EN BANC

G.R. No. 183591 October 14, 2008

THE PROVINCE OF NORTH COTABATO, duly represented by GOVERNOR JESUS

SACDALAN and/or VICE-GOVERNOR EMMANUEL PIÑOL, for and in his own
behalf, petitioners,
vs.
THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON
ANCESTRAL DOMAIN (GRP), represented by SEC. RODOLFO GARCIA, ATTY.
LEAH ARMAMENTO, ATTY. SEDFREY CANDELARIA, MARK RYAN SULLIVAN
and/or GEN. HERMOGENES ESPERON, JR., the latter in his capacity as the present
and duly-appointed Presidential Adviser on the Peace Process (OPAPP) or the so-
called Office of the Presidential Adviser on the Peace Process, respondents.

FACTS

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 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 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.

On July 23, 2008, the Province of North Cotabato and Vice-Governor Emmanuel Piñol
filed a petition, docketed as G.R. No. 183591, for Mandamus and Prohibition with Prayer
for the Issuance of Writ of Preliminary Injunction and Temporary Restraining Order.
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.

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

The 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; 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. Notably, the jurisdiction over the internal waters is not similarly described as
"joint."

The MOA-AD further provides for the sharing of minerals on the territorial waters
between the Central Government and the BJE, in favor of the latter, through production
sharing and economic cooperation agreement. 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. There is no similar
provision on the sharing of minerals and allowed activities with respect to
the internal waters of the BJE.

ISSUES

1. Whether or not the respondents violate constitutional and statutory provisions on public
consultation and the right to information when they negotiated and later initialed the MOA-
AD

2. Whether or not the contents of the MOA-AD violate the Constitution and the laws

HELD

1.Yes. There was a violation on the constitutional and statutory provisions on public
consultation and the right to information when they negotiated and later initialed the MOA-
AD

The law provides that 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.
As early as 1948, in Subido v. Ozaeta, the Court has recognized the statutory right to
examine and inspect public records, a right which was eventually accorded constitutional
status.

That the subject of the information sought in the present cases is a matter of public
concern faces no serious challenge. In fact, respondents admit that the MOA-AD is
indeed 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.

Intended as a "splendid symmetry" 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.

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.

2.The MOA-AD is unconstitutional

The relationship between the Central Government and the Bangsamoro juridical
entity shall be associative characterized by shared authority and responsibility with
a structure of governance based on executive, legislative, judicial and administrative
institutions with defined powers and functions in the comprehensive compact. A period of
transition shall be established in a comprehensive peace compact specifying the
relationship between the Central Government and the BJE. (Emphasis and underscoring
supplied)

The nature of the "associative" relationship may have been intended to be defined more
precisely in the still to be forged Comprehensive Compact. Nonetheless, given that there
is a concept of "association" in international law, and the MOA-AD - by its inclusion of
international law instruments in its TOR- placed itself in an international legal context, that
concept of association may be brought to bear in understanding the use of the term
"associative" in the MOA-AD.

Keitner and Reisman state that

[a]n association is formed when two states of unequal power voluntarily establish
durable links. In the basic model, one state, the associate, delegates certain
responsibilities to the other, the principal, while maintaining its international
status as a state. Free associations represent a middle ground between
integration and independence. x x x (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, are associated states of the U.S. pursuant to a Compact of Free Association. The
currency in these countries is the U.S. dollar, indicating their very close ties with the U.S.,
yet they issue their own travel documents, which is a mark of their statehood. Their
international legal status as states was confirmed by the UN Security Council and by their
admission to UN membership.

According to their compacts of free association, the Marshall Islands and the FSM
generally have the capacity to conduct foreign affairs in their own name and right, such
capacity extending to matters such as the law of the sea, marine resources, trade,
banking, postal, civil aviation, and cultural relations. The U.S. government, when
conducting its foreign affairs, is obligated to consult with the governments of the Marshall
Islands or the FSM on matters which it (U.S. government) regards as relating to or
affecting either government.

In the event of attacks or threats against the Marshall Islands or the FSM, the U.S.
government has the authority and obligation to defend them as if they were part of U.S.
territory. The U.S. government, moreover, has the option of establishing and using military
areas and facilities within these associated states and has the right to bar the military
personnel of any third country from having access to these territories for military
purposes.

It bears noting that in U.S. constitutional and international practice, free association is
understood as an international association between sovereigns. The Compact of Free
Association is a treaty which is subordinate to the associated nation's national
constitution, and each party may terminate the association consistent with the right of
independence. It has been said that, with the admission of the U.S.-associated states to
the UN in 1990, the UN recognized that the American model of free association is actually
based on an underlying status of independence.

In international practice, the "associated state" arrangement has usually been used as
a transitional device of former colonies on their way to full independence.

Back to the MOA-AD, it contains many provisions which are consistent with the
international legal concept of association, specifically the following: the BJE's capacity to
enter into economic and trade relations with foreign countries, the commitment of the
Central Government to ensure the BJE's participation in meetings and events in the
ASEAN and the specialized UN agencies, and the continuing responsibility of the Central
Government over external defense. Moreover, the BJE's right to participate in Philippine
official missions bearing on negotiation of border agreements, environmental protection,
and sharing of revenues pertaining to the bodies of water adjacent to or between the
islands forming part of the ancestral domain, resembles the right of the governments of
FSM and the Marshall Islands to be consulted by the U.S. government on any foreign
affairs matter affecting them.
These provisions of the MOA indicate, among other things, that the Parties aimed to vest
in the BJE the status of an associated state or, at any rate, a status closely
approximating it.

The concept of association is not recognized under the present Constitution

No province, city, or municipality, not even the ARMM, is recognized under our laws as
having an "associative" relationship with the national government. Indeed, the concept
implies powers that go beyond anything ever granted by the Constitution to any local or
regional government. It also implies the recognition of the associated entity as a state.
The Constitution, however, does not contemplate any state in this jurisdiction other than
the Philippine State, much less does it provide for a transitory status that aims to prepare
any part of Philippine territory for independence.

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, 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.

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. That the present components of
the ARMM and the municipalities of Lanao del Norte 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 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. Respondents, however, may not preempt it in that decision.
 Philippine vs. China

Summary of Key Claims and Holdings

The Philippines’ claims fell into four general categories. The ruling of the Tribunal on each
category of claims is summarized below:

1. The broadest claim was a challenge to China’s “nine-dash line” covering most of the South
China Sea. China has never clarified whether the line represents a claim to the islands within the
line and their adjacent waters; a boundary of national sovereignty over all the enclosed waters
(including, but not limited by, the land features inside the line); or a “historic” claim of sovereignty
or some other set of historic rights to the maritime space within the line. The Philippines sought a
declaration that the countries’ respective rights and obligations regarding the waters, seabed, and
maritime features of the South China Sea are governed by UNCLOS. As such, China’s claims
based on any “historic rights” to waters, seabed, and subsoil within the nine-dash line are contrary
to UNCLOS and invalid. (See Table: Claims 1 and 2)

Holding: UNCLOS “comprehensively” governs the parties’ respective rights to maritime areas in
the South China Sea. Therefore, to the extent China’s nine-dash line is a claim of “historic rights”
to the waters of the South China Sea, it is invalid.

Reasoning: Whatever historic rights China may have had were extinguished when UNCLOS was
adopted, to the extent those rights were incompatible with UNCLOS.

2. The Philippines sought a determination as to whether certain land features in the Spratly Islands
claimed by both China and the Philippines are properly characterized as islands, rocks, low tide
elevations (LTEs), or submerged banks. Under UNCLOS, an “island” generates both a territorial
sea of 12 nautical miles and an exclusive economic zone (EEZ) of up to 200 nautical miles, subject
to delimitation of a maritime boundary with any other countries’ overlapping territorial seas or
EEZs. A “rock” is entitled to a territorial sea no greater than 12 nautical miles, but not an EEZ.
LTEs and submerged banks do not generate any such entitlements. (See Table: Claims 3, 4, 6,
and 7)

Holding: None of the features in the Spratly Islands generates an EEZ, nor can the Spratly Islands
generate an EEZ collectively as a unit. As such, the Tribunal declared certain areas are within the
Philippines’ EEZ and not overlapped by any possible Chinese entitlement.

Reasoning: The baseline of analysis is what the features can sustain in their “natural condition”
(i.e., not after construction of artificial islands, installation of desalination plants, etc.). Based on
historical evidence, none of the features in the Spratly Islands can sustain either a stable community
of people or economic activity that is not dependent on outside resources or purely extractive in
nature. The current presence of personnel on the features is dependent on outside support and does
not reflect the capacity of the features in their natural condition.

3. The Philippines sought a declaration that China violated UNCLOS by interfering with the
Philippines’ rights and freedoms within its EEZs. This includes preventing Philippine fishing
around Scarborough Shoal, violating UNCLOS’s environmental protection provisions through
construction and fishing activities that have harmed the marine environment (including at
Scarborough Shoal, Second Thomas Shoal, and Mischief Reef), and by dangerously operating law
enforcement vessels around Scarborough Shoal. (See Table: Claims 5, 8, 9, 10, 11, 12, and 13)

Holding: China violated the Philippines’ sovereign rights in its EEZ. It did so by interfering with
Philippine fishing and hydrocarbon exploration; constructing artificial islands; and failing to
prevent Chinese fishermen from fishing in the Philippines’ EEZ. China also interfered with
Philippine fishermen’s traditional fishing rights near Scarborough Shoal (without prejudice to the
question of sovereignty over Scarborough Shoal). China’s construction of artificial islands at seven
features in the Spratly Islands, as well as illegal fishing and harvesting by Chinese nationals,
violate UNCLOS obligations to protect the marine environment. Finally, Chinese law enforcement
vessels unlawfully created a serious risk of collision by physically obstructing Philippine vessels
at Scarborough Shoal in 2012.

Reasoning: This set of holdings depended on the Tribunal finding that certain areas are within the
Philippines’ EEZ and not subject to possible overlapping Chinese entitlements. It also depended
on finding that activities such as island construction are, in accordance with China’s own public
statements, not “military activities” and therefore not excluded from jurisdiction under UNCLOS.
Once this was established, the Tribunal considered Chinese activities in the relevant areas and
found that China had (a) interfered with Philippine petroleum exploration at Reed Bank, (b)
purported to prohibit fishing by Philippine vessels within the Philippine EEZ, (c) protected and
failed to prevent Chinese fishermen from fishing within the Philippine EEZ at Mischief Reef and
Second Thomas Shoal, and (d) constructed artificial islands/installations at Mischief Reef without
the Philippines’ authorization. As for Scarborough Shoal, regardless of who has sovereignty, both
Philippine and Chinese fishermen have “traditional fishing rights” at the Shoal that were not
extinguished by UNCLOS, and China violated the Philippines’ rights by entirely preventing
Filipino fishermen from fishing near Scarborough Shoal after May 2012. In addition, Chinese
artificial island construction has caused “severe harm to the coral reef environment” and China has
failed to stop its nationals from engaging in “harmful” and “destructive” harvesting and fishing of
endangered sea turtles, coral, and giant clams in violation of UNCLOS. Finally, Chinese law
enforcement vessels violated maritime safety obligations by creating a serious risk of collision on
two occasions in April and May 2012 during the Scarborough Shoal standoff.

4. The Philippines sought a declaration that China’s recent actions, specifically its land reclamation
and construction of artificial islands in the Spratly Islands after the arbitration was commenced,
violated the obligations UNCLOS places on states to refrain from conduct that “aggravates and
extends” a dispute while dispute resolution proceedings are pending. (See Table: Claim 14)

Holding: China has aggravated and extended the disputes through its dredging, artificial island-
building, and construction activities.

Reasoning: While these proceedings were pending, China has built a large island on Mischief
Reed, an LTE within the Philippines’ EEZ; caused irreparable harm to the marine ecosystem; and
permanently destroyed evidence of the natural condition of the features at issue.
Table of Philippine Claims and Tribunal Rulings*

Submission Philippine’s Claim Jurisdictional Ruling Merits Ruling

Number
1 China’s maritime
entitlements in South China
Sea may not exceed those
established by UNCLOS
(Deferred to merits Yes: UNCLOS
stage) comprehensively allocates
rights to maritime areas
Jurisdiction granted
Philippines win

2 China’s “nine-dash line” (Deferred to merits Yes: There is no legal basis

claim is invalid to the extent stage) for China to claim historic
it exceeds the limits rights to waters in the South
established by UNCLOS China Sea (so, to the extent
that is what the nine-dash
Jurisdiction granted line means, it is invalid)

Philippines win
3 Scarborough Shoal generates Jurisdiction granted Yes: Scarborough Shoal is a
no EEZ or continental shelf rock that generates no EEZ

Philippines win
4 Mischief Reef, Second Jurisdiction granted Yes: Mischief Reef, Second
Thomas Shoal, and Subi Thomas Shoal, and Subi
Reef are all LTEs that do not Reef are LTEs
generate territorial seas or
EEZs, and are not subject to Philippines win
appropriation
5 Jurisdiction granted Yes: Mischief Reef and
Second Thomas Shoal are
Mischief Reef and Second part of the EEZ and
Thomas Shoal are part of continental shelf of the
the Philippines’ EEZ and Philippines
continental shelf
Philippines win

6 Gaven Reef and McKennan Jurisdiction granted No: Both Gaven and
Reef (including Hughes McKennan Reef are above
Reef) are LTEs that generate water at high tide; they are
no maritime entitlements, rocks that generate territorial
but may be used to determine seas but no EEZ or
baselines to measure continental shelf
territorial sea
Philippines loss
7 Johnson Reef, Cuarterton Jurisdiction Yes: Johnson Reef,
Reef, and Fiery Cross Reef granted Cuarterton Reef, and Fiery
generate no entitlements to Cross Reef are rocks that
EEZ or continental shelf generate no EEZ or
continental shelf

Philippines win
8 China has interfered with (Deferred to merits Yes: China has interfered
the Philippines’ exercise of stage) with Philippine sovereign
sovereign rights over living rights to fishing and
and non-living resources hydrocarbon exploration
within its EEZ and within its EEZ
continental shelf Jurisdiction granted
Philippines win

9 China has failed to prevent (Reserved to merits Yes: China failed to prevent
its nationals and vessels from stage) Chinese fishermen from
exploiting the living fishing within the Philippine
resources in the Philippines’ EEZ
EEZ
Jurisdiction Philippines win
granted
10 China has prevented Jurisdiction granted Yes: China violated the
Philippine fishermen from Philippines’ “traditional
pursuing their livelihoods fishing rights” at
through traditional fishing Scarborough Shoal
activities around
Scarborough Shoal

Philippines win

11 China has violated Jurisdiction granted Yes: China engaged in

UNCLOS’s environmental environmentally harmful
protection obligations at fishing/harvesting practices
Scarborough Shoal and at Scarborough Shoal and
Second Thomas Shoal Second Thomas Shoal

Philippines win
12 China’s occupation and (Deferred to merits Yes: Environmental
construction on Mischief stage) protection provisions were
Reef violate UNCLOS violated at Mischief Reef;
provisions on artificial artificial island construction
islands and environmental violated Philippine
protection, and are unlawful Jurisdiction granted sovereign rights within its
acts of attempted EEZ; the “appropriation”
appropriation claim is moot because
Mischief Reef is an LTE not
capable of appropriation

Philippines win

13 China has violated Jurisdiction granted Yes: China violated

UNCLOS by dangerously UNCLOS and other treaty
operating law enforcement provisions on maritime
vessels creating serious risk safety
of collision near
Scarborough Shoal Philippines win

14 China has unlawfully Yes: Although there is no

aggravated and extended the jurisdiction over disputes
dispute by interfering with (Deferred to merits involving military activities
the Philippines’ rights of stage) such as the Second Thomas
navigation near Scarborough Shoal standoff, China has
Shoal, preventing the aggravated/extended the
rotation and resupply of disputes through recent
Philippine personnel Jurisdiction large-scale land reclamation
stationed at Second Thomas granted in part, and artificial island
Shoal, and endangering the denied in part construction in the
health of the personnel there Philippine EEZ

Philippines win

15 Going forward China shall Deferred to merits Qualified yes: This claim
respect the rights and stage) simply asks China to do what
freedoms of the Philippines it is required to do under
under UNCLOS and comply UNCLOS; therefore, no
with its duties under further statement is
UNCLOS Jurisdiction granted necessary
January 12, 2016

G.R. No. 212426

RENE A.V. SAGUISAG, WIGBERTO E. TAÑADA, FRANCISCO "DODONG" NEMENZO, JR.,

SR. MARY JOHN MANANZAN, PACIFICO A. AGABIN, ESTEBAN "STEVE" SALONGA, H.
HARRY L. ROQUE, JR., EVALYN G. URSUA, EDRE U. OLALIA, DR. CAROL PAGADUAN-
ARAULLO, DR. ROLAND SIMBULAN, AND TEDDY CASIÑO, Petitioners,
vs.
EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR., DEPARTMENT OF NATIONAL
DEFENSE SECRETARY VOLTAIRE GAZMIN, DEPARTMENT OF FOREIGN AFFAIRS
SECRETARY ALBERT DEL ROSARIO, JR., DEPARTMENT OF BUDGET AND
MANAGEMENT SECRETARY FLORENCIO ABAD, AND ARMED FORCES OF THE
PHILIPPINES CHIEF OF STAFF GENERAL EMMANUEL T. BAUTISTA, Respondents.
May 30, 2016

G.R. No. 180110

CAPITOL WIRELESS, INC., Petitioner,

vs.
THE PROVINCIAL TREASURER OF BATANGAS, THE PROVINCIAL ASSESSOR OF
BATANGAS, THE MUNICIPAL TREASURER AND ASSESSOR OF NASUGBU,
BATANGAS, Respondents.

Facts: Petitioner Capitol Wireless Inc. (Capwire) is a Philippine corporation in the

business of providing international telecommunications services. As such provider,
Capwire has signed agreements with other local and foreign telecommunications
companies covering an international network of submarine cable systems such as the
Asia Pacific Cable Network System (APCN); the Brunei Malaysia-Philippines Cable
Network System (BMP-CNS), the Philippines Italy (SEA-ME-WE-3 CNS), and the Guam
Philippines (GP-CNS) systems. The agreements provide for co-ownership and other
rights among the parties over the network.

Petitioner Capwire claims that it is co-owner only of the so-called "Wet Segment" of the
APCN, while the landing stations or terminals and Segment E of APCN located in
Nasugbu, Batangas are allegedly owned by the Philippine Long Distance Telephone
Corporation (PLDT). Moreover, it alleges that the Wet Segment is laid in international,
and not Philippine, waters.

Capwire claims that as co-owner, it does not own any particular physical part of the cable
system but, consistent with its financial contributions, it owns the right to use a certain
capacity of the said system. This property right is allegedly reported in its financial books
as "Indefeasible Rights in Cable Systems.

The appellate court held that the trial court correctly dismissed Capwire's petition because
of the latter's failure to comply with the requirements set in Sections 226 and 229 of the
Local Government Code, that is, by not availing of remedies before

Petitioner Capwire asserts that recourse to the Local Board of Assessment Appeals, or
payment of the tax under protest, is inapplicable to the case at bar since there is no
question of fact involved, or that the question involved is not the reasonableness of the
amount assessed but, rather, the authority and power of the assessor to impose the tax
and of the treasurer to collect it. It contends that there is only a pure question of law since
the issue is whether its submarine cable system, which it claims lies in international
waters, is taxable. Capwire holds the position that the cable system is not subject to tax.

Issue : Ma submarine communications cables be classified as taxable real property by

the local governments? (whether or not an indefeasible right over a submarine cable
system that lies in international waters can be subject to real property tax in the
Philippines,")
Held:

The petition is denied. No error attended the ruling of the appellate court that the case
involves factual questions that should have been resolved before the appropriate
administrative bodies.

At any rate, given the importance of the issue, it is proper to lay down the other legal bases for
the local taxing authorities' power to tax portions of the submarine cables of petitioner. It is not
in dispute that the submarine cable system's Landing Station in Nasugbu, Batangas is owned
by PLDT and not by Capwire. Obviously, Capwire is not liable for the real property tax on this
Landing Station. Nonetheless, Capwire admits that it co-owns the submarine cable system that
is subject of the tax assessed and being collected by public respondents. As the Court takes
judicial notice that Nasugbu is a coastal town and the surrounding sea falls within what the
United Nations Convention on the Law of the Sea (UN CLOS) would define as the country's
territorial sea (to the extent of 12 nautical miles outward from the nearest baseline, under Part II,
Sections 1 and 2) over which the country has sovereignty, including the seabed and subsoil, it
follows that indeed a portion of the submarine cable system lies within Philippine territory and
thus falls within the jurisdiction of the said local taxing authorities. It easily belies Capwire's
contention that the cable system is entirely in international waters. And even if such portion
does not lie in the 12-nautical-mile vicinity of the territorial sea but further inward, the Philippines
exercises sovereignty over the body of water lying landward of (its) baselines, including the air
space over it and the submarine areas underneath." Further, under Part VI, Article 7946 of the
UNCLOS, the Philippines clearly has jurisdiction with respect to cables laid in its territory that
are utilized in support of other installations and structures under its jurisdiction.

And as far as local government units are concerned, the areas described above are to be
considered subsumed under the term "municipal waters" which, under the Local Government
Code, includes "not only streams, lakes, and tidal waters within the municipality, not being the
subject of private ownership and not comprised within the national parks, public forest, timber
lands, forest reserves or fishery reserves, but also marine waters included between two lines
drawn perpendicularly to the general coastline from points where the boundary lines of the
municipality or city touch the sea at low tide and a third line parallel with the general coastline
and fifteen (15) kilometers from it." Although the term "municipal waters" appears in the Code in
the context of the grant of quarrying and fisheries privileges for a fee by local governments, its
inclusion in the Code's Book II which covers local taxation means that it may also apply as
guide in determining the territorial extent of the local authorities' power to levy real property
taxation.

Thus, the jurisdiction or authority over such part of the subject submarine cable system lying
within Philippine jurisdiction includes the authority to tax the same, for taxation is one of the
three basic and necessary attributes of sovereignty, and such authority has been delegated by
the national legislature to the local governments with respect to real property taxation.

As earlier stated, a way for Capwire to claim that its cable system is not covered by such
authority is by showing a domestic enactment or even contract, or an international agreement or
treaty exempting the same from real property taxation. It failed to do so, however, despite the
fact that the burden of proving exemption from local taxation is upon whom the subject real
property is declared. Under the Local Government Code, every person by or for whom real
property is declared, who shall claim tax exemption for such property from real property taxation
"shall file with the provincial, city or municipal assessor within thirty (30) days from the date of
the declaration of real property sufficient documentary evidence in support of such
claim." Capwire omitted to do so. And even under Capwire's legislative franchise, RA 4387,
which amended RA 2037, where it may be derived that there was a grant of real property tax
exemption for properties that are part of its franchise, or directly meet the needs of its business.

G.R No. 187167 August 16, 2011

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

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

FACTS

In 1961, Congress passed Republic Act No. 3046 (RA 3046) demarcating the maritime
baselines of the Philippines as an archipelagic State.

In March 2009, Congress amended RA 3046 by enacting RA 9522, the statute now under
scrutiny. The change was prompted by the need to make RA 3046 compliant with the terms of
the United Nations Convention on the Law of the Sea (UNCLOS III), which the Philippines
ratified on 27 February 1984. Among others, UNCLOS III prescribes the water-land ratio, length,
and contour of baselines of archipelagic States like the Philippines and sets the deadline for the
filing of application for the extended continental shelf. Complying with these requirements, RA
9522 shortened one baseline, optimized the location of some basepoints around the Philippine
archipelago and classified adjacent territories, namely, the Kalayaan Island Group (KIG) and the
Scarborough Shoal, as "regimes of islands" whose islands generate their own applicable
maritime zones.

Petitioners, professors of law, law students and a legislator, in their respective capacities as
"citizens, taxpayers or x x x legislators," as the case may be, assail the constitutionality of RA
9522 on two principal grounds, namely: (1) RA 9522 reduces Philippine maritime territory, and
logically, the reach of the Philippine state’s sovereign power, in violation of Article 1 of the 1987
Constitution, embodying the terms of the Treaty of Paris and ancillary treaties, and (2) RA 9522
opens the country’s waters landward of the baselines to maritime passage by all vessels and
aircrafts, undermining Philippine sovereignty and national security, contravening the country’s
nuclear-free policy, and damaging marine resources, in violation of relevant constitutional
provisions.

In addition, petitioners contend that RA 9522’s treatment of the KIG as "regime of islands" not
only results in the loss of a large maritime area but also prejudices the livelihood of subsistence
fishermen.

ISSUE

Whether or not RA 9522 is unconstitutional.

HELD

RA 9522 is Not Unconstitutional

RA 9522 is a Statutory Tool to Demarcate the Country’s Maritime Zones and Continental
Shelf Under UNCLOS III, not to Delineate Philippine Territory

UNCLOS III has nothing to do with the acquisition (or loss) of territory. It is a multilateral treaty
regulating, among others, sea-use rights over maritime zones (i.e., the territorial waters [12
nautical miles from the baselines], contiguous zone [24 nautical miles from the baselines],
exclusive economic zone [200 nautical miles from the baselines]), and continental shelves that
UNCLOS III delimits.

On the other hand, baselines laws such as RA 9522 are enacted by UNCLOS III States parties
to mark-out specific basepoints along their coasts from which baselines are drawn, either
straight or contoured, to serve as geographic starting points to measure the breadth of the
maritime zones and continental shelf. Article 48 of UNCLOS III on archipelagic States like ours
could not be any clearer:

Article 48. Measurement of the breadth of the territorial sea, the contiguous zone, the exclusive
economic zone and the continental shelf. – The breadth of the territorial sea, the contiguous
zone, the exclusive economic zone and the continental shelf shall be measured from
archipelagic baselines drawn in accordance with article 47. (Emphasis supplied)

Thus, baselines laws are nothing but statutory mechanisms for UNCLOS III States parties to
delimit with precision the extent of their maritime zones and continental shelves.

Even under petitioners’ theory that the Philippine territory embraces the islands and all the
waters within the rectangular area delimited in the Treaty of Paris, the baselines of the
Philippines would still have to be drawn in accordance with RA 9522 because this is the only
way to draw the baselines in conformity with UNCLOS III. The baselines cannot be drawn from
the boundaries or other portions of the rectangular area delineated in the Treaty of Paris, but
from the "outermost islands and drying reefs of the archipelago."

Under traditional international law typology, States acquire (or conversely, lose) territory through
occupation, accretion, cession and prescription, not by executing multilateral treaties on the
regulations of sea-use rights or enacting statutes to comply with the treaty’s terms to delimit
maritime zones and continental shelves. Territorial claims to land features are outside UNCLOS
III, and are instead governed by the rules on general international law.

RA 9522’s Use of the Framework of Regime of Islands to Determine the Maritime Zones
of the KIG and the Scarborough Shoal, not Inconsistent with the Philippines’ Claim of
Sovereignty Over these Areas

Petitioners add that the KIG’s (and Scarborough Shoal’s) exclusion from the Philippine
archipelagic baselines results in the loss of "about 15,000 square nautical miles of territorial
waters," prejudicing the livelihood of subsistence fishermen.

The configuration of the baselines drawn under RA 3046 and RA 9522 shows that RA 9522
merely followed the basepoints mapped by RA 3046, save for at least nine basepoints that RA
9522 skipped to optimize the location of basepoints and adjust the length of one baseline (and
thus comply with UNCLOS III’s limitation on the maximum length of baselines). Under RA 3046,
as under RA 9522, the KIG and the Scarborough Shoal lie outside of the baselines drawn
around the Philippine archipelago. This undeniable cartographic fact takes the wind out of
petitioners’ argument branding RA 9522 as a statutory renunciation of the Philippines’ claim
over the KIG, assuming that baselines are relevant for this purpose.

Petitioners’ assertion of loss of "about 15,000 square nautical miles of territorial waters" under
RA 9522 is similarly unfounded both in fact and law. On the contrary, RA 9522, by optimizing
the location of basepoints, increased the Philippines’ total maritime space (covering its internal
waters, territorial sea and exclusive economic zone) by 145,216 square nautical miles.

Further, petitioners’ argument that the KIG now lies outside Philippine territory because the
baselines that RA 9522 draws do not enclose the KIG is negated by RA 9522 itself.

Although the Philippines has consistently claimed sovereignty over the KIG and the
Scarborough Shoal for several decades, these outlying areas are located at an appreciable
distance from the nearest shoreline of the Philippine archipelago, such that any straight
baseline loped around them from the nearest basepoint will inevitably "depart to an appreciable
extent from the general configuration of the archipelago."

The principal sponsor of RA 9522 in the Senate, Senator Miriam Defensor-Santiago, took pains
to emphasize the foregoing during the Senate deliberations:

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

[T]he amendment of the baselines law was necessary to enable the Philippines to draw the
outer limits of its maritime zones including the extended continental shelf in the manner
provided by Article 47 of [UNCLOS III].

Hence, far from surrendering the Philippines’ claim over the KIG and the Scarborough Shoal,
Congress’ decision to classify the KIG and the Scarborough Shoal as "‘Regime[s] of Islands’
under the Republic of the Philippines consistent with Article 121" of UNCLOS III manifests the
Philippine State’s responsible observance of its pacta sunt servanda obligation under UNCLOS
III. Under Article 121 of UNCLOS III, any "naturally formed area of land, surrounded by water,
which is above water at high tide," such as portions of the KIG, qualifies under the category of
"regime of islands," whose islands generate their own applicable maritime zones.

Statutory Claim Over Sabah under RA 5446 Retained

Petitioners’ argument for the invalidity of RA 9522 for its failure to textualize the Philippines’
claim over Sabah in North Borneo is also untenable. Section 2 of RA 5446, which RA 9522 did
not repeal, keeps open the door for drawing the baselines of Sabah:

Section 2. The definition of the baselines of the territorial sea of the Philippine Archipelago as
provided in this Act is without prejudice to the delineation of the baselines of the territorial
sea around the territory of Sabah, situated in North Borneo, over which the Republic of
the Philippines has acquired dominion and sovereignty. (Emphasis supplied)

UNCLOS III and RA 9522 not Incompatible with the Constitution’s Delineation of Internal
Waters

As their final argument against the validity of RA 9522, petitioners contend that the law
unconstitutionally "converts" internal waters into archipelagic waters, hence subjecting these
waters to the right of innocent and sea lanes passage under UNCLOS III, including overflight.
Petitioners extrapolate that these passage rights indubitably expose Philippine internal waters to
nuclear and maritime pollution hazards, in violation of the Constitution.

Whether referred to as Philippine "internal waters" under Article I of the Constitution or as

"archipelagic waters" under UNCLOS III (Article 49 [1]), the Philippines exercises sovereignty
over the body of water lying landward of the baselines, including the air space over it and the
submarine areas underneath.

In the absence of municipal legislation, international law norms, now codified in UNCLOS III,
operate to grant innocent passage rights over the territorial sea or archipelagic waters, subject
to the treaty’s limitations and conditions for their exercise. Significantly, the right of innocent
passage is a customary international law, thus automatically incorporated in the corpus of
Philippine law. No modern State can validly invoke its sovereignty to absolutely forbid innocent
passage that is exercised in accordance with customary international law without risking
retaliatory measures from the international community.

The fact that for archipelagic States, their archipelagic waters are subject to both the right of
innocent passage and sea lanes passage does not place them in lesser footing vis-à-
vis continental coastal States which are subject, in their territorial sea, to the right of innocent
passage and the right of transit passage through international straits. The imposition of these
passage rights through archipelagic waters under UNCLOS III was a concession by archipelagic
States, in exchange for their right to claim all the waters landward of their baselines, regardless
of their depth or distance from the coast, as archipelagic waters subject to their territorial
sovereignty. More importantly, the recognition of archipelagic States’ archipelago and the
waters enclosed by their baselines as one cohesive entity prevents the treatment of their islands
as separate islands under UNCLOS III.46 Separate islands generate their own maritime zones,
placing the waters between islands separated by more than 24 nautical miles beyond the
States’ territorial sovereignty, subjecting these waters to the rights of other States under
UNCLOS III.47

Petitioners’ invocation of non-executory constitutional provisions in Article II (Declaration of

Principles and State Policies)48 must also fail. Our present state of jurisprudence considers the
provisions in Article II as mere legislative guides, which, absent enabling legislation, "do not
embody judicially enforceable constitutional rights x x x."49 Article II provisions serve as guides
in formulating and interpreting implementing legislation, as well as in interpreting executory
provisions of the Constitution. Although Oposa v. Factoran50 treated the right to a healthful and
balanced ecology under Section 16 of Article II as an exception, the present petition lacks
factual basis to substantiate the claimed constitutional violation. The other provisions petitioners
cite, relating to the protection of marine wealth (Article XII, Section 2, paragraph 251 ) and
subsistence fishermen (Article XIII, Section 752 ), are not violated by RA 9522.

In fact, the demarcation of the baselines enables the Philippines to delimit its exclusive
economic zone, reserving solely to the Philippines the exploitation of all living and non-living
resources within such zone. Such a maritime delineation binds the international community
since the delineation is in strict observance of UNCLOS III. If the maritime delineation is
contrary to UNCLOS III, the international community will of course reject it and will refuse to be
bound by it.

UNCLOS III favors States with a long coastline like the Philippines. UNCLOS III creates a sui
generis maritime space – the exclusive economic zone – in waters previously part of the high
seas. UNCLOS III grants new rights to coastal States to exclusively exploit the resources found
within this zone up to 200 nautical miles.53 UNCLOS III, however, preserves the traditional
freedom of navigation of other States that attached to this zone beyond the territorial sea before
UNCLOS III.

RA 9522 and the Philippines’ Maritime Zones

Petitioners hold the view that, based on the permissive text of UNCLOS III, Congress was not
bound to pass RA 9522.54 We have looked at the relevant provision of UNCLOS III55 and we
find petitioners’ reading plausible. Nevertheless, the prerogative of choosing this option belongs
to Congress, not to this Court. Moreover, the luxury of choosing this option comes at a very
steep price. Absent an UNCLOS III compliant baselines law, an archipelagic State like the
Philippines will find itself devoid of internationally acceptable baselines from where the breadth
of its maritime zones and continental shelf is measured. This is recipe for a two-fronted
disaster: first, it sends an open invitation to the seafaring powers to freely enter and exploit the
resources in the waters and submarine areas around our archipelago; and second, it weakens
the country’s case in any international dispute over Philippine maritime space. These are
consequences Congress wisely avoided.
The enactment of UNCLOS III compliant baselines law for the Philippine archipelago and
adjacent areas, as embodied in RA 9522, allows an internationally-recognized delimitation of
the breadth of the Philippines’ maritime zones and continental shelf. RA 9522 is therefore a
most vital step on the part of the Philippines in safeguarding its maritime zones, consistent with
the Constitution and our national interest.

WHEREFORE, we DISMISS the petition.

SO ORDERED.