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B. Treaties
Constitution, Article VII, Section 20 & 21
Section 20. The President may contract or guarantee foreign loans on behalf of the Republic
of the Philippines with the prior concurrence of the Monetary Board, and subject to such
limitations as may be provided by law. The Monetary Board shall, within thirty days from
the end of every quarter of the calendar year, submit to the Congress a complete report of
its decision on applications for loans to be contracted or guaranteed by the Government or
government-owned and controlled corporations which would have the effect of increasing
the foreign debt, and containing other matters as may be provided by law.
Section 21. No treaty or international agreement shall be valid and effective unless
concurred in by at least two-thirds of all the Members of the Senate.
Constitution, Article XVIII, Section 25
Section 25. After the expiration in 1991 of the Agreement between the Republic of the
Philippines and the United States of America concerning military bases, foreign military
bases, troops, or facilities shall not be allowed in the Philippines except under a treaty duly
concurred in by the Senate and, when the Congress so requires, ratified by a majority of the
votes cast by the people in a national referendum held for that purpose, and recognized as a
treaty by the other contracting State.
Executive Order 459 PROVIDING FOR THE GUIDELINES IN THE
NEGOTIATION OF INTERNATIONAL AGREEMENTS AND ITS
RATIFICATION
WHEREAS, the negotiations of international agreements are made in pursuance of the
foreign policy of the country;
WHEREAS, Executive Order No. 292, otherwise known as the Administrative Code of
1987, provides that the Department of Foreign Affairs shall be the lead agency that shall
advise and assist the President in planning, organizing, directing, coordinating and
evaluating the total national effort in the field of foreign relations;
WHEREAS, Executive Order No. 292 further provides that the Department of Foreign
Affairs shall negotiate treaties and other agreements pursuant to the instructions of the
President, and in coordination with other government agencies;
WHEREAS, there is a need to establish guidelines to govern the negotiation and ratification
of international agreements by the different agencies of the government;
NOW, THEREFORE, I, FIDEL V. RAMOS, President of the Philippines, by virtue of the
powers vested in me by the Constitution, do hereby order:
SECTION 1. Declaration of Policy. It is hereby declared the policy of the State that the
negotiations of all treaties and executive agreements, or any amendment thereto, shall be
coordinated with, and made only with the participation of, the Department of Foreign
Affairs in accordance with Executive Order No. 292. It is also declared the policy of the
State that the composition of any Philippine negotiation panel and the designation of the
chairman thereof shall be made in coordination with the Department of Foreign Affairs.
SEC. 2. Definition of Terms.
a. International agreement shall refer to a contract or understanding, regardless of
nomenclature, entered into between the Philippines and another government in written form
and governed by international law, whether embodied in a single instrument or in two or
more related instruments.
b. Treaties international agreements entered into by the Philippines which require
legislative concurrence after executive ratification. This term may include compacts like
conventions, declarations, covenants and acts.
c. Executive Agreements similar to treaties except that they do not require legislative
concurrence.
d. Full Powers authority granted by a Head of State or Government to a delegation head
enabling the latter to bind his country to the commitments made in the negotiations to be
pursued.
e. National Interest advantage or enhanced prestige or benefit to the country as defined by
its political and/or administrative leadership.
f. Provisional Effect recognition by one or both sides of the negotiation process that an
agreement be considered in force pending compliance with domestic requirements for the
effectivity of the agreement.
SEC. 3. Authority to Negotiate. Prior to any international meeting or negotiation of a
treaty or executive agreement, authorization must be secured by the lead agency from the
President through the Secretary of Foreign Affairs. The request for authorization shall be in
writing, proposing the composition of the Philippine delegation and recommending the
range of positions to be taken by that delegation. In case of negotiations of agreements,
changes of national policy or those involving international arrangements of a permanent
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character entered into in the name of the Government of the Republic of the Philippines, the
authorization shall be in the form of Full Powers and formal instructions. In cases of other
agreements, a written authorization from the President shall be sufficient.
SEC. 4. Full Powers. The issuance of Full Powers shall be made by the President of the
Philippines who may delegate this function to the Secretary of Foreign Affairs.
The following persons, however, shall not require Full Powers prior to negotiating or
signing a treaty or an executive agreement, or any amendment thereto, by virtue of the
nature of their functions:
a. Secretary of Foreign Affairs;
b. Heads of Philippine diplomatic missions, for the purpose of adopting the text of a treaty
or an agreement between the Philippines and the State to which they are accredited;
c. Representatives accredited by the Philippines to an international conference or to an
international organization or one of its organs, for the purpose of adopting the text of a
treaty in that conference, organization or organ.
SEC. 5. Negotiations.
a. In cases involving negotiations of agreements, the composition of the Philippine panel or
delegation shall be determined by the President upon the recommendation of the Secretary
of Foreign Affairs and the lead agency if it is not the Department of Foreign Affairs.
b. The lead agency in the negotiation of a treaty or an executive agreement, or any
amendment thereto, shall convene a meeting of the panel members prior to the
commencement of any negotiations for the purpose of establishing the parameters of the
negotiating position of the panel. No deviation from the agreed parameters shall be made
without prior consultations with the members of the negotiating panel.
SEC. 6. Entry into Force and Provisional Application of Treaties and Executive
Agreements.
a. A treaty or an executive agreement enters into force upon compliance with the domestic
requirements stated in this Order.
b. No treaty or executive agreement shall be given provisional effect unless it is shown that
a pressing national interest will be upheld thereby. The Department of Foreign Affairs, in
consultation with the concerned agencies, shall determine whether a treaty or an executive
agreement, or any amendment thereto, shall be given provisional effect.
SEC. 7. Domestic Requirements for the Entry into Force of a Treaty or an Executive
Agreement. The domestic requirements for the entry into force of a treaty or an executive
agreement, or any amendment thereto, shall be as follows:
A. Executive Agreements.
i. All executive agreements shall be transmitted to the Department of Foreign Affairs after
their signing for the preparation of the ratification papers. The transmittal shall include the
highlights of the agreements and the benefits which will accrue to the Philippines arising
from them.
ii. The Department of Foreign Affairs, pursuant to the endorsement by the concerned
agency, shall transmit the agreements to the President of the Philippines for his ratification.
The original signed instrument of ratification shall then be returned to the Department of
Foreign Affairs for appropriate action.
B. Treaties.
i. All treaties, regardless of their designation, shall comply with the requirements provided
in sub-paragraph 1 and 2, item A (Executive Agreements) of this Section. In addition, the
Department of Foreign Affairs shall submit the treaties to the Senate of the Philippines for
concurrence in the ratification by the President. A certified true copy of the treaties, in such
numbers as may be required by the Senate, together with a certified true copy of the
ratification instrument, shall accompany the submission of the treaties to the Senate.
ii. Upon receipt of the concurrence by the Senate, the Department of Foreign Affairs shall
comply with the provision of the treaties in effecting their entry into force.
SEC. 8. Notice to Concerned Agencies. The Department of Foreign Affairs shall inform
the concerned agencies of the entry into force of the agreement.
SEC. 9. Determination of the Nature of the Agreement. The Department of Foreign
Affairs shall determine whether an agreement is an executive agreement or a treaty.
SEC. 10. Separability Clause. If, for any reason, any part or provision of this Order shall
be held unconstitutional or invalid, other parts or provisions hereof which are not affected
thereby shall continue to be in full force and effect.
SEC. 11. Repealing Clause. All executive orders, proclamations, memorandum orders or
memorandum circulars inconsistent herewith are hereby repealed or modified accordingly.
SEC. 12. Effectivity. This Executive Order shall take effect immediately upon its
approval.
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Public International Law- November 8, 2017
BAYAN vs ZAMORA
EN BANC [G.R. No. 138570. October 10, 2000]
DECISION
BUENA, J.:
Confronting the Court for resolution in the instant consolidated petitions for certiorari and
prohibition are issues relating to, and borne by, an agreement forged in the turn of the last
century between the Republic of the Philippines and the United States of America -the
Visiting Forces Agreement.
The antecedents unfold.
On March 14, 1947, the Philippines and the United States of America forged a Military
Bases Agreement which formalized, among others, the use of installations in the Philippine
territory by United States military personnel. To further strengthen their defense and
security relationship, the Philippines and the United States entered into a Mutual Defense
Treaty on August 30, 1951. Under the treaty, the parties agreed to respond to any external
armed attack on their territory, armed forces, public vessels, and aircraft.[1]
In view of the impending expiration of the RP-US Military Bases Agreement in 1991, the
Philippines and the United States negotiated for a possible extension of the military bases
agreement. On September 16, 1991, the Philippine Senate rejected the proposed RP-US
Treaty of Friendship, Cooperation and Security which, in effect, would have extended the
presence of US military bases in the Philippines.[2] With the expiration of the RP-US
Military Bases Agreement, the periodic military exercises conducted between the two
countries were held in abeyance. Notwithstanding, the defense and security relationship
between the Philippines and the United States of America continued pursuant to the Mutual
Defense Treaty.
On July 18, 1997, the United States panel, headed by US Defense Deputy Assistant
Secretary for Asia Pacific Kurt Campbell, met with the Philippine panel, headed by Foreign
Affairs Undersecretary Rodolfo Severino Jr., to exchange notes on the complementing
strategic interests of the United States and the Philippines in the Asia-Pacific region. Both
sides discussed, among other things, the possible elements of the Visiting Forces
Agreement (VFA for brevity). Negotiations by both panels on the VFA led to a
consolidated draft text, which in turn resulted to a final series of conferences and
negotiations[3] that culminated in Manila on January 12 and 13, 1998. Thereafter, then
President Fidel V. Ramos approved the VFA, which was respectively signed by public
respondent Secretary Siazon and Unites States Ambassador Thomas Hubbard on February
10, 1998.
On October 5, 1998, President Joseph E. Estrada, through respondent Secretary of Foreign
Affairs, ratified the VFA.[4]
On October 6, 1998, the President, acting through respondent Executive Secretary Ronaldo
Zamora, officially transmitted to the Senate of the Philippines,[5] the Instrument of
Ratification, the letter of the President[6] and the VFA, for concurrence pursuant to Section
21, Article VII of the 1987 Constitution. The Senate, in turn, referred the VFA to its
Committee on Foreign Relations, chaired by Senator Blas F. Ople, and its Committee on
National Defense and Security, chaired by Senator Rodolfo G. Biazon, for their joint
consideration and recommendation. Thereafter, joint public hearings were held by the two
Committees.[7]
On May 3, 1999, the Committees submitted Proposed Senate Resolution No. 443[8]
recommending the concurrence of the Senate to the VFA and the creation of a Legislative
Oversight Committee to oversee its implementation. Debates then ensued.
On May 27, 1999, Proposed Senate Resolution No. 443 was approved by the Senate, by a
two-thirds (2/3) vote[9] of its members. Senate Resolution No. 443 was then re-numbered
as Senate Resolution No. 18.[10]
On June 1, 1999, the VFA officially entered into force after an Exchange of Notes between
respondent Secretary Siazon and United States Ambassador Hubbard.
The VFA, which consists of a Preamble and nine (9) Articles, provides for the mechanism
for regulating the circumstances and conditions under which US Armed Forces and defense
personnel may be present in the Philippines, and is quoted in its full text, hereunder:
Article I
Definitions
As used in this Agreement, United States personnel means United States military and
civilian personnel temporarily in the Philippines in connection with activities approved by
the Philippine Government.
Within this definition:
1. The term military personnel refers to military members of the United States Army, Navy,
Marine Corps, Air Force, and Coast Guard.
2. The term civilian personnel refers to individuals who are neither nationals of, nor
ordinary residents in the Philippines and who are employed by the United States armed
forces or who are accompanying the United States armed forces, such as employees of the
American Red Cross and the United Services Organization.
Article II
Respect for Law
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It is the duty of the United States personnel to respect the laws of the Republic of the
Philippines and to abstain from any activity inconsistent with the spirit of this agreement,
and, in particular, from any political activity in the Philippines. The Government of the
United States shall take all measures within its authority to ensure that this is done.
Article III
Entry and Departure
1. The Government of the Philippines shall facilitate the admission of United States
personnel and their departure from the Philippines in connection with activities covered by
this agreement.
2. United States military personnel shall be exempt from passport and visa regulations upon
entering and departing the Philippines.
3. The following documents only, which shall be presented on demand, shall be required in
respect of United States military personnel who enter the Philippines:
(a) personal identity card issued by the appropriate United States authority showing full
name, date of birth, rank or grade and service number (if any), branch of service and
photograph;
(b) individual or collective document issued by the appropriate United States authority,
authorizing the travel or visit and identifying the individual or group as United States
military personnel; and
(c) the commanding officer of a military aircraft or vessel shall present a declaration of
health, and when required by the cognizant representative of the Government of the
Philippines, shall conduct a quarantine inspection and will certify that the aircraft or vessel
is free from quarantinable diseases. Any quarantine inspection of United States aircraft or
United States vessels or cargoes thereon shall be conducted by the United States
commanding officer in accordance with the international health regulations as promulgated
by the World Health Organization, and mutually agreed procedures.
4. United States civilian personnel shall be exempt from visa requirements but shall present,
upon demand, valid passports upon entry and departure of the Philippines.
5. If the Government of the Philippines has requested the removal of any United States
personnel from its territory, the United States authorities shall be responsible for receiving
the person concerned within its own territory or otherwise disposing of said person outside
of the Philippines.
Article IV
Driving and Vehicle Registration
1. Philippine authorities shall accept as valid, without test or fee, a driving permit or license
issued by the appropriate United States authority to United States personnel for the
operation of military or official vehicles.
2. Vehicles owned by the Government of the United States need not be registered, but shall
have appropriate markings.
Article V
Criminal Jurisdiction
1. Subject to the provisions of this article:
(a) Philippine authorities shall have jurisdiction over United States personnel with respect
to offenses committed within the Philippines and punishable under the law of the
Philippines.
(b) United States military authorities shall have the right to exercise within the Philippines
all criminal and disciplinary jurisdiction conferred on them by the military law of the
United States over United States personnel in the Philippines.
2. (a) Philippine authorities exercise exclusive jurisdiction over United States personnel
with respect to offenses, including offenses relating to the security of the Philippines,
punishable under the laws of the Philippines, but not under the laws of the United States.
(b) United States authorities exercise exclusive jurisdiction over United States personnel
with respect to offenses, including offenses relating to the security of the United States,
punishable under the laws of the United States, but not under the laws of the Philippines.
(c) For the purposes of this paragraph and paragraph 3 of this article, an offense relating to
security means:
(1) treason;
(2) sabotage, espionage or violation of any law relating to national defense.
3. In cases where the right to exercise jurisdiction is concurrent, the following rules shall
apply:
(a) Philippine authorities shall have the primary right to exercise jurisdiction over all
offenses committed by United States personnel, except in cases provided for in paragraphs
1(b), 2 (b), and 3 (b) of this Article.
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(b) United States military authorities shall have the primary right to exercise jurisdiction
over United States personnel subject to the military law of the United States in relation to.
(1) offenses solely against the property or security of the United States or offenses solely
against the property or person of United States personnel; and
(2) offenses arising out of any act or omission done in performance of official duty.
(c) The authorities of either government may request the authorities of the other
government to waive their primary right to exercise jurisdiction in a particular case.
(d) Recognizing the responsibility of the United States military authorities to maintain good
order and discipline among their forces, Philippine authorities will, upon request by the
United States, waive their primary right to exercise jurisdiction except in cases of particular
importance to the Philippines. If the Government of the Philippines determines that the case
is of particular importance, it shall communicate such determination to the United States
authorities within twenty (20) days after the Philippine authorities receive the United States
request.
(e) When the United States military commander determines that an offense charged by
authorities of the Philippines against United states personnel arises out of an act or omission
done in the performance of official duty, the commander will issue a certificate setting forth
such determination. This certificate will be transmitted to the appropriate authorities of the
Philippines and will constitute sufficient proof of performance of official duty for the
purposes of paragraph 3(b)(2) of this Article. In those cases where the Government of the
Philippines believes the circumstances of the case require a review of the duty certificate,
United States military authorities and Philippine authorities shall consult immediately.
Philippine authorities at the highest levels may also present any information bearing on its
validity. United States military authorities shall take full account of the Philippine position.
Where appropriate, United States military authorities will take disciplinary or other action
against offenders in official duty cases, and notify the Government of the Philippines of the
actions taken.
(f) If the government having the primary right does not exercise jurisdiction, it shall notify
the authorities of the other government as soon as possible.
(g) The authorities of the Philippines and the United States shall notify each other of the
disposition of all cases in which both the authorities of the Philippines and the United States
have the right to exercise jurisdiction.
4. Within the scope of their legal competence, the authorities of the Philippines and United
States shall assist each other in the arrest of United States personnel in the Philippines and
in handling them over to authorities who are to exercise jurisdiction in accordance with the
provisions of this article.
5. United States military authorities shall promptly notify Philippine authorities of the arrest
or detention of United States personnel who are subject of Philippine primary or exclusive
jurisdiction. Philippine authorities shall promptly notify United States military authorities
of the arrest or detention of any United States personnel.
6. The custody of any United States personnel over whom the Philippines is to exercise
jurisdiction shall immediately reside with United States military authorities, if they so
request, from the commission of the offense until completion of all judicial proceedings.
United States military authorities shall, upon formal notification by the Philippine
authorities and without delay, make such personnel available to those authorities in time for
any investigative or judicial proceedings relating to the offense with which the person has
been charged in extraordinary cases, the Philippine Government shall present its position to
the United States Government regarding custody, which the United States Government
shall take into full account. In the event Philippine judicial proceedings are not completed
within one year, the United States shall be relieved of any obligations under this paragraph.
The one-year period will not include the time necessary to appeal. Also, the one-year period
will not include any time during which scheduled trial procedures are delayed because
United States authorities, after timely notification by Philippine authorities to arrange for
the presence of the accused, fail to do so.
7. Within the scope of their legal authority, United States and Philippine authorities shall
assist each other in the carrying out of all necessary investigation into offenses and shall
cooperate in providing for the attendance of witnesses and in the collection and production
of evidence, including seizure and, in proper cases, the delivery of objects connected with
an offense.
8. When United States personnel have been tried in accordance with the provisions of this
Article and have been acquitted or have been convicted and are serving, or have served
their sentence, or have had their sentence remitted or suspended, or have been pardoned,
they may not be tried again for the same offense in the Philippines. Nothing in this
paragraph, however, shall prevent United States military authorities from trying United
States personnel for any violation of rules of discipline arising from the act or omission
which constituted an offense for which they were tried by Philippine authorities.
9. When United States personnel are detained, taken into custody, or prosecuted by
Philippine authorities, they shall be accorded all procedural safeguards established by the
law of the Philippines. At the minimum, United States personnel shall be entitled:
(a) To a prompt and speedy trial;
(b) To be informed in advance of trial of the specific charge or charges made against them
and to have reasonable time to prepare a defense;
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(c) To be confronted with witnesses against them and to cross examine such witnesses;
(d) To present evidence in their defense and to have compulsory process for obtaining
witnesses;
(e) To have free and assisted legal representation of their own choice on the same basis as
nationals of the Philippines;
(f) To have the service of a competent interpreter; and
(g) To communicate promptly with and to be visited regularly by United States authorities,
and to have such authorities present at all judicial proceedings. These proceedings shall be
public unless the court, in accordance with Philippine laws, excludes persons who have no
role in the proceedings.
10. The confinement or detention by Philippine authorities of United States personnel shall
be carried out in facilities agreed on by appropriate Philippine and United States authorities.
United States Personnel serving sentences in the Philippines shall have the right to visits
and material assistance.
11. United States personnel shall be subject to trial only in Philippine courts of ordinary
jurisdiction, and shall not be subject to the jurisdiction of Philippine military or religious
courts.
Article VI
Claims
1. Except for contractual arrangements, including United States foreign military sales letters
of offer and acceptance and leases of military equipment, both governments waive any and
all claims against each other for damage, loss or destruction to property of each others
armed forces or for death or injury to their military and civilian personnel arising from
activities to which this agreement applies.
2. For claims against the United States, other than contractual claims and those to which
paragraph 1 applies, the United States Government, in accordance with United States law
regarding foreign claims, will pay just and reasonable compensation in settlement of
meritorious claims for damage, loss, personal injury or death, caused by acts or omissions
of United States personnel, or otherwise incident to the non-combat activities of the United
States forces.
Article VII
Importation and Exportation
1. United States Government equipment, materials, supplies, and other property imported
into or acquired in the Philippines by or on behalf of the United States armed forces in
connection with activities to which this agreement applies, shall be free of all Philippine
duties, taxes and other similar charges. Title to such property shall remain with the United
States, which may remove such property from the Philippines at any time, free from export
duties, taxes, and other similar charges. The exemptions provided in this paragraph shall
also extend to any duty, tax, or other similar charges which would otherwise be assessed
upon such property after importation into, or acquisition within, the Philippines. Such
property may be removed from the Philippines, or disposed of therein, provided that
disposition of such property in the Philippines to persons or entities not entitled to
exemption from applicable taxes and duties shall be subject to payment of such taxes, and
duties and prior approval of the Philippine Government.
2. Reasonable quantities of personal baggage, personal effects, and other property for the
personal use of United States personnel may be imported into and used in the Philippines
free of all duties, taxes and other similar charges during the period of their temporary stay
in the Philippines. Transfers to persons or entities in the Philippines not entitled to import
privileges may only be made upon prior approval of the appropriate Philippine authorities
including payment by the recipient of applicable duties and taxes imposed in accordance
with the laws of the Philippines. The exportation of such property and of property acquired
in the Philippines by United States personnel shall be free of all Philippine duties, taxes,
and other similar charges.
Article VIII
Movement of Vessels and Aircraft
1. Aircraft operated by or for the United States armed forces may enter the Philippines upon
approval of the Government of the Philippines in accordance with procedures stipulated in
implementing arrangements.
2. Vessels operated by or for the United States armed forces may enter the Philippines upon
approval of the Government of the Philippines. The movement of vessels shall be in
accordance with international custom and practice governing such vessels, and such agreed
implementing arrangements as necessary.
3. Vehicles, vessels, and aircraft operated by or for the United States armed forces shall not
be subject to the payment of landing or port fees, navigation or over flight charges, or tolls
or other use charges, including light and harbor dues, while in the Philippines. Aircraft
operated by or for the United States armed forces shall observe local air traffic control
regulations while in the Philippines. Vessels owned or operated by the United States solely
on United States Government non-commercial service shall not be subject to compulsory
pilotage at Philippine ports.
Article IX
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Duration and Termination
This agreement shall enter into force on the date on which the parties have notified each
other in writing through the diplomatic channel that they have completed their
constitutional requirements for entry into force. This agreement shall remain in force until
the expiration of 180 days from the date on which either party gives the other party notice
in writing that it desires to terminate the agreement.
Via these consolidated[11] petitions for certiorari and prohibition, petitioners - as
legislators, non-governmental organizations, citizens and taxpayers - assail the
constitutionality of the VFA and impute to herein respondents grave abuse of discretion in
ratifying the agreement.
We have simplified the issues raised by the petitioners into the following:
I merely that he suffers thereby in some indefinite way. He must show that he has been, or is
Do petitioners have legal standing as concerned citizens, taxpayers, or legislators to
question the constitutionality of the VFA?
II
Is the VFA governed by the provisions of Section 21, Article VII or of Section 25, Article
XVIII of the Constitution?
III
Does the VFA constitute an abdication of Philippine sovereignty?
a. Are Philippine courts deprived of their jurisdiction to hear and try offenses committed by
US military personnel?
b. Is the Supreme Court deprived of its jurisdiction over offenses punishable by reclusion
perpetua or higher?
IV
Does the VFA violate:
a. the equal protection clause under Section 1, Article III of the Constitution?
b. the Prohibition against nuclear weapons under Article II, Section 8?
c. Section 28 (4), Article VI of the Constitution granting the exemption from taxes and
duties for the equipment, materials supplies and other properties imported into or acquired
in the Philippines by, or on behalf, of the US Armed Forces?
LOCUS STANDI
At the outset, respondents challenge petitioners standing to sue, on the ground that the latter
have not shown any interest in the case, and that petitioners failed to substantiate that they
have sustained, or will sustain direct injury as a result of the operation of the VFA.[12]
Petitioners, on the other hand, counter that the validity or invalidity of the VFA is a matter
of transcendental importance which justifies their standing.[13]
A party bringing a suit challenging the constitutionality of a law, act, or statute must show
not only that the law is invalid, but also that he has sustained or in is in immediate, or
imminent danger of sustaining some direct injury as a result of its enforcement, and not
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 complained
of.[14]
In the case before us, petitioners failed to show, to the satisfaction of this Court, that they
have sustained, or are in danger of sustaining any direct injury as a result of the
enforcement of the VFA. As taxpayers, petitioners have not established that the VFA
involves the exercise by Congress of its taxing or spending powers.[15] On this point, it
bears stressing that a taxpayers suit refers to a case where the act complained of directly
involves the illegal disbursement of public funds derived from taxation.[16] Thus, in
Bugnay Const. & Development Corp. vs. Laron[17], we held:
x x x it is exigent that the taxpayer-plaintiff sufficiently show that he would be benefited or
injured by the judgment or entitled to the avails of the suit as a real party in interest. Before
he can invoke the power of judicial review, he must specifically prove that he has sufficient
interest in preventing the illegal expenditure of money raised by taxation and that he will
sustain a direct injury as a result of the enforcement of the questioned statute or contract. It
is not sufficient that he has merely a general interest common to all members of the public.
Clearly, inasmuch as no public funds raised by taxation are involved in this case, and in the
absence of any allegation by petitioners that public funds are being misspent or illegally
expended, petitioners, as taxpayers, have no legal standing to assail the legality of the VFA.
Similarly, Representatives Wigberto Taada, Agapito Aquino and Joker Arroyo, as
petitioners-legislators, do not possess the requisite locus standi to maintain the present suit.
While this Court, in Phil. Constitution Association vs. Hon. Salvador Enriquez,[18]
sustained the legal standing of a member of the Senate and the House of Representatives to
question the validity of a presidential veto or a condition imposed on an item in an
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appropriation bull, we cannot, at this instance, similarly uphold petitioners standing as
members of Congress, in the absence of a clear showing of any direct injury to their person
or to the institution to which they belong.
Beyond this, the allegations of impairment of legislative power, such as the delegation of
the power of Congress to grant tax exemptions, are more apparent than real. While it may
be true that petitioners pointed to provisions of the VFA which allegedly impair their
legislative powers, petitioners failed however to sufficiently show that they have in fact
suffered direct injury.
In the same vein, petitioner Integrated Bar of the Philippines (IBP) is stripped of standing in
these cases. As aptly observed by the Solicitor General, the IBP lacks the legal capacity to
bring this suit in the absence of a board resolution from its Board of Governors authorizing
its National President to commence the present action.[19]
Notwithstanding, in view of the paramount importance and the constitutional significance
of the issues raised in the petitions, this Court, in the exercise of its sound discretion,
brushes aside the procedural barrier and takes cognizance of the petitions, as we have done
in the early Emergency Powers Cases,[20] where we had occasion to rule:
x x x ordinary citizens and taxpayers were allowed to question the constitutionality of
several executive orders issued by President Quirino although they were involving only an
indirect and general interest shared in common with the public. The Court dismissed the
objection that they were not proper parties and ruled that transcendental importance to the
public of these cases demands that they be settled promptly and definitely, brushing aside,
if we must, technicalities of procedure. We have since then applied the exception in many
other cases. (Association of Small Landowners in the Philippines, Inc. v. Sec. of Agrarian
Reform, 175 SCRA 343). (Underscoring Supplied)
This principle was reiterated in the subsequent cases of Gonzales vs. COMELEC,[21] Daza
vs. Singson,[22] and Basco vs. Phil. Amusement and Gaming Corporation,[23] where we
emphatically held:
Considering however the importance to the public of the case at bar, and in keeping with
the Courts duty, under the 1987 Constitution, to determine whether or not the other
branches of the government have kept themselves within the limits of the Constitution and
the laws and that they have not abused the discretion given to them, the Court has brushed
aside technicalities of procedure and has taken cognizance of this petition. x x x
Again, in the more recent case of Kilosbayan vs. Guingona, Jr.,[24] thisCourt ruled that in
cases of transcendental importance, the Court may relax the standing requirements and
allow a suit to prosper even where there is no direct injury to the party claiming the right of
judicial review.
Although courts generally avoid having to decide a constitutional question based on the
doctrine of separation of powers, which enjoins upon the departments of the government a
becoming respect for each others acts,[25] this Court nevertheless resolves to take
cognizance of the instant petitions.
APPLICABLE CONSTITUTIONAL PROVISION
One focal point of inquiry in this controversy is the determination of which provision of the
Constitution applies, with regard to the exercise by the senate of its constitutional power to
concur with the VFA. Petitioners argue that Section 25, Article XVIII is applicable
considering that the VFA has for its subject the presence of foreign military troops in the
Philippines. Respondents, on the contrary, maintain that Section 21, Article VII should
apply inasmuch as the VFA is not a basing arrangement but an agreement which involves
merely the temporary visits of United States personnel engaged in joint military exercises.
The 1987 Philippine Constitution contains two provisions requiring the concurrence of the
Senate on treaties or international agreements. Section 21, Article VII, which herein
respondents invoke, reads:
No treaty or international agreement shall be valid and effective unless concurred in by at
least two-thirds of all the Members of the Senate.
Section 25, Article XVIII, provides:
After the expiration in 1991 of the Agreement between the Republic of the Philippines and
the United States of America concerning Military Bases, foreign military bases, troops, or
facilities shall not be allowed in the Philippines except under a treaty duly concurred in by
the senate and, when the Congress so requires, ratified by a majority of the votes cast by the
people in a national referendum held for that purpose, and recognized as a treaty by the
other contracting State.
Section 21, Article VII deals with treatise or international agreements in general, in which
case, the concurrence of at least two-thirds (2/3) of all the Members of the Senate is
required to make the subject treaty, or international agreement, valid and binding on the
part of the Philippines. This provision lays down the general rule on treatise or international
agreements and applies to any form of treaty with a wide variety of subject matter, such as,
but not limited to, extradition or tax treatise or those economic in nature. All treaties or
international agreements entered into by the Philippines, regardless of subject matter,
coverage, or particular designation or appellation, requires the concurrence of the Senate to
be valid and effective.
In contrast, Section 25, Article XVIII is a special provision that applies to treaties which
involve the presence of foreign military bases, troops or facilities in the Philippines. Under
this provision, the concurrence of the Senate is only one of the requisites to render
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compliance with the constitutional requirements and to consider the agreement binding on
the Philippines. Section 25, Article XVIII further requires that foreign military bases,
troops, or facilities may be allowed in the Philippines only by virtue of a treaty duly
concurred in by the Senate, ratified by a majority of the votes cast in a national referendum
held for that purpose if so required by Congress, and recognized as such by the other
contracting state.
It is our considered view that both constitutional provisions, far from contradicting each
other, actually share some common ground. These constitutional provisions both embody
phrases in the negative and thus, are deemed prohibitory in mandate and character. In
particular, Section 21 opens with the clause No treaty x x x, and Section 25 contains the
phrase shall not be allowed. Additionally, in both instances, the concurrence of the Senate
is indispensable to render the treaty or international agreement valid and effective.
To our mind, the fact that the President referred the VFA to the Senate under Section 21,
Article VII, and that the Senate extended its concurrence under the same provision, is
immaterial. For in either case, whether under Section 21, Article VII or Section 25, Article
XVIII, the fundamental law is crystalline that the concurrence of the Senate is mandatory to
comply with the strict constitutional requirements.
On the whole, the VFA is an agreement which defines the treatment of United States troops
and personnel visiting the Philippines. It provides for the guidelines to govern such visits of
military personnel, and further defines the rights of the United States and the Philippine
government in the matter of criminal jurisdiction, movement of vessel and aircraft,
importation and exportation of equipment, materials and supplies.
Undoubtedly, Section 25, Article XVIII, which specifically deals with treaties involving
foreign military bases, troops, or facilities, should apply in the instant case. To a certain
extent and in a limited sense, however, the provisions of section 21, Article VII will find
applicability with regard to the issue and for the sole purpose of determining the number of
votes required to obtain the valid concurrence of the Senate, as will be further discussed
hereunder.
It is a finely-imbedded principle in statutory construction that a special provision or law
prevails over a general one. Lex specialis derogat generali. Thus, where there is in the same
statute a particular enactment and also a general one which, in its most comprehensive
sense, would include what is embraced in the former, the particular enactment must be
operative, and the general enactment must be taken to affect only such cases within its
general language which are not within the provision of the particular enactment.[26]
In Leveriza vs. Intermediate Appellate Court,[27] we enunciated:
x x x that another basic principle of statutory construction mandates that general legislation
must give way to a special legislation on the same subject, and generally be so interpreted
as to embrace only cases in which the special provisions are not applicable (Sto. Domingo
vs. de los Angeles, 96 SCRA 139), that a specific statute prevails over a general statute (De
Jesus vs. People, 120 SCRA 760) and that where two statutes are of equal theoretical
application to a particular case, the one designed therefor specially should prevail (Wil
Wilhensen Inc. vs. Baluyot, 83 SCRA 38).
Moreover, it is specious to argue that Section 25, Article XVIII is inapplicable to mere
transient agreements for the reason that there is no permanent placing of structure for the
establishment of a military base. On this score, the Constitution makes no distinction
between transient and permanent. Certainly, we find nothing in Section 25, Article XVIII
that requires foreign troops or facilities to be stationed or placed permanently in the
Philippines.
It is a rudiment in legal hermenuetics that when no distinction is made by law, the Court
should not distinguish- Ubi lex non distinguit nec nos distinguire debemos.
In like manner, we do not subscribe to the argument that Section 25, Article XVIII is not
controlling since no foreign military bases, but merely foreign troops and facilities, are
involved in the VFA. Notably, a perusal of said constitutional provision reveals that the
proscription covers foreign military bases, troops, or facilities. Stated differently, this
prohibition is not limited to the entry of troops and facilities without any foreign bases
being established. The clause does not refer to foreign military bases, troops, or facilities
collectively but treats them as separate and independent subjects. The use of comma and the
disjunctive word or clearly signifies disassociation and independence of one thing from the
others included in the enumeration,[28] such that, the provision contemplates three different
situations - a military treaty the subject of which could be either (a) foreign bases, (b)
foreign troops, or (c) foreign facilities - any of the three standing alone places it under the
coverage of Section 25, Article XVIII.
To this end, the intention of the framers of the Charter, as manifested during the
deliberations of the 1986 Constitutional Commission, is consistent with this interpretation:
MR. MAAMBONG. I just want to address a question or two to Commissioner Bernas.
This formulation speaks of three things: foreign military bases, troops or facilities. My first
question is: If the country does enter into such kind of a treaty, must it cover the three-
bases, troops or facilities-or could the treaty entered into cover only one or two?
FR. BERNAS. Definitely, it can cover only one. Whether it covers only one or it covers
three, the requirement will be the same.
MR. MAAMBONG. In other words, the Philippine government can enter into a treaty
covering not bases but merely troops?
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FR. BERNAS. Yes.
MR. MAAMBONG. I cannot find any reason why the government can enter into a treaty
covering only troops.
FR. BERNAS. Why not? Probably if we stretch our imagination a little bit more, we will
find some. We just want to cover everything.[29] (Underscoring Supplied)
Moreover, military bases established within the territory of another state is no longer viable
because of the alternatives offered by new means and weapons of warfare such as nuclear
weapons, guided missiles as well as huge sea vessels that can stay afloat in the sea even for
months and years without returning to their home country. These military warships are
actually used as substitutes for a land-home base not only of military aircraft but also of
military personnel and facilities. Besides, vessels are mobile as compared to a land-based
military headquarters.
At this juncture, we shall then resolve the issue of whether or not the requirements of
Section 25 were complied with when the Senate gave its concurrence to the VFA.
Section 25, Article XVIII disallows foreign military bases, troops, or facilities in the
country, unless the following conditions are sufficiently met, viz: (a) it must be under a
treaty; (b) the treaty must be duly concurred in by the Senate and, when so required by
congress, ratified by a majority of the votes cast by the people in a national referendum; and
(c) recognized as a treaty by the other contracting state.
There is no dispute as to the presence of the first two requisites in the case of the VFA. The
concurrence handed by the Senate through Resolution No. 18 is in accordance with the
provisions of the Constitution, whether under the general requirement in Section 21, Article
VII, or the specific mandate mentioned in Section 25, Article XVIII, the provision in the
latter article requiring ratification by a majority of the votes cast in a national referendum
being unnecessary since Congress has not required it.
As to the matter of voting, Section 21, Article VII particularly requires that a treaty or
international agreement, to be valid and effective, must be concurred in by at least two-
thirds of all the members of the Senate. On the other hand, Section 25, Article XVIII simply
provides that the treaty be duly concurred in by the Senate.
Applying the foregoing constitutional provisions, a two-thirds vote of all the members of
the Senate is clearly required so that the concurrence contemplated by law may be validly
obtained and deemed present. While it is true that Section 25, Article XVIII requires,
among other things, that the treaty-the VFA, in the instant case-be duly concurred in by the
Senate, it is very true however that said provision must be related and viewed in light of the
clear mandate embodied in Section 21, Article VII, which in more specific terms, requires
that the concurrence of a treaty, or international agreement, be made by a two -thirds vote
of all the members of the Senate. Indeed, Section 25, Article XVIII must not be treated in
isolation to section 21, Article, VII.
As noted, the concurrence requirement under Section 25, Article XVIII must be construed
in relation to the provisions of Section 21, Article VII. In a more particular language, the
concurrence of the Senate contemplated under Section 25, Article XVIII means that at least
two-thirds of all the members of the Senate favorably vote to concur with the treaty-the
VFA in the instant case.
Under these circumstances, the charter provides that the Senate shall be composed of
twenty-four (24) Senators.[30] Without a tinge of doubt, two-thirds (2/3) of this figure, or
not less than sixteen (16) members, favorably acting on the proposal is an unquestionable
compliance with the requisite number of votes mentioned in Section 21 of Article VII. The
fact that there were actually twenty-three (23) incumbent Senators at the time the voting
was made,[31] will not alter in any significant way the circumstance that more than two-
thirds of the members of the Senate concurred with the proposed VFA, even if the two-
thirds vote requirement is based on this figure of actual members (23). In this regard, the
fundamental law is clear that two-thirds of the 24 Senators, or at least 16 favorable votes,
suffice so as to render compliance with the strict constitutional mandate of giving
concurrence to the subject treaty.
Having resolved that the first two requisites prescribed in Section 25, Article XVIII are
present, we shall now pass upon and delve on the requirement that the VFA should be
recognized as a treaty by the United States of America.
Petitioners content that the phrase recognized as a treaty, embodied in section 25, Article
XVIII, means that the VFA should have the advice and consent of the United States Senate
pursuant to its own constitutional process, and that it should not be considered merely an
executive agreement by the United States.
In opposition, respondents argue that the letter of United States Ambassador Hubbard
stating that the VFA is binding on the United States Government is conclusive, on the point
that the VFA is recognized as a treaty by the United States of America. According to
respondents, the VFA, to be binding, must only be accepted as a treaty by the United States.
This Court is of the firm view that the phrase recognized as a treaty means that the other
contracting party accepts or acknowledges the agreement as a treaty.[32] To require the
other contracting state, the United States of America in this case, to submit the VFA to the
United States Senate for concurrence pursuant to its Constitution,[33] is to accord strict
meaning to the phrase.
Well-entrenched is the principle that the words used in the Constitution are to be given their
ordinary meaning except where technical terms are employed, in which case the
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significance thus attached to them prevails. Its language should be understood in the sense
they have in common use.[34]
Moreover, it is inconsequential whether the United States treats the VFA only as an
executive agreement because, under international law, an executive agreement is as binding
as a treaty.[35] To be sure, as long as the VFA possesses the elements of an agreement
under international law, the said agreement is to be taken equally as a treaty.
A treaty, as defined by the Vienna Convention on the Law of Treaties, is an international
instrument concluded between States in written form and governed by international law,
whether embodied in a single instrument or in two or more related instruments, and
whatever its particular designation.[36] There are many other terms used for a treaty or
international agreement, some of which are: act, protocol, agreement, compromis d
arbitrage, concordat, convention, declaration, exchange of notes, pact, statute, charter and
modus vivendi. All writers, from Hugo Grotius onward, have pointed out that the names or
titles of international agreements included under the general term treaty have little or no
legal significance. Certain terms are useful, but they furnish little more than mere
description.[37]
Article 2(2) of the Vienna Convention provides that the provisions of paragraph 1 regarding
the use of terms in the present Convention are without prejudice to the use of those terms,
or to the meanings which may be given to them in the internal law of the State.
Thus, in international law, there is no difference between treaties and executive agreements
in their binding effect upon states concerned, as long as the negotiating functionaries have
remained within their powers.[38] International law continues to make no distinction
between treaties and executive agreements: they are equally binding obligations upon
nations.[39]
In our jurisdiction, we have recognized the binding effect of executive agreements even
without the concurrence of the Senate or Congress. In Commissioner of Customs vs.
Eastern Sea Trading,[40] we had occasion to pronounce:
x x x the right of the Executive to enter into binding agreements without the necessity of
subsequent congressional approval has been confirmed by long usage. From the earliest
days of our history we have entered into executive agreements covering such subjects as
commercial and consular relations, most-favored-nation rights, patent rights, trademark and
copyright protection, postal and navigation arrangements and the settlement of claims. The
validity of these has never been seriously questioned by our courts.
xxxxxxxxx
Furthermore, the United States Supreme Court has expressly recognized the validity and
constitutionality of executive agreements entered into without Senate approval. (39
Columbia Law Review, pp. 753-754) (See, also, U.S. vs. Curtis Wright Export Corporation,
299 U.S. 304, 81 L. ed. 255; U.S. vs. Belmont, 301 U.S. 324, 81 L. ed. 1134; U.S. vs. Pink,
315 U.S. 203, 86 L. ed. 796; Ozanic vs. U.S. 188 F. 2d. 288; Yale Law Journal, Vol. 15 pp.
1905-1906; California Law Review, Vol. 25, pp. 670-675; Hyde on International Law
[revised Edition], Vol. 2, pp. 1405, 1416-1418; willoughby on the U.S. Constitution Law,
Vol. I [2d ed.], pp. 537-540; Moore, International Law Digest, Vol. V, pp. 210-218;
Hackworth, International Law Digest, Vol. V, pp. 390-407). (Italics Supplied) (Emphasis
Ours)
The deliberations of the Constitutional Commission which drafted the 1987 Constitution is
enlightening and highly-instructive:
MR. MAAMBONG. Of course it goes without saying that as far as ratification of the other
state is concerned, that is entirely their concern under their own laws.
FR. BERNAS. Yes, but we will accept whatever they say. If they say that we have done
everything to make it a treaty, then as far as we are concerned, we will accept it as a
treaty.[41]
The records reveal that the United States Government, through Ambassador Thomas C.
Hubbard, has stated that the United States government has fully committed to living up to
the terms of the VFA.[42] For as long as the united States of America accepts or
acknowledges the VFA as a treaty, and binds itself further to comply with its obligations
under the treaty, there is indeed marked compliance with the mandate of the Constitution.
Worth stressing too, is that the ratification, by the President, of the VFA and the
concurrence of the Senate should be taken as a clear an unequivocal expression of our
nations consent to be bound by said treaty, with the concomitant duty to uphold the
obligations and responsibilities embodied thereunder.
Ratification is generally held to be an executive act, undertaken by the head of the state or
of the government, as the case may be, through which the formal acceptance of the treaty is
proclaimed.[43] A State may provide in its domestic legislation the process of ratification
of a treaty. The consent of the State to be bound by a treaty is expressed by ratification
when: (a) the treaty provides for such ratification, (b) it is otherwise established that the
negotiating States agreed that ratification should be required, (c) the representative of the
State has signed the treaty subject to ratification, or (d) the intention of the State to sign the
treaty subject to ratification appears from the full powers of its representative, or was
expressed during the negotiation.[44]
In our jurisdiction, the power to ratify is vested in the President and not, as commonly
believed, in the legislature. The role of the Senate is limited only to giving or withholding
its consent, or concurrence, to the ratification.[45]
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With the ratification of the VFA, which is equivalent to final acceptance, and with the
exchange of notes between the Philippines and the United States of America, it now
becomes obligatory and incumbent on our part, under the principles of international law, to
be bound by the terms of the agreement. Thus, no less than Section 2, Article II of the
Constitution,[46] declares that the Philippines adopts the generally accepted principles of
international law as part of the law of the land and adheres to the policy of peace, equality,
justice, freedom, cooperation and amity with all nations.
As a member of the family of nations, the Philippines agrees to be bound by generally
accepted rules for the conduct of its international relations. While the international
obligation devolves upon the state and not upon any particular branch, institution, or
individual member of its government, the Philippines is nonetheless responsible for
violations committed by any branch or subdivision of its government or any official thereof.
As an integral part of the community of nations, we are responsible to assure that our
government, Constitution and laws will carry out our international obligation.[47] Hence,
we cannot readily plead the Constitution as a convenient excuse for non-compliance with
our obligations, duties and responsibilities under international law.
Beyond this, Article 13 of the Declaration of Rights and Duties of States adopted by the
International Law Commission in 1949 provides: Every State has the duty to carry out in
good faith its obligations arising from treaties and other sources of international law, and it
may not invoke provisions in its constitution or its laws as an excuse for failure to perform
this duty.[48]
Equally important is Article 26 of the convention which provides that Every treaty in force
is binding upon the parties to it and must be performed by them in good faith. This is
known as the principle of pacta sunt servanda which preserves the sanctity of treaties and
have been one of the most fundamental principles of positive international law, supported
by the jurisprudence of international tribunals.[49]
NO GRAVE ABUSE OF DISCRETION
In the instant controversy, the President, in effect, is heavily faulted for exercising a power
and performing a task conferred upon him by the Constitution-the power to enter into and
ratify treaties. Through the expediency of Rule 65 of the Rules of Court, petitioners in these
consolidated cases impute grave abuse of discretion on the part of the chief Executive in
ratifying the VFA, and referring the same to the Senate pursuant to the provisions of
Section 21, Article VII of the Constitution.
On this particular matter, grave abuse of discretion implies such capricious and whimsical
exercise of judgment as is equivalent to lack of jurisdiction, or, when the power is exercised
in an arbitrary or despotic manner by reason of passion or personal hostility, and it must be
so patent and gross as to amount to an evasion of positive duty enjoined or to act at all in
contemplation of law.[50]
By constitutional fiat and by the intrinsic nature of his office, the President, as head of
State, is the sole organ and authority in the external affairs of the country. In many ways,
the President is the chief architect of the nations foreign policy; his dominance in the field
of foreign relations is (then) conceded.[51] Wielding vast powers an influence, his conduct
in the external affairs of the nation, as Jefferson describes, is executive altogether."[52]
As regards the power to enter into treaties or international agreements, the Constitution
vests the same in the President, subject only to the concurrence of at least two-thirds vote of
all the members of the Senate. In this light, the negotiation of the VFA and the subsequent
ratification of the agreement are exclusive acts which pertain solely to the President, in the
lawful exercise of his vast executive and diplomatic powers granted him no less than by the
fundamental law itself. Into the field of negotiation the Senate cannot intrude, and Congress
itself is powerless to invade it.[53] Consequently, the acts or judgment calls of the President
involving the VFA-specifically the acts of ratification and entering into a treaty and those
necessary or incidental to the exercise of such principal acts - squarely fall within the
sphere of his constitutional powers and thus, may not be validly struck down, much less
calibrated by this Court, in the absence of clear showing of grave abuse of power or
discretion.
It is the Courts considered view that the President, in ratifying the VFA and in submitting
the same to the Senate for concurrence, acted within the confines and limits of the powers
vested in him by the Constitution. It is of no moment that the President, in the exercise of
his wide latitude of discretion and in the honest belief that the VFA falls within the ambit of
Section 21, Article VII of the Constitution, referred the VFA to the Senate for concurrence
under the aforementioned provision. Certainly, no abuse of discretion, much less a grave,
patent and whimsical abuse of judgment, may be imputed to the President in his act of
ratifying the VFA and referring the same to the Senate for the purpose of complying with
the concurrence requirement embodied in the fundamental law. In doing so, the President
merely performed a constitutional task and exercised a prerogative that chiefly pertains to
the functions of his office. Even if he erred in submitting the VFA to the Senate for
concurrence under the provisions of Section 21 of Article VII, instead of Section 25 of
Article XVIII of the Constitution, still, the President may not be faulted or scarred, much
less be adjudged guilty of committing an abuse of discretion in some patent, gross, and
capricious manner.
For while it is conceded that Article VIII, Section 1, of the Constitution has broadened the
scope of judicial inquiry into areas normally left to the political departments to decide, such
as those relating to national security, it has not altogether done away with political
questions such as those which arise in the field of foreign relations.[54] The High Tribunals
function, as sanctioned by Article VIII, Section 1, is merely (to) check whether or not the
governmental branch or agency has gone beyond the constitutional limits of its jurisdiction,
not that it erred or has a different view. In the absence of a showing (of) grave abuse of
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discretion amounting to lack of jurisdiction, there is no occasion for the Court to exercise its
corrective powerIt has no power to look into what it thinks is apparent error.[55]
As to the power to concur with treaties, the constitution lodges the same with the Senate
alone. Thus, once the Senate[56] performs that power, or exercises its prerogative within
the boundaries prescribed by the Constitution, the concurrence cannot, in like manner, be
viewed to constitute an abuse of power, much less grave abuse thereof. Corollarily, the
Senate, in the exercise of its discretion and acting within the limits of such power, may not
be similarly faulted for having simply performed a task conferred and sanctioned by no less
than the fundamental law.
For the role of the Senate in relation to treaties is essentially legislative in character;[57] the
Senate, as an independent body possessed of its own erudite mind, has the prerogative to
either accept or reject the proposed agreement, and whatever action it takes in the exercise
of its wide latitude of discretion, pertains to the wisdom rather than the legality of the act.
In this sense, the Senate partakes a principal, yet delicate, role in keeping the principles of
separation of powers and of checks and balances alive and vigilantly ensures that these
cherished rudiments remain true to their form in a democratic government such as ours. The
Constitution thus animates, through this treaty-concurring power of the Senate, a healthy
system of checks and balances indispensable toward our nations pursuit of political
maturity and growth. True enough, rudimentary is the principle that matters pertaining to
the wisdom of a legislative act are beyond the ambit and province of the courts to inquire.
In fine, absent any clear showing of grave abuse of discretion on the part of respondents,
this Court- as the final arbiter of legal controversies and staunch sentinel of the rights of the
people - is then without power to conduct an incursion and meddle with such affairs purely
executive and legislative in character and nature. For the Constitution no less, maps out the
distinct boundaries and limits the metes and bounds within which each of the three political
branches of government may exercise the powers exclusively and essentially conferred to it
by law.
WHEREFORE, in light of the foregoing disquisitions, the instant petitions are hereby
DISMISSED.
SO ORDERED.
PHARMACEUTICAL vs DOH
GR 173034, October 09, 2007
DECISION
AUSTRIA-MARTINEZ, J.:
The Court and all parties involved are in agreement that the best nourishment for an infant
is mother's milk. There is nothing greater than for a mother to nurture her beloved child
straight from her bosom. The ideal is, of course, for each and every Filipino child to enjoy
the unequaled benefits of breastmilk. But how should this end be attained?
Before the Court is a petition for certiorari under Rule 65 of the Rules of Court, seeking to
nullify Administrative Order (A.O.) No. 2006-0012 entitled, Revised Implementing Rules
and Regulations of Executive Order No. 51, Otherwise Known as The Milk Code, Relevant
International Agreements, Penalizing Violations Thereof, and for Other Purposes (RIRR).
Petitioner posits that the RIRR is not valid as it contains provisions that are not
constitutional and go beyond the law it is supposed to implement.
Named as respondents are the Health Secretary, Undersecretaries, and Assistant Secretaries
of the Department of Health (DOH). For purposes of herein petition, the DOH is deemed
impleaded as a co-respondent since respondents issued the questioned RIRR in their
capacity as officials of said executive agency.[1]
Executive Order No. 51 (Milk Code) was issued by President Corazon Aquino on October
28, 1986 by virtue of the legislative powers granted to the president under the Freedom
Constitution. One of the preambular clauses of the Milk Code states that the law seeks to
give effect to Article 11[2] of the International Code of Marketing of Breastmilk Substitutes
(ICMBS), a code adopted by the World Health Assembly (WHA) in 1981. From 1982 to
2006, the WHA adopted several Resolutions to the effect that breastfeeding should be
supported, promoted and protected, hence, it should be ensured that nutrition and health
claims are not permitted for breastmilk substitutes.
In 1990, the Philippines ratified the International Convention on the Rights of the Child.
Article 24 of said instrument provides that State Parties should take appropriate measures to
diminish infant and child mortality, and ensure that all segments of society, specially
parents and children, are informed of the advantages of breastfeeding.
On May 15, 2006, the DOH issued herein assailed RIRR which was to take effect on July 7,
2006.
However, on June 28, 2006, petitioner, representing its members that are manufacturers of
breastmilk substitutes, filed the present Petition for Certiorari and Prohibition with Prayer
for the Issuance of a Temporary Restraining Order (TRO) or Writ of Preliminary
Injunction.
The main issue raised in the petition is whether respondents officers of the DOH acted
without or in excess of jurisdiction, or with grave abuse of discretion amounting to lack or
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excess of jurisdiction, and in violation of the provisions of the Constitution in promulgating
the RIRR.[3]
On August 15, 2006, the Court issued a Resolution granting a TRO enjoining respondents
from implementing the questioned RIRR.
After the Comment and Reply had been filed, the Court set the case for oral arguments on
June 19, 2007. The Court issued an Advisory (Guidance for Oral Arguments) dated June 5,
2007, to wit:
The Court hereby sets the following issues:
1. Whether or not petitioner is a real party-in-interest;
2. Whether Administrative Order No. 2006-0012 or the Revised Implementing Rules
and Regulations (RIRR) issued by the Department of Health (DOH) is not constitutional;
2.1 Whether the RIRR is in accord with the provisions of Executive Order No. 51 (Milk
Code);
2.2 Whether pertinent international agreements1 entered into by the Philippines are part of
the law of the land and may be implemented by the DOH through the RIRR; If in the
affirmative, whether the RIRR is in accord with the international agreements;
2.3 Whether Sections 4, 5(w), 22, 32, 47, and 52 of the RIRR violate the due process clause
and are in restraint of trade; and
2.4 Whether Section 13 of the RIRR on Total Effect provides sufficient standards.
_____________
1 (1) United Nations Convention on the Rights of the Child; (2) the WHO and Unicef 2002
Global Strategy on Infant and Young Child Feeding; and (3) various World Health
Assembly (WHA) Resolutions.
The parties filed their respective memoranda.
The petition is partly imbued with merit.
On the issue of petitioner's standing
With regard to the issue of whether petitioner may prosecute this case as the real party-in-
interest, the Court adopts the view enunciated in Executive Secretary v. Court of
Appeals,[4] to wit:
The modern view is that an association has standing to complain of injuries to its members.
This view fuses the legal identity of an association with that of its members. An association
has standing to file suit for its workers despite its lack of direct interest if its members are
affected by the action. An organization has standing to assert the concerns of its
constituents.
xxxx
x x x We note that, under its Articles of Incorporation, the respondent was organized x x x
to act as the representative of any individual, company, entity or association on matters
related to the manpower recruitment industry, and to perform other acts and activities
necessary to accomplish the purposes embodied therein. The respondent is, thus, the
appropriate party to assert the rights of its members, because it and its members are in every
practical sense identical. x x x The respondent [association] is but the medium through
which its individual members seek to make more effective the expression of their voices
and the redress of their grievances. [5] (Emphasis supplied)
which was reasserted in Purok Bagong Silang Association, Inc. v. Yuipco,[6] where the
Court ruled that an association has the legal personality to represent its members because
the results of the case will affect their vital interests.[7]
Herein petitioner's Amended Articles of Incorporation contains a similar provision just like
in Executive Secretary, that the association is formed to represent directly or through
approved representatives the pharmaceutical and health care industry before the Philippine
Government and any of its agencies, the medical professions and the general public.[8]
Thus, as an organization, petitioner definitely has an interest in fulfilling its avowed
purpose of representing members who are part of the pharmaceutical and health care
industry. Petitioner is duly authorized[9] to take the appropriate course of action to bring to
the attention of government agencies and the courts any grievance suffered by its members
which are directly affected by the RIRR. Petitioner, which is mandated by its Amended
Articles of Incorporation to represent the entire industry, would be remiss in its duties if it
fails to act on governmental action that would affect any of its industry members, no matter
how few or numerous they are. Hence, petitioner, whose legal identity is deemed fused with
its members, should be considered as a real party-in-interest which stands to be benefited or
injured by any judgment in the present action.
On the constitutionality of the provisions of the RIRR
First, the Court will determine if pertinent international instruments adverted to by
respondents are part of the law of the land.
Petitioner assails the RIRR for allegedly going beyond the provisions of the Milk Code,
thereby amending and expanding the coverage of said law. The defense of the DOH is that
the RIRR implements not only the Milk Code but also various international instruments[10]
regarding infant and young child nutrition. It is respondents' position that said international
instruments are deemed part of the law of the land and therefore the DOH may implement
them through the RIRR.
The Court notes that the following international instruments invoked by respondents,
namely: (1) The United Nations Convention on the Rights of the Child; (2) The
International Covenant on Economic, Social and Cultural Rights; and (3) the Convention on
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the Elimination of All Forms of Discrimination Against Women, only provide in general
terms that steps must be taken by State Parties to diminish infant and child mortality and
inform society of the advantages of breastfeeding, ensure the health and well-being of
families, and ensure that women are provided with services and nutrition in connection with
pregnancy and lactation. Said instruments do not contain specific provisions regarding the
use or marketing of breastmilk substitutes.
The international instruments that do have specific provisions regarding breastmilk
substitutes are the ICMBS and various WHA Resolutions.
Under the 1987 Constitution, international law can become part of the sphere of domestic
law either by transformation or incorporation.[11] The transformation method requires that
an international law be transformed into a domestic law through a constitutional mechanism
such as local legislation. The incorporation method applies when, by mere constitutional
declaration, international law is deemed to have the force of domestic law.[12]
Treaties become part of the law of the land through transformation pursuant to Article VII,
Section 21 of the Constitution which provides that [n]o treaty or international agreement
shall be valid and effective unless concurred in by at least two-thirds of all the members of
the Senate. Thus, treaties or conventional international law must go through a process
prescribed by the Constitution for it to be transformed into municipal law that can be
applied to domestic conflicts.[13]
The ICMBS and WHA Resolutions are not treaties as they have not been concurred in by at
least two-thirds of all members of the Senate as required under Section 21, Article VII of
the 1987 Constitution.
However, the ICMBS which was adopted by the WHA in 1981 had been transformed into
domestic law through local legislation, the Milk Code. Consequently, it is the Milk Code
that has the force and effect of law in this jurisdiction and not the ICMBS per se.
The Milk Code is almost a verbatim reproduction of the ICMBS, but it is well to emphasize
at this point that the Code did not adopt the provision in the ICMBS absolutely prohibiting
advertising or other forms of promotion to the general public of products within the scope
of the ICMBS. Instead, the Milk Code expressly provides that advertising, promotion, or
other marketing materials may be allowed if such materials are duly authorized and
approved by the Inter-Agency Committee (IAC).
On the other hand, Section 2, Article II of the 1987 Constitution, to wit:
SECTION 2. The Philippines renounces war as an instrument of national policy, adopts the
generally accepted principles of international law as part of the law of the land and adheres
to the policy of peace, equality, justice, freedom, cooperation and amity with all nations.
(Emphasis supplied)
embodies the incorporation method.[14]
In Mijares v. Ranada,[15] the Court held thus:
[G]enerally accepted principles of international law, by virtue of the incorporation clause of
the Constitution, form part of the laws of the land even if they do not derive from treaty
obligations. The classical formulation in international law sees those customary rules
accepted as binding result from the combination [of] two elements: the established,
widespread, and consistent practice on the part of States; and a psychological element
known as the opinion juris sive necessitates (opinion as to law or necessity). Implicit in the
latter element is a belief that the practice in question is rendered obligatory by the existence
of a rule of law requiring it.[16] (Emphasis supplied)
Generally accepted principles of international law refers to norms of general or customary
international law which are binding on all states,[17] i.e., renunciation of war as an
instrument of national policy, the principle of sovereign immunity,[18] a person's right to
life, liberty and due process,[19] and pacta sunt servanda,[20] among others. The concept of
generally accepted principles of law has also been depicted in this wise:
Some legal scholars and judges look upon certain general principles of law as a primary
source of international law because they have the character of jus rationale and are valid
through all kinds of human societies. (Judge Tanaka in his dissenting opinion in the 1966
South West Africa Case, 1966 I.C.J. 296). O'Connell holds that certain priniciples are part
of international law because they are basic to legal systems generally and hence part of the
jus gentium. These principles, he believes, are established by a process of reasoning based
on the common identity of all legal systems. If there should be doubt or disagreement, one
must look to state practice and determine whether the municipal law principle provides a
just and acceptable solution. x x x [21] (Emphasis supplied)
Fr. Joaquin G. Bernas defines customary international law as follows:
Custom or customary international law means a general and consistent practice of states
followed by them from a sense of legal obligation [opinio juris]. (Restatement) This
statement contains the two basic elements of custom: the material factor, that is, how states
behave, and the psychological or subjective factor, that is, why they behave the way they
do.
xxxx
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The initial factor for determining the existence of custom is the actual behavior of states.
This includes several elements: duration, consistency, and generality of the practice of
states.
The required duration can be either short or long. x x x
xxxx
Duration therefore is not the most important element. More important is the consistency and
the generality of the practice. x x x
xxxx
Once the existence of state practice has been established, it becomes necessary to determine
why states behave the way they do. Do states behave the way they do because they consider
it obligatory to behave thus or do they do it only as a matter of courtesy? Opinio juris, or
the belief that a certain form of behavior is obligatory, is what makes practice an
international rule. Without it, practice is not law.[22] (Underscoring and Emphasis
supplied)
Clearly, customary international law is deemed incorporated into our domestic system.[23]
WHA Resolutions have not been embodied in any local legislation. Have they attained the
status of customary law and should they then be deemed incorporated as part of the law of
the land?
The World Health Organization (WHO) is one of the international specialized agencies
allied with the United Nations (UN) by virtue of Article 57,[24] in relation to Article 63[25]
of the UN Charter. Under the 1946 WHO Constitution, it is the WHA which determines the
policies of the WHO,[26] and has the power to adopt regulations concerning advertising
and labeling of biological, pharmaceutical and similar products moving in international
commerce,[27] and to make recommendations to members with respect to any matter
within the competence of the Organization.[28] The legal effect of its regulations, as
opposed to recommendations, is quite different.
Regulations, along with conventions and agreements, duly adopted by the WHA bind
member states thus:
Article 19. The Health Assembly shall have authority to adopt conventions or agreements
with respect to any matter within the competence of the Organization. A two-thirds vote of
the Health Assembly shall be required for the adoption of such conventions or agreements,
which shall come into force for each Member when accepted by it in accordance with its
constitutional processes.
Article 20. Each Member undertakes that it will, within eighteen months after the adoption
by the Health Assembly of a convention or agreement, take action relative to the acceptance
of such convention or agreement. Each Member shall notify the Director-General of the
action taken, and if it does not accept such convention or agreement within the time limit, it
will furnish a statement of the reasons for non-acceptance. In case of acceptance, each
Member agrees to make an annual report to the Director-General in accordance with
Chapter XIV.
Article 21. The Health Assembly shall have authority to adopt regulations concerning: (a)
sanitary and quarantine requirements and other procedures designed to prevent the
international spread of disease; (b) nomenclatures with respect to diseases, causes of death
and public health practices; (c) standards with respect to diagnostic procedures for
international use; (d) standards with respect to the safety, purity and potency of biological,
pharmaceutical and similar products moving in international commerce; (e) advertising and
labeling of biological, pharmaceutical and similar products moving in international
commerce.
Article 22. Regulations adopted pursuant to Article 21 shall come into force for all
Members after due notice has been given of their adoption by the Health Assembly except
for such Members as may notify the Director-General of rejection or reservations within the
period stated in the notice. (Emphasis supplied)
On the other hand, under Article 23, recommendations of the WHA do not come into force
for members, in the same way that conventions or agreements under Article 19 and
regulations under Article 21 come into force. Article 23 of the WHO Constitution reads:
Article 23. The Health Assembly shall have authority to make recommendations to
Members with respect to any matter within the competence of the Organization. (Emphasis
supplied)
The absence of a provision in Article 23 of any mechanism by which the recommendation
would come into force for member states is conspicuous.
The former Senior Legal Officer of WHO, Sami Shubber, stated that WHA
recommendations are generally not binding, but they carry moral and political weight, as
they constitute the judgment on a health issue of the collective membership of the highest
international body in the field of health.[29] Even the ICMBS itself was adopted as a mere
recommendation, as WHA Resolution No. 34.22 states:
The Thirty-Fourth World Health Assembly x x x adopts, in the sense of Article 23 of the
Constitution, the International Code of Marketing of Breastmilk Substitutes annexed to the
present resolution. (Emphasis supplied)
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The Introduction to the ICMBS also reads as follows:
In January 1981, the Executive Board of the World Health Organization at its sixty-seventh
session, considered the fourth draft of the code, endorsed it, and unanimously
recommended to the Thirty-fourth World Health Assembly the text of a resolution by which
it would adopt the code in the form of a recommendation rather than a regulation. x x x
(Emphasis supplied)
The legal value of WHA Resolutions as recommendations is summarized in Article 62 of
the WHO Constitution, to wit:
Art. 62. Each member shall report annually on the action taken with respect to
recommendations made to it by the Organization, and with respect to conventions,
agreements and regulations.
Apparently, the WHA Resolution adopting the ICMBS and subsequent WHA Resolutions
urging member states to implement the ICMBS are merely recommendatory and legally
non-binding. Thus, unlike what has been done with the ICMBS whereby the legislature
enacted most of the provisions into law which is the Milk Code, the subsequent WHA
Resolutions,[30] specifically providing for exclusive breastfeeding from 0-6 months,
continued breastfeeding up to 24 months, and absolutely prohibiting advertisements and
promotions of breastmilk substitutes, have not been adopted as a domestic law.
It is propounded that WHA Resolutions may constitute soft law or non-binding norms,
principles and practices that influence state behavior.[31]
Soft law does not fall into any of the categories of international law set forth in Article 38,
Chapter III of the 1946 Statute of the International Court of Justice.[32] It is, however, an
expression of non-binding norms, principles, and practices that influence state
behavior.[33] Certain declarations and resolutions of the UN General Assembly fall under
this category.[34] The most notable is the UN Declaration of Human Rights, which this
Court has enforced in various cases, specifically, Government of Hongkong Special
Administrative Region v. Olalia,[35] Mejoff v. Director of Prisons,[36] Mijares v.
Raada[37] and Shangri-la International Hotel Management, Ltd. v. Developers Group of
Companies, Inc..[38]
The World Intellectual Property Organization (WIPO), a specialized agency attached to the
UN with the mandate to promote and protect intellectual property worldwide, has resorted
to soft law as a rapid means of norm creation, in order to reflect and respond to the
changing needs and demands of its constituents.[39] Other international organizations
which have resorted to soft law include the International Labor Organization and the Food
and Agriculture Organization (in the form of the Codex Alimentarius).[40]
WHO has resorted to soft law. This was most evident at the time of the Severe Acute
Respiratory Syndrome (SARS) and Avian flu outbreaks.
Although the IHR Resolution does not create new international law binding on WHO
member states, it provides an excellent example of the power of "soft law" in international
relations. International lawyers typically distinguish binding rules of international law-"hard
law"-from non-binding norms, principles, and practices that influence state behavior-"soft
law." WHO has during its existence generated many soft law norms, creating a "soft law
regime" in international governance for public health.
The "soft law" SARS and IHR Resolutions represent significant steps in laying the political
groundwork for improved international cooperation on infectious diseases. These
resolutions clearly define WHO member states' normative duty to cooperate fully with other
countries and with WHO in connection with infectious disease surveillance and response to
outbreaks.
This duty is neither binding nor enforceable, but, in the wake of the SARS epidemic, the
duty is powerful politically for two reasons. First, the SARS outbreak has taught the lesson
that participating in, and enhancing, international cooperation on infectious disease controls
is in a country's self-interest x x x if this warning is heeded, the "soft law" in the SARS and
IHR Resolution could inform the development of general and consistent state practice on
infectious disease surveillance and outbreak response, perhaps crystallizing eventually into
customary international law on infectious disease prevention and control.[41]
In the Philippines, the executive department implemented certain measures recommended
by WHO to address the outbreaks of SARS and Avian flu by issuing Executive Order
(E.O.) No. 201 on April 26, 2003 and E.O. No. 280 on February 2, 2004, delegating to
various departments broad powers to close down schools/establishments, conduct health
surveillance and monitoring, and ban importation of poultry and agricultural products.
It must be emphasized that even under such an international emergency, the duty of a state
to implement the IHR Resolution was still considered not binding or enforceable, although
said resolutions had great political influence.
As previously discussed, for an international rule to be considered as customary law, it must
be established that such rule is being followed by states because they consider it obligatory
to comply with such rules (opinio juris). Respondents have not presented any evidence to
prove that the WHA Resolutions, although signed by most of the member states, were in
fact enforced or practiced by at least a majority of the member states; neither have
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respondents proven that any compliance by member states with said WHA Resolutions was Thus, only the provisions of the Milk Code, but not those of subsequent WHA Resolutions,
obligatory in nature. can be validly implemented by the DOH through the subject RIRR.

Respondents failed to establish that the provisions of pertinent WHA Resolutions are Third, the Court will now determine whether the provisions of the RIRR are in accordance
customary international law that may be deemed part of the law of the land. with those of the Milk Code.

Consequently, legislation is necessary to transform the provisions of the WHA Resolutions In support of its claim that the RIRR is inconsistent with the Milk Code, petitioner alleges
into domestic law. The provisions of the WHA Resolutions cannot be considered as part of the following:
the law of the land that can be implemented by executive agencies without the need of a
law enacted by the legislature. 1. The Milk Code limits its coverage to children 0-12 months old, but the RIRR extended
its coverage to young children or those from ages two years old and beyond:
Second, the Court will determine whether the DOH may implement the provisions of the MILK CODE RIRR
WHA Resolutions by virtue of its powers and functions under the Revised Administrative
Code even in the absence of a domestic law. WHEREAS, in order to ensure Section 2. Purpose These
that safe and adequate nutrition Revised Rules and Regulations
Section 3, Chapter 1, Title IX of the Revised Administrative Code of 1987 provides that the for infants is provided, there is a are hereby promulgated to
DOH shall define the national health policy and implement a national health plan within the need to protect and promote ensure the provision of safe and
framework of the government's general policies and plans, and issue orders and regulations breastfeeding and to inform the adequate nutrition for infants and
concerning the implementation of established health policies. public about the proper use of young children by the
breastmilk substitutes and promotion, protection and
It is crucial to ascertain whether the absolute prohibition on advertising and other forms of supplements and related support of breastfeeding and by
promotion of breastmilk substitutes provided in some WHA Resolutions has been adopted products through adequate, ensuring the proper use of
as part of the national health policy. consistent and objective breastmilk substitutes,
information and appropriate breastmilk supplements and
Respondents submit that the national policy on infant and young child feeding is embodied regulation of the marketing and related products when these are
in A.O. No. 2005-0014, dated May 23, 2005. Basically, the Administrative Order declared distribution of the said medically indicated and only
the following policy guidelines: (1) ideal breastfeeding practices, such as early initiation of substitutes, supplements and when necessary, on the basis of
breastfeeding, exclusive breastfeeding for the first six months, extended breastfeeding up to related products; adequate information and
two years and beyond; (2) appropriate complementary feeding, which is to start at age six through appropriate marketing
months; (3) micronutrient supplementation; (4) universal salt iodization; (5) the exercise of SECTION 4(e). Infant means a and distribution.
other feeding options; and (6) feeding in exceptionally difficult circumstances. Indeed, the person falling within the age
primacy of breastfeeding for children is emphasized as a national health policy. However, bracket of 0-12 months. Section 5(ff). Young Child
nowhere in A.O. No. 2005-0014 is it declared that as part of such health policy, the means a person from the age of
advertisement or promotion of breastmilk substitutes should be absolutely prohibited. more than twelve (12) months up
to the age of three (3) years (36
The national policy of protection, promotion and support of breastfeeding cannot months).
automatically be equated with a total ban on advertising for breastmilk substitutes.
In view of the enactment of the Milk Code which does not contain a total ban on the
advertising and promotion of breastmilk substitutes, but instead, specifically creates an IAC
which will regulate said advertising and promotion, it follows that a total ban policy could
2. The Milk Code recognizes that infant formula may be a proper and possible substitute
be implemented only pursuant to a law amending the Milk Code passed by the
for breastmilk in certain instances; but the RIRR provides exclusive breastfeeding for
constitutionally authorized branch of government, the legislature.
infants from 0-6 months and declares that there is no substitute nor replacement for
breastmilk:
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SECTION 6. The General Public Section 4. Declaration of
MILK CODE RIRR and Mothers. Principles The following are the
(a) No advertising, promotion or underlying principles from
WHEREAS, in order to ensure Section 4. Declaration of other marketing materials, which the revised rules and
that safe and adequate nutrition Principles The following are the whether written, audio or visual, regulations are premised upon:
for infants is provided, there is a underlying principles from for products within the scope of
need to protect and promote which the revised rules and this Code shall be printed, xxxx
breastfeeding and to inform the regulations are premised upon: published, distributed, exhibited
public about the proper use of and broadcast unless such f. Advertising, promotions, or
breastmilk substitutes and a. Exclusive breastfeeding is for materials are duly authorized and sponsor-ships of infant formula,
supplements and related infants from 0 to six (6) months. approved by an inter-agency breastmilk substitutes and other
products through adequate, committee created herein related products are prohibited.
consistent and objective b. There is no substitute or pursuant to the applicable
information and appropriate replacement for breastmilk. standards provided for in this Section 11. Prohibition No
regulation of the marketing and Code. advertising, promotions,
distribution of the said sponsorships, or marketing
substitutes, supplements and materials and activities for
related products; breastmilk substitutes intended
for infants and young children
up to twenty-four (24) months,
3. The Milk Code only regulates and does not impose unreasonable requirements for shall be allowed, because they
advertising and promotion; RIRR imposes an absolute ban on such activities for breastmilk tend to convey or give
substitutes intended for infants from 0-24 months old or beyond, and forbids the use of subliminal messages or
health and nutritional claims. Section 13 of the RIRR, which provides for a total effect in impressions that undermine
the promotion of products within the scope of the Code, is vague: breastmilk and breastfeeding or
otherwise exaggerate breastmilk
MILK CODE RIRR
substitutes and/or replacements,
as well as related products
covered within the scope of this
Code.

Section 13. Total Effect -

Promotion of products within the
scope of this Code must be
objective and should not equate
or make the product appear to be
as good or equal to breastmilk or
breastfeeding in the advertising
concept. It must not in any case
undermine breastmilk or
breastfeeding. The total effect
should not directly or indirectly
suggest that buying their product

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would produce better
individuals, or resulting in
greater love, intelligence, ability,
harmony or in any manner bring
better health to the baby or other
such exaggerated and
unsubstantiated claim.
purpose, any phrase or words
that connotes to increase
emotional, intellectual abilities
of the infant and young child and
other like phrases shall not be
allowed.

Section 15. Content of Materials.

- The following shall not be
included in advertising,
promotional and marketing
materials:

a. Texts, pictures, illustrations or

information which discourage or
tend to undermine the benefits or
superiority of breastfeeding or
which idealize the use of
breastmilk substitutes and milk
supplements. In this connection,
no pictures of babies and
children together with their
mothers, fathers, siblings,
grandparents, other relatives or
caregivers (or yayas) shall be
used in any advertisements for
infant formula and breastmilk
supplements;
b. The term humanized,
maternalized, close to mother's
milk or similar words in
describing breastmilk substitutes
or milk supplements;

c. Pictures or texts that idealize

the use of infant and milk
formula.

Section 16. All health and

nutrition claims for products
within the scope of the Code are
absolutely prohibited. For this

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4. The RIRR imposes additional labeling requirements not found in the Milk Code:
MILK CODE
SECTION 10. Containers/Label.
(a) Containers and/or labels
shall be designed to provide the
necessary information about the
appropriate use of the products,
and in such a way as not to
discourage breastfeeding.
(b) Each container shall have a
clear, conspicuous and easily
readable and understandable
message in Pilipino or English
printed on it, or on a label, which
message can not readily become
separated from it, and which
shall include the following
points:
(i) the words Important Notice or
their equivalent;
(ii) a statement of the superiority
of breastfeeding;
(iii) a statement that the product
shall be used only on the advice
of a health worker as to the need
for its use and the proper
methods of use; and
(iv) instructions for appropriate
preparation, and a warning
against the health hazards of
inappropriate preparation.
5. The Milk Code allows dissemination of information on infant formula to health
professionals; the RIRR totally prohibits such activity:
MILK CODE
RIRR
Section 26. Content Each
container/label shall contain
such message, in both Filipino
and English languages, and
which message cannot be readily
separated therefrom, relative the
following points:
(a) The words or phrase
Important Notice or Government
Warning or their equivalent;
(b) A statement of the
superiority of breastfeeding;
(c) A statement that there is no
substitute for breastmilk;
(d) A statement that the product
shall be used only on the advice
of a health worker as to the need
for its use and the proper
methods of use;
(e) Instructions for appropriate
prepara-tion, and a warning
against the health hazards of
inappropriate preparation; and
(f) The health hazards of
unnecessary or improper use of
infant formula and other related
products including information
that powdered infant formula
may contain pathogenic
microorganisms and must be
prepared and used appropriately.
RIRR
SECTION 7. Health Care Section 22. No manufacturer,
System. distributor, or representatives of
(b) No facility of the health care products covered by the Code
system shall be used for the shall be allowed to conduct or be
purpose of promoting infant involved in any activity on
formula or other products within breastfeeding promotion,
the scope of this Code. This education and production of
Code does not, however, Information, Education and
preclude the dissemination of Communication (IEC) materials
information to health on breastfeeding, holding of or
professionals as provided in participating as speakers in
Section 8(b). classes or seminars for women
and children activities and to
SECTION 8. Health Workers. - avoid the use of these venues to
(b) Information provided by market their brands or company
manufacturers and distributors to names.
health professionals regarding
products within the scope of this SECTION 16. All health and
Code shall be restricted to nutrition claims for products
scientific and factual matters and within the scope of the Code are
such information shall not imply absolutely prohibited. For this
or create a belief that bottle- purpose, any phrase or words
feeding is equivalent or superior that connotes to increase
to breastfeeding. It shall also emotional, intellectual abilities
include the information specified of the infant and young child and
in Section 5(b). other like phrases shall not be
allowed.
6. The Milk Code permits milk manufacturers and distributors to extend assistance in
research and continuing education of health professionals; RIRR absolutely forbids the
same.
MILK CODE RIRR
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SECTION 8. Health Workers
(e) Manufacturers and
distributors of products within
the scope of this Code may assist
in the research, scholarships and
continuing education, of health
professionals, in accordance with
the rules and regulations
promulgated by the Ministry of
Health.
Section 4. Declaration of
Principles
The following are the underlying
principles from which the
revised rules and regulations are
premised upon:
i. Milk companies, and their
representatives, should not form
part of any policymaking body
or entity in relation to the
advancement of breasfeeding.
SECTION 22. No manufacturer,
distributor, or representatives of
products covered by the Code
shall be allowed to conduct or be
involved in any activity on
breastfeeding promotion,
education and production of
Information, Education and
Communication (IEC) materials
on breastfeeding, holding of or
participating as speakers in
classes or seminars for women
and children activities and to
avoid the use of these venues to
market their brands or company
names.
SECTION 32. Primary
Responsibility of Health
Workers - It is the primary
responsibility of the health
workers to promote, protect and
support breastfeeding and
appropriate infant and young
child feeding. Part of this
responsibility is to continuously
update their knowledge and
skills on breastfeeding. No
assistance, support, logistics or
training from milk companies
shall be permitted.
7. The Milk Code regulates the giving of donations; RIRR absolutely prohibits it.
MILK CODE
SECTION 6. The General Public
and Mothers.
(f) Nothing herein contained
shall prevent donations from
manufacturers and distributors of
products within the scope of this
Code upon request by or with the
approval of the Ministry of
Health.
8. The RIRR provides for administrative sanctions not imposed by the Milk Code.
MILK CODE
RIRR
Section 51. Donations Within
the Scope of This Code -
Donations of products, materials,
defined and covered under the
Milk Code and these
implementing rules and
regulations, shall be strictly
prohibited.
Section 52. Other Donations By
Milk Companies Not Covered by
this Code. - Donations of
products, equipments, and the
like, not otherwise falling within
the scope of this Code or these
Rules, given by milk companies
and their agents, representatives,
whether in kind or in cash, may
only be coursed through the Inter
Agency Committee (IAC),
which shall determine whether
such donation be accepted or
otherwise.
RIRR
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Section 46. Administrative
Sanctions. The following
administrative sanctions shall be
imposed upon any person,
juridical or natural, found to
have violated the provisions of
the Code and its implementing
Rules and Regulations:
a) 1st violation Warning;
b) 2nd violation Administrative
fine of a minimum of Ten
Thousand (P10,000.00) to Fifty
Thousand (P50,000.00) Pesos,
depending on the gravity and
extent of the violation, including
the recall of the offending
product;
c) 3rd violation Administrative
Fine of a minimum of Sixty
Thousand (P60,000.00) to One
Hundred Fifty Thousand
(P150,000.00) Pesos, depending
on the gravity and extent of the
violation, and in addition thereto,
the recall of the offending
product, and suspension of the
Certificate of Product
Registration (CPR);
d) 4th violation Administrative
Fine of a minimum of Two
Hundred Thousand
(P200,000.00) to Five Hundred
(P500,000.00) Thousand Pesos,
depending on the gravity and
extent of the violation; and in
addition thereto, the recall of the
product, revocation of the CPR,
suspension of the License to
Operate (LTO) for one year;
e) 5th and succeeding repeated
violations Administrative Fine of
One Million (P1,000,000.00)
Pesos, the recall of the offending
product, cancellation of the CPR,
revocation of the License to
Operate (LTO) of the company
concerned, including the
blacklisting of the company to
be furnished the Department of
Budget and Management (DBM)
and the Department of Trade and
Industry (DTI);
f) An additional penalty of Two
Thou-sand Five Hundred
(P2,500.00) Pesos per day shall
be made for every day the
violation continues after having
received the order from the IAC
or other such appropriate body,
notifying and penalizing the
company for the infraction.
For purposes of determining
whether or not there is repeated
violation, each product violation
belonging or owned by a
company, including those of
their subsidiaries, are deemed to
be violations of the concerned
milk company and shall not be
based on the specific violating
product alone.
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9. The RIRR provides for repeal of existing laws to the contrary.
The Court shall resolve the merits of the allegations of petitioner seriatim.
1. Petitioner is mistaken in its claim that the Milk Code's coverage is limited only
to children 0-12 months old. Section 3 of the Milk Code states:
SECTION 3. Scope of the Code The Code applies to the marketing, and practices related
thereto, of the following products: breastmilk substitutes, including infant formula; other
milk products, foods and beverages, including bottle-fed complementary foods, when
marketed or otherwise represented to be suitable, with or without modification, for use as a
partial or total replacement of breastmilk; feeding bottles and teats. It also applies to their
quality and availability, and to information concerning their use.
Clearly, the coverage of the Milk Code is not dependent on the age of the child but on the
kind of product being marketed to the public. The law treats infant formula, bottle-fed
complementary food, and breastmilk substitute as separate and distinct product categories.
Section 4(h) of the Milk Code defines infant formula as a breastmilk substitute x x x to
satisfy the normal nutritional requirements of infants up to between four to six months of
age, and adapted to their physiological characteristics; while under Section 4(b), bottle-fed
complementary food refers to any food, whether manufactured or locally prepared, suitable
as a complement to breastmilk or infant formula, when either becomes insufficient to
satisfy the nutritional requirements of the infant. An infant under Section 4(e) is a person
falling within the age bracket 0-12 months. It is the nourishment of this group of infants or
children aged 0-12 months that is sought to be promoted and protected by the Milk Code.
But there is another target group. Breastmilk substitute is defined under Section 4(a) as any
food being marketed or otherwise presented as a partial or total replacement for breastmilk,
whether or not suitable for that purpose. This section conspicuously lacks reference to any
particular age-group of children. Hence, the provision of the Milk Code cannot be
considered exclusive for children aged 0-12 months. In other words, breastmilk substitutes
may also be intended for young children more than 12 months of age. Therefore, by
regulating breastmilk substitutes, the Milk Code also intends to protect and promote the
nourishment of children more than 12 months old.
Evidently, as long as what is being marketed falls within the scope of the Milk Code as
provided in Section 3, then it can be subject to regulation pursuant to said law, even if the
product is to be used by children aged over 12 months.
There is, therefore, nothing objectionable with Sections 2[42] and 5(ff)[43] of the RIRR.
2. It is also incorrect for petitioner to say that the RIRR, unlike the Milk Code,
does not recognize that breastmilk substitutes may be a proper and possible substitute for
breastmilk.
The entirety of the RIRR, not merely truncated portions thereof, must be considered and
construed together. As held in De Luna v. Pascual,[44] [t]he particular words, clauses and
phrases in the Rule should not be studied as detached and isolated expressions, but the
whole and every part thereof must be considered in fixing the meaning of any of its parts
and in order to produce a harmonious whole.
Section 7 of the RIRR provides that when medically indicated and only when necessary, the
use of breastmilk substitutes is proper if based on complete and updated information.
Section 8 of the RIRR also states that information and educational materials should include
information on the proper use of infant formula when the use thereof is needed.
Hence, the RIRR, just like the Milk Code, also recognizes that in certain cases, the use of
breastmilk substitutes may be proper.
3. The Court shall ascertain the merits of allegations 3[45] and 4[46] together as
they are interlinked with each other.
To resolve the question of whether the labeling requirements and advertising regulations
under the RIRR are valid, it is important to deal first with the nature, purpose, and depth of
the regulatory powers of the DOH, as defined in general under the 1987 Administrative
Code,[47] and as delegated in particular under the Milk Code.
Health is a legitimate subject matter for regulation by the DOH (and certain other
administrative agencies) in exercise of police powers delegated to it. The sheer span of
jurisprudence on that matter precludes the need to further discuss it..[48] However, health
information, particularly advertising materials on apparently non-toxic products like
breastmilk substitutes and supplements, is a relatively new area for regulation by the
DOH.[49]
As early as the 1917 Revised Administrative Code of the Philippine Islands,[50] health
information was already within the ambit of the regulatory powers of the predecessor of
DOH.[51] Section 938 thereof charged it with the duty to protect the health of the people,
and vested it with such powers as (g) the dissemination of hygienic information among the
people and especially the inculcation of knowledge as to the proper care of infants and the
methods of preventing and combating dangerous communicable diseases.
Seventy years later, the 1987 Administrative Code tasked respondent DOH to carry out the
state policy pronounced under Section 15, Article II of the 1987 Constitution, which is to
protect and promote the right to health of the people and instill health consciousness among
them.[52] To that end, it was granted under Section 3 of the Administrative Code the power
to (6) propagate health information and educate the population on important health, medical
and environmental matters which have health implications.[53]
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When it comes to information regarding nutrition of infants and young children, however,
the Milk Code specifically delegated to the Ministry of Health (hereinafter referred to as
DOH) the power to ensure that there is adequate, consistent and objective information on
breastfeeding and use of breastmilk substitutes, supplements and related products; and the
power to control such information. These are expressly provided for in Sections 12 and
5(a), to wit:
SECTION 12. Implementation and Monitoring
xxxx
(b) The Ministry of Health shall be principally responsible for the implementation and
enforcement of the provisions of this Code. For this purpose, the Ministry of Health shall
have the following powers and functions:
(1) To promulgate such rules and regulations as are necessary or proper for the
implementation of this Code and the accomplishment of its purposes and objectives.
xxxx
(4) To exercise such other powers and functions as may be necessary for or incidental to the
attainment of the purposes and objectives of this Code.
SECTION 5. Information and Education
(a) The government shall ensure that objective and consistent information is provided on
infant feeding, for use by families and those involved in the field of infant nutrition. This
responsibility shall cover the planning, provision, design and dissemination of information,
and the control thereof, on infant nutrition. (Emphasis supplied)
Further, DOH is authorized by the Milk Code to control the content of any information on
breastmilk vis--vis breastmilk substitutes, supplement and related products, in the following
manner:
SECTION 5. x x x
(b) Informational and educational materials, whether written, audio, or visual, dealing with
the feeding of infants and intended to reach pregnant women and mothers of infants, shall
include clear information on all the following points: (1) the benefits and superiority of
breastfeeding; (2) maternal nutrition, and the preparation for and maintenance of
breastfeeding; (3) the negative effect on breastfeeding of introducing partial bottlefeeding;
(4) the difficulty of reversing the decision not to breastfeed; and (5) where needed, the
proper use of infant formula, whether manufactured industrially or home-prepared. When
such materials contain information about the use of infant formula, they shall include the
social and financial implications of its use; the health hazards of inappropriate foods or
feeding methods; and, in particular, the health hazards of unnecessary or improper use of
infant formula and other breastmilk substitutes. Such materials shall not use any picture or
text which may idealize the use of breastmilk substitutes.
SECTION 8. Health Workers
xxxx
(b) Information provided by manufacturers and distributors to health professionals
regarding products within the scope of this Code shall be restricted to scientific and factual
matters, and such information shall not imply or create a belief that bottlefeeding is
equivalent or superior to breastfeeding. It shall also include the information specified in
Section 5(b).
SECTION 10. Containers/Label
(a) Containers and/or labels shall be designed to provide the necessary information about
the appropriate use of the products, and in such a way as not to discourage breastfeeding.
xxxx
(d) The term humanized, maternalized or similar terms shall not be used. (Emphasis
supplied)
The DOH is also authorized to control the purpose of the information and to whom such
information may be disseminated under Sections 6 through 9 of the Milk Code[54] to
ensure that the information that would reach pregnant women, mothers of infants, and
health professionals and workers in the health care system is restricted to scientific and
factual matters and shall not imply or create a belief that bottlefeeding is equivalent or
superior to breastfeeding.
It bears emphasis, however, that the DOH's power under the Milk Code to control
information regarding breastmilk vis-a-vis breastmilk substitutes is not absolute as the
power to control does not encompass the power to absolutely prohibit the advertising,
marketing, and promotion of breastmilk substitutes.
The following are the provisions of the Milk Code that unequivocally indicate that the
control over information given to the DOH is not absolute and that absolute prohibition is
not contemplated by the Code:
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a) Section 2 which requires adequate information and appropriate marketing and
distribution of breastmilk substitutes, to wit:
SECTION 2. Aim of the Code The aim of the Code is to contribute to the provision of safe
and adequate nutrition for infants by the protection and promotion of breastfeeding and by
ensuring the proper use of breastmilk substitutes and breastmilk supplements when these
are necessary, on the basis of adequate information and through appropriate marketing and
distribution.
b) Section 3 which specifically states that the Code applies to the marketing of and
practices related to breastmilk substitutes, including infant formula, and to information
concerning their use;
c) Section 5(a) which provides that the government shall ensure that objective and
consistent information is provided on infant feeding;
d) Section 5(b) which provides that written, audio or visual informational and educational
materials shall not use any picture or text which may idealize the use of breastmilk
substitutes and should include information on the health hazards of unnecessary or
improper use of said product;
e) Section 6(a) in relation to Section 12(a) which creates and empowers the IAC to review
and examine advertising, promotion, and other marketing materials;
f) Section 8(b) which states that milk companies may provide information to health
professionals but such information should be restricted to factual and scientific matters and
shall not imply or create a belief that bottlefeeding is equivalent or superior to
breastfeeding; and
g) Section 10 which provides that containers or labels should not contain information that
would discourage breastfeeding and idealize the use of infant formula.
It is in this context that the Court now examines the assailed provisions of the RIRR
regarding labeling and advertising.
Sections 13[55] on total effect and 26[56] of Rule VII of the RIRR contain some labeling
requirements, specifically: a) that there be a statement that there is no substitute to
breastmilk; and b) that there be a statement that powdered infant formula may contain
pathogenic microorganisms and must be prepared and used appropriately. Section 16[57] of
the RIRR prohibits all health and nutrition claims for products within the scope of the Milk
Code, such as claims of increased emotional and intellectual abilities of the infant and
young child.
These requirements and limitations are consistent with the provisions of Section 8 of the
Milk Code, to wit:
SECTION 8. Health workers -
xxxx
(b) Information provided by manufacturers and distributors to health professionals
regarding products within the scope of this Code shall be restricted to scientific and factual
matters, and such information shall not imply or create a belief that bottlefeeding is
equivalent or superior to breastfeeding. It shall also include the information specified in
Section 5.[58] (Emphasis supplied)
and Section 10(d)[59] which bars the use on containers and labels of the terms humanized,
maternalized, or similar terms.
These provisions of the Milk Code expressly forbid information that would imply or create
a belief that there is any milk product equivalent to breastmilk or which is humanized or
maternalized, as such information would be inconsistent with the superiority of
breastfeeding.
It may be argued that Section 8 of the Milk Code refers only to information given to health
workers regarding breastmilk substitutes, not to containers and labels thereof. However,
such restrictive application of Section 8(b) will result in the absurd situation in which milk
companies and distributors are forbidden to claim to health workers that their products are
substitutes or equivalents of breastmilk, and yet be allowed to display on the containers and
labels of their products the exact opposite message. That askewed interpretation of the Milk
Code is precisely what Section 5(a) thereof seeks to avoid by mandating that all information
regarding breastmilk vis-a-vis breastmilk substitutes be consistent, at the same time giving
the government control over planning, provision, design, and dissemination of information
on infant feeding.
Thus, Section 26(c) of the RIRR which requires containers and labels to state that the
product offered is not a substitute for breastmilk, is a reasonable means of enforcing
Section 8(b) of the Milk Code and deterring circumvention of the protection and promotion
of breastfeeding as embodied in Section 2[60] of the Milk Code.
Section 26(f)[61] of the RIRR is an equally reasonable labeling requirement. It implements
Section 5(b) of the Milk Code which reads:
SECTION 5. x x x
xxxx
(b) Informational and educational materials, whether written, audio, or visual, dealing with
the feeding of infants and intended to reach pregnant women and mothers of infants, shall
include clear information on all the following points: x x x (5) where needed, the proper use
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of infant formula, whether manufactured industrially or home-prepared. When such
materials contain information about the use of infant formula, they shall include the social
and financial implications of its use; the health hazards of inappropriate foods or feeding
methods; and, in particular, the health hazards of unnecessary or improper use of infant
formula and other breastmilk substitutes. Such materials shall not use any picture or text
which may idealize the use of breastmilk substitutes. (Emphasis supplied)
The label of a product contains information about said product intended for the buyers
thereof. The buyers of breastmilk substitutes are mothers of infants, and Section 26 of the
RIRR merely adds a fair warning about the likelihood of pathogenic microorganisms being
present in infant formula and other related products when these are prepared and used
inappropriately.
Petitioners counsel has admitted during the hearing on June 19, 2007 that formula milk is
prone to contaminations and there is as yet no technology that allows production of
powdered infant formula that eliminates all forms of contamination.[62]
Ineluctably, the requirement under Section 26(f) of the RIRR for the label to contain the
message regarding health hazards including the possibility of contamination with
pathogenic microorganisms is in accordance with Section 5(b) of the Milk Code.
The authority of DOH to control information regarding breastmilk vis-a-vis breastmilk
substitutes and supplements and related products cannot be questioned. It is its intervention
into the area of advertising, promotion, and marketing that is being assailed by petitioner.
In furtherance of Section 6(a) of the Milk Code, to wit:
SECTION 6. The General Public and Mothers.
(a) No advertising, promotion or other marketing materials, whether written, audio or
visual, for products within the scope of this Code shall be printed, published, distributed,
exhibited and broadcast unless such materials are duly authorized and approved by an inter-
agency committee created herein pursuant to the applicable standards provided for in this
Code.
the Milk Code invested regulatory authority over advertising, promotional and marketing
materials to an IAC, thus:
SECTION 12. Implementation and Monitoring -
(a) For purposes of Section 6(a) of this Code, an inter-agency committee composed of the
following members is hereby created:
Minister of Health -------------------------------------------- Chairman
Minister of Trade and Industry ---------------------------- Member
Minister of Justice -------------------------------------------- Member
Minister of Social Services and Development ----------- Member
The members may designate their duly authorized representative to every meeting of the
Committee.
The Committee shall have the following powers and functions:
(1) To review and examine all advertising. promotion or other marketing materials, whether
written, audio or visual, on products within the scope of this Code;
(2) To approve or disapprove, delete objectionable portions from and prohibit the printing,
publication, distribution, exhibition and broadcast of, all advertising promotion or other
marketing materials, whether written, audio or visual, on products within the scope of this
Code;
(3) To prescribe the internal and operational procedure for the exercise of its powers and
functions as well as the performance of its duties and responsibilities; and
(4) To promulgate such rules and regulations as are necessary or proper for the
implementation of Section 6(a) of this Code. x x x (Emphasis supplied)
However, Section 11 of the RIRR, to wit:
SECTION 11. Prohibition No advertising, promotions, sponsorships, or marketing
materials and activities for breastmilk substitutes intended for infants and young children up
to twenty-four (24) months, shall be allowed, because they tend to convey or give
subliminal messages or impressions that undermine breastmilk and breastfeeding or
otherwise exaggerate breastmilk substitutes and/or replacements, as well as related products
covered within the scope of this Code.
prohibits advertising, promotions, sponsorships or marketing materials and activities for
breastmilk substitutes in line with the RIRRs declaration of principle under Section 4(f), to
wit:
SECTION 4. Declaration of Principles
xxxx
(f) Advertising, promotions, or sponsorships of infant formula, breastmilk substitutes and
other related products are prohibited.
The DOH, through its co-respondents, evidently arrogated to itself not only the regulatory
authority given to the IAC but also imposed absolute prohibition on advertising, promotion,
and marketing.
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Yet, oddly enough, Section 12 of the RIRR reiterated the requirement of the Milk Code in
Section 6 thereof for prior approval by IAC of all advertising, marketing and promotional
materials prior to dissemination.
Even respondents, through the OSG, acknowledged the authority of IAC, and repeatedly
insisted, during the oral arguments on June 19, 2007, that the prohibition under Section 11
is not actually operational, viz:
SOLICITOR GENERAL DEVANADERA:
xxxx
x x x Now, the crux of the matter that is being questioned by Petitioner is whether or not
there is an absolute prohibition on advertising making AO 2006-12 unconstitutional. We
maintained that what AO 2006-12 provides is not an absolute prohibition because Section
11 while it states and it is entitled prohibition it states that no advertising, promotion,
sponsorship or marketing materials and activities for breast milk substitutes intended for
infants and young children up to 24 months shall be allowed because this is the standard
they tend to convey or give subliminal messages or impression undermine that breastmilk
or breastfeeding x x x.
We have to read Section 11 together with the other Sections because the other Section,
Section 12, provides for the inter agency committee that is empowered to process and
evaluate all the advertising and promotion materials.
xxxx
What AO 2006-12, what it does, it does not prohibit the sale and manufacture, it simply
regulates the advertisement and the promotions of breastfeeding milk substitutes.
xxxx
Now, the prohibition on advertising, Your Honor, must be taken together with the provision
on the Inter-Agency Committee that processes and evaluates because there may be some
information dissemination that are straight forward information dissemination. What the
AO 2006 is trying to prevent is any material that will undermine the practice of
breastfeeding, Your Honor.
xxxx
ASSOCIATE JUSTICE SANTIAGO:
Madam Solicitor General, under the Milk Code, which body has authority or power to
promulgate Rules and Regulations regarding the Advertising, Promotion and Marketing of
Breastmilk Substitutes?
SOLICITOR GENERAL DEVANADERA:
Your Honor, please, it is provided that the Inter-Agency Committee, Your Honor.
xxxx
ASSOCIATE JUSTICE SANTIAGO:
x x x Don't you think that the Department of Health overstepped its rule making authority
when it totally banned advertising and promotion under Section 11 prescribed the total
effect rule as well as the content of materials under Section 13 and 15 of the rules and
regulations?
SOLICITOR GENERAL DEVANADERA:
Your Honor, please, first we would like to stress that there is no total absolute ban. Second,
the Inter-Agency Committee is under the Department of Health, Your Honor.
xxxx
ASSOCIATE JUSTICE NAZARIO:
x x x Did I hear you correctly, Madam Solicitor, that there is no absolute ban on advertising
of breastmilk substitutes in the Revised Rules?
SOLICITOR GENERAL DEVANADERA:
Yes, your Honor.
ASSOCIATE JUSTICE NAZARIO:
But, would you nevertheless agree that there is an absolute ban on advertising of breastmilk
substitutes intended for children two (2) years old and younger?
SOLICITOR GENERAL DEVANADERA:
It's not an absolute ban, Your Honor, because we have the Inter-Agency Committee that can
evaluate some advertising and promotional materials, subject to the standards that we have
stated earlier, which are- they should not undermine breastfeeding, Your Honor.
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xxxx
x x x Section 11, while it is titled Prohibition, it must be taken in relation with the other
Sections, particularly 12 and 13 and 15, Your Honor, because it is recognized that the Inter-
Agency Committee has that power to evaluate promotional materials, Your Honor.
ASSOCIATE JUSTICE NAZARIO:
So in short, will you please clarify there's no absolute ban on advertisement regarding milk
substitute regarding infants two (2) years below?
SOLICITOR GENERAL DEVANADERA:
We can proudly say that the general rule is that there is a prohibition, however, we take
exceptions and standards have been set. One of which is that, the Inter-Agency Committee
can allow if the advertising and promotions will not undermine breastmilk and
breastfeeding, Your Honor.[63]
Sections 11 and 4(f) of the RIRR are clearly violative of the Milk Code.
However, although it is the IAC which is authorized to promulgate rules and regulations for
the approval or rejection of advertising, promotional, or other marketing materials under
Section 12(a) of the Milk Code, said provision must be related to Section 6 thereof which in
turn provides that the rules and regulations must be pursuant to the applicable standards
provided for in this Code. Said standards are set forth in Sections 5(b), 8(b), and 10 of the
Code, which, at the risk of being repetitious, and for easy reference, are quoted hereunder:
SECTION 5. Information and Education
xxxx
(b) Informational and educational materials, whether written, audio, or visual, dealing with
the feeding of infants and intended to reach pregnant women and mothers of infants, shall
include clear information on all the following points: (1) the benefits and superiority of
breastfeeding; (2) maternal nutrition, and the preparation for and maintenance of
breastfeeding; (3) the negative effect on breastfeeding of introducing partial bottlefeeding;
(4) the difficulty of reversing the decision not to breastfeed; and (5) where needed, the
proper use of infant formula, whether manufactured industrially or home-prepared. When
such materials contain information about the use of infant formula, they shall include the
social and financial implications of its use; the health hazards of inappropriate foods of
feeding methods; and, in particular, the health hazards of unnecessary or improper use of
infant formula and other breastmilk substitutes. Such materials shall not use any picture or
text which may idealize the use of breastmilk substitutes.
xxxx
SECTION 8. Health Workers.
xxxx
(b) Information provided by manufacturers and distributors to health professionals
regarding products within the scope of this Code shall be restricted to scientific and factual
matters and such information shall not imply or create a belief that bottle feeding is
equivalent or superior to breastfeeding. It shall also include the information specified in
Section 5(b).
xxxx
SECTION 10. Containers/Label
(a) Containers and/or labels shall be designed to provide the necessary information about
the appropriate use of the products, and in such a way as not to discourage breastfeeding.
(b) Each container shall have a clear, conspicuous and easily readable and understandable
message in Pilipino or English printed on it, or on a label, which message can not readily
become separated from it, and which shall include the following points:
(i) the words Important Notice or their equivalent;
(ii) a statement of the superiority of breastfeeding;
(iii) a statement that the product shall be used only on the advice of a health worker as to
the need for its use and the proper methods of use; and
(iv) instructions for appropriate preparation, and a warning against the health hazards of
inappropriate preparation.
Section 12(b) of the Milk Code designates the DOH as the principal implementing agency
for the enforcement of the provisions of the Code. In relation to such responsibility of the
DOH, Section 5(a) of the Milk Code states that:
SECTION 5. Information and Education
(a) The government shall ensure that objective and consistent information is provided on
infant feeding, for use by families and those involved in the field of infant nutrition. This
responsibility shall cover the planning, provision, design and dissemination of information,
and the control thereof, on infant nutrition. (Emphasis supplied)
Thus, the DOH has the significant responsibility to translate into operational terms the
standards set forth in Sections 5, 8, and 10 of the Milk Code, by which the IAC shall screen
advertising, promotional, or other marketing materials.
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It is pursuant to such responsibility that the DOH correctly provided for Section 13 in the
RIRR which reads as follows:
SECTION 13. Total Effect - Promotion of products within the scope of this Code must be
objective and should not equate or make the product appear to be as good or equal to
breastmilk or breastfeeding in the advertising concept. It must not in any case undermine
breastmilk or breastfeeding. The total effect should not directly or indirectly suggest that
buying their product would produce better individuals, or resulting in greater love,
intelligence, ability, harmony or in any manner bring better health to the baby or other such
exaggerated and unsubstantiated claim.
Such standards bind the IAC in formulating its rules and regulations on advertising,
promotion, and marketing. Through that single provision, the DOH exercises control over
the information content of advertising, promotional and marketing materials on breastmilk
vis-a-vis breastmilk substitutes, supplements and other related products. It also sets a viable
standard against which the IAC may screen such materials before they are made public.
In Equi-Asia Placement, Inc. vs. Department of Foreign Affairs,[64] the Court held:
x x x [T]his Court had, in the past, accepted as sufficient standards the following: public
interest, justice and equity, public convenience and welfare, and simplicity, economy and
welfare.[65]
In this case, correct information as to infant feeding and nutrition is infused with public
interest and welfare.
4. With regard to activities for dissemination of information to health professionals, the
Court also finds that there is no inconsistency between the provisions of the Milk Code and
the RIRR. Section 7(b)[66] of the Milk Code, in relation to Section 8(b)[67] of the same
Code, allows dissemination of information to health professionals but such information is
restricted to scientific and factual matters.
Contrary to petitioner's claim, Section 22 of the RIRR does not prohibit the giving of
information to health professionals on scientific and factual matters. What it prohibits is the
involvement of the manufacturer and distributor of the products covered by the Code in
activities for the promotion, education and production of Information, Education and
Communication (IEC) materials regarding breastfeeding that are intended for women and
children. Said provision cannot be construed to encompass even the dissemination of
information to health professionals, as restricted by the Milk Code.
5. Next, petitioner alleges that Section 8(e)[68] of the Milk Code permits milk
manufacturers and distributors to extend assistance in research and in the continuing
education of health professionals, while Sections 22 and 32 of the RIRR absolutely forbid
the same. Petitioner also assails Section 4(i)[69] of the RIRR prohibiting milk
manufacturers' and distributors' participation in any policymaking body in relation to the
advancement of breastfeeding.
Section 4(i) of the RIRR provides that milk companies and their representatives should not
form part of any policymaking body or entity in relation to the advancement of
breastfeeding. The Court finds nothing in said provisions which contravenes the Milk Code.
Note that under Section 12(b) of the Milk Code, it is the DOH which shall be principally
responsible for the implementation and enforcement of the provisions of said Code. It is
entirely up to the DOH to decide which entities to call upon or allow to be part of
policymaking bodies on breastfeeding. Therefore, the RIRR's prohibition on milk
companies participation in any policymaking body in relation to the advancement of
breastfeeding is in accord with the Milk Code.
Petitioner is also mistaken in arguing that Section 22 of the RIRR prohibits milk companies
from giving reasearch assistance and continuing education to health professionals. Section
22[70] of the RIRR does not pertain to research assistance to or the continuing education of
health professionals; rather, it deals with breastfeeding promotion and education for women
and children. Nothing in Section 22 of the RIRR prohibits milk companies from giving
assistance for research or continuing education to health professionals; hence, petitioner's
argument against this particular provision must be struck down.
It is Sections 9[71] and 10[72] of the RIRR which govern research assistance. Said sections
of the RIRR provide that research assistance for health workers and researchers may be
allowed upon approval of an ethics committee, and with certain disclosure requirements
imposed on the milk company and on the recipient of the research award.
The Milk Code endows the DOH with the power to determine how such research or
educational assistance may be given by milk companies or under what conditions health
workers may accept the assistance. Thus, Sections 9 and 10 of the RIRR imposing
limitations on the kind of research done or extent of assistance given by milk companies are
completely in accord with the Milk Code.
Petitioner complains that Section 32[73] of the RIRR prohibits milk companies from giving
assistance, support, logistics or training to health workers. This provision is within the
prerogative given to the DOH under Section 8(e)[74] of the Milk Code, which provides that
manufacturers and distributors of breastmilk substitutes may assist in researches,
scholarships and the continuing education, of health professionals in accordance with the
rules and regulations promulgated by the Ministry of Health, now DOH.
6. As to the RIRR's prohibition on donations, said provisions are also consistent with the
Milk Code. Section 6(f) of the Milk Code provides that donations may be made by
manufacturers and distributors of breastmilk substitutes upon the request or with the
approval of the DOH. The law does not proscribe the refusal of donations. The Milk Code
leaves it purely to the discretion of the DOH whether to request or accept such donations.
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The DOH then appropriately exercised its discretion through Section 51[75] of the RIRR
which sets forth its policy not to request or approve donations from manufacturers and
distributors of breastmilk substitutes.
It was within the discretion of the DOH when it provided in Section 52 of the RIRR that
any donation from milk companies not covered by the Code should be coursed through the
IAC which shall determine whether such donation should be accepted or refused. As
reasoned out by respondents, the DOH is not mandated by the Milk Code to accept
donations. For that matter, no person or entity can be forced to accept a donation. There is,
therefore, no real inconsistency between the RIRR and the law because the Milk Code does
not prohibit the DOH from refusing donations.
7. With regard to Section 46 of the RIRR providing for administrative sanctions that are not
found in the Milk Code, the Court upholds petitioner's objection thereto.
Respondent's reliance on Civil Aeronautics Board v. Philippine Air Lines, Inc.[76] is
misplaced. The glaring difference in said case and the present case before the Court is that,
in the Civil Aeronautics Board, the Civil Aeronautics Administration (CAA) was expressly
granted by the law (R.A. No. 776) the power to impose fines and civil penalties, while the
Civil Aeronautics Board (CAB) was granted by the same law the power to review on appeal
the order or decision of the CAA and to determine whether to impose, remit, mitigate,
increase or compromise such fine and civil penalties. Thus, the Court upheld the CAB's
Resolution imposing administrative fines.
In a more recent case, Perez v. LPG Refillers Association of the Philippines, Inc.,[77] the
Court upheld the Department of Energy (DOE) Circular No. 2000-06-10 implementing
Batas Pambansa (B.P.) Blg. 33. The circular provided for fines for the commission of
prohibited acts. The Court found that nothing in the circular contravened the law because
the DOE was expressly authorized by B.P. Blg. 33 and R.A. No. 7638 to impose fines or
penalties.
In the present case, neither the Milk Code nor the Revised Administrative Code grants the
DOH the authority to fix or impose administrative fines. Thus, without any express grant of
power to fix or impose such fines, the DOH cannot provide for those fines in the RIRR. In
this regard, the DOH again exceeded its authority by providing for such fines or sanctions
in Section 46 of the RIRR. Said provision is, therefore, null and void.
The DOH is not left without any means to enforce its rules and regulations. Section 12(b)
(3) of the Milk Code authorizes the DOH to cause the prosecution of the violators of this
Code and other pertinent laws on products covered by this Code. Section 13 of the Milk
Code provides for the penalties to be imposed on violators of the provision of the Milk
Code or the rules and regulations issued pursuant to it, to wit:
SECTION 13. Sanctions
(a) Any person who violates the provisions of this Code or the rules and regulations issued
pursuant to this Code shall, upon conviction, be punished by a penalty of two (2) months to
one (1) year imprisonment or a fine of not less than One Thousand Pesos (P1,000.00) nor
more than Thirty Thousand Pesos (P30,000.00) or both. Should the offense be committed
by a juridical person, the chairman of the Board of Directors, the president, general
manager, or the partners and/or the persons directly responsible therefor, shall be penalized.
(b) Any license, permit or authority issued by any government agency to any health worker,
distributor, manufacturer, or marketing firm or personnel for the practice of their profession
or occupation, or for the pursuit of their business, may, upon recommendation of the
Ministry of Health, be suspended or revoked in the event of repeated violations of this
Code, or of the rules and regulations issued pursuant to this Code. (Emphasis supplied)
8. Petitioners claim that Section 57 of the RIRR repeals existing laws that are contrary to
the RIRR is frivolous.
Section 57 reads:
SECTION 57. Repealing Clause - All orders, issuances, and rules and regulations or parts
thereof inconsistent with these revised rules and implementing regulations are hereby
repealed or modified accordingly.
Section 57 of the RIRR does not provide for the repeal of laws but only orders, issuances
and rules and regulations. Thus, said provision is valid as it is within the DOH's rule-
making power.
An administrative agency like respondent possesses quasi-legislative or rule-making power
or the power to make rules and regulations which results in delegated legislation that is
within the confines of the granting statute and the Constitution, and subject to the doctrine
of non-delegability and separability of powers.[78] Such express grant of rule-making
power necessarily includes the power to amend, revise, alter, or repeal the same.[79] This is
to allow administrative agencies flexibility in formulating and adjusting the details and
manner by which they are to implement the provisions of a law,[80] in order to make it
more responsive to the times. Hence, it is a standard provision in administrative rules that
prior issuances of administrative agencies that are inconsistent therewith are declared
repealed or modified.
In fine, only Sections 4(f), 11 and 46 are ultra vires, beyond the authority of the DOH to
promulgate and in contravention of the Milk Code and, therefore, null and void. The rest of
the provisions of the RIRR are in consonance with the Milk Code.
Lastly, petitioner makes a catch-all allegation that:
x x x [T]he questioned RIRR sought to be implemented by the Respondents is unnecessary
and oppressive, and is offensive to the due process clause of the Constitution, insofar as the
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same is in restraint of trade and because a provision therein is inadequate to provide the
public with a comprehensible basis to determine whether or not they have committed a
violation.[81] (Emphasis supplied)
Petitioner refers to Sections 4(f),[82] 4(i),[83] 5(w),[84] 11,[85] 22,[86] 32,[87] 46,[88] and
52[89] as the provisions that suppress the trade of milk and, thus, violate the due process
clause of the Constitution.
The framers of the constitution were well aware that trade must be subjected to some form
of regulation for the public good. Public interest must be upheld over business interests.[90]
In Pest Management Association of the Philippines v. Fertilizer and Pesticide
Authority,[91] it was held thus:
x x x Furthermore, as held in Association of Philippine Coconut Desiccators v. Philippine
Coconut Authority, despite the fact that our present Constitution enshrines free enterprise as
a policy, it nonetheless reserves to the government the power to intervene whenever
necessary to promote the general welfare. There can be no question that the unregulated
use or proliferation of pesticides would be hazardous to our environment. Thus, in the
aforecited case, the Court declared that free enterprise does not call for removal of
protective regulations. x x x It must be clearly explained and proven by competent evidence
just exactly how such protective regulation would result in the restraint of trade. [Emphasis
and underscoring supplied]
In this case, petitioner failed to show that the proscription of milk manufacturers
participation in any policymaking body (Section 4(i)), classes and seminars for women and
children (Section 22); the giving of assistance, support and logistics or training (Section
32); and the giving of donations (Section 52) would unreasonably hamper the trade of
breastmilk substitutes. Petitioner has not established that the proscribed activities are
indispensable to the trade of breastmilk substitutes. Petitioner failed to demonstrate that the
aforementioned provisions of the RIRR are unreasonable and oppressive for being in
restraint of trade.
Petitioner also failed to convince the Court that Section 5(w) of the RIRR is unreasonable
and oppressive. Said section provides for the definition of the term milk company, to wit:
SECTION 5 x x x. (w) Milk Company shall refer to the owner, manufacturer, distributor of
infant formula, follow-up milk, milk formula, milk supplement, breastmilk substitute or
replacement, or by any other description of such nature, including their representatives who
promote or otherwise advance their commercial interests in marketing those products;
On the other hand, Section 4 of the Milk Code provides:
(d) Distributor means a person, corporation or any other entity in the public or private
sector engaged in the business (whether directly or indirectly) of marketing at the wholesale
or retail level a product within the scope of this Code. A primary distributor is a
manufacturer's sales agent, representative, national distributor or broker.
xxxx
(j) Manufacturer means a corporation or other entity in the public or private sector
engaged in the business or function (whether directly or indirectly or through an agent or
and entity controlled by or under contract with it) of manufacturing a products within the
scope of this Code.
Notably, the definition in the RIRR merely merged together under the term milk company
the entities defined separately under the Milk Code as distributor and manufacturer. The
RIRR also enumerated in Section 5(w) the products manufactured or distributed by an
entity that would qualify it as a milk company, whereas in the Milk Code, what is used is
the phrase products within the scope of this Code. Those are the only differences between
the definitions given in the Milk Code and the definition as re-stated in the RIRR.
Since all the regulatory provisions under the Milk Code apply equally to both
manufacturers and distributors, the Court sees no harm in the RIRR providing for just one
term to encompass both entities. The definition of milk company in the RIRR and the
definitions of distributor and manufacturer provided for under the Milk Code are practically
the same.
The Court is not convinced that the definition of milk company provided in the RIRR
would bring about any change in the treatment or regulation of distributors and
manufacturers of breastmilk substitutes, as defined under the Milk Code.
Except Sections 4(f), 11 and 46, the rest of the provisions of the RIRR are in consonance
with the objective, purpose and intent of the Milk Code, constituting reasonable regulation
of an industry which affects public health and welfare and, as such, the rest of the RIRR do
not constitute illegal restraint of trade nor are they violative of the due process clause of the
Constitution.
WHEREFORE, the petition is PARTIALLY GRANTED. Sections 4(f), 11 and 46 of
Administrative Order No. 2006-0012 dated May 12, 2006 are declared NULL and VOID
for being ultra vires. The Department of Health and respondents are PROHIBITED from
implementing said provisions.
The Temporary Restraining Order issued on August 15, 2006 is LIFTED insofar as the rest
of the provisions of Administrative Order No. 2006-0012 is concerned.
SO ORDERED.
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THE PROVINCE OF NORTH COTABATO vs GRP PEACE PANEL
GR 183591, October 14, 2008
DECISION
CARPIO MORALES, J.:
Subject of these consolidated cases is the extent of the powers of the President in pursuing
the peace process. While the facts surrounding this controversy center on the armed conflict
in Mindanao between the government and the Moro Islamic Liberation Front (MILF), the
legal issue involved has a bearing on all areas in the country where there has been a long-
standing armed conflict. Yet again, the Court is tasked to perform a delicate balancing act.
It must uncompromisingly delineate the bounds within which the President may lawfully
exercise her discretion, but it must do so in strict adherence to the Constitution, lest its
ruling unduly restricts the freedom of action vested by that same Constitution in the Chief
Executive precisely to enable her to pursue the peace process effectively.
I. FACTUAL ANTECEDENTS OF THE PETITIONS
On August 5, 2008, the Government of the Republic of the Philippines (GRP) and the
MILF, through the Chairpersons of their respective peace negotiating panels, were
scheduled to sign a Memorandum of Agreement on the Ancestral Domain (MOA-AD)
Aspect of the GRP-MILF Tripoli Agreement on Peace of 2001 in Kuala Lumpur, Malaysia.
The MILF is a rebel group which was established in March 1984 when, under the
leadership of the late Salamat Hashim, it splintered from the Moro National Liberation
Front (MNLF) then headed by Nur Misuari, on the ground, among others, of what Salamat
perceived to be the manipulation of the MNLF away from an Islamic basis towards
Marxist-Maoist orientations.[1]
The signing of the MOA-AD between the GRP and the MILF was not to materialize,
however, for upon motion of petitioners, specifically those who filed their cases before the
scheduled signing of the MOA-AD, this Court issued a Temporary Restraining Order
enjoining the GRP from signing the same.
The MOA-AD was preceded by a long process of negotiation and the concluding of several
prior agreements between the two parties beginning in 1996, when the GRP-MILF peace
negotiations began. On July 18, 1997, the GRP and MILF Peace Panels signed the
Agreement on General Cessation of Hostilities. The following year, they signed the General
Framework of Agreement of Intent on August 27, 1998.
The Solicitor General, who represents respondents, summarizes the MOA-AD by stating
that the same contained, among others, the commitment of the parties to pursue peace
negotiations, protect and respect human rights, negotiate with sincerity in the resolution and
pacific settlement of the conflict, and refrain from the use of threat or force to attain undue
advantage while the peace negotiations on the substantive agenda are on-going.[2]
Early on, however, it was evident that there was not going to be any smooth sailing in the
GRP-MILF peace process. Towards the end of 1999 up to early 2000, the MILF attacked a
number of municipalities in Central Mindanao and, in March 2000, it took control of the
town hall of Kauswagan, Lanao del Norte.[3] In response, then President Joseph Estrada
declared and carried out an all-out-war against the MILF.
When President Gloria Macapagal-Arroyo assumed office, the military offensive against
the MILF was suspended and the government sought a resumption of the peace talks. The
MILF, according to a leading MILF member, initially responded with deep reservation, but
when President Arroyo asked the Government of Malaysia through Prime Minister
Mahathir Mohammad to help convince the MILF to return to the negotiating table, the
MILF convened its Central Committee to seriously discuss the matter and, eventually,
decided to meet with the GRP.[4]
The parties met in Kuala Lumpur on March 24, 2001, with the talks being facilitated by the
Malaysian government, the parties signing on the same date the Agreement on the General
Framework for the Resumption of Peace Talks Between the GRP and the MILF. The MILF
thereafter suspended all its military actions.[5]
Formal peace talks between the parties were held in Tripoli, Libya from June 20-22, 2001,
the outcome of which was the GRP-MILF Tripoli Agreement on Peace (Tripoli Agreement
2001) containing the basic principles and agenda on the following aspects of the
negotiation: Security Aspect, Rehabilitation Aspect, and Ancestral Domain Aspect. With
regard to the Ancestral Domain Aspect, the parties in Tripoli Agreement 2001 simply
agreed that the same be discussed further by the Parties in their next meeting.
A second round of peace talks was held in Cyberjaya, Malaysia on August 5-7, 2001 which
ended with the signing of the Implementing Guidelines on the Security Aspect of the
Tripoli Agreement 2001 leading to a ceasefire status between the parties. This was followed
by the Implementing Guidelines on the Humanitarian Rehabilitation and Development
Aspects of the Tripoli Agreement 2001, which was signed on May 7, 2002 at Putrajaya,
Malaysia. Nonetheless, there were many incidence of violence between government forces
and the MILF from 2002 to 2003.
Meanwhile, then MILF Chairman Salamat Hashim passed away on July 13, 2003 and he
was replaced by Al Haj Murad, who was then the chief peace negotiator of the MILF.
Murads 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.
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II. STATEMENT OF THE PROCEEDINGS
Before the Court is what is perhaps the most contentious consensus ever embodied in an
instrument the MOA-AD which is assailed principally by the present petitions bearing
docket numbers 183591, 183752, 183893, 183951 and 183962.
Commonly impleaded as respondents are the GRP Peace Panel on Ancestral Domain[7] and
the Presidential Adviser on the Peace Process (PAPP) Hermogenes Esperon, Jr.
On July 23, 2008, the Province of North Cotabato[8] and Vice-Governor Emmanuel Piol
filed a petition, docketed as G.R. No. 183591, for Mandamus and Prohibition with Prayer
for the Issuance of Writ of Preliminary Injunction and Temporary Restraining Order.[9]
Invoking the right to information on matters of public concern, petitioners seek to compel
respondents to disclose and furnish them the complete and official copies of the MOA-AD
including its attachments, and to prohibit the slated signing of the MOA-AD, pending the
disclosure of the contents of the MOA-AD and the holding of a public consultation thereon.
Supplementarily, petitioners pray that the MOA-AD be declared unconstitutional.[10]
This initial petition was followed by another one, docketed as G.R. No. 183752, also for
Mandamus and Prohibition[11] filed by the City of Zamboanga,[12] Mayor Celso Lobregat,
Rep. Ma. Isabelle Climaco and Rep. Erico Basilio Fabian who likewise pray for similar
injunctive reliefs. Petitioners herein moreover pray that the City of Zamboanga be excluded
from the Bangsamoro Homeland and/or Bangsamoro Juridical Entity and, in the alternative,
that the MOA-AD be declared null and void.
By Resolution of August 4, 2008, the Court issued a Temporary Restraining Order
commanding and directing public respondents and their agents to cease and desist from
formally signing the MOA-AD.[13] The Court also required the Solicitor General to submit
to the Court and petitioners the official copy of the final draft of the MOA-AD,[14] to
which she complied.[15]
Meanwhile, the City of Iligan[16] 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 Isabela[21]
and Mayor Cherrylyn Santos-Akbar, the Province of Sultan Kudarat[22] and Gov. Suharto
Mangudadatu, the Municipality of Linamon in Lanao del Norte,[23] Ruy Elias Lopez of
Davao City and of the Bagobo tribe, Sangguniang Panlungsod member Marino Ridao and
businessman Kisin Buxani, both of Cotabato City; and lawyers Carlo Gomez, Gerardo
Dilig, Nesario Awat, Joselito Alisuag, Richalex Jagmis, all of Palawan City. The Muslim
Legal Assistance Foundation, Inc. (Muslaf) and the Muslim Multi-Sectoral Movement for
Peace and Development (MMMPD) filed their respective Comments-in-Intervention.
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;
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3. Whether respondent Government of the Republic of the Philippines Peace Panel
committed grave abuse of discretion amounting to lack or excess of jurisdiction when it
negotiated and initiated the MOA vis--vis ISSUES Nos. 4 and 5;
4. Whether there is a violation of the peoples right to information on matters of public
concern (1987 Constitution, Article III, Sec. 7) under a state policy of full disclosure of all
its transactions involving public interest (1987 Constitution, Article II, Sec. 28) including
public consultation under Republic Act No. 7160 (LOCAL GOVERNMENT CODE OF
1991)[;]
If it is in the affirmative, whether prohibition under Rule 65 of the 1997 Rules of Civil
Procedure is an appropriate remedy;
5. Whether by signing the MOA, the Government of the Republic of the Philippines would
be BINDING itself
a) to create and recognize the Bangsamoro Juridical Entity (BJE) as a separate state, or a
juridical, territorial or political subdivision not recognized by law;
b) to revise or amend the Constitution and existing laws to conform to the MOA;
c) to concede to or recognize the claim of the Moro Islamic Liberation Front for ancestral
domain in violation of Republic Act No. 8371 (THE INDIGENOUS PEOPLES RIGHTS
ACT OF 1997), particularly Section 3(g) & Chapter VII (DELINEATION,
RECOGNITION OF ANCESTRAL DOMAINS)[;]
If in the affirmative, whether the Executive Branch has the authority to so bind the
Government of the Republic of the Philippines;
6. Whether the inclusion/exclusion of the Province of North Cotabato, Cities of
Zamboanga, Iligan and Isabela, and the Municipality of Linamon, Lanao del Norte in/from
the areas covered by the projected Bangsamoro Homeland is a justiciable question; and
7. Whether desistance from signing the MOA derogates any prior valid commitments of the
Government of the Republic of the Philippines.[24]
The Court, thereafter, ordered the parties to submit their respective Memoranda. Most of
the parties submitted their memoranda on time.
III. OVERVIEW OF THE MOA-AD
As a necessary backdrop to the consideration of the objections raised in the subject five
petitions and six petitions-in-intervention against the MOA-AD, as well as the two
comments-in-intervention in favor of the MOA-AD, the Court takes an overview of the
MOA.
The MOA-AD identifies the Parties to it as the GRP and the MILF.
Under the heading Terms of Reference (TOR), the MOA-AD includes not only four earlier
agreements between the GRP and MILF, but also two agreements between the GRP and the
MNLF: the 1976 Tripoli Agreement, and the Final Peace Agreement on the Implementation
of the 1976 Tripoli Agreement, signed on September 2, 1996 during the administration of
President Fidel Ramos.
The MOA-AD also identifies as TOR two local statutes the organic act for the Autonomous
Region in Muslim Mindanao (ARMM)[25] and the Indigenous Peoples Rights Act
(IPRA),[26] and several international law instruments the ILO Convention No. 169
Concerning Indigenous and Tribal Peoples in Independent Countries in relation to the UN
Declaration on the Rights of the Indigenous Peoples, and the UN Charter, among others.
The MOA-AD includes as a final TOR the generic category of compact rights
entrenchment emanating from the regime of dar-ul-muahada (or territory under compact)
and dar-ul-sulh (or territory under peace agreement) that partakes the nature of a treaty
device.
During the height of the Muslim Empire, early Muslim jurists tended to see the world
through a simple dichotomy: there was the dar-ul-Islam (the Abode of Islam) and dar-ul-
harb (the Abode of War). The first referred to those lands where Islamic laws held sway,
while the second denoted those lands where Muslims were persecuted or where Muslim
laws were outlawed or ineffective.[27] This way of viewing the world, however, became
more complex through the centuries as the Islamic world became part of the international
community of nations.
As Muslim States entered into treaties with their neighbors, even with distant States and
inter-governmental organizations, the classical division of the world into dar-ul-Islam and
dar-ul-harb eventually lost its meaning. New terms were drawn up to describe novel ways
of perceiving non-Muslim territories. For instance, areas like dar-ul-muahada (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-
muahada 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
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agreement in writing that sets out understandings, obligations, and benefits for both parties
which provides for a framework that elaborates the principles declared in the [MOA-
AD].[29]
The MOA-AD states that the Parties HAVE AGREED AND ACKNOWLEDGED AS
FOLLOWS, and starts with its main body.
The main body of the MOA-AD is divided into four strands, namely, Concepts and
Principles, Territory, Resources, and Governance.
A. CONCEPTS AND PRINCIPLES
This strand begins with the statement that it is the birthright of all Moros and all Indigenous
peoples of Mindanao to identify themselves and be accepted as Bangsamoros. It defines
Bangsamoro people as the natives or original inhabitants of Mindanao and its adjacent
islands including Palawan and the Sulu archipelago at the time of conquest or colonization,
and their descendants whether mixed or of full blood, including their spouses.[30]
Thus, the concept of Bangsamoro, as defined in this strand of the MOA-AD, includes not
only Moros as traditionally understood even by Muslims,[31] but all indigenous peoples of
Mindanao and its adjacent islands. The MOA-AD adds that the freedom of choice of
indigenous peoples shall be respected. What this freedom of choice consists in has not been
specifically defined.
The MOA-AD proceeds to refer to the Bangsamoro homeland, the ownership of which is
vested exclusively in the Bangsamoro people by virtue of their prior rights of
occupation.[32] Both parties to the MOA-AD acknowledge that ancestral domain does not
form part of the public domain.[33]
The Bangsamoro people are acknowledged as having the right to self-governance, which
right is said to be rooted on ancestral territoriality exercised originally under the suzerain
authority of their sultanates and the Pat a Pangampong ku Ranaw. The sultanates were
described as states or karajaan/kadatuan resembling a body politic endowed with all the
elements of a nation-state in the modern sense.[34]
The MOA-AD thus grounds the right to self-governance of the Bangsamoro people on the
past suzerain authority of the sultanates. As gathered, the territory defined as the
Bangsamoro homeland was ruled by several sultanates and, specifically in the case of the
Maranao, by the Pat a Pangampong ku Ranaw, a confederation of independent principalities
(pangampong) each ruled by datus and sultans, none of whom was supreme over the
others.[35]
The MOA-AD goes on to describe the Bangsamoro people as the First Nation with defined
territory and with a system of government having entered into treaties of amity and
commerce with foreign nations.
The term First Nation is of Canadian origin referring to the indigenous peoples of that
territory, particularly those known as Indians. In Canada, each of these indigenous peoples
is equally entitled to be called First Nation, hence, all of them are usually described
collectively by the plural First Nations.[36] To that extent, the MOA-AD, by identifying the
Bangsamoro people as the First Nation suggesting its exclusive entitlement to that
designation departs from the Canadian usage of the term.
The MOA-AD then mentions for the first time the Bangsamoro Juridical Entity (BJE) to
which it grants the authority and jurisdiction over the Ancestral Domain and Ancestral
Lands of the Bangsamoro.[37]
B. TERRITORY
The territory of the Bangsamoro homeland is described as the land mass as well as the
maritime, terrestrial, fluvial and alluvial domains, including the aerial domain and the
atmospheric space above it, embracing the Mindanao-Sulu-Palawan geographic region.[38]
More specifically, the core of the BJE is defined as the present geographic area of the
ARMM thus constituting the following areas: Lanao del Sur, Maguindanao, Sulu, Tawi-
Tawi, Basilan, and Marawi City. Significantly, this core also includes certain municipalities
of Lanao del Norte that voted for inclusion in the ARMM in the 2001 plebiscite.[39]
Outside of this core, the BJE is to cover other provinces, cities, municipalities and
barangays, which are grouped into two categories, Category A and Category B. Each of
these areas is to be subjected to a plebiscite to be held on different dates, years apart from
each other. Thus, Category A areas are to be subjected to a plebiscite not later than twelve
(12) months following the signing of the MOA-AD.[40] Category B areas, also called
Special Intervention Areas, on the other hand, are to be subjected to a plebiscite twenty-five
(25) years from the signing of a separate agreement the Comprehensive Compact.[41]
The Parties to the MOA-AD stipulate that the BJE shall have jurisdiction over all natural
resources within its 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.
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The MOA-AD further provides for the sharing of minerals on the territorial waters between
the Central Government and the BJE, in favor of the latter, through production sharing and
economic cooperation agreement.[44] The activities which the Parties are allowed to
conduct on the territorial waters are enumerated, among which are the exploration and
utilization of natural resources, regulation of shipping and fishing activities, and the
enforcement of police and safety measures.[45] There is no similar provision on the sharing
of minerals and allowed activities with respect to the internal waters of the BJE.
C. RESOURCES
The MOA-AD states that the BJE is free to enter into any economic cooperation and trade
relations with foreign countries and shall have the option to establish trade missions in
those countries. Such relationships and understandings, however, are not to include
aggression against the GRP. The BJE may also enter into environmental cooperation
agreements.[46]
The external defense of the BJE is to remain the duty and obligation of the Central
Government. The Central Government is also bound to take necessary steps to ensure the
BJEs participation in international meetings and events like those of the ASEAN and the
specialized agencies of the UN. The BJE is to be entitled to participate in Philippine official
missions and delegations for the negotiation of border agreements or protocols for
environmental protection and equitable sharing of incomes and revenues involving the
bodies of water adjacent to or between the islands forming part of the ancestral domain.[47]
With regard to the right of exploring for, producing, and obtaining all potential sources of
energy, petroleum, fossil fuel, mineral oil and natural gas, the jurisdiction and control
thereon is to be vested in the BJE as the party having control within its territorial
jurisdiction. This right carries the proviso that, in times of national emergency, when public
interest so requires, the Central Government may, for a fixed period and under reasonable
terms as may be agreed upon by both Parties, assume or direct the operation of such
resources.[48]
The sharing between the Central Government and the BJE of total production pertaining to
natural resources is to be 75:25 in favor of the BJE.[49]
The MOA-AD provides that legitimate grievances of the Bangsamoro people arising from
any unjust dispossession of their territorial and proprietary rights, customary land tenures,
or their marginalization shall be acknowledged. Whenever restoration is no longer possible,
reparation is to be in such form as mutually determined by the Parties.[50]
The BJE may modify or cancel the forest concessions, timber licenses, contracts or
agreements, mining concessions, Mineral Production and Sharing Agreements (MPSA),
Industrial Forest Management Agreements (IFMA), and other land tenure instruments
granted by the Philippine Government, including those issued by the present ARMM.[51]
D. GOVERNANCE
The MOA-AD binds the Parties to invite a multinational third-party to observe and monitor
the implementation of the Comprehensive Compact. This compact is to embody the details
for the effective enforcement and the mechanisms and modalities for the actual
implementation of the MOA-AD. The MOA-AD explicitly provides that the participation
of the third party shall not in any way affect the status of the relationship between the
Central Government and the BJE.[52]
The associative relationship
between the Central Government
and the BJE
The MOA-AD describes the relationship of the Central Government and the BJE as
associative, 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 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.
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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 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 cites[63] the following provisions of the MOA-AD:
TERRITORY
xxxx
2. Toward this end, the Parties enter into the following stipulations:
xxxx
d. Without derogating from the requirements of prior agreements, the Government
stipulates to conduct and deliver, using all possible legal measures, within twelve (12)
months following the signing of the MOA-AD, a plebiscite covering the areas as
enumerated in the list and depicted in the map as Category A attached herein (the Annex).
The Annex constitutes an integral part of this framework agreement. Toward this end, the
Parties shall endeavor to complete the negotiations and resolve all outstanding issues on the
Comprehensive Compact within fifteen (15) months from the signing of the MOA-AD.
xxxx
GOVERNANCE
xxxx
7. The Parties agree that mechanisms and modalities for the actual implementation of this
MOA-AD shall be spelt out in the Comprehensive Compact to mutually take such steps to
enable it to occur effectively.
Any provisions of the MOA-AD requiring amendments to the existing legal framework
shall come into force upon the signing of a Comprehensive Compact and upon effecting the
necessary changes to the legal framework with due regard to non-derogation of prior
agreements and within the stipulated timeframe to be contained in the Comprehensive
Compact.[64] (Underscoring supplied)
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The Solicitor Generals arguments fail to persuade.
Concrete acts under the MOA-AD are not necessary to render the present controversy ripe.
In Pimentel, Jr. v. Aguirre,[65] this Court held:
x x x [B]y the mere enactment of the questioned law or the approval of the challenged
action, the dispute is said to have ripened into a judicial controversy even without any other
overt act. Indeed, even a singular violation of the Constitution and/or the law is enough to
awaken judicial duty.
xxxx
By the same token, when an act of the President, who in our constitutional scheme is a
coequal of Congress, is seriously alleged to have infringed the Constitution and the laws x x
x settling the dispute becomes the duty and the responsibility of the courts.[66]
In Santa Fe Independent School District v. Doe,[67] the United States Supreme Court held
that the challenge to the constitutionality of the schools policy allowing student-led prayers
and speeches before games was ripe for adjudication, even if no public prayer had yet been
led under the policy, because the policy was being challenged as unconstitutional on its
face.[68]
That the law or act in question is not yet effective does not negate ripeness. For example, in
New York v. United States,[69] decided in 1992, the United States Supreme Court held that
the action by the State of New York challenging the provisions of the Low-Level
Radioactive Waste Policy Act was ripe for adjudication even if the questioned provision
was not to take effect until January 1, 1996, because the parties agreed that New York had
to take immediate action to avoid the provision's consequences.[70]
The present petitions pray for Certiorari,[71] Prohibition, and Mandamus. Certiorari and
Prohibition are remedies granted by law when any tribunal, board or officer has acted, in
the case of certiorari, or is proceeding, in the case of prohibition, without or in excess of its
jurisdiction or with grave abuse of discretion amounting to lack or excess of
jurisdiction.[72] Mandamus is a remedy granted by law when any tribunal, corporation,
board, officer or person unlawfully neglects the performance of an act which the law
specifically enjoins as a duty resulting from an office, trust, or station, or unlawfully
excludes another from the use or enjoyment of a right or office to which such other is
entitled.[73] Certiorari, Mandamus and Prohibition are appropriate remedies to raise
constitutional issues and to review and/or prohibit/nullify, when proper, acts of legislative
and executive officials.[74]
The authority of the GRP Negotiating Panel is defined by Executive Order No. 3 (E.O. No.
3), issued on February 28, 2001.[75] The said executive order requires that [t]he
government's policy framework for peace, including the systematic approach and the
administrative structure for carrying out the comprehensive peace process x x x be
governed by this Executive Order.[76]
The present petitions allege that respondents GRP Panel and PAPP Esperon drafted the
terms of the MOA-AD without consulting the local government units or communities
affected, nor informing them of the proceedings. As will be discussed in greater detail later,
such omission, by itself, constitutes a departure by respondents from their mandate under
E.O. No. 3.
Furthermore, the petitions allege that the provisions of the MOA-AD violate the
Constitution. The MOA-AD provides that any provisions of the MOA-AD requiring
amendments to the existing legal framework shall come into force upon the signing of a
Comprehensive Compact and upon effecting the necessary changes to the legal framework,
implying an amendment of the Constitution to accommodate the MOA-AD. This
stipulation, in effect, guaranteed to the MILF the amendment of the Constitution. Such act
constitutes another violation of its authority. Again, these points will be discussed in more
detail later.
As the petitions allege acts or omissions on the part of respondent that exceed their
authority, by violating their duties under E.O. No. 3 and the provisions of the Constitution
and statutes, the petitions make a prima facie case for Certiorari, Prohibition, and
Mandamus, and an actual case or controversy ripe for adjudication exists. When an act of a
branch of government is seriously alleged to have infringed the Constitution, it becomes not
only the right but in fact the duty of the judiciary to settle the dispute.[77]
B. LOCUS STANDI
For a party to have locus standi, one must allege such a personal stake in the outcome of the
controversy as to assure that concrete adverseness which sharpens the presentation of issues
upon which the court so largely depends for illumination of difficult constitutional
questions.[78]
Because constitutional cases are often public actions in which the relief sought is likely to
affect other persons, a preliminary question frequently arises as to this interest in the
constitutional question raised.[79]
When suing as a citizen, the person complaining must allege that he has been or is about to
be denied some right or privilege to which he is lawfully entitled or that he is about to be
subjected to some burdens or penalties by reason of the statute or act complained of.[80]
When the issue concerns a public right, it is sufficient that the petitioner is a citizen and has
an interest in the execution of the laws.[81]
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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 taxpayers suit.[83]
In the case of a legislator or member of Congress, an act of the Executive that injures the
institution of Congress causes a derivative but nonetheless substantial injury that can be
questioned by legislators. A member of the House of Representatives has standing to
maintain inviolate the prerogatives, powers and privileges vested by the Constitution in his
office.[84]
An organization may be granted standing to assert the rights of its members,[85] but the
mere invocation by the Integrated Bar of the Philippines or any member of the legal
profession of the duty to preserve the rule of law does not suffice to clothe it with
standing.[86]
As regards a local government unit (LGU), it can seek relief in order to protect or vindicate
an interest of its own, and of the other LGUs.[87]
Intervenors, meanwhile, may be given legal standing upon showing of facts that satisfy the
requirements of the law authorizing intervention,[88] such as a legal interest in the matter in
litigation, or in the success of either of the parties.
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 Courts forbearing stance on locus standi on issues involving constitutional issues has
for its purpose the protection of fundamental rights.
In not a few cases, the Court, in keeping with its duty under the Constitution to determine
whether the other branches of government have kept themselves within the limits of the
Constitution and the laws and have not abused the discretion given them, has brushed aside
technical rules of procedure.[91]
In the petitions at bar, petitioners Province of North Cotabato (G.R. No. 183591) Province
of Zamboanga del Norte (G.R. No. 183951), City of Iligan (G.R. No. 183893) and City of
Zamboanga (G.R. No. 183752) and petitioners-in-intervention Province of Sultan Kudarat,
City of Isabela and Municipality of Linamon have locus standi in view of the direct and
substantial injury that they, as LGUs, would suffer as their territories, whether in whole or
in part, are to be included in the intended domain of the BJE. These petitioners allege that
they did not vote for their inclusion in the ARMM which would be expanded to form the
BJE territory. Petitioners legal standing is thus beyond doubt.
In G.R. No. 183962, petitioners Ernesto Maceda, Jejomar Binay and Aquilino Pimentel III
would have no standing as citizens and taxpayers for their failure to specify that they would
be denied some right or privilege or there would be wastage of public funds. The fact that
they are a former Senator, an incumbent mayor of Makati City, and a resident of Cagayan
de Oro, respectively, is of no consequence. Considering their invocation of the
transcendental importance of the issues at hand, however, the Court grants them standing.
Intervenors Franklin Drilon and Adel Tamano, in alleging their standing as taxpayers, assert
that government funds would be expended for the conduct of an illegal and unconstitutional
plebiscite to delineate the BJE territory. On that score alone, they can be given legal
standing. Their allegation that the issues involved in these petitions are of undeniable
transcendental importance clothes them with added basis for their personality to intervene
in these petitions.
With regard to Senator Manuel Roxas, his standing is premised on his being a member of
the Senate and a citizen to enforce compliance by respondents of the publics constitutional
right to be informed of the MOA-AD, as well as on a genuine legal interest in the matter in
litigation, or in the success or failure of either of the parties. He thus possesses the requisite
standing as an intervenor.
With respect to Intervenors Ruy Elias Lopez, as a former congressman of the 3rd district of
Davao City, a taxpayer and a member of the Bagobo tribe; Carlo B. Gomez, et al., as
members of the IBP Palawan chapter, citizens and taxpayers; Marino Ridao, as taxpayer,
resident and member of the Sangguniang Panlungsod of Cotabato City; and Kisin Buxani,
as taxpayer, they failed to allege any proper legal interest in the present petitions. Just the
same, the Court exercises its discretion to relax the procedural technicality on locus standi
given the paramount public interest in the issues at hand.
Intervening respondents Muslim Multi-Sectoral Movement for Peace and Development, an
advocacy group for justice and the attainment of peace and prosperity in Muslim Mindanao;
and Muslim Legal Assistance Foundation Inc., a non-government organization of Muslim
lawyers, allege that they stand to be benefited or prejudiced, as the case may be, in the
resolution of the petitions concerning the MOA-AD, and prays for the denial of the
petitions on the grounds therein stated. Such legal interest suffices to clothe them with
standing.
B. MOOTNESS
Respondents insist that the present petitions have been rendered moot with the satisfaction
of all the reliefs prayed for by petitioners and the subsequent pronouncement of the
Executive Secretary that [n]o matter what the Supreme Court ultimately decides[,] the
government will not sign the MOA.[92]
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In lending credence to this policy decision, the Solicitor General points out that the
President had already disbanded the GRP Peace Panel.[93]
In David v. Macapagal-Arroyo,[94] this Court held that the moot and academic principle
not being a magical formula that automatically dissuades courts in resolving a case, it will
decide cases, otherwise moot and academic, if it finds that (a) there is a grave violation of
the Constitution;[95] (b) the situation is of exceptional character and paramount public
interest is involved;[96] (c) the constitutional issue raised requires formulation of
controlling principles to guide the bench, the bar, and the public;[97] and (d) the case is
capable of repetition yet evading review.[98]
Another exclusionary circumstance that may be considered is where there is a voluntary
cessation of the activity complained of by the defendant or doer. Thus, once a suit is filed
and the doer voluntarily ceases the challenged conduct, it does not automatically deprive
the tribunal of power to hear and determine the case and does not render the case moot
especially when the plaintiff seeks damages or prays for injunctive relief against the
possible recurrence of the violation.[99]
The present petitions fall squarely into these exceptions to thus thrust them into the domain
of judicial review. The grounds cited above in David are just as applicable in the present
cases as they were, not only in David, but also in Province of Batangas v. Romulo[100] and
Manalo v. Calderon[101] 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 Courts issuance
of a Temporary Restraining Order.
Contrary too to respondents position, the MOA-AD cannot be considered a mere list of
consensus points, especially given its nomenclature, the need to have it signed or initialed
by all the parties concerned on August 5, 2008, and the far-reaching Constitutional
implications of these consensus points, foremost of which is the creation of the BJE.
In fact, as what will, in the main, be discussed, there is a commitment on the part of
respondents to amend and effect necessary changes to the existing legal framework for
certain provisions of the MOA-AD to take effect. Consequently, the present petitions are
not confined to the terms and provisions of the MOA-AD, but to other on-going and future
negotiations and agreements necessary for its realization. The petitions have not, therefore,
been rendered moot and academic simply by the public disclosure of the MOA-AD,[102]
the manifestation that it will not be signed as well as the disbanding of the GRP Panel not
withstanding.
Petitions are imbued with paramount public interest
There is no gainsaying that the petitions are imbued with paramount public interest,
involving a significant part of the countrys 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
partiesthe government and a private foreign corporation. As the issues therein involved
specific government procurement policies and standard principles on contracts, the majority
opinion in Suplico found nothing exceptional therein, the factual circumstances being
peculiar only to the transactions and parties involved in the controversy.
The MOA-AD is part of a series of agreements
In the present controversy, the MOA-AD is a significant part of a series of agreements
necessary to carry out the Tripoli Agreement 2001. The MOA-AD which dwells on the
Ancestral Domain Aspect of said Tripoli Agreement is the third such component to be
undertaken following the implementation of the Security Aspect in August 2001 and the
Humanitarian, Rehabilitation and Development Aspect in May 2002.
Accordingly, even if the Executive Secretary, in his Memorandum of August 28, 2008 to
the Solicitor General, has stated that no matter what the Supreme Court ultimately
decides[,] the government will not sign the MOA[-AD], mootness will not set in in light of
the terms of the Tripoli Agreement 2001.
Need to formulate principles-guidelines
Surely, the present MOA-AD can be renegotiated or another one will be drawn up to carry
out the Ancestral Domain Aspect of the Tripoli Agreement 2001, in another or in any form,
which could contain similar or significantly drastic provisions. While the Court notes the
word of the Executive Secretary that the government is committed to securing an agreement
that is both constitutional and equitable because that is the only way that long-lasting peace
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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 Courts attention to the separate opinion of then Chief Justice
Artemio Panganiban in Sanlakas v. Reyes[104] in which he stated that the doctrine of
capable of repetition yet evading review can override mootness, provided the party raising
it in a proper case has been and/or continue to be prejudiced or damaged as a direct result of
their issuance. They contend that the Court must have jurisdiction over the subject matter
for the doctrine to be invoked.
The present petitions all contain prayers for Prohibition over which this Court exercises
original jurisdiction. While G.R. No. 183893 (City of Iligan v. GRP) is a petition for
Injunction and Declaratory Relief, the Court will treat it as one for Prohibition as it has far
reaching implications and raises questions that need to be resolved.[105] At all events, the
Court has jurisdiction over most if not the rest of the petitions.
Indeed, the present petitions afford a proper venue for the Court to again apply the doctrine
immediately referred to as what it had done in a number of landmark cases.[106] There is a
reasonable expectation that petitioners, particularly the Provinces of North Cotabato,
Zamboanga del Norte and Sultan Kudarat, the Cities of Zamboanga, Iligan and Isabela, and
the Municipality of Linamon, will again be subjected to the same problem in the future as
respondents actions are capable of repetition, in another or any form.
It is with respect to the prayers for Mandamus that the petitions have become moot,
respondents having, by Compliance of August 7, 2008, provided this Court and petitioners
with official copies of the final draft of the MOA-AD and its annexes. Too, intervenors
have been furnished, or have procured for themselves, copies of the MOA-AD.
V. SUBSTANTIVE ISSUES
As culled from the Petitions and Petitions-in-Intervention, there are basically two
SUBSTANTIVE issues to be resolved, one relating to the manner in which the MOA-AD
was negotiated and finalized, the other relating to its provisions, viz:
1. Did respondents violate constitutional and statutory provisions on public consultation and
the right to information when they negotiated and later initialed the MOA-AD?
2. Do the contents of the MOA-AD violate the Constitution and the laws?
ON THE FIRST SUBSTANTIVE ISSUE
Petitioners invoke their constitutional right to information on matters of public concern, as
provided in Section 7, Article III on the Bill of Rights:
Sec. 7. The right of the people to information on matters of public concern shall be
recognized. Access to official records, and to documents, and papers pertaining to official
acts, transactions, or decisions, as well as to government research data used as basis for
policy development, shall be afforded the citizen, subject to such limitations as may be
provided by law.[107]
As early as 1948, in Subido v. Ozaeta,[108] the Court has recognized the statutory right to
examine and inspect public records, a right which was eventually accorded constitutional
status.
The right of access to public documents, as enshrined in both the 1973 Constitution and the
1987 Constitution, has been recognized as a self-executory constitutional right.[109]
In the 1976 case of Baldoza v. Hon. Judge Dimaano,[110] the Court ruled that access to
public records is predicated on the right of the people to acquire information on matters of
public concern since, undoubtedly, in a democracy, the pubic has a legitimate interest in
matters of social and political significance.
x x x The incorporation of this right in the Constitution is a recognition of the fundamental
role of free exchange of information in a democracy. There can be no realistic perception
by the public of the nations 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
x[111]
In the same way that free discussion enables members of society to cope with the
exigencies of their time, access to information of general interest aids the people in
democratic decision-making by giving them a better perspective of the vital issues
confronting the nation[112] so that they may be able to criticize and participate in the
affairs of the government in a responsible, reasonable and effective manner. It is by
ensuring an unfettered and uninhibited exchange of ideas among a well-informed public
that a government remains responsive to the changes desired by the people.[113]
The MOA-AD is a matter of public concern
That the subject of the information sought in the present cases is a matter of public
concern[114] 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
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proper management of GSIS funds allegedly used to grant loans to public officials,[119] the
recovery of the Marcoses alleged ill-gotten wealth,[120] and the identity of party-list
nominees,[121] among others, are matters of public concern. Undoubtedly, the MOA-AD
subject of the present cases is of public concern, involving as it does the sovereignty and
territorial integrity of the State, which directly affects the lives of the public at large.
Matters of public concern covered by the right to information include steps and negotiations
leading to the consummation of the contract. In not distinguishing as to the executory
nature or commercial character of agreements, the Court has categorically ruled:
x x x [T]he right to information contemplates inclusion of negotiations leading to the
consummation of the transaction. Certainly, a consummated contract is not a requirement
for the exercise of the right to information. Otherwise, the people can never exercise the
right if no contract is consummated, and if one is consummated, it may be too late for the
public to expose its defects.
Requiring a consummated contract will keep the public in the dark until the contract, which
may be grossly disadvantageous to the government or even illegal, becomes fait accompli.
This negates the State policy of full transparency on matters of public concern, a situation
which the framers of the Constitution could not have intended. Such a requirement will
prevent the citizenry from participating in the public discussion of any proposed contract,
effectively truncating a basic right enshrined in the Bill of Rights. We can allow neither an
emasculation of a constitutional right, nor a retreat by the State of its avowed policy of full
disclosure of all its transactions involving public interest.[122] (Emphasis and italics in the
original)
Intended as a splendid symmetry[123] to the right to information under the Bill of Rights is
the policy of public disclosure under Section 28, Article II of the Constitution reading:
Sec. 28. Subject to reasonable conditions prescribed by law, the State adopts and
implements a policy of full public disclosure of all its transactions involving public
interest.[124]
The policy of full public disclosure enunciated in above-quoted Section 28 complements
the right of access to information on matters of public concern found in the Bill of Rights.
The right to information guarantees the right of the people to demand information, while
Section 28 recognizes the duty of officialdom to give information even if nobody
demands.[125]
The policy of public disclosure establishes a concrete ethical principle for the conduct of
public affairs in a genuinely open democracy, with the peoples right to know as the
centerpiece. It is a mandate of the State to be accountable by following such policy.[126]
These provisions are vital to the exercise of the freedom of expression and essential to hold
public officials at all times accountable to the people.[127]
Whether Section 28 is self-executory, the records of the deliberations of the Constitutional
Commission so disclose:
MR. SUAREZ. And since this is not self-executory, this policy will not be enunciated or
will not be in force and effect until after Congress shall have provided it.
MR. OPLE. I expect it to influence the climate of public ethics immediately but, of course,
the implementing law will have to be enacted by Congress, Mr. Presiding Officer.[128]
The following discourse, after Commissioner Hilario Davide, Jr., sought clarification on the
issue, is enlightening.
MR. DAVIDE. I would like to get some clarifications on this. Mr. Presiding Officer, did I
get the Gentleman correctly as having said that this is not a self-executing provision? It
would require a legislation by Congress to implement?
MR. OPLE. Yes. Originally, it was going to be self-executing, but I accepted an
amendment from Commissioner Regalado, so that the safeguards on national interest are
modified by the clause as may be provided by law
MR. DAVIDE. But as worded, does it not mean that this will immediately take effect and
Congress may provide for reasonable safeguards on the sole ground national interest?
MR. OPLE. Yes. I think so, Mr. Presiding Officer, I said earlier that it should immediately
influence the climate of the conduct of public affairs but, of course, Congress here may no
longer pass a law revoking it, or if this is approved, revoking this principle, which is
inconsistent with this policy.[129] (Emphasis supplied)
Indubitably, the effectivity of the policy of public disclosure need not await the passing of a
statute. As Congress cannot revoke this principle, it is merely directed to provide for
reasonable safeguards. The complete and effective exercise of the right to information
necessitates that its complementary provision on public disclosure derive the same self-
executory nature. Since both provisions go hand-in-hand, it is absurd to say that the
broader[130] right to information on matters of public concern is already enforceable while
the correlative duty of the State to disclose its transactions involving public interest is not
enforceable until there is an enabling law. Respondents cannot thus point to the absence of
an implementing legislation as an excuse in not effecting such policy.
An essential element of these freedoms is to keep open a continuing dialogue or process of
communication between the government and the people. It is in the interest of the State that
the channels for free political discussion be maintained to the end that the government may
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perceive and be responsive to the peoples 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. 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 peoples 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 peoples participation in
the peace process.[135]
Clearly, E.O. No. 3 contemplates not just the conduct of a plebiscite to effectuate
continuing consultations, contrary to respondents position that plebiscite is more than
sufficient consultation.[136]
Further, E.O. No. 3 enumerates the functions and responsibilities of the PAPP, one of
which is to [c]onduct regular dialogues with the National Peace Forum (NPF) and other
peace partners to seek relevant information, comments, recommendations as well as to
render appropriate and timely reports on the progress of the comprehensive peace
process.[137] E.O. No. 3 mandates the establishment of the NPF to be the principal forum
for the PAPP to consult with and seek advi[c]e from the peace advocates, peace partners
and concerned sectors of society on both national and local levels, on the implementation of
the comprehensive peace process, as well as for government[-]civil society dialogue and
consensus-building on peace agenda and initiatives.[138]
In fine, E.O. No. 3 establishes petitioners right to be consulted on the peace agenda, as a
corollary to the constitutional right to information and disclosure.
PAPP Esperon committed grave abuse of discretion
The PAPP committed grave abuse of discretion when he failed to carry out the pertinent
consultation. The furtive 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 peoples 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. 3s explicit
provisions on continuing consultation and dialogue on both national and local levels. The
executive order even recognizes the exercise of the publics 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 Courts August 4, 2008 Resolution, without a prayer
for the documents disclosure in camera, or without a manifestation that it was complying
therewith ex abundante ad cautelam.
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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. Pao,[144] the Court held that the above-stated policy and above-quoted
provision of the LGU apply only to national programs or projects which are to be
implemented in a particular local community. Among the programs and projects covered
are those that are critical to the environment and human ecology including those that may
call for the eviction of a particular group of people residing in the locality where these will
be implemented.[145] The MOA-AD is one peculiar program that unequivocally and
unilaterally vests ownership of a vast territory to the Bangsamoro people,[146] which could
pervasively and drastically result to the diaspora or displacement of a great number of
inhabitants from their total environment.
With respect to the indigenous cultural communities/indigenous peoples (ICCs/IPs), whose
interests are represented herein by petitioner Lopez and are adversely affected by the MOA-
AD, the ICCs/IPs have, under the IPRA, the right to participate fully at all levels of
decision-making in matters which may affect their rights, lives and destinies.[147] The
MOA-AD, an instrument recognizing ancestral domain, failed to justify its non-compliance
with the clear-cut mechanisms ordained in said Act,[148] which entails, among other
things, the observance of the free and prior informed consent of the ICCs/IPs.
Notably, the IPRA does not grant the Executive Department or any government agency the
power to delineate and recognize an ancestral domain claim by mere agreement or
compromise. The recognition of the ancestral domain is the raison detre of the MOA-AD,
without which all other stipulations or consensus points necessarily must fail. In proceeding
to make a sweeping declaration on ancestral domain, without complying with the IPRA,
which is cited as one of the TOR of the MOA-AD, respondents clearly transcended the
boundaries of their authority. As it seems, even the heart of the MOA-AD is still subject to
necessary changes to the legal framework. While paragraph 7 on Governance suspends the
effectivity of all provisions requiring changes to the legal framework, such clause is itself
invalid, as will be discussed in the following section.
Indeed, ours is an open society, with all the acts of the government subject to public
scrutiny and available always to public cognizance. This has to be so if the country is to
remain democratic, with sovereignty residing in the people and all government authority
emanating from them.[149]
ON THE SECOND SUBSTANTIVE ISSUE
With regard to the provisions of the MOA-AD, there can be no question that they cannot all
be accommodated under the present Constitution and laws. Respondents have admitted as
much in the oral arguments before this Court, and the MOA-AD itself recognizes the need
to amend the existing legal framework to render effective at least some of its provisions.
Respondents, nonetheless, counter that the MOA-AD is free of any legal infirmity because
any provisions therein which are inconsistent with the present legal framework will not be
effective until the necessary changes to that framework are made. The validity of this
argument will be considered later. For now, the Court shall pass upon how
The MOA-AD is inconsistent with the Constitution and laws as presently worded.
In general, the objections against the MOA-AD center on the extent of the powers conceded
therein to the BJE. Petitioners assert that the powers granted to the BJE exceed those
granted to any local government under present laws, and even go beyond those of the
present ARMM. Before assessing some of the specific powers that would have been vested
in the BJE, however, it would be useful to turn first to a general idea that serves as a
unifying link to the different provisions of the MOA-AD, namely, the international law
concept of association. Significantly, the MOA-AD explicitly alludes to this concept,
indicating that the Parties actually framed its provisions with it in mind.
Association is referred to in paragraph 3 on TERRITORY, paragraph 11 on RESOURCES,
and paragraph 4 on GOVERNANCE. It is in the last mentioned provision, however, that
the MOA-AD most clearly uses it to describe the envisioned relationship between the BJE
and the Central Government.
4. The relationship between the Central Government and the Bangsamoro juridical entity
shall 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
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concept of association may be brought to bear in understanding the use of the term
associative in the MOA-AD.
Keitner and Reisman state that
[a]n association is formed when two states of unequal power voluntarily establish durable
links. In the basic model, one state, the associate, delegates certain responsibilities to the
other, the principal, while maintaining its international status as a state. Free associations
represent a middle ground between integration and independence. x x x[150] (Emphasis
and underscoring supplied)
For purposes of illustration, the Republic of the Marshall Islands and the Federated States
of Micronesia (FSM), formerly part of the U.S.-administered Trust Territory of the Pacific
Islands,[151] are associated states of the U.S. pursuant to a Compact of Free Association.
The currency in these countries is the U.S. dollar, indicating their very close ties with the
U.S., yet they issue their own travel documents, which is a mark of their statehood. Their
international legal status as states was confirmed by the UN Security Council and by their
admission to UN membership.
According to their compacts of free association, the Marshall Islands and the FSM
generally have the capacity to conduct foreign affairs in their own name and right, such
capacity extending to matters such as the law of the sea, marine resources, trade, banking,
postal, civil aviation, and cultural relations. The U.S. government, when conducting its
foreign affairs, is obligated to consult with the governments of the Marshall Islands or the
FSM on matters which it (U.S. government) regards as relating to or affecting either
government.
In the event of attacks or threats against the Marshall Islands or the FSM, the U.S.
government has the authority and obligation to defend them as if they were part of U.S.
territory. The U.S. government, moreover, has the option of establishing and using military
areas and facilities within these associated states and has the right to bar the military
personnel of any third country from having access to these territories for military purposes.
It bears noting that in U.S. constitutional and international practice, free association is
understood as an international association between sovereigns. The Compact of Free
Association is a treaty which is subordinate to the associated nations 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 BJEs capacity to
enter into economic and trade relations with foreign countries, the commitment of the
Central Government to ensure the BJEs 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 BJEs right to participate in Philippine
official missions bearing on negotiation of border agreements, environmental protection,
and sharing of revenues pertaining to the bodies of water adjacent to or between the islands
forming part of the ancestral domain, resembles the right of the governments of FSM and
the Marshall Islands to be consulted by the U.S. government on any foreign affairs matter
affecting them.
These provisions of the MOA indicate, among other things, that the Parties aimed to vest in
the BJE the status of an associated state or, at any rate, a status closely approximating it.
The concept of association is not recognized under the present Constitution
No province, city, or municipality, not even the ARMM, is recognized under our laws as
having an associative relationship with the national government. Indeed, the concept
implies powers that go beyond anything ever granted by the Constitution to any local or
regional government. It also implies the recognition of the associated entity as a state. The
Constitution, however, does not contemplate any state in this jurisdiction other than the
Philippine State, much less does it provide for a transitory status that aims to prepare any
part of Philippine territory for independence.
Even the mere concept animating many of the MOA-ADs 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.
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The BJE is a far more powerful
entity than the autonomous region
recognized in the Constitution
It is not merely an expanded version of the ARMM, the status of its relationship with the
national government being fundamentally different from that of the ARMM. Indeed, BJE is
a state in all but name as it meets the criteria of a state laid down in the Montevideo
Convention,[154] namely, a permanent population, a defined territory, a government, and a
capacity to enter into relations with other states.
Even assuming arguendo that the MOA-AD would not necessarily sever any portion of
Philippine territory, the spirit animating it which has betrayed itself by its use of the concept
of association runs counter to the national sovereignty and territorial integrity of the
Republic.
The defining concept underlying the relationship between the national government and the
BJE being itself contrary to the present Constitution, it is not surprising that many of the
specific provisions of the MOA-AD on the formation and powers of the BJE are in conflict
with the Constitution and the laws.
Article X, Section 18 of the Constitution provides that [t]he creation of the autonomous
region shall be effective when approved by a majority of the votes cast by the constituent
units in a plebiscite called for the purpose, provided that only provinces, cities, and
geographic areas voting favorably in such plebiscite shall be included in the autonomous
region. (Emphasis supplied)
As reflected above, the BJE is more of a state than an autonomous region. But even
assuming that it is covered by the term autonomous region in the constitutional provision
just quoted, the MOA-AD would still be in conflict with it. Under paragraph 2(c) on
TERRITORY in relation to 2(d) and 2(e), the present geographic area of the ARMM and, in
addition, the municipalities of Lanao del Norte which voted for inclusion in the ARMM
during the 2001 plebiscite Baloi, Munai, Nunungan, Pantar, Tagoloan and Tangkal are
automatically part of the BJE without need of another plebiscite, in contrast to the areas
under Categories A and B mentioned earlier in the overview. That the present components
of the ARMM and the above-mentioned municipalities voted for inclusion therein in 2001,
however, does not render another plebiscite unnecessary under the Constitution, precisely
because what these areas voted for then was their inclusion in the ARMM, not the BJE.
The MOA-AD, moreover, would not
comply with Article X, Section 20 of
the Constitution
since that provision defines the powers of autonomous regions as follows:
SECTION 20. Within its territorial jurisdiction and subject to the provisions of this
Constitution and national laws, the organic act of autonomous regions shall provide for
legislative powers over:
(1) Administrative organization;
(2) Creation of sources of revenues;
(3) Ancestral domain and natural resources;
(4) Personal, family, and property relations;
(5) Regional urban and rural planning development;
(6) Economic, social, and tourism development;
(7) Educational policies;
(8) Preservation and development of the cultural heritage; and
(9) Such other matters as may be authorized by law for the promotion of the general welfare
of the people of the region. (Underscoring supplied)
Again on the premise that the BJE may be regarded as an autonomous region, the MOA-
AD would require an amendment that would expand the above-quoted provision. The mere
passage of new legislation pursuant to sub-paragraph No. 9 of said constitutional provision
would not suffice, since any new law that might vest in the BJE the powers found in the
MOA-AD must, itself, comply with other provisions of the Constitution. It would not do,
for instance, to merely pass legislation vesting the BJE with treaty-making power in order
to accommodate paragraph 4 of the strand on RESOURCES which states: The BJE is free
to enter into any economic cooperation and trade relations with foreign countries: provided,
however, that such relationships and understandings do not include aggression against the
Government of the Republic of the Philippines x x x. Under our constitutional system, it is
only the President who has that power. Pimentel v. Executive Secretary[155] 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
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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. 9054[156] or the Organic Act of the
ARMM, and the IPRA.[157]
Article X, Section 3 of the Organic Act of the ARMM is a bar to the adoption of the
definition of Bangsamoro people used in the MOA-AD. Paragraph 1 on CONCEPTS AND
PRINCIPLES states:
1. It is the birthright of all Moros and all Indigenous peoples of Mindanao to identify
themselves and be accepted as Bangsamoros. The Bangsamoro people refers to those who
are natives or original inhabitants of Mindanao and its adjacent islands including Palawan
and the Sulu archipelago at the time of conquest or colonization of its descendants whether
mixed or of full blood. Spouses and their descendants are classified as Bangsamoro. The
freedom of choice of the Indigenous people shall be respected. (Emphasis and underscoring
supplied)
This use of the term Bangsamoro sharply contrasts with that found in the Article X, Section
3 of the Organic Act, which, rather than lumping together the identities of the Bangsamoro
and other indigenous peoples living in Mindanao, clearly distinguishes between
Bangsamoro people and Tribal peoples, as follows:
As used in this Organic Act, the phrase indigenous cultural community refers to Filipino
citizens residing in the autonomous region who are:
(a) Tribal peoples. These are citizens whose social, cultural and economic conditions
distinguish them from other sectors of the national community; and
(b) Bangsa Moro people. These are citizens who are believers in Islam and who have
retained some or all of their own social, economic, cultural, and political institutions.
Respecting the IPRA, it lays down the prevailing procedure for the delineation and
recognition of ancestral domains. The MOA-ADs manner of delineating the ancestral
domain of the Bangsamoro people is a clear departure from that procedure. By paragraph 1
of TERRITORY, the Parties simply agree that, subject to the delimitations in the agreed
Schedules, [t]he Bangsamoro homeland and historic territory refer to the land mass as well
as the maritime, terrestrial, fluvial and alluvial domains, and the aerial domain, the
atmospheric space above it, embracing the Mindanao-Sulu-Palawan geographic region.
Chapter VIII of the IPRA, on the other hand, lays down a detailed procedure, as illustrated
in the following provisions thereof:
SECTION 52. Delineation Process. The identification and delineation of ancestral domains
shall be done in accordance with the following procedures:
xxxx
b) Petition for Delineation. The process of delineating a specific perimeter may be initiated
by the NCIP with the consent of the ICC/IP concerned, or through a Petition for Delineation
filed with the NCIP, by a majority of the members of the ICCs/IPs;
c) Delineation Proper. The official delineation of ancestral domain boundaries including
census of all community members therein, shall be immediately undertaken by the
Ancestral Domains Office upon filing of the application by the ICCs/IPs concerned.
Delineation will be done in coordination with the community concerned and shall at all
times include genuine involvement and participation by the members of the communities
concerned;
d) Proof Required. Proof of Ancestral Domain Claims shall include the testimony of elders
or community under oath, and other documents directly or indirectly attesting to the
possession or occupation of the area since time immemorial by such ICCs/IPs in the
concept of owners which shall be any one (1) of the following authentic documents:
1) Written accounts of the ICCs/IPs customs and traditions;
2) Written accounts of the ICCs/IPs political structure and institution;
3) Pictures showing long term occupation such as those of old improvements, burial
grounds, sacred places and old villages;
4) Historical accounts, including pacts and agreements concerning boundaries entered into
by the ICCs/IPs concerned with other ICCs/IPs;
5) Survey plans and sketch maps;
6) Anthropological data;
7) Genealogical surveys;
8) Pictures and descriptive histories of traditional communal forests and hunting grounds;
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9) Pictures and descriptive histories of traditional landmarks such as mountains, rivers,
creeks, ridges, hills, terraces and the like; and
10) Write-ups of names and places derived from the native dialect of the community.
e) Preparation of Maps. On the basis of such investigation and the findings of fact based
thereon, the Ancestral Domains Office of the NCIP shall prepare a perimeter map, complete
with technical descriptions, and a description of the natural features and landmarks
embraced therein;
f) Report of Investigation and Other Documents. A complete copy of the preliminary
census and a report of investigation, shall be prepared by the Ancestral Domains Office of
the NCIP;
g) Notice and Publication. A copy of each document, including a translation in the native
language of the ICCs/IPs concerned shall be posted in a prominent place therein for at least
fifteen (15) days. A copy of the document shall also be posted at the local, provincial and
regional offices of the NCIP, and shall be published in a newspaper of general circulation
once a week for two (2) consecutive weeks to allow other claimants to file opposition
thereto within fifteen (15) days from date of such publication: Provided, That in areas
where no such newspaper exists, broadcasting in a radio station will be a valid substitute:
Provided, further, That mere posting shall be deemed sufficient if both newspaper and radio
station are not available;
h) Endorsement to NCIP. Within fifteen (15) days from publication, and of the inspection
process, the Ancestral Domains Office shall prepare a report to the NCIP endorsing a
favorable action upon a claim that is deemed to have sufficient proof. However, if the proof
is deemed insufficient, the Ancestral Domains Office shall require the submission of
additional evidence: Provided, That the Ancestral Domains Office shall reject any claim
that is deemed patently false or fraudulent after inspection and verification: Provided,
further, That in case of rejection, the Ancestral Domains Office shall give the applicant due
notice, copy furnished all concerned, containing the grounds for denial. The denial shall be
appealable to the NCIP: Provided, furthermore, That in cases where there are conflicting
claims among ICCs/IPs on the boundaries of ancestral domain claims, the Ancestral
Domains Office shall cause the contending parties to meet and assist them in coming up
with a preliminary resolution of the conflict, without prejudice to its full adjudication
according to the section below.
xxxx
To remove all doubts about the irreconcilability of the MOA-AD with the present legal
system, a discussion of not only the Constitution and domestic statutes, but also of
international law is in order, for
Article II, Section 2 of the Constitution states that the Philippines adopts the generally
accepted principles of international law as part of the law of the land.
Applying this provision of the Constitution, the Court, in Mejoff v. Director of
Prisons,[158] held that the Universal Declaration of Human Rights is part of the law of the
land on account of which it ordered the release on bail of a detained alien of Russian
descent whose deportation order had not been executed even after two years. Similarly, the
Court in Agustin v. Edu[159] 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 QUEBEC[160] 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
Rights[161] and the International Covenant on Economic, Social and Cultural Rights[162]
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 peoples right to self-determination should not, however, be understood as extending to
a unilateral right of secession. A distinction should be made between the right of internal
and external self-determination. REFERENCE RE SECESSION OF QUEBEC is again
instructive:
(ii) Scope of the Right to Self-determination
126. The recognized sources of international law establish that the right to self-
determination of a people is normally fulfilled through internal self-determination a peoples
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
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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 peoples 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 states territorial integrity or the stability of relations
between sovereign states.
x x x x (Emphasis, italics and underscoring supplied)
The Canadian Court went on to discuss the exceptional cases in which the right to external
self-determination can arise, namely, where a people is under colonial rule, is subject to
foreign domination or exploitation outside a colonial context, and less definitely but
asserted by a number of commentators is blocked from the meaningful exercise of its right
to internal self-determination. The Court ultimately held that the population of Quebec had
no right to secession, as the same is not under colonial rule or foreign domination, nor is it
being deprived of the freedom to make political choices and pursue economic, social and
cultural development, citing that Quebec is equitably represented in legislative, executive
and judicial institutions within Canada, even occupying prominent positions therein.
The exceptional nature of the right of secession is further exemplified in the REPORT OF
THE INTERNATIONAL COMMITTEE OF JURISTS ON THE LEGAL ASPECTS OF
THE AALAND ISLANDS QUESTION.[163] There, Sweden presented to the Council of
the League of Nations the question of whether the inhabitants of the Aaland Islands should
be authorized to determine by plebiscite if the archipelago should remain under Finnish
sovereignty or be incorporated in the kingdom of Sweden. The Council, before resolving
the question, appointed an International Committee composed of three jurists to submit an
opinion on the preliminary issue of whether the dispute should, based on international law,
be entirely left to the domestic jurisdiction of Finland. The Committee stated the rule as
follows:
x x x [I]n the absence of express provisions in international treaties, the right of disposing
of national territory is essentially an attribute of the sovereignty of every State. Positive
International Law does not recognize the right of national groups, as such, to separate
themselves from the State of which they form part by the simple expression of a wish, any
more than it recognizes the right of other States to claim such a separation. Generally
speaking, the grant or refusal of the right to a portion of its population of determining its
own political fate by plebiscite or by some other method, is, exclusively, an attribute of the
sovereignty of every State which is definitively constituted. A dispute between two States
concerning such a question, under normal conditions therefore, bears upon a question which
International Law leaves entirely to the domestic jurisdiction of one of the States
concerned. Any other solution would amount to an infringement of sovereign rights of a
State and would involve the risk of creating difficulties and a lack of stability which would
not only be contrary to the very idea embodied in term State, but would also endanger the
interests of the international community. If this right is not possessed by a large or small
section of a nation, neither can it be held by the State to which the national group wishes to
be attached, nor by any other State. (Emphasis and underscoring supplied)
The Committee held that the dispute concerning the Aaland Islands did not refer to a
question which is left by international law to the domestic jurisdiction of Finland, thereby
applying the exception rather than the rule elucidated above. Its ground for departing from
the general rule, however, was a very narrow one, namely, the Aaland Islands agitation
originated at a time when Finland was undergoing drastic political transformation. The
internal situation of Finland was, according to the Committee, so abnormal that, for a
considerable time, the conditions required for the formation of a sovereign State did not
exist. In the midst of revolution, anarchy, and civil war, the legitimacy of the Finnish
national government was disputed by a large section of the people, and it had, in fact, been
chased from the capital and forcibly prevented from carrying out its duties. The armed
camps and the police were divided into two opposing forces. In light of these
circumstances, Finland was not, during the relevant time period, a definitively constituted
sovereign state. The Committee, therefore, found that Finland did not possess the right to
withhold from a portion of its population the option to separate itself a right which
sovereign nations generally have with respect to their own populations.
Turning now to the more specific category of indigenous peoples, this term has been used,
in scholarship as well as international, regional, and state practices, to refer to groups with
distinct cultures, histories, and connections to land (spiritual and otherwise) that have been
forcibly incorporated into a larger governing society. These groups are regarded as
indigenous since they are the living descendants of pre-invasion inhabitants of lands now
dominated by others. Otherwise stated, indigenous peoples, nations, or communities are
culturally distinctive groups that find themselves engulfed by settler societies born of the
forces of empire and conquest.[164] Examples of groups who have been regarded as
indigenous peoples are the Maori of New Zealand and the aboriginal peoples of Canada.
As with the broader category of peoples, indigenous peoples situated within states do not
have a general right to independence or secession from those states under international
law,[165] but they do have rights amounting to what was discussed above as the right to
internal self-determination.
In a historic development last September 13, 2007, the UN General Assembly adopted the
United Nations Declaration on the Rights of Indigenous Peoples (UN DRIP) through
General Assembly Resolution 61/295. The vote was 143 to 4, the Philippines being
included among those in favor, and the four voting against being Australia, Canada, New
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Zealand, and the U.S. The Declaration clearly recognized the right of indigenous peoples to
self-determination, encompassing the right to autonomy or self-government, to wit:
Article 3
Indigenous peoples have the right to self-determination. By virtue of that right they freely
determine their political status and freely pursue their economic, social and cultural
development.
Article 4
Indigenous peoples, in exercising their right to self-determination, have the right to
autonomy or self-government in matters relating to their internal and local affairs, as well
as ways and means for financing their autonomous functions.
Article 5
Indigenous peoples have the right to maintain and strengthen their distinct political, legal,
economic, social and cultural institutions, while retaining their right to participate fully, if
they so choose, in the political, economic, social and cultural life of the State.
Self-government, as used in international legal discourse pertaining to indigenous peoples,
has been understood as equivalent to internal 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.
Article 21
1. Indigenous peoples have the right, without discrimination, to the improvement of their
economic and social conditions, including, inter alia, in the areas of education,
employment, vocational training and retraining, housing, sanitation, health and social
security.
2. States shall take effective measures and, where appropriate, special measures to ensure
continuing improvement of their economic and social conditions. Particular attention shall
be paid to the rights and special needs of indigenous elders, women, youth, children and
persons with disabilities.
Article 26
1. Indigenous peoples have the right to the lands, territories and resources which they have
traditionally owned, occupied or otherwise used or acquired.
2. Indigenous peoples have the right to own, use, develop and control the lands, territories
and resources that they possess by reason of traditional ownership or other traditional
occupation or use, as well as those which they have otherwise acquired.
3. States shall give legal recognition and protection to these lands, territories and resources.
Such recognition shall be conducted with due respect to the customs, traditions and land
tenure systems of the indigenous peoples concerned.
Article 30
1. Military activities shall not take place in the lands or territories of indigenous peoples,
unless justified by a relevant public interest or otherwise freely agreed with or requested by
the indigenous peoples concerned.
2. States shall undertake effective consultations with the indigenous peoples concerned,
through appropriate procedures and in particular through their representative institutions,
prior to using their lands or territories for military activities.
Article 32
1. Indigenous peoples have the right to determine and develop priorities and strategies for
the development or use of their lands or territories and other resources.
2. States shall consult and cooperate in good faith with the indigenous peoples concerned
through their own representative institutions in order to obtain their free and informed
consent prior to the approval of any project affecting their lands or territories and other
resources, particularly in connection with the development, utilization or exploitation of
mineral, water or other resources.
3. States shall provide effective mechanisms for just and fair redress for any such activities,
and appropriate measures shall be taken to mitigate adverse environmental, economic,
social, cultural or spiritual impact.
Article 37
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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
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 peoples identity is acknowledged to be the
responsibility of the State, then surely the protection of rights less significant to them as
such peoples would also be the duty of States. Nor is there in the UN DRIP an
acknowledgement of the right of indigenous peoples to the aerial domain and atmospheric
space. What it upholds, in Article 26 thereof, is the right of indigenous peoples to the lands,
territories and resources which they have traditionally owned, occupied or otherwise used
or acquired.
Moreover, the UN DRIP, while upholding the right of indigenous peoples to autonomy,
does not obligate States to grant indigenous peoples the near-independent status of an
associated state. All the rights recognized in that document are qualified in Article 46 as
follows:
1. Nothing in this Declaration may be interpreted as implying for any State, people, group
or person any right to engage in any activity or to perform any act contrary to the Charter of
the United Nations or construed as authorizing or encouraging any action which would
dismember or impair, totally or in part, the territorial integrity or political unity of sovereign
and independent States.
Even if the UN DRIP were considered as part of the law of the land pursuant to Article II,
Section 2 of the Constitution, it would not suffice to uphold the validity of the MOA-AD so
as to render its compliance with other laws unnecessary.
It is, therefore, clear that the MOA-AD contains numerous provisions that cannot be
reconciled with the Constitution and the laws as presently worded. Respondents proffer,
however, that the signing of the MOA-AD alone would not have entailed any violation of
law or grave abuse of discretion on their part, precisely because it stipulates that the
provisions thereof inconsistent with the laws shall not take effect until these laws are
amended. They cite paragraph 7 of the MOA-AD strand on GOVERNANCE quoted earlier,
but which is reproduced below for convenience:
7. The Parties agree that the mechanisms and modalities for the actual implementation of
this MOA-AD shall be spelt out in the Comprehensive Compact to mutually take such steps
to enable it to occur effectively.
Any provisions of the MOA-AD requiring amendments to the existing legal framework
shall come into force upon signing of a Comprehensive Compact and upon effecting the
necessary changes to the legal framework with due regard to non derogation of prior
agreements and within the stipulated timeframe to be contained in the Comprehensive
Compact.
Indeed, the foregoing stipulation keeps many controversial provisions of the MOA-AD
from coming into force until the necessary changes to the legal framework are effected.
While the word Constitution is not mentioned in the provision now under consideration or
anywhere else in the MOA-AD, the term legal framework is certainly broad enough to
include the Constitution.
Notwithstanding the suspensive clause, however, respondents, by their mere act of
incorporating in the MOA-AD the provisions thereof regarding the associative relationship
between the BJE and the Central Government, have already violated the Memorandum of
Instructions From The President dated March 1, 2001, which states that the negotiations
shall be conducted in accordance with x x x the principles of the sovereignty and territorial
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.
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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:
SECTION 4. The Six Paths to Peace. The components of the comprehensive peace process
comprise the processes known as the Paths to Peace. These component processes are
interrelated and not mutually exclusive, and must therefore be pursued simultaneously in a
coordinated and integrated fashion. They shall include, but may not be limited to, the
following:
a. PURSUIT OF SOCIAL, ECONOMIC AND POLITICAL REFORMS. This component
involves the vigorous implementation of various policies, reforms, programs and projects
aimed at addressing the root causes of internal armed conflicts and social unrest. This may
require administrative action, new legislation or even constitutional amendments.
x x x x (Emphasis supplied)
The MOA-AD, therefore, may reasonably be perceived as an attempt of respondents to
address, pursuant to this provision of E.O. No. 3, the root causes of the armed conflict in
Mindanao. The E.O. authorized them to think outside the box, so to speak. Hence, they
negotiated and were set on signing the MOA-AD that included various social, economic,
and political reforms which cannot, however, all be accommodated within the present legal
framework, and which thus would require new legislation and constitutional amendments.
The inquiry on the legality of the suspensive clause, however, cannot stop here, because it
must be asked
whether the President herself may exercise the power delegated to the GRP Peace Panel
under E.O. No. 3, Sec. 4(a).
The President cannot delegate a power that she herself does not possess. May the President,
in the course of peace negotiations, agree to pursue reforms that would require new
legislation and constitutional amendments, or should the reforms be restricted only to those
solutions which the present laws allow? The answer to this question requires a discussion of
the extent of the Presidents power to conduct peace negotiations.
That the authority of the President to conduct peace negotiations with rebel groups is not
explicitly mentioned in the Constitution does not mean that she has no such authority. In
Sanlakas v. Executive Secretary,[168] in issue was the authority of the President to declare
a state of rebellion an authority which is not expressly provided for in the Constitution. The
Court held thus:
In her ponencia in Marcos v. Manglapus, Justice Cortes put her thesis into jurisprudence.
There, the Court, by a slim 8-7 margin, upheld the President's power to forbid the return of
her exiled predecessor. The rationale for the majority's ruling rested on the President's
. . . unstated residual powers which are implied from the grant of executive power and
which are necessary for her to comply with her duties under the Constitution. The powers
of the President are not limited to what are expressly enumerated in the article on the
Executive Department and in scattered provisions of the Constitution. This is so,
notwithstanding the avowed intent of the members of the Constitutional Commission of
1986 to limit the powers of the President as a reaction to the abuses under the regime of Mr.
Marcos, for the result was a limitation of specific powers of the President, particularly those
relating to the commander-in-chief clause, but not a diminution of the general grant of
executive power.
Thus, the President's authority to declare a state of rebellion springs in the main from her
powers as chief executive and, at the same time, draws strength from her Commander-in-
Chief powers. x x x (Emphasis and underscoring supplied)
Similarly, the Presidents 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 nations 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
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of states emerging from conflict return to conflict. Moreover, a substantial proportion of
transitions have resulted in weak or limited democracies.
The design of a constitution and its constitution-making process can play an important role
in the political and governance transition. Constitution-making after conflict is an
opportunity to create a common vision of the future of a state and a road map on how to get
there. The constitution can be partly a peace agreement and partly a framework setting up
the rules by which the new democracy will operate.[170]
In the same vein, Professor Christine Bell, in her article on the nature and legal status of
peace agreements, observed that the typical way that peace agreements establish or confirm
mechanisms for demilitarization and demobilization is by linking them to new
constitutional structures addressing governance, elections, and legal and human rights
institutions.[171]
In the Philippine experience, the link between peace agreements and constitution-making
has been recognized by no less than the framers of the Constitution. Behind the provisions
of the Constitution on autonomous regions[172] is the framers intention to implement a
particular peace agreement, namely, the Tripoli Agreement of 1976 between the GRP and
the MNLF, signed by then Undersecretary of National Defense Carmelo Z. Barbero and
then MNLF Chairman Nur Misuari.
MR. ROMULO. There are other speakers; so, although I have some more questions, I will
reserve my right to ask them if they are not covered by the other speakers. I have only two
questions.
I heard one of the Commissioners say that local autonomy already exists in the Muslim
region; it is working very well; it has, in fact, diminished a great deal of the problems. So,
my question is: since that already exists, why do we have to go into something new?
MR. OPLE. May I answer that on behalf of Chairman Nolledo. Commissioner Yusup
Abubakar is right that certain definite steps have been taken to implement the provisions of
the Tripoli Agreement with respect to an autonomous region in Mindanao. This is a good
first step, but there is no question that this is merely a partial response to the Tripoli
Agreement itself and to the fuller standard of regional autonomy contemplated in that
agreement, and now by state policy.[173] (Emphasis supplied)
The constitutional provisions on autonomy and the statutes enacted pursuant to them have,
to the credit of their drafters, been partly successful. Nonetheless, the Filipino people are
still faced with the reality of an on-going conflict between the Government and the MILF.
If the President is to be expected to find means for bringing this conflict to an end and to
achieve lasting peace in Mindanao, then she must be given the leeway to explore, in the
course of peace negotiations, solutions that may require changes to the Constitution for
their implementation. Being uniquely vested with the power to conduct peace negotiations
with rebel groups, the President is in a singular position to know the precise nature of their
grievances which, if resolved, may bring an end to hostilities.
The President may not, of course, unilaterally implement the solutions that she considers
viable, but she may not be prevented from submitting them as recommendations to
Congress, which could then, if it is minded, act upon them pursuant to the legal procedures
for constitutional amendment and revision. In particular, Congress would have the option,
pursuant to Article XVII, Sections 1 and 3 of the Constitution, to propose the recommended
amendments or revision to the people, call a constitutional convention, or submit to the
electorate the question of calling such a convention.
While the President does not possess constituent powers as those powers may be exercised
only by Congress, a Constitutional Convention, or the people through initiative and
referendum she may submit proposals for constitutional change to Congress in a manner
that does not involve the arrogation of constituent powers.
In Sanidad v. COMELEC,[174] in issue was the legality of then President Marcos act of
directly submitting proposals for constitutional amendments to a referendum, bypassing the
interim National Assembly which was the body vested by the 1973 Constitution with the
power to propose such amendments. President Marcos, it will be recalled, never convened
the interim National Assembly. The majority upheld the Presidents act, holding that the
urges of absolute necessity compelled the President as the agent of the people to act as he
did, there being no interim National Assembly to propose constitutional amendments.
Against this ruling, Justices Teehankee and Muoz Palma vigorously dissented. The Courts
concern at present, however, is not with regard to the point on which it was then divided in
that controversial case, but on that which was not disputed by either side.
Justice Teehankees 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 Presidents 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 Presidents 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
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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 Presidents
suggestions to the people, for any further involvement in the process of initiative by the
Chief Executive may vitiate its character as a genuine peoples initiative. The only initiative
recognized by the Constitution is that which truly proceeds from the people. As the Court
stated in Lambino v. COMELEC:[177]
The Lambino Group claims that their initiative is the people's voice. However, the Lambino
Group unabashedly states in ULAP Resolution No. 2006-02, in the verification of their
petition with the COMELEC, that ULAP maintains its unqualified support to the agenda of
Her Excellency President Gloria Macapagal-Arroyo for constitutional reforms. The
Lambino Group thus admits that their people's initiative is an unqualified support to the
agenda of the incumbent President to change the Constitution. This forewarns the Court to
be wary of incantations of people's voice or sovereign will in the present initiative.
It will be observed that the President has authority, as stated in her oath of office,[178] only
to preserve and defend the Constitution. Such presidential power does not, however, extend
to allowing her to change the Constitution, but simply to recommend proposed amendments
or revision. As long as she limits herself to recommending these changes and submits to the
proper procedure for constitutional amendments and revision, her mere recommendation
need not be construed as an unconstitutional act.
The foregoing discussion focused on the Presidents authority to propose constitutional
amendments, since her authority to propose new legislation is not in controversy. It has
been an accepted practice for Presidents in this jurisdiction to propose new legislation. One
of the more prominent instances the practice is usually done is in the yearly State of the
Nation Address of the President to Congress. Moreover, the annual general appropriations
bill has always been based on the budget prepared by the President, which for all intents
and purposes is a proposal for new legislation coming from the President.[179]
The suspensive clause in the MOA-AD viewed in light of the above-discussed standards
Given the limited nature of the Presidents 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
Presidents authority to propose constitutional amendments, it being a virtual guarantee that
the Constitution and the laws of the Republic of the Philippines will certainly be adjusted to
conform to all the consensus points found in the MOA-AD. Hence, it must be struck down
as unconstitutional.
A comparison between the suspensive clause of the MOA-AD with a similar provision
appearing in the 1996 final peace agreement between the MNLF and the GRP is most
instructive.
As a backdrop, the parties to the 1996 Agreement stipulated that it would be implemented
in two phases. Phase 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.
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The stipulations on Phase II consisted of specific agreements on the structure of the
expanded autonomous region envisioned by the parties. To that extent, they are similar to
the provisions of the MOA-AD. There is, however, a crucial difference between the two
agreements. While the MOA-AD virtually guarantees that the necessary changes to the
legal framework will be put in place, the GRP-MNLF final peace agreement states thus:
Accordingly, these provisions [on Phase II] shall be recommended by the GRP to Congress
for incorporation in the amendatory or repealing law.
Concerns have been raised that the MOA-AD would have given rise to a binding
international law obligation on the part of the Philippines to change its Constitution in
conformity thereto, on the ground that it may be considered either as a binding agreement
under international law, or a unilateral declaration of the Philippine government to the
international community that it would grant to the Bangsamoro people all the concessions
therein stated. Neither ground finds sufficient support in international law, however.
The MOA-AD, as earlier mentioned in the overview thereof, would have included foreign
dignitaries as signatories. In addition, representatives of other nations were invited to
witness its signing in Kuala Lumpur. These circumstances readily lead one to surmise that
the MOA-AD would have had the status of a binding international agreement had it been
signed. An examination of the prevailing principles in international law, however, leads to
the contrary conclusion.
The Decision on CHALLENGE TO JURISDICTION: LOM ACCORD AMNESTY[180]
(the Lom Accord case) of the Special Court of Sierra Leone is enlightening. The Lom
Accord was a peace agreement signed on July 7, 1999 between the Government of Sierra
Leone and the Revolutionary United Front (RUF), a rebel group with which the Sierra
Leone Government had been in armed conflict for around eight years at the time of signing.
There were 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 Lom Accord was a provision for the full pardon of the
members of the RUF with respect to anything done by them in pursuit of their objectives as
members of that organization since the conflict began.
In the Lom Accord case, the Defence argued that the Accord created an internationally
binding obligation not to prosecute the beneficiaries of the amnesty provided therein, citing,
among other things, the participation of foreign dignitaries and international organizations
in the finalization of that agreement. The Special Court, however, rejected this argument,
ruling that the Lome Accord is not a treaty and that it can only create binding obligations
and rights between the parties in municipal law, not in international law. Hence, the Special
Court held, it is ineffective in depriving an international court like it of jurisdiction.
37. In regard to the nature of a negotiated settlement of an internal armed conflict it is easy
to assume and to argue with some degree of plausibility, as Defence counsel for the
defendants seem to have done, that the mere fact that in addition to the parties to the
conflict, the document formalizing the settlement is signed by foreign heads of state or their
representatives and representatives of international organizations, means the agreement of
the parties is internationalized so as to create obligations in international law.
xxxx
40. Almost every conflict resolution will involve the parties to the conflict and the mediator
or facilitator of the settlement, or persons or bodies under whose auspices the settlement
took place but who are not at all parties to the conflict, are not contracting parties and who
do not claim any obligation from the contracting parties or incur any obligation from the
settlement.
41. In this case, the parties to the conflict are the lawful authority of the State and the RUF
which has no status of statehood and is to all intents and purposes a faction within the state.
The non-contracting signatories of the Lom Agreement were moral guarantors of the
principle that, in the terms of Article XXXIV of the Agreement, this peace agreement is
implemented with integrity and in good faith by both parties. The moral guarantors
assumed no legal obligation. It is recalled that the UN by its representative appended,
presumably for avoidance of doubt, an understanding of the extent of the agreement to be
implemented as not including certain international crimes.
42. An international agreement in the nature of a treaty must create rights and obligations
regulated by international law so that a breach of its terms will be a breach determined
under international law which will also provide principle means of enforcement. The Lom
Agreement created neither rights nor obligations capable of being regulated by international
law. An agreement such as the Lom Agreement which brings to an end an internal armed
conflict no doubt creates a factual situation of restoration of peace that the international
community acting through the Security Council may take note of. That, however, will not
convert it to an international agreement which creates an obligation enforceable in
international, as distinguished from municipal, law. A breach of the terms of such a peace
agreement resulting in resumption of internal armed conflict or creating a threat to peace in
the determination of the Security Council may indicate a reversal of the factual situation of
peace to be visited with possible legal consequences arising from the new situation of
conflict created. Such consequences such as action by the Security Council pursuant to
Chapter VII arise from the situation and not from the agreement, nor from the obligation
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imposed by it. Such action cannot be regarded as a remedy for the breach. A peace
agreement which settles an internal armed conflict cannot be ascribed the same status as
one which settles an international armed conflict which, essentially, must be between two
or more warring States. The Lom Agreement cannot be characterised as an international
instrument. x x x (Emphasis, italics and underscoring supplied)
Similarly, that the MOA-AD would have been signed by representatives of States and
international organizations not parties to the Agreement would not have sufficed to vest in
it a binding character under international law.
In another vein, concern has been raised that the MOA-AD would amount to a unilateral
declaration of the Philippine State, binding under international law, that it would comply
with all the stipulations stated therein, with the result that it would have to amend its
Constitution accordingly regardless of the true will of the people. Cited as authority for this
view is Australia v. France,[181] also known as the Nuclear Tests Case, decided by the
International Court of Justice (ICJ).
In the Nuclear Tests Case, Australia challenged before the ICJ the legality of Frances
nuclear tests in the South Pacific. France refused to appear in the case, but public
statements from its President, and similar statements from other French officials including
its Minister of Defence, that its 1974 series of atmospheric tests would be its last, persuaded
the ICJ to dismiss the case.[182] Those statements, the ICJ held, amounted to a legal
undertaking addressed to the international community, which required no acceptance from
other States for it to become effective.
Essential to the ICJ ruling is its finding that the French government intended to be bound to
the international community in issuing its public statements, viz:
43. It is well recognized that declarations made by way of unilateral acts, concerning legal
or factual situations, may have the effect of creating legal obligations. Declarations of this
kind may be, and often are, very specific. When it is the intention of the State making the
declaration that it should become bound according to its terms, that intention confers on the
declaration the character of a legal undertaking, the State being thenceforth legally required
to follow a course of conduct consistent with the declaration. An undertaking of this kind, if
given publicly, and with an intent to be bound, even though not made within the context of
international negotiations, is binding. In these circumstances, nothing in the nature of a quid
pro quo nor any subsequent acceptance of the declaration, nor even any reply or reaction
from other States, is required for the declaration to take effect, since such a requirement
would be inconsistent with the strictly unilateral nature of the juridical act by which the
pronouncement by the State was made.
44. Of course, not all unilateral acts imply obligation; but a State may choose to take up a
certain position in relation to a particular matter with the intention of being boundthe
intention is to be ascertained by interpretation of the act. When States make statements by
which their freedom of action is to be limited, a restrictive interpretation is called for.
xxxx
51. In announcing that the 1974 series of atmospheric tests would be the last, the French
Government conveyed to the world at large, including the Applicant, its intention
effectively to terminate these tests. It was bound to assume that other States might take note
of these statements and rely on their being effective. The validity of these statements and
their legal consequences must be considered within the general framework of the security
of international intercourse, and the confidence and trust which are so essential in the
relations among States. It is from the actual substance of these statements, and from the
circumstances attending their making, that the legal implications of the unilateral act must
be deduced. The objects of these statements are clear and they were addressed to the
international community as a whole, and the Court holds that they constitute an undertaking
possessing legal effect. The Court considers *270 that the President of the Republic, in
deciding upon the effective cessation of atmospheric tests, gave an undertaking to the
international community to which his words were addressed. x x x (Emphasis and
underscoring supplied)
As gathered from the above-quoted ruling of the ICJ, public statements of a state
representative may be construed as a unilateral declaration only when the following
conditions are present: the statements were clearly addressed to the international
community, the state intended to be bound to that community by its statements, and that not
to give legal effect to those statements would be detrimental to the security of international
intercourse. Plainly, unilateral declarations arise only in peculiar circumstances.
The limited applicability of the Nuclear Tests Case ruling was recognized in a later case
decided by the ICJ entitled Burkina Faso v. Mali,[183] also known as the Case Concerning
the Frontier Dispute. The public declaration subject of that case was a statement made by
the President of Mali, in an interview by a foreign press agency, that Mali would abide by
the decision to be issued by a commission of the Organization of African Unity on a
frontier dispute then pending between Mali and Burkina Faso.
Unlike in the Nuclear Tests Case, the ICJ held that the statement of Malis 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
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Applicant, its intention effectively to terminate these tests (I.C.J. Reports 1974, p. 269,
para. 51; p. 474, para. 53). In the particular circumstances of those cases, the French
Government could not express an intention to be bound otherwise than by unilateral
declarations. It is difficult to see how it could have accepted the terms of a negotiated
solution with each of the applicants without thereby jeopardizing its contention that its
conduct was lawful. The circumstances of the present case are radically different. Here,
there was nothing to hinder the Parties from manifesting an intention to accept the binding
character of the conclusions of the Organization of African Unity Mediation Commission
by the normal method: a formal agreement on the basis of reciprocity. Since no agreement
of this kind was concluded between the Parties, the Chamber finds that there are no grounds
to interpret the declaration made by Mali's head of State on 11 April 1975 as a unilateral act
with legal implications in regard to the present case. (Emphasis and underscoring supplied)
Assessing the MOA-AD in light of the above criteria, it would not have amounted to a
unilateral declaration on the part of the Philippine State to the international community. The
Philippine panel did not draft the same with the clear intention of being bound thereby to
the international community as a whole or to any State, but only to the MILF. While there
were States and international organizations involved, one way or another, in the negotiation
and projected signing of the MOA-AD, they participated merely as witnesses or, in the case
of Malaysia, as facilitator. As held in the Lom Accord case, the mere fact that in addition to
the parties to the conflict, the peace settlement is signed by representatives of states and
international organizations does not mean that the agreement is internationalized so as to
create obligations in international law.
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 Presidents statement was not held to
be a binding unilateral declaration by the ICJ. As in that case, there was also nothing to
hinder the Philippine panel, had it really been its intention to be bound to other States, to
manifest that intention by formal agreement. Here, that formal agreement would have come
about by the inclusion in the MOA-AD of a clear commitment to be legally bound to the
international community, not just the MILF, and by an equally clear indication that the
signatures of the participating states-representatives would constitute an acceptance of that
commitment. Entering into such a formal agreement would not have resulted in a loss of
face for the Philippine government before the international community, which was one of
the difficulties that prevented the French Government from entering into a formal
agreement with other countries. That the Philippine panel did not enter into such a formal
agreement suggests that it had no intention to be bound to the international community. On
that ground, the MOA-AD may not be considered a unilateral declaration under
international law.
The MOA-AD not being a document that can bind the Philippines under international law
notwithstanding, respondents almost consummated act of guaranteeing amendments to the
legal framework is, by itself, sufficient to constitute grave abuse of discretion. The grave
abuse lies not in the fact that they considered, as a solution to the Moro Problem, the
creation of a state within a state, but in their brazen willingness to guarantee that Congress
and the sovereign Filipino people would give their imprimatur to their solution. Upholding
such an act would amount to authorizing a usurpation of the constituent powers vested only
in Congress, a Constitutional Convention, or the people themselves through the process of
initiative, for the only way that the Executive can ensure the outcome of the amendment
process is through an undue influence or interference with that process.
The sovereign people may, if it so desired, go to the extent of giving up a portion of its own
territory to the Moros for the sake of peace, for it can change the Constitution in any it
wants, so long as the change is not inconsistent with what, in international law, is known as
Jus Cogens.[184] Respondents, however, may not preempt it in that decision.
SUMMARY
The petitions are ripe for adjudication. The failure of respondents to consult the local
government units or communities affected constitutes a departure by respondents from their
mandate under E.O. No. 3. Moreover, respondents exceeded their authority by the mere act
of guaranteeing amendments to the Constitution. Any alleged violation of the Constitution
by any branch of government is a proper matter for judicial review.
As the petitions involve constitutional issues which are of paramount public interest or of
transcendental importance, the Court grants the petitioners, petitioners-in-intervention and
intervening respondents the requisite locus standi in keeping with the liberal stance adopted
in David v. Macapagal-Arroyo.
Contrary to the assertion of respondents that the non-signing of the MOA-AD and the
eventual dissolution of the GRP Peace Panel mooted the present petitions, the Court finds
that the present petitions provide an exception to the moot and academic principle in view
of (a) the grave violation of the Constitution involved; (b) the exceptional character of the
situation and paramount public interest; (c) the need to formulate controlling principles to
guide the bench, the bar, and the public; and (d) the fact that the case is capable of
repetition yet evading review.
The MOA-AD is a significant part of a series of agreements necessary to carry out the
GRP-MILF Tripoli Agreement on Peace signed by the government and the MILF back in
June 2001. Hence, the present MOA-AD can be renegotiated or another one drawn up that
could contain similar or significantly dissimilar provisions compared to the original.
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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 peoples right to information on matters of public concern under Sec. 7, Article III of
the Constitution is in splendid symmetry with the state policy of full public disclosure of all
its transactions involving public interest under Sec. 28, Article II of the Constitution. The
right to information guarantees the right of the people to demand information, while Section
28 recognizes the duty of officialdom to give information even if nobody demands. The
complete and effective exercise of the right to information necessitates that its
complementary provision on public disclosure derive the same self-executory nature,
subject only to reasonable safeguards or limitations as may be provided by law.
The contents of the MOA-AD is a matter of paramount public concern involving public
interest in the highest order. In declaring that the right to information contemplates steps
and negotiations leading to the consummation of the contract, jurisprudence finds no
distinction as to the executory nature or commercial character of the agreement.
An essential element of these twin freedoms is to keep a continuing dialogue or process of
communication between the government and the people. Corollary to these twin rights is
the design for feedback mechanisms. The right to public consultation was envisioned to be
a species of these public rights.
At least three pertinent laws animate these constitutional imperatives and justify the
exercise of the peoples 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 that unequivocally and unilaterally vests ownership of a vast territory to the
Bangsamoro people, which could pervasively and drastically result to the diaspora or
displacement of a great number of inhabitants from their total environment.
Three, Republic Act No. 8371 or the Indigenous Peoples Rights Act of 1997 provides for
clear-cut procedure for the recognition and delineation of ancestral domain, which entails,
among other things, the observance of the free and prior informed consent of the
Indigenous Cultural Communities/Indigenous Peoples. Notably, the statute does not grant
the Executive Department or any government agency the power to delineate and recognize
an ancestral domain claim by mere agreement or compromise.
The invocation of the doctrine of executive privilege as a defense to the general right to
information or the specific right to consultation is untenable. The various explicit legal
provisions fly in the face of executive secrecy. In any event, respondents effectively waived
such defense after it unconditionally disclosed the official copies of the final draft of the
MOA-AD, for judicial compliance and public scrutiny.
IN SUM, the Presidential Adviser on the Peace Process committed grave abuse of
discretion when he failed to carry out the pertinent consultation process, as mandated by
E.O. No. 3, Republic Act No. 7160, and Republic Act No. 8371. The furtive process by
which the MOA-AD was designed and crafted runs contrary to and in excess of the legal
authority, and amounts to a whimsical, capricious, oppressive, arbitrary and despotic
exercise thereof. It illustrates a gross evasion of positive duty and a virtual refusal to
perform the duty enjoined.
The MOA-AD cannot be reconciled with the present Constitution and laws. Not only its
specific provisions but the very concept underlying them, namely, the associative
relationship envisioned between the GRP and the BJE, are unconstitutional, for the concept
presupposes that the associated entity is a state and implies that the same is on its way to
independence.
While there is a clause in the MOA-AD stating that the provisions thereof inconsistent with
the present legal framework will not be effective until that framework is amended, the same
does not cure its defect. The inclusion of provisions in the MOA-AD establishing an
associative relationship between the BJE and the Central Government is, itself, a violation
of the Memorandum of Instructions From The President dated March 1, 2001, addressed to
the government peace panel. Moreover, as the clause is worded, it virtually guarantees that
the necessary amendments to the Constitution and the laws will eventually be put in place.
Neither the GRP Peace Panel nor the President herself is authorized to make such a
guarantee. Upholding such an act would amount to authorizing a usurpation of the
constituent powers vested only in Congress, a Constitutional Convention, or the people
themselves through the process of initiative, for the only way that the Executive can ensure
the outcome of the amendment process is through an undue influence or interference with
that process.
While the MOA-AD would not amount to an international agreement or unilateral
declaration binding on the Philippines under international law, respondents act of
guaranteeing amendments is, by itself, already a constitutional violation that renders the
MOA-AD fatally defective.
WHEREFORE, respondents motion to dismiss is DENIED. The main and intervening
petitions are GIVEN DUE COURSE and hereby GRANTED.
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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.
BAYAN vs ROMULO
G.R. No. 159618 February 1, 2011
DECISION
VELASCO, JR., J.:
The Case
This petition[1] for certiorari, mandamus and prohibition under Rule 65 assails and seeks to
nullify the Non-Surrender Agreement concluded by and between the Republic of the
Philippines (RP) and the United States of America (USA).
The Facts
Petitioner Bayan Muna is a duly registered party-list group established to represent the
marginalized sectors of society. Respondent Blas F. Ople, now deceased, was the Secretary
of Foreign Affairs during the period material to this case. Respondent Alberto Romulo was
impleaded in his capacity as then Executive Secretary.[2]
Rome Statute of the International Criminal Court
Having a key determinative bearing on this case is the Rome Statute[3] establishing the
International Criminal Court (ICC) with the power to exercise its jurisdiction over persons
for the most serious crimes of international concern x x x and shall be complementary to the
national criminal jurisdictions.[4] The serious crimes adverted to cover those considered
grave under international law, such as genocide, crimes against humanity, war crimes, and
crimes of aggression.[5]
On December 28, 2000, the RP, through Charge dAffaires Enrique A. Manalo, signed the
Rome Statute which, by its terms, is subject to ratification, acceptance or approval by the
signatory states.[6] As of the filing of the instant petition, only 92 out of the 139 signatory
countries appear to have completed the ratification, approval and concurrence process. The
Philippines is not among the 92.
RP-US Non-Surrender Agreement
On May 9, 2003, then Ambassador Francis J. Ricciardone sent US Embassy Note No. 0470
to the Department of Foreign Affairs (DFA) proposing the terms of the non-surrender
bilateral agreement (Agreement, hereinafter) between the USA and the RP.
Via Exchange of Notes No. BFO-028-03[7] dated May 13, 2003 (E/N BFO-028-03,
hereinafter), the RP, represented by then DFA Secretary Ople, agreed with and accepted the
US proposals embodied under the US Embassy Note adverted to and put in effect the
Agreement with the US government. In esse, the Agreement aims to protect what it refers
to and defines as persons of the RP and US from frivolous and harassment suits that might
be brought against them in international tribunals.[8] It is reflective of the increasing pace
of the strategic security and defense partnership between the two countries. As of May 2,
2003, similar bilateral agreements have been effected by and between the US and 33 other
countries.[9]
The Agreement pertinently provides as follows:
1. For purposes of this Agreement, persons are current or former Government officials,
employees (including contractors), or military personnel or nationals of one Party.
2. Persons of one Party present in the territory of the other shall not, absent the express
consent of the first Party,
(a) be surrendered or transferred by any means to any international tribunal for any purpose,
unless such tribunal has been established by the UN Security Council, or
(b) be surrendered or transferred by any means to any other entity or third country, or
expelled to a third country, for the purpose of surrender to or transfer to any international
tribunal, unless such tribunal has been established by the UN Security Council.
3. When the [US] extradites, surrenders, or otherwise transfers a person of the Philippines
to a third country, the [US] will not agree to the surrender or transfer of that person by the
third country to any international tribunal, unless such tribunal has been established by the
UN Security Council, absent the express consent of the Government of the Republic of the
Philippines [GRP].
4. When the [GRP] extradites, surrenders, or otherwise transfers a person of the [USA] to a
third country, the [GRP] will not agree to the surrender or transfer of that person by the
third country to any international tribunal, unless such tribunal has been established by the
UN Security Council, absent the express consent of the Government of the [US].
5. This Agreement shall remain in force until one year after the date on which one party
notifies the other of its intent to terminate the Agreement. The provisions of this Agreement
shall continue to apply with respect to any act occurring, or any allegation arising, before
the effective date of termination.
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In response to a query of then Solicitor General Alfredo L. Benipayo on the status of the
non-surrender agreement, Ambassador Ricciardone replied in his letter of October 28, 2003
that the exchange of diplomatic notes constituted a legally binding agreement under
international law; and that, under US law, the said agreement did not require the advice and
consent of the US Senate.[10]
In this proceeding, petitioner imputes grave abuse of discretion to respondents in
concluding and ratifying the Agreement and prays that it be struck down as
unconstitutional, or at least declared as without force and effect.
For their part, respondents question petitioners standing to maintain a suit and counter that
the Agreement, being in the nature of an executive agreement, does not require Senate
concurrence for its efficacy. And for reasons detailed in their comment, respondents assert
the constitutionality of the Agreement.
The Issues
I. WHETHER THE [RP] PRESIDENT AND THE [DFA] SECRETARY x x x GRAVELY
ABUSED THEIR DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION FOR CONCLUDING THE RP-US NON SURRENDER AGREEMENT
BY MEANS OF [E/N] BFO-028-03 DATED 13 MAY 2003, WHEN THE PHILIPPINE
GOVERNMENT HAS ALREADY SIGNED THE ROME STATUTE OF THE [ICC]
ALTHOUGH THIS IS PENDING RATIFICATION BY THE PHILIPPINE SENATE.
A. Whether by entering into the x x x Agreement Respondents gravely abused their
discretion when they capriciously abandoned, waived and relinquished our only legitimate
recourse through the Rome Statute of the [ICC] to prosecute and try persons as defined in
the x x x Agreement, x x x or literally any conduit of American interests, who have
committed crimes of genocide, crimes against humanity, war crimes and the crime of
aggression, thereby abdicating Philippine Sovereignty.
B. Whether after the signing and pending ratification of the Rome Statute of the [ICC]
the [RP] President and the [DFA] Secretary x x x are obliged by the principle of good faith
to refrain from doing all acts which would substantially impair the value of the undertaking
as signed.
C. Whether the x x x Agreement constitutes an act which defeats the object and purpose
of the Rome Statute of the International Criminal Court and contravenes the obligation of
good faith inherent in the signature of the President affixed on the Rome Statute of the
International Criminal Court, and if so whether the x x x Agreement is void and
unenforceable on this ground.
D. Whether the RP-US Non-Surrender Agreement is void and unenforceable for grave
abuse of discretion amounting to lack or excess of jurisdiction in connection with its
execution.
II. WHETHER THE RP-US NON SURRENDER AGREEMENT IS VOID AB INITIO
FOR CONTRACTING OBLIGATIONS THAT ARE EITHER IMMORAL OR
OTHERWISE AT VARIANCE WITH UNIVERSALLY RECOGNIZED PRINCIPLES
OF INTERNATIONAL LAW.
III. WHETHER THE x x x AGREEMENT IS VALID, BINDING AND EFFECTIVE
WITHOUT THE CONCURRENCE BY AT LEAST TWO-THIRDS (2/3) OF ALL THE
MEMBERS OF THE SENATE x x x.[11]
The foregoing issues may be summarized into two: first, whether or not the Agreement was
contracted validly, which resolves itself into the question of whether or not respondents
gravely abused their discretion in concluding it; and second, whether or not the Agreement,
which has not been submitted to the Senate for concurrence, contravenes and undermines
the Rome Statute and other treaties. But because respondents expectedly raised it, we shall
first tackle the issue of petitioners legal standing.
The Courts Ruling
This petition is bereft of merit.
Procedural Issue: Locus Standi of Petitioner
Petitioner, through its three party-list representatives, contends that the issue of the validity
or invalidity of the Agreement carries with it constitutional significance and is of
paramount importance that justifies its standing. Cited in this regard is what is usually
referred to as the emergency powers cases,[12] in which ordinary citizens and taxpayers
were accorded the personality to question the constitutionality of executive issuances.
Locus standi is a right of appearance in a court of justice on a given question.[13]
Specifically, it is a partys personal and substantial interest in a case where he has sustained
or will sustain direct injury as a result[14] of the act being challenged, and calls for more
than just a generalized grievance.[15] The term interest refers to material interest, as
distinguished from one that is merely incidental.[16] The rationale for requiring a party who
challenges the validity of a law or international agreement to allege such a personal stake in
the outcome of the controversy is to assure the concrete adverseness which sharpens the
presentation of issues upon which the court so largely depends for illumination of difficult
constitutional questions.[17]
Locus standi, however, is merely a matter of procedure and it has been recognized that, in
some cases, suits are not brought by parties who have been personally injured by the
operation of a law or any other government act, but by concerned citizens, taxpayers, or
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voters who actually sue in the public interest.[18] Consequently, in a catena of cases,[19]
this Court has invariably adopted a liberal stance on locus standi.
Going by the petition, petitioners representatives pursue the instant suit primarily as
concerned citizens raising issues of transcendental importance, both for the Republic and
the citizenry as a whole.
When suing as a citizen to question the validity of a law or other government action, a
petitioner needs to meet certain specific requirements before he can be clothed with
standing. Francisco, Jr. v. Nagmamalasakit na mga Manananggol ng mga Manggagawang
Pilipino, Inc.[20] expounded on this requirement, thus:
In a long line of cases, however, concerned citizens, taxpayers and legislators when specific
requirements have been met have been given standing by this Court.
When suing as a citizen, the interest of the petitioner assailing the constitutionality of a
statute must be direct and personal. He must be able to show, not only that the law or any
government act is invalid, but also that he sustained or is in imminent danger of sustaining
some direct injury as a result of its enforcement, and not merely that he suffers thereby in
some indefinite way. It must appear that the person complaining 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. In fine,
when the proceeding involves the assertion of a public right, the mere fact that he is a
citizen satisfies the requirement of personal interest.[21]
In the case at bar, petitioners representatives have complied with the qualifying conditions
or specific requirements exacted under the locus standi rule. As citizens, their interest in the
subject matter of the petition is direct and personal. At the very least, their assertions
questioning the Agreement are made of a public right, i.e., to ascertain that the Agreement
did not go against established national policies, practices, and obligations bearing on the
States obligation to the community of nations.
At any event, the primordial importance to Filipino citizens in general of the issue at hand
impels the Court to brush aside the procedural barrier posed by the traditional requirement
of locus standi, as we have done in a long line of earlier cases, notably in the old but oft-
cited emergency powers cases[22] and Kilosbayan v. Guingona, Jr.[23] In cases of
transcendental importance, we wrote again in Bayan v. Zamora,[24] The Court may relax
the standing requirements and allow a suit to prosper even where there is no direct injury to
the party claiming the right of judicial review.
Moreover, bearing in mind what the Court said in Taada v. Angara, that it will not shirk,
digress from or abandon its sacred duty and authority to uphold the Constitution in matters
that involve grave abuse of discretion brought before it in appropriate cases, committed by
any officer, agency, instrumentality or department of the government,[25] we cannot but
resolve head on the issues raised before us. Indeed, where an action of any branch of
government is seriously alleged to have infringed the Constitution or is done with grave
abuse of discretion, it becomes not only the right but in fact the duty of the judiciary to
settle it. As in this petition, issues are precisely raised putting to the fore the propriety of the
Agreement pending the ratification of the Rome Statute.
Validity of the RP-US Non-Surrender Agreement
Petitioners initial challenge against the Agreement relates to form, its threshold posture
being that E/N BFO-028-03 cannot be a valid medium for concluding the Agreement.
Petitioners contentionperhaps taken unaware of certain well-recognized international
doctrines, practices, and jargonsis untenable. One of these is the doctrine of incorporation,
as expressed in Section 2, Article II of the Constitution, wherein the Philippines adopts the
generally accepted principles of international law and international jurisprudence as part of
the law of the land and adheres to the policy of peace, cooperation, and amity with all
nations.[26] An exchange of notes falls into the category of inter-governmental
agreements,[27] which is an internationally accepted form of international agreement. The
United Nations Treaty Collections (Treaty Reference Guide) defines the term as follows:
An exchange of notes is a record of a routine agreement, that has many similarities with the
private law contract. The agreement consists of the exchange of two documents, each of the
parties being in the possession of the one signed by the representative of the other. Under
the usual procedure, the accepting State repeats the text of the offering State to record its
assent. The signatories of the letters may be government Ministers, diplomats or
departmental heads. The technique of exchange of notes is frequently resorted to, either
because of its speedy procedure, or, sometimes, to avoid the process of legislative
approval.[28]
In another perspective, the terms exchange of notes and executive agreements have been
used interchangeably, exchange of notes being considered a form of executive agreement
that becomes binding through executive action.[29] On the other hand, executive
agreements concluded by the President sometimes take the form of exchange of notes and
at other times that of more formal documents denominated agreements or protocols.[30] As
former US High Commissioner to the Philippines Francis B. Sayre observed in his work,
The Constitutionality of Trade Agreement Acts:
The point where ordinary correspondence between this and other governments ends and
agreements whether denominated executive agreements or exchange of notes or otherwise
begin, may sometimes be difficult of ready ascertainment.[31] x x x
It is fairly clear from the foregoing disquisition that E/N BFO-028-03be it viewed as the
Non-Surrender Agreement itself, or as an integral instrument of acceptance thereof or as
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consent to be boundis a recognized mode of concluding a legally binding international
written contract among nations.
Senate Concurrence Not Required
Article 2 of the Vienna Convention on the Law of Treaties defines a treaty as an
international agreement concluded between states in written form and governed by
international law, whether embodied in a single instrument or in two or more related
instruments and whatever its particular designation.[32] International agreements may be in
the form of (1) treaties that require legislative concurrence after executive ratification; or
(2) executive agreements that are similar to treaties, except that they do not require
legislative concurrence and are usually less formal and deal with a narrower range of
subject matters than treaties.[33]
Under international law, there is no difference between treaties and executive agreements in
terms of their binding effects on the contracting states concerned,[34] as long as the
negotiating functionaries have remained within their powers.[35] Neither, on the domestic
sphere, can one be held valid if it violates the Constitution.[36] Authorities are, however,
agreed that one is distinct from another for accepted reasons apart from the concurrence-
requirement aspect.[37] As has been observed by US constitutional scholars, a treaty has
greater dignity than an executive agreement, because its constitutional efficacy is beyond
doubt, a treaty having behind it the authority of the President, the Senate, and the
people;[38] a ratified treaty, unlike an executive agreement, takes precedence over any prior
statutory enactment.[39]
Petitioner parlays the notion that the Agreement is of dubious validity, partaking as it does
of the nature of a treaty; hence, it must be duly concurred in by the Senate. Petitioner takes
a cue from Commissioner of Customs v. Eastern Sea Trading, in which the Court
reproduced the following observations made by US legal scholars: [I]nternational
agreements involving political issues or changes of national policy and those involving
international arrangements of a permanent character usually take the form of treaties
[while] those embodying adjustments of detail carrying out well established national
policies and traditions and those involving arrangements of a more or less temporary nature
take the form of executive agreements. [40]
Pressing its point, petitioner submits that the subject of the Agreement does not fall under
any of the subject-categories that are enumerated in the Eastern Sea Trading case, and that
may be covered by an executive agreement, such as commercial/consular relations, most-
favored nation rights, patent rights, trademark and copyright protection, postal and
navigation arrangements and settlement of claims.
In addition, petitioner foists the applicability to the instant case of Adolfo v. CFI of
Zambales and Merchant,[41] holding that an executive agreement through an exchange of
notes cannot be used to amend a treaty.
We are not persuaded.
The categorization of subject matters that may be covered by international agreements
mentioned in Eastern Sea Trading is not cast in stone. There are no hard and fast rules on
the propriety of entering, on a given subject, into a treaty or an executive agreement as an
instrument of international relations. The primary consideration in the choice of the form of
agreement is the parties intent and desire to craft an international agreement in the form
they so wish to further their respective interests. Verily, the matter of form takes a back seat
when it comes to effectiveness and binding effect of the enforcement of a treaty or an
executive agreement, as the parties in either international agreement each labor under the
pacta sunt servanda[42] principle.
As may be noted, almost half a century has elapsed since the Court rendered its decision in
Eastern Sea Trading. Since then, the conduct of foreign affairs has become more complex
and the domain of international law wider, as to include such subjects as human rights, the
environment, and the sea. In fact, in the US alone, the executive agreements executed by its
President from 1980 to 2000 covered subjects such as defense, trade, scientific cooperation,
aviation, atomic energy, environmental cooperation, peace corps, arms limitation, and
nuclear safety, among others.[43] Surely, the enumeration in Eastern Sea Trading cannot
circumscribe the option of each state on the matter of which the international agreement
format would be convenient to serve its best interest. As Francis Sayre said in his work
referred to earlier:
x x x It would be useless to undertake to discuss here the large variety of executive
agreements as such concluded from time to time. Hundreds of executive agreements, other
than those entered into under the trade-agreement act, have been negotiated with foreign
governments. x x x They cover such subjects as the inspection of vessels, navigation dues,
income tax on shipping profits, the admission of civil air craft, custom matters and
commercial relations generally, international claims, postal matters, the registration of
trademarks and copyrights, etc. x x x
And lest it be overlooked, one type of executive agreement is a treaty-authorized[44] or a
treaty-implementing executive agreement,[45] which necessarily would cover the same
matters subject of the underlying treaty.
But over and above the foregoing considerations is the fact thatsave for the situation and
matters contemplated in Sec. 25, Art. XVIII of the Constitution[46]when a treaty is
required, the Constitution does not classify any subject, like that involving political issues,
to be in the form of, and ratified as, a treaty. What the Constitution merely prescribes is that
treaties need the concurrence of the Senate by a vote defined therein to complete the
ratification process.
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Petitioners reliance on Adolfo[47] is misplaced, said case being inapplicable owing to
different factual milieus. There, the Court held that an executive agreement cannot be used
to amend a duly ratified and existing treaty, i.e., the Bases Treaty. Indeed, an executive
agreement that does not require the concurrence of the Senate for its ratification may not be
used to amend a treaty that, under the Constitution, is the product of the ratifying acts of the
Executive and the Senate. The presence of a treaty, purportedly being subject to amendment
by an executive agreement, does not obtain under the premises.
Considering the above discussion, the Court need not belabor at length the third main issue
raised, referring to the validity and effectivity of the Agreement without the concurrence by
at least two-thirds of all the members of the Senate. The Court has, in Eastern Sea
Trading,[48] as reiterated in Bayan,[49] given recognition to the obligatory effect of
executive agreements without the concurrence of the Senate:
x x x [T]he right of the Executive to enter into binding agreements without the necessity of
subsequent Congressional approval has been confirmed by long usage. From the earliest
days of our history, we have entered executive agreements covering such subjects as
commercial and consular relations, most favored-nation rights, patent rights, trademark and
copyright protection, postal and navigation arrangements and the settlement of claims. The
validity of these has never been seriously questioned by our courts.
The Agreement Not in Contravention of the Rome Statute
It is the petitioners next contention that the Agreement undermines the establishment of the
ICC and is null and void insofar as it unduly restricts the ICCs jurisdiction and infringes
upon the effectivity of the Rome Statute. Petitioner posits that the Agreement was
constituted solely for the purpose of providing individuals or groups of individuals with
immunity from the jurisdiction of the ICC; and such grant of immunity through non-
surrender agreements allegedly does not legitimately fall within the scope of Art. 98 of the
Rome Statute. It concludes that state parties with non-surrender agreements are prevented
from meeting their obligations under the Rome Statute, thereby constituting a breach of
Arts. 27,[50] 86,[51] 89[52] and 90[53] thereof.
Petitioner stresses that the overall object and purpose of the Rome Statute is to ensure that
those responsible for the worst possible crimes are brought to justice in all cases, primarily
by states, but as a last resort, by the ICC; thus, any agreementlike the non-surrender
agreementthat precludes the ICC from exercising its complementary function of acting
when a state is unable to or unwilling to do so, defeats the object and purpose of the Rome
Statute.
Petitioner would add that the President and the DFA Secretary, as representatives of a
signatory of the Rome Statute, are obliged by the imperatives of good faith to refrain from
performing acts that substantially devalue the purpose and object of the Statute, as signed.
Adding a nullifying ingredient to the Agreement, according to petitioner, is the fact that it
has an immoral purpose or is otherwise at variance with a priorly executed treaty.
Contrary to petitioners pretense, the Agreement does not contravene or undermine, nor does
it differ from, the Rome Statute. Far from going against each other, one complements the
other. As a matter of fact, the principle of complementarity underpins the creation of the
ICC. As aptly pointed out by respondents and admitted by petitioners, the jurisdiction of the
ICC is to be complementary to national criminal jurisdictions [of the signatory states].[54]
Art. 1 of the Rome Statute pertinently provides:
Article 1
The Court
An International Crimininal Court (the Court) is hereby established. It x x x shall have the
power to exercise its jurisdiction over persons for the most serious crimes of international
concern, as referred to in this Statute, and shall be complementary to national criminal
jurisdictions. The jurisdiction and functioning of the Court shall be governed by the
provisions of this Statute. (Emphasis ours.)
Significantly, the sixth preambular paragraph of the Rome Statute declares that it is the duty
of every State to exercise its criminal jurisdiction over those responsible for international
crimes. This provision indicates that primary jurisdiction over the so-called international
crimes rests, at the first instance, with the state where the crime was committed;
secondarily, with the ICC in appropriate situations contemplated under Art. 17, par. 1[55]
of the Rome Statute.
Of particular note is the application of the principle of ne bis in idem[56] under par. 3 of
Art. 20, Rome Statute, which again underscores the primacy of the jurisdiction of a state
vis-a-vis that of the ICC. As far as relevant, the provision states that no person who has
been tried by another court for conduct x x x [constituting crimes within its jurisdiction]
shall be tried by the [International Criminal] Court with respect to the same conduct x x x.
The foregoing provisions of the Rome Statute, taken collectively, argue against the idea of
jurisdictional conflict between the Philippines, as party to the non-surrender agreement, and
the ICC; or the idea of the Agreement substantially impairing the value of the RPs
undertaking under the Rome Statute. Ignoring for a while the fact that the RP signed the
Rome Statute ahead of the Agreement, it is abundantly clear to us that the Rome Statute
expressly recognizes the primary jurisdiction of states, like the RP, over serious crimes
committed within their respective borders, the complementary jurisdiction of the ICC
coming into play only when the signatory states are unwilling or unable to prosecute.
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Given the above consideration, petitioners suggestionthat the RP, by entering into the
Agreement, violated its duty required by the imperatives of good faith and breached its
commitment under the Vienna Convention[57] to refrain from performing any act tending
to impair the value of a treaty, e.g., the Rome Statutehas to be rejected outright. For nothing
in the provisions of the Agreement, in relation to the Rome Statute, tends to diminish the
efficacy of the Statute, let alone defeats the purpose of the ICC. Lest it be overlooked, the
Rome Statute contains a proviso that enjoins the ICC from seeking the surrender of an
erring person, should the process require the requested state to perform an act that would
violate some international agreement it has entered into. We refer to Art. 98(2) of the Rome
Statute, which reads:
Article 98
Cooperation with respect to waiver of immunity
and consent to surrender
xxxx
2. The Court may not proceed with a request for surrender which would require the
requested State to act inconsistently with its obligations under international agreements
pursuant to which the consent of a sending State is required to surrender a person of that
State to the Court, unless the Court can first obtain the cooperation of the sending State for
the giving of consent for the surrender.
Moreover, under international law, there is a considerable difference between a State-Party
and a signatory to a treaty. Under the Vienna Convention on the Law of Treaties, a
signatory state is only obliged to refrain from acts which would defeat the object and
purpose of a treaty;[58] whereas a State-Party, on the other hand, is legally obliged to
follow all the provisions of a treaty in good faith.
In the instant case, it bears stressing that the Philippines is only a signatory to the Rome
Statute and not a State-Party for lack of ratification by the Senate. Thus, it is only obliged to
refrain from acts which would defeat the object and purpose of the Rome Statute. Any
argument obliging the Philippines to follow any provision in the treaty would be premature.
As a result, petitioners argument that State-Parties with non-surrender agreements are
prevented from meeting their obligations under the Rome Statute, specifically Arts. 27, 86,
89 and 90, must fail. These articles are only legally binding upon State-Parties, not
signatories.
Furthermore, a careful reading of said Art. 90 would show that the Agreement is not
incompatible with the Rome Statute. Specifically, Art. 90(4) provides that [i]f the
requesting State is a State not Party to this Statute the requested State, if it is not under an
international obligation to extradite the person to the requesting State, shall give priority to
the request for surrender from the Court. x x x In applying the provision, certain undisputed
facts should be pointed out: first, the US is neither a State-Party nor a signatory to the Rome
Statute; and second, there is an international agreement between the US and the Philippines
regarding extradition or surrender of persons, i.e., the Agreement. Clearly, even assuming
that the Philippines is a State-Party, the Rome Statute still recognizes the primacy of
international agreements entered into between States, even when one of the States is not a
State-Party to the Rome Statute.
Sovereignty Limited by International Agreements
Petitioner next argues that the RP has, through the Agreement, abdicated its sovereignty by
bargaining away the jurisdiction of the ICC to prosecute US nationals, government
officials/employees or military personnel who commit serious crimes of international
concerns in the Philippines. Formulating petitioners argument a bit differently, the RP, by
entering into the Agreement, does thereby abdicate its sovereignty, abdication being done
by its waiving or abandoning its right to seek recourse through the Rome Statute of the ICC
for erring Americans committing international crimes in the country.
We are not persuaded. As it were, the Agreement is but a form of affirmance and
confirmance of the Philippines national criminal jurisdiction. National criminal jurisdiction
being primary, as explained above, it is always the responsibility and within the prerogative
of the RP either to prosecute criminal offenses equally covered by the Rome Statute or to
accede to the jurisdiction of the ICC. Thus, the Philippines may decide to try persons of the
US, as the term is understood in the Agreement, under our national criminal justice system.
Or it may opt not to exercise its criminal jurisdiction over its erring citizens or over US
persons committing high crimes in the country and defer to the secondary criminal
jurisdiction of the ICC over them. As to persons of the US whom the Philippines refuses to
prosecute, the country would, in effect, accord discretion to the US to exercise either its
national criminal jurisdiction over the person concerned or to give its consent to the referral
of the matter to the ICC for trial. In the same breath, the US must extend the same privilege
to the Philippines with respect to persons of the RP committing high crimes within US
territorial jurisdiction.
In the context of the Constitution, there can be no serious objection to the Philippines
agreeing to undertake the things set forth in the Agreement. Surely, one State can agree to
waive jurisdictionto the extent agreed uponto subjects of another State due to the
recognition of the principle of extraterritorial immunity. What the Court wrote in Nicolas v.
Romulo[59]a case involving the implementation of the criminal jurisdiction provisions of
the RP-US Visiting Forces Agreementis apropos:
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Nothing in the Constitution prohibits such agreements recognizing immunity from
jurisdiction or some aspects of jurisdiction (such as custody), in relation to long-recognized
subjects of such immunity like Heads of State, diplomats and members of the armed forces
contingents of a foreign State allowed to enter another States territory. x x x
To be sure, the nullity of the subject non-surrender agreement cannot be predicated on the
postulate that some of its provisions constitute a virtual abdication of its sovereignty.
Almost every time a state enters into an international agreement, it voluntarily sheds off
part of its sovereignty. The Constitution, as drafted, did not envision a reclusive Philippines
isolated from the rest of the world. It even adheres, as earlier stated, to the policy of
cooperation and amity with all nations.[60]
By their nature, treaties and international agreements actually have a limiting effect on the
otherwise encompassing and absolute nature of sovereignty. By their voluntary act, nations
may decide to surrender or waive some aspects of their state power or agree to limit the
exercise of their otherwise exclusive and absolute jurisdiction. The usual underlying
consideration in this partial surrender may be the greater benefits derived from a pact or a
reciprocal undertaking of one contracting party to grant the same privileges or immunities
to the other. On the rationale that the Philippines has adopted the generally accepted
principles of international law as part of the law of the land, a portion of sovereignty may
be waived without violating the Constitution.[61] Such waiver does not amount to an
unconstitutional diminution or deprivation of jurisdiction of Philippine courts.[62]
Agreement Not Immoral/Not at Variance
with Principles of International Law
Petitioner urges that the Agreement be struck down as void ab initio for imposing immoral
obligations and/or being at variance with allegedly universally recognized principles of
international law. The immoral aspect proceeds from the fact that the Agreement, as
petitioner would put it, leaves criminals immune from responsibility for unimaginable
atrocities that deeply shock the conscience of humanity; x x x it precludes our country from
delivering an American criminal to the [ICC] x x x.[63]
The above argument is a kind of recycling of petitioners earlier position, which, as already
discussed, contends that the RP, by entering into the Agreement, virtually abdicated its
sovereignty and in the process undermined its treaty obligations under the Rome Statute,
contrary to international law principles.[64]
The Court is not persuaded. Suffice it to state in this regard that the non-surrender
agreement, as aptly described by the Solicitor General, is an assertion by the Philippines of
its desire to try and punish crimes under its national law. x x x The agreement is a
recognition of the primacy and competence of the countrys judiciary to try offenses under
its national criminal laws and dispense justice fairly and judiciously.
Petitioner, we believe, labors under the erroneous impression that the Agreement would
allow Filipinos and Americans committing high crimes of international concern to escape
criminal trial and punishment. This is manifestly incorrect. Persons who may have
committed acts penalized under the Rome Statute can be prosecuted and punished in the
Philippines or in the US; or with the consent of the RP or the US, before the ICC, assuming,
for the nonce, that all the formalities necessary to bind both countries to the Rome Statute
have been met. For perspective, what the Agreement contextually prohibits is the surrender
by either party of individuals to international tribunals, like the ICC, without the consent of
the other party, which may desire to prosecute the crime under its existing laws. With the
view we take of things, there is nothing immoral or violative of international law concepts
in the act of the Philippines of assuming criminal jurisdiction pursuant to the non-surrender
agreement over an offense considered criminal by both Philippine laws and the Rome
Statute.
No Grave Abuse of Discretion
Petitioners final point revolves around the necessity of the Senates concurrence in the
Agreement. And without specifically saying so, petitioner would argue that the non-
surrender agreement was executed by the President, thru the DFA Secretary, in grave abuse
of discretion.
The Court need not delve on and belabor the first portion of the above posture of petitioner,
the same having been discussed at length earlier on. As to the second portion, We wish to
state that petitioner virtually faults the President for performing, through respondents, a task
conferred the President by the Constitutionthe power to enter into international agreements.
By constitutional fiat and by the nature of his or her office, the President, as head of state
and government, is the sole organ and authority in the external affairs of the country.[65]
The Constitution vests in the President the power to enter into international agreements,
subject, in appropriate cases, to the required concurrence votes of the Senate. But as earlier
indicated, executive agreements may be validly entered into without such concurrence. As
the President wields vast powers and influence, her conduct in the external affairs of the
nation is, as Bayan would put it, executive altogether. The right of the President to enter
into or ratify binding executive agreements has been confirmed by long practice.[66]
In thus agreeing to conclude the Agreement thru E/N BFO-028-03, then President Gloria
Macapagal-Arroyo, represented by the Secretary of Foreign Affairs, acted within the scope
of the authority and discretion vested in her by the Constitution. At the end of the day, the
Presidentby ratifying, thru her deputies, the non-surrender agreementdid nothing more than
discharge a constitutional duty and exercise a prerogative that pertains to her office.
While the issue of ratification of the Rome Statute is not determinative of the other issues
raised herein, it may perhaps be pertinent to remind all and sundry that about the time this
petition was interposed, such issue of ratification was laid to rest in Pimentel, Jr. v. Office
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of the Executive Secretary.[67] As the Court emphasized in said case, the power to ratify a
treaty, the Statute in that instance, rests with the President, subject to the concurrence of the
Senate, whose role relative to the ratification of a treaty is limited merely to concurring in
or withholding the ratification. And concomitant with this treaty-making power of the
President is his or her prerogative to refuse to submit a treaty to the Senate; or having
secured the latters consent to the ratification of the treaty, refuse to ratify it.[68] This
prerogative, the Court hastened to add, is the Presidents alone and cannot be encroached
upon via a writ of mandamus. Barring intervening events, then, the Philippines remains to
be just a signatory to the Rome Statute. Under Art. 125[69] thereof, the final acts required
to complete the treaty process and, thus, bring it into force, insofar as the Philippines is
concerned, have yet to be done.
Agreement Need Not Be in the Form of a Treaty
On December 11, 2009, then President Arroyo signed into law Republic Act No. (RA)
9851, otherwise known as the Philippine Act on Crimes Against International Humanitarian
Law, Genocide, and Other Crimes Against Humanity. Sec. 17 of RA 9851, particularly the
second paragraph thereof, provides:
Section 17. Jurisdiction. x x x x
In the interest of justice, the relevant Philippine authorities may dispense with the
investigation or prosecution of a crime punishable under this Act if another court or
international tribunal is already conducting the investigation or undertaking the prosecution
of such crime. Instead, the authorities may surrender or extradite suspected or accused
persons in the Philippines to the appropriate international court, if any, or to another State
pursuant to the applicable extradition laws and treaties. (Emphasis supplied.)
A view is advanced that the Agreement amends existing municipal laws on the States
obligation in relation to grave crimes against the law of nations, i.e., genocide, crimes
against humanity and war crimes. Relying on the above-quoted statutory proviso, the view
posits that the Philippine is required to surrender to the proper international tribunal those
persons accused of the grave crimes defined under RA 9851, if it does not exercise its
primary jurisdiction to prosecute them.
The basic premise rests on the interpretation that if it does not decide to prosecute a foreign
national for violations of RA 9851, the Philippines has only two options, to wit: (1)
surrender the accused to the proper international tribunal; or (2) surrender the accused to
another State if such surrender is pursuant to the applicable extradition laws and treaties.
But the Philippines may exercise these options only in cases where another court or
international tribunal is already conducting the investigation or undertaking the prosecution
of such crime; otherwise, the Philippines must prosecute the crime before its own courts
pursuant to RA 9851.
Posing the situation of a US national under prosecution by an international tribunal for any
crime under RA 9851, the Philippines has the option to surrender such US national to the
international tribunal if it decides not to prosecute such US national here. The view asserts
that this option of the Philippines under Sec. 17 of RA 9851 is not subject to the consent of
the US, and any derogation of Sec. 17 of RA 9851, such as requiring the consent of the US
before the Philippines can exercise such option, requires an amendatory law. In line with
this scenario, the view strongly argues that the Agreement prevents the Philippineswithout
the consent of the USfrom surrendering to any international tribunal US nationals accused
of crimes covered by RA 9851, and, thus, in effect amends Sec. 17 of RA 9851.
Consequently, the view is strongly impressed that the Agreement cannot be embodied in a
simple executive agreement in the form of an exchange of notes but must be implemented
through an extradition law or a treaty with the corresponding formalities.
Moreover, consonant with the foregoing view, citing Sec. 2, Art. II of the Constitution,
where the Philippines adopts, as a national policy, the generally accepted principles of
international law as part of the law of the land, the Court is further impressed to perceive
the Rome Statute as declaratory of customary international law. In other words, the Statute
embodies principles of law which constitute customary international law or custom and for
which reason it assumes the status of an enforceable domestic law in the context of the
aforecited constitutional provision. As a corollary, it is argued that any derogation from the
Rome Statute principles cannot be undertaken via a mere executive agreement, which, as an
exclusive act of the executive branch, can only implement, but cannot amend or repeal, an
existing law. The Agreement, so the argument goes, seeks to frustrate the objects of the
principles of law or alters customary rules embodied in the Rome Statute.
Prescinding from the foregoing premises, the view thus advanced considers the Agreement
inefficacious, unless it is embodied in a treaty duly ratified with the concurrence of the
Senate, the theory being that a Senate- ratified treaty partakes of the nature of a municipal
law that can amend or supersede another law, in this instance Sec. 17 of RA 9851 and the
status of the Rome Statute as constitutive of enforceable domestic law under Sec. 2, Art. II
of the Constitution.
We are unable to lend cogency to the view thus taken. For one, we find that the Agreement
does not amend or is repugnant to RA 9851. For another, the view does not clearly state
what precise principles of law, if any, the Agreement alters. And for a third, it does not
demonstrate in the concrete how the Agreement seeks to frustrate the objectives of the
principles of law subsumed in the Rome Statute.
Far from it, as earlier explained, the Agreement does not undermine the Rome Statute as the
former merely reinforces the primacy of the national jurisdiction of the US and the
Philippines in prosecuting criminal offenses committed by their respective citizens and
military personnel, among others. The jurisdiction of the ICC pursuant to the Rome Statute
over high crimes indicated thereat is clearly and unmistakably complementary to the
national criminal jurisdiction of the signatory states.
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Moreover, RA 9851 clearly: (1) defines and establishes the crimes against international
humanitarian law, genocide and other crimes against humanity;[70] (2) provides penal
sanctions and criminal liability for their commission;[71] and (3) establishes special courts
for the prosecution of these crimes and for the State to exercise primary criminal
jurisdiction.[72] Nowhere in RA 9851 is there a proviso that goes against the tenor of the
Agreement.
The view makes much of the above quoted second par. of Sec. 17, RA 9851 as requiring the
Philippine State to surrender to the proper international tribunal those persons accused of
crimes sanctioned under said law if it does not exercise its primary jurisdiction to prosecute
such persons. This view is not entirely correct, for the above quoted proviso clearly
provides discretion to the Philippine State on whether to surrender or not a person accused
of the crimes under RA 9851. The statutory proviso uses the word may. It is settled doctrine
in statutory construction that the word may denotes discretion, and cannot be construed as
having mandatory effect.[73] Thus, the pertinent second pararagraph of Sec. 17, RA 9851 is
simply permissive on the part of the Philippine State.
Besides, even granting that the surrender of a person is mandatorily required when the
Philippines does not exercise its primary jurisdiction in cases where another court or
international tribunal is already conducting the investigation or undertaking the prosecution
of such crime, still, the tenor of the Agreement is not repugnant to Sec. 17 of RA 9851. Said
legal proviso aptly provides that the surrender may be made to another State pursuant to the
applicable extradition laws and treaties. The Agreement can already be considered a treaty
following this Courts decision in Nicolas v. Romulo[74] which cited Weinberger v.
Rossi.[75] In Nicolas, We held that an executive agreement is a treaty within the meaning
of that word in international law and constitutes enforceable domestic law vis--vis the
United States.[76]
Likewise, the Philippines and the US already have an existing extradition treaty, i.e., RP-
US Extradition Treaty, which was executed on November 13, 1994. The pertinent
Philippine law, on the other hand, is Presidential Decree No. 1069, issued on January 13,
1977. Thus, the Agreement, in conjunction with the RP-US Extradition Treaty, would
neither violate nor run counter to Sec. 17 of RA 9851.
The views reliance on Suplico v. Neda[77] is similarly improper. In that case, several
petitions were filed questioning the power of the President to enter into foreign loan
agreements. However, before the petitions could be resolved by the Court, the Office of the
Solicitor General filed a Manifestation and Motion averring that the Philippine Government
decided not to continue with the ZTE National Broadband Network Project, thus rendering
the petition moot. In resolving the case, the Court took judicial notice of the act of the
executive department of the Philippines (the President) and found the petition to be indeed
moot. Accordingly, it dismissed the petitions.
In his dissent in the abovementioned case, Justice Carpio discussed the legal implications of
an executive agreement. He stated that an executive agreement has the force and effect of
law x x x [it] cannot amend or repeal prior laws.[78] Hence, this argument finds no
application in this case seeing as RA 9851 is a subsequent law, not a prior one. Notably,
this argument cannot be found in the ratio decidendi of the case, but only in the dissenting
opinion.
The view further contends that the RP-US Extradition Treaty is inapplicable to RA 9851 for
the reason that under par. 1, Art. 2 of the RP-US Extradition Treaty, [a]n offense shall be an
extraditable offense if it is punishable under the laws in both Contracting Parties x x x,[79]
and thereby concluding that while the Philippines has criminalized under RA 9851 the acts
defined in the Rome Statute as war crimes, genocide and other crimes against humanity,
there is no similar legislation in the US. It is further argued that, citing U.S. v. Coolidge, in
the US, a person cannot be tried in the federal courts for an international crime unless
Congress adopts a law defining and punishing the offense.
This view must fail.
On the contrary, the US has already enacted legislation punishing the high crimes
mentioned earlier. In fact, as early as October 2006, the US enacted a law criminalizing war
crimes. Section 2441, Chapter 118, Part I, Title 18 of the United States Code Annotated
(USCA) provides for the criminal offense of war crimes which is similar to the war crimes
found in both the Rome Statute and RA 9851, thus:
(a) Offense Whoever, whether inside or outside the United States, commits a war crime,
in any of the circumstances described in subsection (b), shall be fined under this title or
imprisoned for life or any term of years, or both, and if death results to the victim, shall also
be subject to the penalty of death.
(b) Circumstances The circumstances referred to in subsection (a) are that the person
committing such war crime or the victim of such war crime is a member of the Armed
Forces of the United States or a national of the United States (as defined in Section 101 of
the Immigration and Nationality Act).
(c) Definition As used in this Section the term war crime means any conduct
(1) Defined as a grave breach in any of the international conventions signed at Geneva 12
August 1949, or any protocol to such convention to which the United States is a party;
(2) Prohibited by Article 23, 25, 27 or 28 of the Annex to the Hague Convention IV,
Respecting the Laws and Customs of War on Land, signed 18 October 1907;
(3) Which constitutes a grave breach of common Article 3 (as defined in subsection [d])
when committed in the context of and in association with an armed conflict not of an
international character; or
(4) Of a person who, in relation to an armed conflict and contrary to the provisions of the
Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other
Devices as amended at Geneva on 3 May 1996 (Protocol II as amended on 3 May 1996),
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when the United States is a party to such Protocol, willfully kills or causes serious injury to Rome Statute US Law
civilians.[80]
Article 6 Genocide 1091. Genocide
Similarly, in December 2009, the US adopted a law that criminalized genocide, to wit: For the purpose of this Statute, (a) Basic Offense Whoever,
genocide means any of the whether in the time of peace or
1091. Genocide following acts committed with in time of war and with specific
intent to destroy, in whole or in intent to destroy, in whole or in
(a) Basic Offense Whoever, whether in the time of peace or in time of war and part, a national, ethnical, racial substantial part, a national,
with specific intent to destroy, in whole or in substantial part, a national, ethnic, racial or or religious group, as such: ethnic, racial or religious group
religious group as such (a) Killing members of the as such
(1) kills members of that group; group; (1) kills members of that group;
(2) causes serious bodily injury to members of that group; (b) Causing serious bodily or (2) causes serious bodily injury
(3) causes the permanent impairment of the mental faculties of members of the group mental harm to members of the to members of that group;
through drugs, torture, or similar techniques; group; (3) causes the permanent
(4) subjects the group to conditions of life that are intended to cause the physical (c) Deliberately inflicting on the impairment of the mental
destruction of the group in whole or in part; group conditions of life faculties of members of the
(5) imposes measures intended to prevent births within the group; or calculated to bring about its group through drugs, torture, or
(6) transfers by force children of the group to another group; physical destruction in whole or similar techniques;
shall be punished as provided in subsection (b).[81] in part; (4) subjects the group to
(d) Imposing measures intended conditions of life that are
Arguing further, another view has been advanced that the current US laws do not cover to prevent births within the intended to cause the physical
every crime listed within the jurisdiction of the ICC and that there is a gap between the group; destruction of the group in whole
definitions of the different crimes under the US laws versus the Rome Statute. The view (e) Forcibly transferring children or in part;
used a report written by Victoria K. Holt and Elisabeth W. Dallas, entitled On Trial: The of the group to another group. (5) imposes measures intended
US Military and the International Criminal Court, as its basis. to prevent births within the
group; or
At the outset, it should be pointed out that the report used may not have any weight or value (6) transfers by force children of
under international law. Article 38 of the Statute of the International Court of Justice (ICJ) the group to another group;
lists the sources of international law, as follows: (1) international conventions, whether shall be punished as provided in
general or particular, establishing rules expressly recognized by the contesting states; (2) subsection (b).
international custom, as evidence of a general practice accepted as law; (3) the general
principles of law recognized by civilized nations; and (4) subject to the provisions of
Article 59, judicial decisions and the teachings of the most highly qualified publicists of the
various nations, as subsidiary means for the determination of rules of law. The report does
not fall under any of the foregoing enumerated sources. It cannot even be considered as the
teachings of highly qualified publicists. A highly qualified publicist is a scholar of public
international law and the term usually refers to legal scholars or academic writers.[82] It
has not been shown that the authors[83] of this report are highly qualified publicists.

Assuming arguendo that the report has weight, still, the perceived gaps in the definitions of
the crimes are nonexistent. To highlight, the table below shows the definitions of genocide
and war crimes under the Rome Statute vis--vis the definitions under US laws:

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Article 8 War Crimes
2. For the purpose of this
Statute, war crimes means:
(a) Grave breaches of the
Geneva Conventions of 12
August 1949, namely, any of the
following acts against persons or
property protected under the
provisions of the relevant
Geneva Convention: x x x[84]
(b) Other serious violations of
the laws and customs applicable
in international armed conflict,
within the established
framework of international law,
namely, any of the following
acts:
xxxx
(c) In the case of an armed
conflict not of an international
character, serious violations of
article 3 common to the four
Geneva Conventions of 12
August 1949, namely, any of the
following acts committed against
persons taking no active part in
the hostilities, including
members of armed forces who
have laid down their arms and
those placed hors de combat by
sickness, wounds, detention or
any other cause:
xxxx
(d) Paragraph 2 (c) applies to
armed conflicts not of an
international character and thus
does not apply to situations of
internal disturbances and
tensions, such as riots, isolated
and sporadic acts of violence or
other acts of a similar nature.
(e) Other serious violations of
the laws and customs applicable
a) Definition As used in this in armed conflicts not of an
Section the term war crime international character, within
means any conduct the established framework of
(1) Defined as a grave breach in international law, namely, any of
any of the international the following acts: x x x.
conventions signed at Geneva 12
August 1949, or any protocol to
such convention to which the
United States is a party;
(2) Prohibited by Article 23,
25, 27 or 28 of the Annex to the
Hague Convention IV,
Respecting the Laws and
Customs of War on Land, signed
18 October 1907;
(3) Which constitutes a grave
breach of common Article 3 (as
defined in subsection [d][85])
when committed in the context
of and in association with an
armed conflict not of an
international character; or
(4) Of a person who, in relation
to an armed conflict and contrary
to the provisions of the Protocol
on Prohibitions or Restrictions
on the Use of Mines, Booby-
Traps and Other Devices as
amended at Geneva on 3 May
1996 (Protocol II as amended on
3 May 1996), when the United
States is a party to such Protocol,
willfully kills or causes serious
injury to civilians.[86] Evidently, the gaps pointed out as to the definition of the crimes are not present. In fact, the
report itself stated as much, to wit:
Few believed there were wide differences between the crimes under the jurisdiction of the
Court and crimes within the Uniform Code of Military Justice that would expose US
personnel to the Court. Since US military lawyers were instrumental in drafting the
elements of crimes outlined in the Rome Statute, they ensured that most of the crimes were
consistent with those outlined in the UCMJ and gave strength to complementarity for the
US. Small areas of potential gaps between the UCMJ and the Rome Statute, military
experts argued, could be addressed through existing military laws.[87] x x x
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The report went on further to say that [a]ccording to those involved, the elements of crimes
laid out in the Rome Statute have been part of US military doctrine for decades.[88] Thus,
the argument proffered cannot stand.
Nonetheless, despite the lack of actual domestic legislation, the US notably follows the
doctrine of incorporation. As early as 1900, the esteemed Justice Gray in The Paquete
Habana[89] case already held international law as part of the law of the US, to wit:
International law is part of our law, and must be ascertained and administered by the courts
of justice of appropriate jurisdiction as often as questions of right depending upon it are
duly presented for their determination. For this purpose, where there is no treaty and no
controlling executive or legislative act or judicial decision, resort must be had to the
customs and usages of civilized nations, and, as evidence of these, to the works of jurists
and commentators who by years of labor, research, and experience have made themselves
peculiarly well acquainted with the subjects of which they treat. Such works are resorted to
by judicial tribunals, not for the speculations of their authors concerning what the law ought
to be, but for the trustworthy evidence of what the law really is.[90] (Emphasis supplied.)
Thus, a person can be tried in the US for an international crime despite the lack of domestic
legislation. The cited ruling in U.S. v. Coolidge,[91] which in turn is based on the holding
in U.S. v. Hudson,[92] only applies to common law and not to the law of nations or
international law.[93] Indeed, the Court in U.S. v. Hudson only considered the question,
whether the Circuit Courts of the United States can exercise a common law jurisdiction in
criminal cases.[94] Stated otherwise, there is no common law crime in the US but this is
considerably different from international law.
The US doubtless recognizes international law as part of the law of the land, necessarily
including international crimes, even without any local statute.[95] In fact, years later, US
courts would apply international law as a source of criminal liability despite the lack of a
local statute criminalizing it as such. So it was that in Ex Parte Quirin[96] the US Supreme
Court noted that [f]rom the very beginning of its history this Court has recognized and
applied the law of war as including that part of the law of nations which prescribes, for the
conduct of war, the status, rights and duties of enemy nations as well as of enemy
individuals.[97] It went on further to explain that Congress had not undertaken the task of
codifying the specific offenses covered in the law of war, thus:
It is no objection that Congress in providing for the trial of such offenses has not itself
undertaken to codify that branch of international law or to mark its precise boundaries, or to
enumerate or define by statute all the acts which that law condemns. An Act of Congress
punishing the crime of piracy as defined by the law of nations is an appropriate exercise of
its constitutional authority, Art. I, s 8, cl. 10, to define and punish the offense since it has
adopted by reference the sufficiently precise definition of international law. x x x Similarly
by the reference in the 15th Article of War to offenders or offenses that x x x by the law of
war may be triable by such military commissions. Congress has incorporated by reference,
as within the jurisdiction of military commissions, all offenses which are defined as such by
the law of war x x x, and which may constitutionally be included within that
jurisdiction.[98] x x x (Emphasis supplied.)
This rule finds an even stronger hold in the case of crimes against humanity. It has been
held that genocide, war crimes and crimes against humanity have attained the status of
customary international law. Some even go so far as to state that these crimes have attained
the status of jus cogens.[99]
Customary international law or international custom is a source of international law as
stated in the Statute of the ICJ.[100] It is defined as the general and consistent practice of
states recognized and followed by them from a sense of legal obligation.[101] In order to
establish the customary status of a particular norm, two elements must concur: State
practice, the objective element; and opinio juris sive necessitates, the subjective
element.[102]
State practice refers to the continuous repetition of the same or similar kind of acts or norms
by States.[103] It is demonstrated upon the existence of the following elements: (1)
generality; (2) uniformity and consistency; and (3) duration.[104] While, opinio juris, the
psychological element, requires that the state practice or norm be carried out in such a way,
as to be evidence of a belief that this practice is rendered obligatory by the existence of a
rule of law requiring it.[105]
The term jus cogens means the compelling law.[106] Corollary, a jus cogens norm holds
the highest hierarchical position among all other customary norms and principles.[107] As a
result, jus cogens norms are deemed peremptory and non-derogable.[108] When applied to
international crimes, jus cogens crimes have been deemed so fundamental to the existence
of a just international legal order that states cannot derogate from them, even by
agreement.[109]
These jus cogens crimes relate to the principle of universal jurisdiction, i.e., any state may
exercise jurisdiction over an individual who commits certain heinous and widely
condemned offenses, even when no other recognized basis for jurisdiction exists.[110] The
rationale behind this principle is that the crime committed is so egregious that it is
considered to be committed against all members of the international community[111] and
thus granting every State jurisdiction over the crime.[112]
Therefore, even with the current lack of domestic legislation on the part of the US, it still
has both the doctrine of incorporation and universal jurisdiction to try these crimes.
Consequently, no matter how hard one insists, the ICC, as an international tribunal, found
in the Rome Statute is not declaratory of customary international law.
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The first element of customary international law, i.e., established, widespread, and
consistent practice on the part of States,[113] does not, under the premises, appear to be
obtaining as reflected in this simple reality: As of October 12, 2010, only 114[114] States
have ratified the Rome Statute, subsequent to its coming into force eight (8) years earlier, or
on July 1, 2002. The fact that 114 States out of a total of 194[115] countries in the world, or
roughly 58.76%, have ratified the Rome Statute casts doubt on whether or not the perceived
principles contained in the Statute have attained the status of customary law and should be
deemed as obligatory international law. The numbers even tend to argue against the
urgency of establishing international criminal courts envisioned in the Rome Statute. Lest it
be overlooked, the Philippines, judging by the action or inaction of its top officials, does not
even feel bound by the Rome Statute. Res ipsa loquitur. More than eight (8) years have
elapsed since the Philippine representative signed the Statute, but the treaty has not been
transmitted to the Senate for the ratification process.
And this brings us to what Fr. Bernas, S.J. aptly said respecting the application of the
concurring elements, thus:
Custom or customary international law means a general and consistent practice of states
followed by them from a sense of legal obligation [opinio juris] x x x. This statement
contains the two basic elements of custom: the material factor, that is how the states
behave, and the psychological factor or subjective factor, that is, why they behave the way
they do.
xxxx
The initial factor for determining the existence of custom is the actual behavior of states.
This includes several elements: duration, consistency, and generality of the practice of
states.
The required duration can be either short or long. x x x
xxxx
Duration therefore is not the most important element. More important is the consistency and
the generality of the practice. x x x
xxxx
Once the existence of state practice has been established, it becomes necessary to determine
why states behave the way they do. Do states behave the way they do because they consider
it obligatory to behave thus or do they do it only as a matter of courtesy? Opinio juris, or
the belief that a certain form of behavior is obligatory, is what makes practice an
international rule. Without it, practice is not law.[116] (Emphasis added.)
Evidently, there is, as yet, no overwhelming consensus, let alone prevalent practice, among
the different countries in the world that the prosecution of internationally recognized crimes
of genocide, etc. should be handled by a particular international criminal court.
Absent the widespread/consistent-practice-of-states factor, the second or the psychological
element must be deemed non-existent, for an inquiry on why states behave the way they do
presupposes, in the first place, that they are actually behaving, as a matter of settled and
consistent practice, in a certain manner. This implicitly requires belief that the practice in
question is rendered obligatory by the existence of a rule of law requiring it.[117] Like the
first element, the second element has likewise not been shown to be present.
Further, the Rome Statute itself rejects the concept of universal jurisdiction over the crimes
enumerated therein as evidenced by it requiring State consent.[118] Even further, the Rome
Statute specifically and unequivocally requires that: This Statute is subject to ratification,
acceptance or approval by signatory States.[119] These clearly negate the argument that
such has already attained customary status.
More importantly, an act of the executive branch with a foreign government must be
afforded great respect. The power to enter into executive agreements has long been
recognized to be lodged with the President. As We held in Neri v. Senate Committee on
Accountability of Public Officers and Investigations, [t]he power to enter into an executive
agreement is in essence an executive power. This authority of the President to enter into
executive agreements without the concurrence of the Legislature has traditionally been
recognized in Philippine jurisprudence.[120] The rationale behind this principle is the
inviolable doctrine of separation of powers among the legislative, executive and judicial
branches of the government. Thus, absent any clear contravention of the law, courts should
exercise utmost caution in declaring any executive agreement invalid.
In light of the above consideration, the position or view that the challenged RP-US Non-
Surrender Agreement ought to be in the form of a treaty, to be effective, has to be rejected.
WHEREFORE, the petition for certiorari, mandamus and prohibition is hereby
DISMISSED for lack of merit. No costs.
SO ORDERED.
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