allowed to cause further
destruction and damage to society.
The legislative declaration in R.A. No. 7659 that plunder is a
heinous offense implies that it is a malum in se. For when the
acts punished are inherently immoral or inherently wrong,
they are mala in se and it does not matter that such acts are
punished in a special law, especially since in the case of
plunder the predicate crimes are mainly mala in se. Indeed, it
would be absurd to treat prosecutions for plunder as though
they are mere prosecutions for violations of the Bouncing
Check Law (B.P. Blg. 22) or of an ordinance against
jaywalking, without regard to the inherent wrongness of the
acts.
To clinch, petitioner likewise assails the validity of RA
7659, the amendatory law of RA 7080, on constitutional
grounds. Suffice it to say however that it is now too late in
61
Positive Thinking  That in all things, God may be glorified. Ora et Labora!
the day for him to resurrect this long dead issue, the
same having been eternally consigned by People v. Echegaray
to the archives of jurisprudential history. The declaration of
this Court therein that RA 7659 is constitutionally valid stands
as a declaration of the State, and becomes, by necessary
effect, assimilated in the Constitution now as an integral part
of it.
Our nation has been racked by scandals of corruption
and obscene profligacy of officials in high places which have
shaken its very foundation. The anatomy of graft and
corruption has become more elaborate in the corridors of
time as unscrupulous people relentlessly contrive more and
more ingenious ways to bilk the coffers of the government.
Drastic and radical measures are imperative to fight the
increasingly sophisticated, extraordinarily methodical and
economically catastrophic looting of the national
treasury. Such is the Plunder Law, especially designed to
disentangle those ghastly tissues of grand-scale corruption
which, if left unchecked, will spread like a malignant tumor
and ultimately consume the moral and institutional fiber of
our nation. The Plunder Law, indeed, is a living testament to
the will of the legislature to ultimately eradicate this scourge
and thus secure society against the avarice and other
venalities in public office.
These are times that try men's souls. In the checkered
history of this nation, few issues of national importance can
equal the amount of interest and passion generated by
petitioner's ignominious fall from the highest office, and his
eventual prosecution and trial under a virginal statute. This
continuing saga has driven a wedge of dissension among
our people that may linger for a long time. Only by
responding to the clarion call for patriotism, to rise above
factionalism and prejudices, shall we emerge triumphant in
the midst of ferment.
PREMISES CONSIDERED, this Court holds that RA 7080
otherwise known as the Plunder Law, as amended by
RA 7659, is CONSTITUTIONAL. Consequently, the
petition to declare the law unconstitutional is
DISMISSED for lack of merit.
SO ORDERED.
6) Powers of the Congress
Finals_Constitutional Law
Cortes, Ann Rosselle S.
Delegation of Emergency & Tariff Powers can be withdrawn by mere
RESOLUTION.
Basis: Bill can be vetoed and it will take time before withdrawn.
7) Legislative Inquiry
-Contempt, how long by senate/congress?
Garcillano v. House of Reps
-Though Senate is a continuing body, each senate has their own
rules.
-If incarcerated by one senate, can be freed by another.
8) Congressional/Legislative Oversight
-Laws are being implemented well
Congressional Oversight Functions (Makalintal vs. COMELEC,
G.R. No. 157013, July 10, 2003)
It embraces all activities undertaken by Congress to enhance its
understanding of and influence over the implementation of
legislation it has enacted. Clearly, oversight concerns post-
enactment measures undertaken by Congress:
a. To monitor bureaucratic compliance with program objectives;
b. To determine whether agencies are properly administered;
c. To eliminate executive waste and dishonesty;
d. To prevent executive usurpation of authority; and
e. To assess executive conformity with the congressional perception
of public interest
The power of oversight has been held to be intrinsic in the grant of
legislative power itself and integral to the checks and balances
inherent in a democratic system of government.
The oversight power has also been used to ensure the accountability
of regulatory commissions like the SEC. Unlike other ordinary
administrative agencies, these bodies are independent from the
executive branch and are outside the executive department in the
discharge of their functions.
Categories of Congressional Oversight Functions:
a.Scrutiny—implies a lesser intensity and continuity of attention to
administrative operations. Its primary purpose is to determine
economy and efficiency of the operation of government activities. In
the exercise of legislative scrutiny, Congress may request
62
Positive Thinking  That in all things, God may be glorified. Ora et Labora!
information and report from the other branches of government. It can
give recommendations or pass resolutions for consideration of the
agency involved.
It is based primarily on the power of appropriation of Congress. xxx
But legislative scrutiny does not end in budget hearings. Congress
can ask the heads of departments to appear before and be heard by
either the House of Congress on any matter pertaining to their
department.
Likewise, Congress exercises legislative scrutiny thru its power of
confirmation to find out whether the nominee possesses the
necessary qualifications, integrity and probity required of all public
servants.
b.Congressional investigation—involves a more intense digging of
facts. It is recognized under Section 21, Article VI. Even in the
absence of constitutional mandate, it has been held to be an
essential and appropriate auxiliary to the legislative functions.
c.Legislative supervision—it connotes a continuing and informed
awareness on the part of congressional committee regarding
executive operations in a given administrative area. It allows
Congress to scrutinize the exercise of delegated law-making
authority, and permits Congress to retain part of that delegated
authority.
Congress exercises supervision over the executive agencies through
its veto power. It typically utilizes veto provisions when granting the
President or an executive agency the power to promulgate
regulations with the force of law. These provisions require the
President or an agency to present the proposed regulations to
Congress, which retains a “right” to approve or disapprove any
regulation before it takes effect. Such legislative veto provisions
usually provide that a proposed regulation will become a law after
the expiration of a certain period of time, only if Congress does not
affirmatively disapprove of the regulation in the meantime. Less
frequently, the statute provides that a proposed regulation will
become a law if Congress affirmatively approves it.
9) Executive Privilege
Finals_Constitutional Law
Cortes, Ann Rosselle S.
Senate vs. Ermita , GR 169777, April 20, 2006
FACTS:
This is a petition for certiorari and prohibition proffer that the
President has abused power by issuing E.O. 464 “Ensuring
Observance of the Principles of Separation of Powers, Adherence to
the Rule on Executive Privilege and Respect for the Rights of Public
Officials Appearing in Legislative Inquiries in Aid of Legislation Under
the Constitution, and for Other Purposes”. Petitioners pray for its
declaration as null and void for being unconstitutional.
In the exercise of its legislative power, the Senate of the Philippines,
through its various Senate Committees, conducts inquiries or
investigations in aid of legislation which call for, inter alia, the
attendance of officials and employees of the executive department,
bureaus, and offices including those employed in Government Owned
and Controlled Corporations, the Armed Forces of the Philippines
(AFP), and the Philippine National Police (PNP).
The Committee of the Senate issued invitations to various officials of
the Executive Department for them to appear as resource speakers
in a public hearing on the railway project, others on the issues of
massive election fraud in the Philippine elections, wire tapping, and
the role of military in the so-called “Gloriagate Scandal”.
Said officials were not able to attend due to lack of consent from the
President as provided by E.O. 464, Section 3 which requires all the
public officials enumerated in Section 2(b) to secure the consent of
the President prior to appearing before either house of Congress.
ISSUE: Is Section 3 of E.O. 464, which requires all the public officials,
enumerated in Section 2(b) to secure the consent of the President
prior to appearing before either house of Congress, valid and
constitutional?
RULING: No. The enumeration in Section 2 (b) of E.O. 464 is broad
and is covered by the executive privilege. The doctrine of executive
privilege is premised on the fact that certain information must, as a
matter of necessity, be kept confidential in pursuit of the public
interest. The privilege being, by definition, an exemption from the
obligation to disclose information, in this case to Congress, the
necessity must be of such high degree as to outweigh the public
interest in enforcing that obligation in a particular case.
Congress undoubtedly has a right to information from the executive
branch whenever it is sought in aid of legislation. If the executive
branch withholds such information on the ground that it is privileged,
63
Positive Thinking  That in all things, God may be glorified. Ora et Labora!
it must so assert it and state the reason therefor and why it must be
respected.
The infirm provisions of E.O. 464, however, allow the executive
branch to evade congressional requests for information without need
of clearly asserting a right to do so and/or proffering its reasons
therefor. By the mere expedient of invoking said provisions, the
power of Congress to conduct inquiries in aid of legislation is
frustrated.
Neri v. Senate Committees
At bar is a petition for certiorari under Rule 65 of the Rules of Court
assailing the show cause Letter[1] dated November 22, 2007 and
contempt Order[2] dated January 30, 2008 concurrently issued by
respondent Senate Committees on Accountability of Public Officers
and Investigations, [3] Trade and Commerce,[4] and National
Defense and Security [5] against petitioner Romulo L. Neri, former
Director General of the National Economic and Development
Authority (NEDA).
The facts, as culled from the pleadings, are as follows:
On April 21, 2007, the Department of Transportation and
Communication (DOTC) entered into a contract with Zhing Xing
Telecommunications Equipment (ZTE) for the supply of equipment
and services for the National Broadband Network (NBN) Project in the
amount of U.S. $ 329,481,290 (approximately P16 Billion Pesos). The
Project was to be financed by the People’s Republic of China.
In connection with this NBN Project, various Resolutions were
introduced in the Senate, as follows:
(1) P.S. Res. No. 127, introduced by Senator Aquilino Q. Pimentel,
Jr., entitled RESOLUTION DIRECTING THE BLUE RIBBON COMMITTEE
AND THE COMMITTEE ON TRADE AND INDUSTRY TO INVESTIGATE, IN
AID OF LEGISLATION, THE CIRCUMSTANCES LEADING TO THE
APPROVAL OF THE BROADBAND CONTRACT WITH ZTE AND THE ROLE
PLAYED BY THE OFFICIALS CONCERNED IN GETTING IT
CONSUMMATED AND TO MAKE RECOMMENDATIONS TO HALE TO THE
COURTS OF LAW THE PERSONS RESPONSIBLE FOR ANY ANOMALY IN
CONNECTION THEREWITH AND TO PLUG THE LOOPHOLES, IF ANY IN
THE BOT LAW AND OTHER PERTINENT LEGISLATIONS.
Finals_Constitutional Law
Cortes, Ann Rosselle S.
(2) P.S. Res. No. 144, introduced by Senator Mar Roxas, entitled A
RESOLUTION URGING PRESIDENT GLORIA MACAPAGAL ARROYO TO
DIRECT THE CANCELLATION OF THE ZTE CONTRACT
(3) P.S. Res. No. 129, introduced by Senator Panfilo M. Lacson,
entitled RESOLUTION DIRECTING THE COMMITTEE ON NATIONAL
DEFENSE AND SECURITY TO CONDUCT AN INQUIRY IN AID OF
LEGISLATION INTO THE NATIONAL SECURITY IMPLICATIONS OF
AWARDING THE NATIONAL BROADBAND NETWORK CONTRACT TO
THE CHINESE FIRM ZHONG XING TELECOMMUNICATIONS EQUIPMENT
COMPANY LIMITED (ZTE CORPORATION) WITH THE END IN VIEW OF
PROVIDING REMEDIAL LEGISLATION THAT WILL PROTECT OUR
NATIONAL SOVEREIGNTY, SECURITY AND TERRITORIAL INTEGRITY.
(4) P.S. Res. No. 136, introduced by Senator Miriam Defensor
Santiago, entitled RESOLUTION DIRECTING THE PROPER SENATE
COMMITTEE TO CONDUCT AN INQUIRY, IN AID OF LEGISLATION, ON
THE LEGAL AND ECONOMIC JUSTIFICATION OF THE NATIONAL
BROADBAND NETWORK (NBN) PROJECT OF THE NATIONAL
GOVERNMENT.
At the same time, the investigation was claimed to be relevant to the
consideration of three (3) pending bills in the Senate, to wit:
1. Senate Bill No. 1793, introduced by Senator Mar Roxas, entitled
AN ACT SUBJECTING TREATIES, INTERNATIONAL OR EXECUTIVE
AGREEMENTS INVOLVING FUNDING IN THE PROCUREMENT OF
INFRASTRUCTURE PROJECTS, GOODS, AND CONSULTING SERVICES
TO BE INCLUDED IN THE SCOPE AND APPLICATION OF PHILIPPINE
PROCUREMENT LAWS, AMENDING FOR THE PURPOSE REPUBLIC ACT
NO. 9184, OTHERWISE KNOWN AS THE GOVERNMENT PROCUREMENT
REFORM ACT, AND FOR OTHER PURPOSES;
2. Senate Bill No. 1794, introduced by Senator Mar Roxas, entitled
AN ACT IMPOSING SAFEGUARDS IN CONTRACTING LOANS CLASSIFIED
AS OFFICIAL DEVELOPMENT ASSISTANCE, AMENDING FOR THE
PURPOSE REPUBLIC ACT NO. 8182, AS AMENDED BY REPUBLIC ACT
NO. 8555, OTHERWISE KNOWN AS THE OFFICIAL DEVELOPMENT
ASSISTANCE ACT OF 1996, AND FOR OTHER PURPOSES; and
3. Senate Bill No. 1317, introduced by Senator Miriam Defensor
Santiago, entitled AN ACT MANDATING CONCURRENCE TO
INTERNATIONAL AGREEMENTS AND EXECUTIVE AGREEMENTS.
64
Positive Thinking  That in all things, God may be glorified. Ora et Labora!
Respondent Committees initiated the investigation by sending
invitations to certain personalities and cabinet officials involved in
the NBN Project. Petitioner was among those invited. He was
summoned to appear and testify on September 18, 20, and 26 and
October 25, 2007. However, he attended only the September 26
hearing, claiming he was “out of town” during the other dates.
In the September 18, 2007 hearing, businessman Jose de Venecia III
testified that several high executive officials and power brokers were
using their influence to push the approval of the NBN Project by the
NEDA. It appeared that the Project was initially approved as a Build-
Operate-Transfer (BOT) project but, on March 29, 2007, the NEDA
acquiesced to convert it into a government-to-government project, to
be financed through a loan from the Chinese Government.
On September 26, 2007, petitioner testified before respondent
Committees for eleven (11) hours. He disclosed that then
Commission on Elections (COMELEC) Chairman Benjamin Abalos
offered him P200 Million in exchange for his approval of the NBN
Project. He further narrated that he informed President Arroyo about
the bribery attempt and that she instructed him not to accept the
bribe. However, when probed further on what they discussed about
the NBN Project, petitioner refused to answer, invoking “executive
privilege”. In particular, he refused to answer the questions on (a)
whether or not President Arroyo followed up the NBN Project,[6] (b)
whether or not she directed him to prioritize it,[7] and (c) whether or
not she directed him to approve.[8]
Unrelenting, respondent Committees issued a Subpoena Ad
Testificandum to petitioner, requiring him to appear and testify on
November 20, 2007.
However, in the Letter dated November 15, 2007, Executive
Secretary Eduardo R. Ermita requested respondent Committees to
dispense with petitioner’s testimony on the ground of executive
privilege. The pertinent portion of the letter reads:
With reference to the subpoena ad testificandum issued to Secretary
Romulo Neri to appear and testify again on 20 November 2007
before the Joint Committees you chair, it will be recalled that Sec.
Neri had already testified and exhaustively discussed the ZTE / NBN
project, including his conversation with the President thereon last 26
Finals_Constitutional Law
Cortes, Ann Rosselle S.
September 2007.
Asked to elaborate further on his conversation with the President,
Sec. Neri asked for time to consult with his superiors in line with the
ruling of the Supreme Court in Senate v. Ermita, 488 SCRA 1 (2006).
Specifically, Sec. Neri sought guidance on the possible invocation of
executive privilege on the following questions, to wit:
a) Whether the President followed up the (NBN) project?
b) Were you dictated to prioritize the ZTE?
c) Whether the President said to go ahead and approve the project
after being told about the alleged bribe?
Following the ruling in Senate v. Ermita, the foregoing questions fall
under conversations and correspondence between the President and
public officials which are considered executive privilege (Almonte v.
Vasquez, G.R. 95637, 23 May 1995; Chavez v. PEA, G.R. 133250, July
9, 2002). Maintaining the confidentiality of conversations of the
President is necessary in the exercise of her executive and policy
decision making process. The expectation of a President to the
confidentiality of her conversations and correspondences, like the
value which we accord deference for the privacy of all citizens, is the
necessity for protection of the public interest in candid, objective,
and even blunt or harsh opinions in Presidential decision-making.
Disclosure of conversations of the President will have a chilling effect
on the President, and will hamper her in the effective discharge of
her duties and responsibilities, if she is not protected by the
confidentiality of her conversations.
The context in which executive privilege is being invoked is that the
information sought to be disclosed might impair our diplomatic as
well as economic relations with the People’s Republic of China.
Given the confidential nature in which these information were
conveyed to the President, he cannot provide the Committee any
further details of these conversations, without disclosing the very
thing the privilege is designed to protect.
In light of the above considerations, this Office is constrained to
invoke the settled doctrine of executive privilege as refined in Senate
v. Ermita, and has advised Secretary Neri accordingly.
Considering that Sec. Neri has been lengthily interrogated on the
65
Positive Thinking  That in all things, God may be glorified. Ora et Labora!
subject in an unprecedented 11-hour hearing, wherein he has
answered all questions propounded to him except the foregoing
questions involving executive privilege, we therefore request that his
testimony on 20 November 2007 on the ZTE/NBN project be
dispensed with.
On November 20, 2007, petitioner did not appear before respondent
Committees. Thus, on November 22, 2007, the latter issued the
show cause Letter requiring him to explain why he should not be
cited in contempt. The Letter reads:
Since you have failed to appear in the said hearing, the Committees
on Accountability of Public Officers and Investigations (Blue Ribbon),
Trade and Commerce and National Defense and Security require you
to show cause why you should not be cited in contempt under
Section 6, Article 6 of the Rules of the Committee on Accountability
of Public Officers and Investigations (Blue Ribbon).
The Senate expects your explanation on or before 2 December 2007.
On November 29, 2007, petitioner replied to respondent Committees,
manifesting that it was not his intention to ignore the Senate hearing
and that he thought the only remaining questions were those he
claimed to be covered by executive privilege, thus:
It was not my intention to snub the last Senate hearing. In fact, I
have cooperated with the task of the Senate in its inquiry in aid of
legislation as shown by my almost 11 hours stay during the hearing
on 26 September 2007. During said hearing, I answered all the
questions that were asked of me, save for those which I thought was
covered by executive privilege, and which was confirmed by the
Executive Secretary in his Letter 15 November 2007. In good faith,
after that exhaustive testimony, I thought that what remained were
only the three questions, where the Executive Secretary claimed
executive privilege. Hence, his request that my presence be
dispensed with.
Be that as it may, should there be new matters that were not yet
taken up during the 26 September 2007 hearing, may I be furnished
in advance as to what else I need to clarify, so that as a resource
person, I may adequately prepare myself.
In addition, petitioner submitted a letter prepared by his counsel,
Finals_Constitutional Law
Cortes, Ann Rosselle S.
Atty. Antonio R. Bautista, stating, among others that: (1) his
(petitioner) non-appearance was upon the order of the President; and
(2) his conversation with President Arroyo dealt with delicate and
sensitive national security and diplomatic matters relating to the
impact of the bribery scandal involving high government officials and
the possible loss of confidence of foreign investors and lenders in the
Philippines. The letter ended with a reiteration of petitioner’s request
that he “be furnished in advance” as to what else he needs to clarify
so that he may adequately prepare for the hearing.
In the interim, on December 7, 2007, petitioner filed with this Court
the present petition for certiorari assailing the show cause Letter
dated November 22, 2007.
Respondent Committees found petitioner’s explanations
unsatisfactory. Without responding to his request for advance notice
of the matters that he should still clarify, they issued the Order dated
January 30, 2008, citing him in contempt of respondent Committees
and ordering his arrest and detention at the Office of the Senate
Sergeant-At-Arms until such time that he would appear and give his
testimony. The said Order states:
ORDER
For failure to appear and testify in the Committee’s hearing on
Tuesday, September 18, 2007; Thursday, September 20, 2007;
Thursday, October 25, 2007; and Tuesday, November 20, 2007,
despite personal notice and Subpoenas Ad Testificandum sent to and
received by him, which thereby delays, impedes and obstructs, as it
has in fact delayed, impeded and obstructed the inquiry into the
subject reported irregularities, AND for failure to explain satisfactorily
why he should not be cited for contempt (Neri letter of 29 November
2007), herein attached) ROMULO L. NERI is hereby cited in contempt
of this Committees and ordered arrested and detained in the Office
of the Senate Sergeant-At-Arms until such time that he will appear
and give his testimony.
The Sergeant-At-Arms is hereby directed to carry out and implement
this Order and make a return hereof within twenty four (24) hours
from its enforcement.
SO ORDERED.
66
Positive Thinking  That in all things, God may be glorified. Ora et Labora!
On the same date, petitioner moved for the reconsideration of the
above Order. [9] He insisted that he has not shown “any
contemptible conduct worthy of contempt and arrest.” He
emphasized his willingness to testify on new matters, however,
respondent Committees did not respond to his request for advance
notice of questions. He also mentioned the petition for certiorari he
filed on December 7, 2007 . According to him, this should restrain
respondent Committees from enforcing the show cause Letter
“through the issuance of declaration of contempt” and arrest.
In view of respondent Committees’ issuance of the contempt Order,
petitioner filed on February 1, 2008 a Supplemental Petition for
Certiorari (With Urgent Application for TRO/Preliminary Injunction),
seeking to restrain the implementation of the said contempt Order.
On February 5, 2008, the Court issued a Status Quo Ante Order (a)
enjoining respondent Committees from implementing their contempt
Order, (b) requiring the parties to observe the status quo prevailing
prior to the issuance of the assailed order, and (c) requiring
respondent Committees to file their comment.
Petitioner contends that respondent Committees’ show cause Letter
and contempt Order were issued with grave abuse of discretion
amounting to lack or excess of jurisdiction. He stresses that his
conversations with President Arroyo are “candid discussions meant
to explore options in making policy decisions.” According to him,
these discussions “dwelt on the impact of the bribery scandal
involving high government officials on the country’s diplomatic
relations and economic and military affairs and the possible loss of
confidence of foreign investors and lenders in the Philippines.” He
also emphasizes that his claim of executive privilege is upon the
order of the President and within the parameters laid down in Senate
v. Ermita[10] and United States v. Reynolds.[11] Lastly, he argues
that he is precluded from disclosing communications made to him
in official confidence under Section 7[12] of Republic Act No. 6713,
otherwise known as Code of Conduct and Ethical Standards for Public
Officials and Employees, and Section 24[13] (e) of Rule 130 of the
Rules of Court.
Respondent Committees assert the contrary. They argue that (1)
petitioner’s testimony is material and pertinent in the investigation
conducted in aid of legislation; (2) there is no valid justification for
Finals_Constitutional Law
Cortes, Ann Rosselle S.
petitioner to claim executive privilege; (3) there is no abuse of their
authority to order petitioner’s arrest; and (4) petitioner has not come
to court with clean hands.
In the oral argument held last March 4, 2008, the following issues
were ventilated:
1. What communications between the President and petitioner Neri
are covered by the principle of ‘executive privilege’?
1.a Did Executive Secretary Ermita correctly invoke the principle of
executive privilege, by order of the President, to cover (i)
conversations of the President in the exercise of her executive and
policy decision-making and (ii) information, which might impair our
diplomatic as well as economic relations with the People’s Republic of
China?
1.b. Did petitioner Neri correctly invoke executive privilege to avoid
testifying on his conversations with the President on the NBN
contract on his assertions that the said conversations “dealt with
delicate and sensitive national security and diplomatic matters
relating to the impact of bribery scandal involving high government
officials and the possible loss of confidence of foreign investors and
lenders in the Philippines” x x x within the principles laid down in
Senate v. Ermita (488 SCRA 1 [2006])?
1.c Will the claim of executive privilege in this case violate the
following provisions of the Constitution:
Sec. 28, Art. II (Full public disclosure of all transactions involving
public interest)
Sec. 7, Art. III (The right of the people to information on matters of
public concern)
Sec. 1, Art. XI (Public office is a public trust)
Sec. 17, Art. VII (The President shall ensure that the laws be faithfully
executed)
and the due process clause and the principle of separation of
powers?
67
Positive Thinking  That in all things, God may be glorified. Ora et Labora!
2. What is the proper procedure to be followed in invoking
executive privilege?
3. Did the Senate Committees gravely abuse their discretion in
ordering the arrest of petitioner for non-compliance with the
subpoena?
After the oral argument, the parties were directed to manifest to the
Court within twenty-four (24) hours if they are amenable to the
Court’s proposal of allowing petitioner to immediately resume his
testimony before the Senate Committees to answer the other
questions of the Senators without prejudice to the decision on the
merits of this pending petition. It was understood that petitioner
may invoke executive privilege in the course of the Senate
Committees proceedings, and if the respondent Committees disagree
thereto, the unanswered questions will be the subject of a
supplemental pleading to be resolved along with the three (3)
questions subject of the present petition.[14] At the same time,
respondent Committees were directed to submit several pertinent
documents.[15]
The Senate did not agree with the proposal for the reasons stated in
the Manifestation dated March 5, 2008. As to the required
documents, the Senate and respondent Committees manifested
that they would not be able to submit the latter’s “Minutes of all
meetings” and the “Minute Book” because it has never been the
“historical and traditional legislative practice to keep them.”[16]
They instead submitted the Transcript of Stenographic Notes of
respondent Committees’ joint public hearings.
On March 17, 2008, the Office of the Solicitor General (OSG) filed a
Motion for Leave to Intervene and to Admit Attached Memorandum,
founded on the following arguments:
(1) The communications between petitioner and the President are
covered by the principle of “executive privilege.”
(2) Petitioner was not summoned by respondent Senate Committees
in accordance with the law-making body’s power to conduct inquiries
in aid of legislation as laid down in Section 21, Article VI of the
Constitution and Senate v. Ermita.
Finals_Constitutional Law
Cortes, Ann Rosselle S.
(3) Respondent Senate Committees gravely abused its discretion for
alleged non-compliance with the Subpoena dated November 13,
2007.
The Court granted the OSG’s motion the next day, March 18, 2007.
As the foregoing facts unfold, related events transpired.
On March 6, 2008, President Arroyo issued Memorandum Circular No.
151, revoking Executive Order No. 464 and Memorandum Circular
No. 108. She advised executive officials and employees to follow
and abide by the Constitution, existing laws and jurisprudence,
including, among others, the case of Senate v. Ermita[17] when they
are invited to legislative inquiries in aid of legislation.
At the core of this controversy are the two (2) crucial queries, to wit:
First, are the communications elicited by the subject three (3)
questions covered by executive privilege?
And second, did respondent Committees commit grave abuse of
discretion in issuing the contempt Order?
We grant the petition.
At the outset, a glimpse at the landmark case of Senate v. Ermita[18]
becomes imperative. Senate draws in bold strokes the distinction
between the legislative and oversight powers of the Congress, as
embodied under Sections 21 and 22, respectively, of Article VI of
the Constitution, to wit:
SECTION 21. The Senate or the House of Representatives or any of
its respective committees may conduct inquiries in aid of
legislation in accordance with its duly published rules of procedure.
The rights of persons appearing in or affected by such inquiries shall
be respected.
SECTION 22. The heads of department may upon their own initiative,
with the consent of the President, or upon the request of either
House, or as the rules of each House shall provide, appear before and
be heard by such House on any matter pertaining to their
departments. Written questions shall be submitted to the President
of the Senate or the Speaker of the House of Representatives at least
68
Positive Thinking  That in all things, God may be glorified. Ora et Labora!
three days before their scheduled appearance. Interpellations shall
not be limited to written questions, but may cover matters related
thereto. When the security of the state or the public interest so
requires and the President so states in writing, the appearance shall
be conducted in executive session.
Senate cautions that while the above provisions are closely related
and complementary to each other, they should not be considered as
pertaining to the same power of Congress. Section 21 relates to
the power to conduct inquiries in aid of legislation, its aim is to elicit
information that may be used for legislation, while Section 22
pertains to the power to conduct a question hour, the objective of
which is to obtain information in pursuit of Congress’ oversight
function.[19] Simply stated, while both powers allow Congress or
any of its committees to conduct inquiry, their objectives are
different.
This distinction gives birth to another distinction with regard to the
use of compulsory process. Unlike in Section 21, Congress cannot
compel the appearance of executive officials under Section 22. The
Court’s pronouncement in Senate v. Ermita[20] is clear:
When Congress merely seeks to be informed on how department
heads are implementing the statutes which it has issued, its right to
such information is not as imperative as that of the President to
whom, as Chief Executive, such department heads must give a report
of their performance as a matter of duty. In such instances, Section
22, in keeping with the separation of powers, states that Congress
may only request their appearance. Nonetheless, when the inquiry in
which Congress requires their appearance is ‘in aid of legislation’
under Section 21, the appearance is mandatory for the same reasons
stated in Arnault.
In fine, the oversight function of Congress may be facilitated by
compulsory process only to the extent that it is performed in pursuit
of legislation. This is consistent with the intent discerned from the
deliberations of the Constitutional Commission.
Ultimately, the power of Congress to compel the appearance of
executive officials under section 21 and the lack of it under Section
22 find their basis in the principle of separation of powers. While the
executive branch is a co-equal branch of the legislature, it cannot
Finals_Constitutional Law
Cortes, Ann Rosselle S.
frustrate the power of Congress to legislate by refusing to comply
with its demands for information. (Emphasis supplied.)
The availability of the power of judicial review to resolve the issues
raised in this case has also been settled in Senate v. Ermita, when it
held:
As evidenced by the American experience during the so-called
“McCarthy era,” however, the right of Congress to conduct inquiries
in aid of legislation is, in theory, no less susceptible to abuse than
executive or judicial power. It may thus be subjected to judicial
review pursuant to the Court’s certiorari powers under Section 1,
Article VIII of the Constitution.
Hence, this decision.
I
The Communications Elicited by the Three (3) Questions are Covered
by Executive Privilege
We start with the basic premises where the parties have conceded.
The power of Congress to conduct inquiries in aid of legislation is
broad. This is based on the proposition that a legislative body cannot
legislate wisely or effectively in the absence of information
respecting the conditions which the legislation is intended to affect or
change.[21] Inevitably, adjunct thereto is the compulsory process to
enforce it. But, the power, broad as it is, has limitations. To be valid,
it is imperative that it is done in accordance with the Senate or
House duly published rules of procedure and that the rights of the
persons appearing in or affected by such inquiries be respected.
The power extends even to executive officials and the only way for
them to be exempted is through a valid claim of executive privilege.
[22] This directs us to the consideration of the question -- is there a
recognized claim of executive privilege despite the revocation of E.O.
464?
A- There is a Recognized Claim of Executive Privilege Despite the
Revocation of E.O. 464
At this juncture, it must be stressed that the revocation of E.O. 464
does not in any way diminish our concept of executive privilege. This
69
Positive Thinking  That in all things, God may be glorified. Ora et Labora!
is because this concept has Constitutional underpinnings. Unlike the
United States which has further accorded the concept with statutory
status by enacting the Freedom of Information Act[23] and the
Federal Advisory Committee Act,[24] the Philippines has retained its
constitutional origination, occasionally interpreted only by this Court
in various cases. The most recent of these is the case of Senate v.
Ermita where this Court declared unconstitutional substantial
portions of E.O. 464. In this regard, it is worthy to note that
Executive Ermita’s Letter dated November 15, 2007 limit its bases for
the claim of executive privilege to Senate v. Ermita, Almonte v.
Vasquez,[25] and Chavez v. PEA.[26] There was never a mention of
E.O. 464.
While these cases, especially Senate v. Ermita,[27] have
comprehensively discussed the concept of executive privilege, we
deem it imperative to explore it once more in view of the clamor for
this Court to clearly define the communications covered by executive
privilege.
The Nixon and post-Watergate cases established the broad contours
of the presidential communications privilege.[28] In United States v.
Nixon,[29] the U.S. Court recognized a great public interest in
preserving “the confidentiality of conversations that take place in the
President’s performance of his official duties.” It thus considered
presidential communications as “presumptively privileged.”
Apparently, the presumption is founded on the “President’s
generalized interest in confidentiality.” The privilege is said to be
necessary to guarantee the candor of presidential advisors and to
provide “the President and those who assist him… with freedom to
explore alternatives in the process of shaping policies and making
decisions and to do so in a way many would be unwilling to express
except privately.”
In In re: Sealed Case,[30] the U.S. Court of Appeals delved deeper.
It ruled that there are two (2) kinds of executive privilege; one is the
presidential communications privilege and, the other is the
deliberative process privilege. The former pertains to
“communications, documents or other materials that reflect
presidential decision-making and deliberations and that the President
believes should remain confidential.” The latter includes ‘advisory
opinions, recommendations and deliberations comprising part of a
process by which governmental decisions and policies are
formulated.”
Finals_Constitutional Law
Cortes, Ann Rosselle S.
Presidential communications privilege applies to decision-making of
the President while, the deliberative process privilege, to decision-
making of executive officials. The first is rooted in the
constitutional principle of separation of power and the President’s
unique constitutional role; the second on common law privilege.
Unlike the deliberative process privilege, the presidential
communications privilege applies to documents in their entirety, and
covers final and post-decisional materials as well as pre-deliberative
ones[31] As a consequence, congressional or judicial negation of the
presidential communications privilege is always subject to greater
scrutiny than denial of the deliberative process privilege.
Turning on who are the officials covered by the presidential
communications privilege, In Re Sealed Case confines the privilege
only to White House Staff that has “operational proximity” to direct
presidential decision-making. Thus, the privilege is meant to
encompass only those functions that form the core of presidential
authority, involving what the court characterized as “quintessential
and non-delegable Presidential power,” such as commander-in-chief
power, appointment and removal power, the power to grant pardons
and reprieves, the sole-authority to receive ambassadors and other
public officers, the power to negotiate treaties etc.[32]
The situation in Judicial Watch, Inc. v. Department of Justice[33]
tested the In Re Sealed Case principles. There, while the presidential
decision involved is the exercise of the President’s pardon power, a
non-delegable, core-presidential function, the Deputy Attorney
General and the Pardon Attorney were deemed to be too remote
from the President and his senior White House advisors to be
protected. The Court conceded that functionally those officials
were performing a task directly related to the President’s pardon
power, but concluded that an organizational test was more
appropriate for confining the potentially broad sweep that would
result from the In Re Sealed Case’s functional test. The majority
concluded that, the lesser protections of the deliberative process
privilege would suffice. That privilege was, however, found
insufficient to justify the confidentiality of the 4,341 withheld
documents.
But more specific classifications of communications covered by
executive privilege are made in older cases. Courts ruled early that
the Executive has a right to withhold documents that might reveal
military or state secrets[34] identity of government informers in
70
Positive Thinking  That in all things, God may be glorified. Ora et Labora!
some circumstances,[35] and information related to pending
investigations.[36] An area where the privilege is highly revered is in
foreign relations.
In United States v. Curtiss-Wright Export Corp.[37] the U.S. Court,
citing President George Washington, pronounced:
The nature of foreign negotiations requires caution, and their success
must often depend on secrecy, and even when brought to a
conclusion, a full disclosure of all the measures, demands, or
eventual concessions which may have been proposed or
contemplated would be extremely impolitic, for this might have a
pernicious influence on future negotiations or produce immediate
inconveniences, perhaps danger and mischief, in relation to other
powers. The necessity of such caution and secrecy was one cogent
reason for vesting the power of making treaties in the President, with
the advice and consent of the Senate, the principle on which the
body was formed confining it to a small number of members. To
admit, then, a right in the House of Representatives to demand and
to have as a matter of course all the papers respecting a negotiation
with a foreign power would be to establish a dangerous precedent.
Majority of the above jurisprudence have found their way in our
jurisdiction. In Chavez v. PCGG[38], this Court held that there is a
“governmental privilege against public disclosure with respect to
state secrets regarding military, diplomatic and other security
matters.” In Chavez v. PEA,[39] there is also a recognition of the
confidentiality of Presidential conversations, correspondences, and
discussions in closed-door Cabinet meetings. In Senate v. Ermita,
the concept of presidential communications privilege is fully
discussed.
As may be gleaned from the above discussion, the claim of executive
privilege is highly recognized in cases where the subject of inquiry
relates to a power textually committed by the Constitution to the
President, such as the area of military and foreign relations. Under
our Constitution, the President is the repository of the commander-in-
chief,[40] appointing,[41] pardoning,[42] and diplomatic[43]
powers. Consistent with the doctrine of separation of powers, the
information relating to these powers may enjoy greater
confidentiality than others.
The above cases, especially, Nixon, In Re Sealed Case and Judicial
Finals_Constitutional Law
Cortes, Ann Rosselle S.
Watch, somehow provide the elements of presidential
communications privilege, to wit:
1) The protected communication must relate to a “quintessential
and non-delegable presidential power.”
2) The communication must be authored or “solicited and received”
by a close advisor of the President or the President himself. The
judicial test is that an advisor must be in “operational proximity” with
the President.
3) The presidential communications privilege remains a qualified
privilege that may be overcome by a showing of adequate need,
such that the information sought “likely contains important
evidence” and by the unavailability of the information elsewhere by
an appropriate investigating authority.[44]
In the case at bar, Executive Secretary Ermita premised his claim of
executive privilege on the ground that the communications elicited
by the three (3) questions “fall under conversation and
correspondence between the President and public officials”
necessary in “her executive and policy decision-making process”
and, that “the information sought to be disclosed might impair our
diplomatic as well as economic relations with the People’s Republic of
China.” Simply put, the bases are presidential communications
privilege and executive privilege on matters relating to diplomacy or
foreign relations.
Using the above elements, we are convinced that, indeed, the
communications elicited by the three (3) questions are covered by
the presidential communications privilege. First, the communications
relate to a “quintessential and non-delegable power” of the
President, i.e. the power to enter into an executive agreement with
other countries. This authority of the President to enter into
executive agreements without the concurrence of the Legislature has
traditionally been recognized in Philippine jurisprudence.[45]
Second, the communications are “received” by a close advisor of the
President. Under the “operational proximity” test, petitioner can be
considered a close advisor, being a member of President Arroyo’s
cabinet. And third, there is no adequate showing of a compelling
need that would justify the limitation of the privilege and of the
unavailability of the information elsewhere by an appropriate
investigating authority.
71
Positive Thinking  That in all things, God may be glorified. Ora et Labora!
The third element deserves a lengthy discussion.
United States. v. Nixon held that a claim of executive privilege is
subject to balancing against other interest. In other words,
confidentiality in executive privilege is not absolutely protected by
the Constitution. The U.S. Court held:
[N]either the doctrine of separation of powers, nor the need for
confidentiality of high-level communications, without more, can
sustain an absolute, unqualified Presidential privilege of immunity
from judicial process under all circumstances.
The foregoing is consistent with the earlier case of Nixon vs. Sirica,
[46] where it was held that presidential communications privilege are
presumptively privileged and that the presumption can be overcome
only by mere showing of public need by the branch seeking access to
conversations. The courts are enjoined to resolve the competing
interests of the political branches of the government “in the manner
that preserves the essential functions of each Branch.”[47] Here, the
record is bereft of any categorical explanation from respondent
Committees to show a compelling or citical need for the answers
to the three (3) questions in the enactment of a law. Instead, the
questions veer more towards the exercise of the legislative oversight
function under Section 22 of Article VI rather than Section 21 of the
same Article. Senate v. Ermita ruled that the “the oversight
function of Congress may be facilitated by compulsory process only
to the extent that it is performed in pursuit of legislation.” It is
conceded that it is difficult to draw the line between an inquiry in aid
of legislation and an inquiry in the exercise of oversight function of
Congress. In this regard, much will depend on the content of the
questions and the manner the inquiry is conducted.
Respondent Committees argue that a claim of executive privilege
does not guard against a possible disclosure of a crime or
wrongdoing. We see no dispute on this. It is settled in United States
v. Nixon[48] that “demonstrated, specific need for evidence in
pending criminal trial” outweighs the President’s “generalized
interest in confidentiality.” However, the present case’s distinction
with the Nixon case is very evident. In Nixon, there is a pending
criminal proceeding where the information is requested and it is
the demands of due process of law and the fair administration of
criminal justice that the information be disclosed. This is the reason
why the U.S. Court was quick to “limit the scope of its decision.” It
Finals_Constitutional Law
Cortes, Ann Rosselle S.
stressed that it is “not concerned here with the balance between the
President’s generalized interest in confidentiality x x x and
congressional demands for information.” Unlike in Nixon, the
information here is elicited, not in a criminal proceeding, but in a
legislative inquiry. In this regard, Senate v. Ermita stressed that the
validity of the claim of executive privilege depends not only on the
ground invoked but, also, the procedural setting or the context in
which the claim is made. Furthermore, in Nixon, the President did
not interpose any claim of need to protect military, diplomatic or
sensitive national security secrets. In the present case, Executive
Secretary Ermita categorically claims executive privilege on the
grounds of presidential communications privilege in relation to her
executive and policy decision-making process and diplomatic
secrets.
The respondent Committees should cautiously tread into the
investigation of matters which may present a conflict of interest that
may provide a ground to inhibit the Senators participating in the
inquiry if later on an impeachment proceeding is initiated on the
same subject matter of the present Senate inquiry. Pertinently, in
Senate Select Committee on Presidential Campaign Activities v.
Nixon,[49] it was held that since an impeachment proceeding had
been initiated by a House Committee, the Senate Select Committee’s
immediate oversight need for five presidential tapes, should give way
to the House Judiciary Committee which has the constitutional
authority to inquire into presidential impeachment. The Court
expounded on this issue in this wise:
It is true, of course, that the Executive cannot, any more than the
other branches of government, invoke a general confidentiality
privilege to shield its officials and employees from investigations by
the proper governmental institutions into possible criminal
wrongdoing. The Congress learned this as to its own privileges in
Gravel v. United States, as did the judicial branch, in a sense, in
Clark v. United States, and the executive branch itself in Nixon v.
Sirica. But under Nixon v. Sirica, the showing required to overcome
the presumption favoring confidentiality turned, not on the nature of
the presidential conduct that the subpoenaed material might reveal,
but, instead, on the nature and appropriateness of the function in the
performance of which the material was sought, and the degree to
which the material was necessary to its fulfillment. Here also our task
requires and our decision implies no judgment whatever concerning
possible presidential involvement in culpable activity. On the
72
Positive Thinking  That in all things, God may be glorified. Ora et Labora!
contrary, we think the sufficiency of the Committee's showing must
depend solely on whether the subpoenaed evidence is demonstrably
critical to the responsible fulfillment of the Committee's functions.
In its initial briefs here, the Committee argued that it has shown
exactly this. It contended that resolution, on the basis of the
subpoenaed tapes, of the conflicts in the testimony before it ‘would
aid in a determination whether legislative involvement in political
campaigns is necessary’ and ‘could help engender the public support
needed for basic reforms in our electoral system.’ Moreover,
Congress has, according to the Committee, power to oversee the
operations of the executive branch, to investigate instances of
possible corruption and malfeasance in office, and to expose the
results of its investigations to public view. The Committee says that
with respect to Watergate-related matters, this power has been
delegated to it by the Senate, and that to exercise its power
responsibly, it must have access to the subpoenaed tapes.
We turn first to the latter contention. In the circumstances of this
case, we need neither deny that the Congress may have, quite apart
from its legislative responsibilities, a general oversight power, nor
explore what the lawful reach of that power might be under the
Committee's constituent resolution. Since passage of that resolution,
the House Committee on the Judiciary has begun an inquiry into
presidential impeachment. The investigative authority of the Judiciary
Committee with respect to presidential conduct has an express
constitutional source. x x x We have been shown no evidence
indicating that Congress itself attaches any particular value to this
interest. In these circumstances, we think the need for the tapes
premised solely on an asserted power to investigate and inform
cannot justify enforcement of the Committee's subpoena.
The sufficiency of the Committee's showing of need has come to
depend, therefore, entirely on whether the subpoenaed materials are
critical to the performance of its legislative functions. There is a clear
difference between Congress's legislative tasks and the responsibility
of a grand jury, or any institution engaged in like functions. While
fact-finding by a legislative committee is undeniably a part of its
task, legislative judgments normally depend more on the predicted
consequences of proposed legislative actions and their political
acceptability, than on precise reconstruction of past events;
Congress frequently legislates on the basis of conflicting information
provided in its hearings. In contrast, the responsibility of the grand
jury turns entirely on its ability to determine whether there is
Finals_Constitutional Law
Cortes, Ann Rosselle S.
not commit specific crimes. If, for example, as in Nixon v. Sirica, one
of those crimes is perjury concerning the content of certain
conversations, the grand jury's need for the most precise evidence,
the exact text of oral statements recorded in their original form, is
undeniable. We see no comparable need in the legislative process,
at least not in the circumstances of this case. Indeed, whatever force
there might once have been in the Committee's argument that the
subpoenaed materials are necessary to its legislative judgments has
been substantially undermined by subsequent events. (Emphasis
supplied)
Respondent Committees further contend that the grant of
petitioner’s claim of executive privilege violates the constitutional
provisions on right of the people to information on matters of public
concern.[50] We might have agreed with such contention if
petitioner did not appear before them at all. But petitioner made
himself available to them during the September 26 hearing, where
he was questioned for eleven (11) hours. Not only that, he expressly
manifested his willingness to answer more questions from the
Senators, with the exception only of those covered by his claim of
executive privilege.
The right to public information, like any other right, is subject to
limitation. Section 7 of Article III provides:
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.
The provision itself expressly provides the limitation, i.e. as may be
provided by law. Some of these laws are Section 7 of Republic Act
(R.A.) No. 6713,[51] Article 229[52] of the Revised Penal Code,
Section 3 (k)[53] of R.A. No. 3019, and Section 24(e)[54] of Rule
130 of the Rules of Court. These are in addition to what our body of
jurisprudence classifies as confidential[55] and what our Constitution
considers as belonging to the larger concept of executive privilege.
Clearly, there is a recognized public interest in the confidentiality of
certain information. We find the information subject of this case
belonging to such kind.
73
Positive Thinking  That in all things, God may be glorified. Ora et Labora!
More than anything else, though, the right of Congress or any of its
Committees to obtain information in aid of legislation cannot be
equated with the people’s right to public information. The former
cannot claim that every legislative inquiry is an exercise of the
people’ right to information. The distinction between such rights is
laid down in Senate v. Ermita:
There are, it bears noting, clear distinctions between the right of
Congress to information which underlies the power of inquiry and the
right of people to information on matters of public concern. For one,
the demand of a citizen for the production of documents pursuant to
his right to information does not have the same obligatory force as a
subpoena duces tecum issued by Congress. Neither does the right to
information grant a citizen the power to exact testimony from
government officials. These powers belong only to Congress, not to
individual citizen.
Thus, while Congress is composed of representatives elected by the
people, it does not follow, except in a highly qualified sense, that in
every exercise of its power of inquiry, the people are exercising their
right to information.
The members of respondent Committees should not invoke as
justification in their exercise of power a right properly belonging to
the people in general. This is because when they discharge their
power, they do so as public officials and members of Congress. Be
that as it may, the right to information must be balanced with and
should give way in appropriate cases to constitutional precepts
particularly those pertaining to delicate interplay of executive-
legislative powers and privileges which is the subject of careful
review by numerous decided cases.
B- The Claim of Executive Privilege is Properly Invoked
We now proceed to the issue -- whether the claim is properly invoked
by the President. Jurisprudence teaches that for the claim to be
properly invoked, there must be a formal claim of privilege, lodged
by the head of the department which has control over the
matter.”[56] A formal and proper claim of executive privilege
requires a “precise and certain reason” for preserving their
confidentiality.[57]
Finals_Constitutional Law
Cortes, Ann Rosselle S.
The Letter dated November 17, 2007 of Executive Secretary Ermita
satisfies the requirement. It serves as the formal claim of privilege.
There he expressly states that “this Office is constrained to invoke
the settled doctrine of executive privilege as refined in Senate v.
Ermita, and has advised Secretary Neri accordingly.” Obviously, he
is referring to the Office of the President. That is more than enough
compliance. In Senate v. Ermita, a less categorical letter was even
adjudged to be sufficient.
With regard to the existence of “precise and certain reason,” we
find the grounds relied upon by Executive Secretary Ermita specific
enough so as not “to leave respondent Committees in the dark on
how the requested information could be classified as privileged.”
The case of Senate v. Ermita only requires that an allegation be
made “whether the information demanded involves military or
diplomatic secrets, closed-door Cabinet meetings, etc.” The
particular ground must only be specified. The enumeration is not
even intended to be comprehensive.”[58] The following statement of
grounds satisfies the requirement:
The context in which executive privilege is being invoked is that the
information sought to be disclosed might impair our diplomatic as
well as economic relations with the People’s Republic of China.
Given the confidential nature in which these information were
conveyed to the President, he cannot provide the Committee any
further details of these conversations, without disclosing the very
thing the privilege is designed to protect.
At any rate, as held further in Senate v. Ermita, [59] the Congress
must not require the executive to state the reasons for the claim with
such particularity as to compel disclosure of the information which
the privilege is meant to protect. This is a matter of respect to a
coordinate and co-equal department.
II
Respondent Committees Committed Grave Abuse of Discretion in
Issuing the Contempt Order
Grave abuse of discretion means “such capricious and whimsical
exercise of judgment as is equivalent to lack of jurisdiction, or, in
other words where the power is exercised in an arbitrary or despotic
manner by reason of passion or personal hostility and it must be so
74
Positive Thinking  That in all things, God may be glorified. Ora et Labora!
patent and gross as to amount to an evasion of positive duty or to a
virtual refusal to perform the duty enjoined or to act at all in
contemplation of law.”[60]
It must be reiterated that when respondent Committees issued the
show cause Letter dated November 22, 2007, petitioner replied
immediately, manifesting that it was not his intention to ignore the
Senate hearing and that he thought the only remaining questions
were the three (3) questions he claimed to be covered by executive
privilege. In addition thereto, he submitted Atty. Bautista’s letter,
stating that his non-appearance was upon the order of the President
and specifying the reasons why his conversations with President
Arroyo are covered by executive privilege. Both correspondences
include an expression of his willingness to testify again, provided he
“be furnished in advance” copies of the questions. Without
responding to his request for advance list of questions, respondent
Committees issued the Order dated January 30, 2008, citing him in
contempt of respondent Committees and ordering his arrest and
detention at the Office of the Senate Sergeant-At-Arms until such
time that he would appear and give his testimony. Thereupon,
petitioner filed a motion for reconsideration, informing respondent
Committees that he had filed the present petition for certiorari.
Respondent Committees committed grave abuse of discretion in
issuing the contempt Order in view of five (5) reasons.
First, there being a legitimate claim of executive privilege, the
issuance of the contempt Order suffers from constitutional infirmity.
Second, respondent Committees did not comply with the
requirement laid down in Senate vs. Ermita that the invitations
should contain the “possible needed statute which prompted the
need for the inquiry,” along with “the usual indication of the subject
of inquiry and the questions relative to and in furtherance thereof.”
Compliance with this requirement is imperative, both under Sections
21 and 22 of Article VI of the Constitution. This must be so to ensure
that the rights of both persons appearing in or affected by such
inquiry are respected as mandated by said Section 21 and by virtue
of the express language of Section 22. Unfortunately, despite
petitioner’s repeated demands, respondent Committees did not send
him advance list of questions.
Third, a reading of the transcript of respondent Committees’ January
30, 2008 proceeding reveals that only a minority of the members of
Finals_Constitutional Law
Cortes, Ann Rosselle S.
deliberation. [61] Section 18 of the Rules of Procedure Governing
Inquiries in Aid of Legislation provides that:
“The Committee, by a vote of majority of all its members, may
punish for contempt any witness before it who disobey any order of
the Committee or refuses to be sworn or to testify or to answer
proper questions by the Committee or any of its members.”
Clearly, the needed vote is a majority of all the members of the
Committee. Apparently, members who did not actually participate in
the deliberation were made to sign the contempt Order. Thus,
there is a cloud of doubt as to the validity of the contempt Order
dated January 30, 2008. We quote the pertinent portion of the
transcript, thus:
THE CHAIRMAN (SEN. CAYETANO, A). For clarification. x x x The
Chair will call either a caucus or will ask the Committee on Rules if
there is a problem. Meaning, if we do not have the sufficient
numbers. But if we have a sufficient number, we will just hold a
caucus to be able to implement that right away because…Again, our
Rules provide that any one held in contempt and ordered arrested,
need the concurrence of a majority of all members of the said
committee and we have three committees conducting this.
So thank you very much to the members…
SEN. PIMENTEL. Mr. Chairman.
THE CHAIRMAN (SEN. CAYETANO,A). May I recognize the Minority
Leader and give him the floor, Senator Pimentel.
SEN. PIMENTEL. Mr. Chairman, there is no problem, I think, with
consulting the other committees. But I am of the opinion that the
Blue Ribbon Committee is the lead committee, and therefore, it
should have preference in enforcing its own decisions. Meaning to
say, it is not something that is subject to consultation with other
committees. I am not sure that is the right interpretation. I think that
once we decide here, we enforce what we decide, because otherwise,
before we know it, our determination is watered down by delay and,
you know, the so-called “consultation” that inevitably will have to
take place if we follow the premise that has been explained.
So my suggestion, Mr. Chairman, is the Blue Ribbon Committee
75
Positive Thinking  That in all things, God may be glorified. Ora et Labora!
should not forget it’s the lead committee here, and therefore, the will
of the lead committee prevails over all the other, you, know
reservations that other committees might have who are only
secondary or even tertiary committees, Mr. Chairman.
THE CHAIRMAN (SEN. CAYETANO, A.) Thank you very much to the
Minority Leader. And I agree with the wisdom of his statements. I
was merely mentioning that under Section 6 of the Rules of the
Committee and under Section 6, “The Committee by a vote of a
majority of all its members may punish for contempt any witness
before it who disobeys any order of the Committee.”
So the Blue Ribbon Committee is more than willing to take that
responsibility. But we only have six members here today, I am the
seventh as chair and so we have not met that number. So I am
merely stating that, sir, that when we will prepare the
documentation, if a majority of all members sign and I am following
the Sabio v. Gordon rule wherein I do believe, if I am not mistaken,
Chairman Gordon prepared the documentation and then either in
caucus or in session asked the other members to sign. And once the
signatures are obtained, solely for the purpose that Secretary Neri or
Mr. Lozada will not be able to legally question our subpoena as being
insufficient in accordance with law.
SEN. PIMENTEL. Mr. Chairman, the caution that the chair is
suggesting is very well-taken. But I’d like to advert to the fact that
the quorum of the committee is only two as far as I remember. Any
two-member senators attending a Senate committee hearing provide
that quorum, and therefore there is more than a quorum demanded
by our Rules as far as we are concerned now, and acting as Blue
Ribbon Committee, as Senator Enrile pointed out. In any event, the
signatures that will follow by the additional members will only tend to
strengthen the determination of this Committee to put its foot
forward – put down on what is happening in this country, Mr.
Chairman, because it really looks terrible if the primary Committee of
the Senate, which is the Blue ribbon Committee, cannot even
sanction people who openly defy, you know, the summons of this
Committee. I know that the Chair is going through an agonizing
moment here. I know that. But nonetheless, I think we have to
uphold, you know, the institution that we are representing because
the alternative will be a disaster for all of us, Mr. Chairman. So
having said that, I’d like to reiterate my point.
THE CHAIRMAN (SEN. CAYETANO, A.) First of all, I agree 100 percent
Finals_Constitutional Law
Cortes, Ann Rosselle S.
respectfully disagree with the legal requirements. Because, yes, we
can have a hearing if we are only two but both under section 18 of
the Rules of the Senate and under Section 6 of the Rules of the Blue
Ribbon Committee, there is a need for a majority of all members if it
is a case of contempt and arrest. So, I am simply trying to avoid the
court rebuking the Committee, which will instead of strengthening
will weaken us. But I do agree, Mr. Minority Leader, that we should
push for this and show the executive branch that the well-decided –
the issue has been decided upon the Sabio versus Gordon case. And
it’s very clear that we are all allowed to call witnesses. And if they
refure or they disobey not only can we cite them in contempt and
have them arrested. x x x [62]
Fourth, we find merit in the argument of the OSG that respondent
Committees likewise violated Section 21 of Article VI of the
Constitution, requiring that the inquiry be in accordance with the
“duly published rules of procedure.” We quote the OSG’s
explanation:
The phrase “duly published rules of procedure” requires the Senate
of every Congress to publish its rules of procedure governing
inquiries in aid of legislation because every Senate is distinct from
the one before it or after it. Since Senatorial elections are held every
three (3) years for one-half of the Senate’s membership, the
composition of the Senate also changes by the end of each term.
Each Senate may thus enact a different set of rules as it may deem,
fit. Not having published its Rules of Procedure, the subject hearings
in aid of legislation conducted by the 14th Senate, are therefore,
procedurally infirm.
And Fifth, respondent Committees’ issuance of the contempt Order is
arbitrary and precipitate. It must be pointed out that respondent
Committees did not first pass upon the claim of executive privilege
and inform petitioner of their ruling. Instead, they curtly dismissed
his explanation as “unsatisfactory” and simultaneously issued the
Order citing him in contempt and ordering his immediate arrest and
detention.
A fact worth highlighting is that petitioner is not an unwilling witness.
He manifested several times his readiness to testify before
respondent Committees. He refused to answer the three (3)
questions because he was ordered by the President to claim
executive privilege. It behooves respondent Committees to first rule
76
Positive Thinking  That in all things, God may be glorified. Ora et Labora!
on the claim of executive privilege and inform petitioner of their
finding thereon, instead of peremptorily dismissing his explanation as
“unsatisfactory.” Undoubtedly, respondent Committees’ actions
constitute grave abuse of discretion for being arbitrary and for
denying petitioner due process of law. The samequality afflicted
their conduct when they (a) disregarded petitioner’s motion for
reconsideration alleging that he had filed the present petition before
this Court and (b) ignored petitioner’s repeated request for advance
list of questions, if there be any aside from the three (3) questions as
to which he claimed to be covered by executive privilege.
Even the courts are repeatedly advised to exercise the power of
contempt judiciously and sparingly with utmost self-restraint with the
end in view of utilizing the same for correction and preservation of
the dignity of the court, not for retaliation or vindication.[63]
Respondent Committees should have exercised the same restraint,
after all petitioner is not even an ordinary witness. He holds a high
position in a co-equal branch of government.
In this regard, it is important to mention that many incidents of
judicial review could have been avoided if powers are discharged
with circumspection and deference. Concomitant with the doctrine of
separation of powers is the mandate to observe respect to a co-equal
branch of the government.
One last word.
The Court was accused of attempting to abandon its constitutional
duty when it required the parties to consider a proposal that would
lead to a possible compromise. The accusation is far from truth. The
Court did so, only, to test a tool that other jurisdictions find to be
effective in settling similar cases, to avoid a piecemeal consideration
of the questions for review, and to avert a constitutional crisis
between the executive and legislative branches of government.
In United States v. American Tel. & Tel Co.,[64] the court refrained
from deciding the case because of its desire to avoid a resolution
that might disturb the balance of power between the two branches
and inaccurately reflect their true needs. Instead, it remanded the
record to the District Court for further proceedings during which the
parties are required to negotiate a settlement. In the subsequent
case United States v. American Tel. &Tel Co.,[65] it was held that
“much of this spirit of compromise is reflected in the generality of
language found in the Constitution.” It proceeded to state:
Finals_Constitutional Law
Cortes, Ann Rosselle S.
Under this view, the coordinate branches do not exist in an
exclusively adversary relationship to one another when a conflict in
authority arises. Rather each branch should take cognizance of an
implicit constitutional mandate to seek optimal accommodation
through a realistic evaluation of the needs of the conflicting branches
in the particular fact situation.
It thereafter concluded that: “The Separation of Powers often impairs
efficiency, in terms of dispatch and the immediate functioning of
government. It is the long-term staying power of government that
is enhanced by the mutual accommodation required by the
separation of powers.”
In rendering this decision, the Court emphasizes once more that the
basic principles of constitutional law cannot be subordinated to the
needs of a particular situation. As magistrates, our mandate is to
rule objectively and dispassionately, always mindful of Mr. Justice
Holmes’ warning on the dangers inherent in cases of this nature,
thus:
“some accident of immediate and overwhelming interest…appeals to
the feelings and distorts the judgment. These immediate interests
exercise a kind of hydraulic pressure which makes what previously
was clear seem doubtful, and before which even well settled
principles of law will bend.”[66]
In this present crusade to “search for truth,” we should turn to the
fundamental constitutional principles which underlie our tripartite
system of government, where the Legislature enacts the law, the
Judiciary interprets it and the Executive implements it. They are
considered separate, co-equal, coordinate and supreme within
their respective spheres but, imbued with a system of checks and
balances to prevent unwarranted exercise of power.
The Court’s mandate is to preserve these constitutional principles
at all times to keep the political branches of government within
constitutional bounds in the exercise of their respective powers and
prerogatives, even if it be in the search for truth. This is the only
way we can preserve the stability of our democratic institutions and
uphold the Rule of Law.
WHEREFORE, the petition is hereby GRANTED. The subject Order
dated January 30, 2008, citing petitioner Romulo L. Neri in contempt
77
Positive Thinking  That in all things, God may be glorified. Ora et Labora!
of the Senate Committees and directing his arrest and detention, is
hereby nullified.

SO ORDERED.

Validity of Claim of Executive Privilege

Citing the case of United States vs. Nixon (418 U.S. 683), the Court
laid out the three elements needed to be complied with in order for
the claim to executive privilege to be valid. These are: 1.) the
protected communication must relate to a quintessential and non-
delegable presidential power; 2.) it must be authored, solicited, and
received by a close advisor of the President or the President himself.
The judicial test is that an advisor must be in “operational proximity”
with the President; and, 3.) it may be overcome by a showing of
adequate need, such that the information sought “likely contains
important evidence,” and by the unavailability of the information
elsewhere by an appropriate investigating authority.

Rule of Operational Proximity

Finals_Constitutional Law 78
Cortes, Ann Rosselle S.