[G.R. No. 138570.

October 10, 2000]

TEOFISTO T. GUINGONA, JR., RAUL S. ROCO, and SERGIO R. OSMEA III, petitioners, vs. JOSEPH E. ESTRADA, RONALDO B. ZAMORA, DOMINGO L. SIAZON, JR., ORLANDO B. MERCADO, MARCELO B. FERNAN, FRANKLIN M. DRILON, BLAS F. OPLE and RODOLFO G. BIAZON, respondents.

BAYAN (Bagong Alyansang Makabayan), a JUNK VFA MOVEMENT, BISHOP TOMAS MILLAMENA (Iglesia Filipina Independiente), BISHOP ELMER BOLOCAN (United Church of Christ of the Phil.), DR. REYNALDO LEGASCA, MD, KILUSANG MAMBUBUKID NG PILIPINAS, KILUSANG MAYO UNO, GABRIELA, PROLABOR, and the PUBLIC INTEREST LAW CENTER, petitioners, vs. EXECUTIVE SECRETARY RONALDO ZAMORA, FOREIGN AFFAIRS SECRETARY DOMINGO SIAZON, DEFENSE SECRETARY ORLANDO MERCADO, BRIG. GEN. ALEXANDER AGUIRRE, SENATE PRESIDENT MARCELO FERNAN, SENATOR FRANKLIN DRILON, SENATOR BLAS OPLE, SENATOR RODOLFO BIAZON, and SENATOR FRANCISCO TATAD, respondents.

[G.R. No. 138680. October 10, 2000]

INTEGRATED BAR OF THE PHILIPPINES, Represented by its National President, Jose Aguila Grapilon, petitioners, vs.JOSEPH EJERCITO ESTRADA, in his capacity as President, Republic of the Philippines, and HON. DOMINGO SIAZON, in his capacity as Secretary of Foreign Affairs, respondents.

[G.R. No. 138698. October 10, 2000]

[G.R. No. 138572. October 10, 2000] JOVITO R. SALONGA, WIGBERTO TAADA, ZENAIDA QUEZONAVENCEA, ROLANDO SIMBULAN, PABLITO V. SANIDAD, MA. SOCORRO I. DIOKNO, AGAPITO A. AQUINO, JOKER P. ARROYO, FRANCISCO C. RIVERA JR., RENE A.V. SAGUISAG, KILOSBAYAN, MOVEMENT OF ATTORNEYS FOR BROTHERHOOD, INTEGRITY AND NATIONALISM, INC. (MABINI), petitioners, vs. THE EXECUTIVE SECRETARY, THE SECRETARY OF FOREIGN AFFAIRS, THE SECRETARY OF NATIONAL DEFENSE, SENATE PRESIDENT MARCELO B. FERNAN, SENATOR BLAS F. OPLE, SENATOR RODOLFO G. BIAZON, AND ALL OTHER PERSONS ACTING THEIR CONTROL, SUPERVISION, DIRECTION, AND INSTRUCTION IN RELATION TO THE VISITING FORCES AGREEMENT (VFA), respondents. DECISION BUENA, J.:

PHILIPPINE CONSTITUTION ASSOCIATION, INC.(PHILCONSA), EXEQUIEL B. GARCIA, AMADOGAT INCIONG, CAMILO L. SABIO, AND RAMON A. GONZALES, petitioners, vs. HON. RONALDO B. ZAMORA, as Executive Secretary, HON. ORLANDO MERCADO, as Secretary of National Defense, and HON. DOMINGO L. SIAZON, JR., as Secretary of Foreign Affairs, respondents.

[G.R. No. 138587. October 10, 2000]

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 [1] aircraft. 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 [2] presence of US military bases in the Philippines. 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 [3] conferences and negotiations 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 [4] Secretary of Foreign Affairs, ratified the VFA. On October 6, 1998, the President, acting through respondent Executive Secretary Ronaldo Zamora, officially transmitted to the Senate of [5] the Philippines, the Instrument of Ratification, the letter of the

President 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 [7] public hearings were held by the two Committees. On May 3, 1999, the Committees submitted Proposed Senate [8] Resolution No. 443 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 [9] by the Senate, by a two-thirds (2/3) vote of its members. Senate [10] Resolution No. 443 was then re-numbered as Senate Resolution No. 18. 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.

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Article II Respect for Law 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. (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; (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 noncombat 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 noncommercial service shall not be subject to compulsory pilotage at Philippine ports. Article IX 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 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
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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?

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 merely that he suffers thereby in some indefinite way. He must show 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 [14] complained of. 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 [15] taxing or spending powers. On this point, it bears stressing that a taxpayers suit refers to a case where the act complained of directly involves [16] the illegal disbursement of public funds derived from taxation. Thus, [17] in Bugnay Const. & Development Corp. vs. Laron , 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 [18] Association vs. Hon. Salvador Enriquez, 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 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

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 [12] direct injury as a result of the operation of the VFA. Petitioners, on the other hand, counter that the validity or invalidity of the VFA is a matter of [13] transcendental importance which justifies their standing.

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 [19] President to commence the present action. 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 [20] Powers Cases, 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. [21] [22] COMELEC, Daza vs. Singson, and Basco vs. Phil. Amusement and [23] Gaming Corporation, 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., 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.
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the departments of the government a becoming respect for each others [25] acts, 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

Although courts generally avoid having to decide a constitutional question based on the doctrine of separation of powers, which enjoins upon

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 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 [26] particular enactment. In Leveriza vs. Intermediate Appellate Court,
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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 [28] the enumeration, 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? 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 [29] everything. (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 beconcurred 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 beduly 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 [30] be composed of twenty-four (24) Senators. Without a tinge of doubt, twothirds (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 [31] was made, 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 [32] acknowledges the agreement as a treaty. 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 [33] Constitution, 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 significance thus attached to them prevails. Its [34] language should be understood in the sense they have in common use. Moreover, it is inconsequential whether the United States treats the VFA only as an executive agreement because, under international law, an [35] executive agreement is as binding as a treaty. 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 [36] designation. 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 [37] description.

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 [38] powers. International law continues to make no distinction between treaties and executive agreements: they are equally binding obligations upon [39] nations. In our jurisdiction, we have recognized the binding effect of executive agreements even without the concurrence of the Senate or [40] Congress. InCommissioner of Customs vs. Eastern Sea Trading, 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, mostfavored-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. x x x x x x x x x 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 [41] concerned, we will accept it as a treaty. The records reveal that the United States Government, through Ambassador Thomas C. Hubbard, has stated that the United States [42] government has fully committed to living up to the terms of the VFA. 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 [43] the formal acceptance of the treaty is proclaimed. 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 [44] negotiation. 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 [45] only to giving or withholding its consent, or concurrence, to the ratification. 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 [46] Constitution, 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 [47] international obligation. 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 [48] constitution or its laws as an excuse for failure to perform this duty. 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 [49] jurisprudence of international tribunals.

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 [50] in contemplation of law.

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 [51] (then) conceded. Wielding vast powers an influence, his conduct in the external affairs of the nation, as Jefferson describes, is executive [52] altogether." 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 [53] it. 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. 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 discretion amounting to lack of jurisdiction, there is no occasion for the Court to exercise its corrective powerIt has no [55] power to look into what it thinks is apparent error. As to the power to concur with treaties, the constitution lodges the [56] same with the Senate alone. Thus, once the Senate 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 [57] in character; 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.

[54]

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

heretofore traditional modes of promoting and protecting national economies like tariffs, export subsidies, import quotas, quantitative restrictions, tax exemptions and currency controls. Finding market niches and becoming the best in specific industries in a market-driven and export-oriented global scenario are replacing age-old "beggar-thy-neighbor" policies that unilaterally protect weak and inefficient domestic producers of goods and services. In the words of Peter Drucker, the well-known management guru, "Increased participation in the world economy has become the key to domestic economic growth and prosperity." Brief Historical Background To hasten worldwide recovery from the devastation wrought by the Second World War, plans for the establishment of three multilateral institutions inspired by that grand political body, the United Nations were discussed at Dumbarton Oaks and Bretton Woods. The first was the World Bank (WB) which was to address the rehabilitation and reconstruction of war-ravaged and later developing countries; the second, the International Monetary Fund (IMF) which was to deal with currency problems; and the third, the International Trade Organization (ITO), which was to foster order and predictability in world trade and to minimize unilateral protectionist policies that invite challenge, even retaliation, from other states. However, for a variety of reasons, including its non-ratification by the United States, the ITO, unlike the IMF and WB, never took off. What remained was only GATT the General Agreement on Tariffs and Trade. GATT was a collection of treaties governing access to the economies of treaty adherents with no institutionalized body administering the agreements or dependable system of dispute settlement. After half a century and several dizzying rounds of negotiations, principally the Kennedy Round, the Tokyo Round and the Uruguay Round, the world finally gave birth to that administering body the World Trade Organization with the signing of the "Final Act" in Marrakesh, Morocco and the 1 ratification of the WTO Agreement by its members. Like many other developing countries, the Philippines joined WTO as a founding member with the goal, as articulated by President Fidel V. Ramos in two letters to the Senate (infra), of improving "Philippine access to foreign markets, especially its major trading partners, through the reduction of tariffs on its exports, particularly agricultural and industrial products." The President also saw in the WTO the opening of "new opportunities for the services sector . . . , (the reduction of) costs and uncertainty associated with exporting . . . , and (the attraction of) more investments into the country."

PANGANIBAN, J.: The emergence on January 1, 1995 of the World Trade Organization, abetted by the membership thereto of the vast majority of countries has revolutionized international business and economic relations amongst states. It has irreversibly propelled the world towards trade liberalization and economic globalization. Liberalization, globalization, deregulation and privatization, the third-millennium buzz words, are ushering in a new borderless world of business by sweeping away as mere historical relics the

Although the Chief Executive did not expressly mention it in his letter, the Philippines and this is of special interest to the legal profession will benefit from the WTO system of dispute settlement by judicial adjudication through the independent WTO settlement bodies called (1) Dispute Settlement Panels and (2) Appellate Tribunal. Heretofore, trade disputes were settled mainly through negotiations where solutions were arrived at frequently on the basis of relative bargaining strengths, and where naturally, weak and underdeveloped countries were at a disadvantage. The Petition in Brief Arguing mainly (1) that the WTO requires the Philippines "to place nationals and products of member-countries on the same footing as Filipinos and local products" and (2) that the WTO "intrudes, limits and/or impairs" the constitutional powers of both Congress and the Supreme Court, the instant petition before this Court assails the WTO Agreement for violating the mandate of the 1987 Constitution to "develop a self-reliant and independent national economy effectively controlled by Filipinos . . . (to) give preference to qualified Filipinos (and to) promote the preferential use of Filipino labor, domestic materials and locally produced goods." Simply stated, does the Philippine Constitution prohibit Philippine participation in worldwide trade liberalization and economic globalization? Does it proscribe Philippine integration into a global economy that is liberalized, deregulated and privatized? These are the main questions raised in this petition for certiorari, prohibition and mandamus under Rule 65 of the Rules of Court praying (1) for the nullification, on constitutional grounds, of the concurrence of the Philippine Senate in the ratification by the President of the Philippines of the Agreement Establishing the World Trade Organization (WTO Agreement, for brevity) and (2) for the prohibition of its implementation and enforcement through the release and utilization of public funds, the assignment of public officials and employees, as well as the use of government properties and resources by respondent-heads of various executive offices concerned therewith. This concurrence is embodied in Senate Resolution No. 97, dated December 14, 1994. The Facts On April 15, 1994, Respondent Rizalino Navarro, then Secretary of The Department of Trade and Industry (Secretary Navarro, for brevity), representing the Government of the Republic of the Philippines, signed in Marrakesh, Morocco, the Final Act Embodying the Results of the Uruguay Round of Multilateral Negotiations (Final Act, for brevity).

By signing the Final Act, Secretary Navarro on behalf of the Republic of the Philippines, agreed: (a) to submit, as appropriate, the WTO Agreement for the consideration of their respective competent authorities, with a view to seeking approval of the Agreement in accordance with their procedures; and (b) to adopt the Ministerial Declarations and Decisions. On August 12, 1994, the members of the Philippine Senate received a letter 3 dated August 11, 1994 from the President of the Philippines, stating among others that "the Uruguay Round Final Act is hereby submitted to the Senate for its concurrence pursuant to Section 21, Article VII of the Constitution." On August 13, 1994, the members of the Philippine Senate received another 4 letter from the President of the Philippines likewise dated August 11, 1994, which stated among others that "the Uruguay Round Final Act, the Agreement Establishing the World Trade Organization, the Ministerial Declarations and Decisions, and the Understanding on Commitments in Financial Services are hereby submitted to the Senate for its concurrence pursuant to Section 21, Article VII of the Constitution." On December 9, 1994, the President of the Philippines certified the necessity of the immediate adoption of P.S. 1083, a resolution entitled "Concurring in the Ratification of the Agreement Establishing the World 5 Trade Organization." On December 14, 1994, the Philippine Senate adopted Resolution No. 97 which "Resolved, as it is hereby resolved, that the Senate concur, as it hereby concurs, in the ratification by the President of the Philippines of the 6 Agreement Establishing the World Trade Organization." The text of the WTO Agreement is written on pages 137 et seq. of Volume I of the 36volume Uruguay Round of Multilateral Trade Negotiations and includes various agreements and associated legal instruments (identified in the said Agreement as Annexes 1, 2 and 3 thereto and collectively referred to as Multilateral Trade Agreements, for brevity) as follows: ANNEX 1 Annex 1A: Multilateral Agreement on Trade in Goods General Agreement on Tariffs and Trade 1994

Agreement on Agriculture Agreement on the Application of Sanitary and Phytosanitary Measures Agreement on Textiles and Clothing Agreement on Technical Barriers to Trade Agreement on Trade-Related Investment Measures Agreement on Implementation of Article VI of he General Agreement on Tariffs and Trade 1994 Agreement on Implementation of Article VII of the General on Tariffs and Trade 1994 Agreement on Pre-Shipment Inspection Agreement on Rules of Origin Agreement on Imports Licensing Procedures Agreement on Subsidies and Coordinating Measures Agreement on Safeguards Annex 1B: General Agreement on Trade in Services and Annexes Annex 1C: Agreement on Trade-Related Aspects of Intellectual Property Rights ANNEX 2 Understanding on Rules and Procedures Governing the Settlement of Disputes ANNEX 3 Trade Policy Review Mechanism On December 16, 1994, the President of the Philippines signed the Instrument of Ratification, declaring: NOW THEREFORE, be it known that I, FIDEL V. RAMOS, President of the Republic of the Philippines, after having seen and considered the aforementioned Agreement Establishing the World Trade Organization and the
7

agreements and associated legal instruments included in Annexes one (1), two (2) and three (3) of that Agreement which are integral parts thereof, signed at Marrakesh, Morocco on 15 April 1994, do hereby ratify and confirm the same and every Article and Clause thereof. To emphasize, the WTO Agreement ratified by the President of the Philippines is composed of the Agreement Proper and "the associated legal instruments included in Annexes one (1), two (2) and three (3) of that Agreement which are integral parts thereof." On the other hand, the Final Act signed by Secretary Navarro embodies not only the WTO Agreement (and its integral annexes aforementioned) but also (1) the Ministerial Declarations and Decisions and (2) the Understanding on Commitments in Financial Services. In his Memorandum dated May 13, 8 1996, the Solicitor General describes these two latter documents as follows: The Ministerial Decisions and Declarations are twenty-five declarations and decisions on a wide range of matters, such as measures in favor of least developed countries, notification procedures, relationship of WTO with the International Monetary Fund (IMF), and agreements on technical barriers to trade and on dispute settlement. The Understanding on Commitments in Financial Services dwell on, among other things, standstill or limitations and qualifications of commitments to existing non-conforming measures, market access, national treatment, and definitions of non-resident supplier of financial services, commercial presence and new financial service. On December 29, 1994, the present petition was filed. After careful deliberation on respondents' comment and petitioners' reply thereto, the Court resolved on December 12, 1995, to give due course to the petition, and the parties thereafter filed their respective memoranda. The court also requested the Honorable Lilia R. Bautista, the Philippine Ambassador to the United Nations stationed in Geneva, Switzerland, to submit a paper, 9 hereafter referred to as "Bautista Paper," for brevity, (1) providing a historical background of and (2) summarizing the said agreements. During the Oral Argument held on August 27, 1996, the Court directed:

(a) the petitioners to submit the (1) Senate Committee Report on the matter in controversy and (2) the transcript of proceedings/hearings in the Senate; and (b) the Solicitor General, as counsel for respondents, to file (1) a list of Philippine treaties signed prior to the Philippine adherence to the WTO Agreement, which derogate from Philippine sovereignty and (2) copies of the multi-volume WTO Agreement and other documents mentioned in the Final Act, as soon as possible. After receipt of the foregoing documents, the Court said it would consider the case submitted for resolution. In a Compliance dated September 16, 1996, the Solicitor General submitted a printed copy of the 36-volume Uruguay Round of Multilateral Trade Negotiations, and in another Compliance dated October 24, 1996, he listed the various "bilateral or multilateral treaties or international instruments involving derogation of Philippine sovereignty." Petitioners, on the other hand, submitted their Compliance dated January 28, 1997, on January 30, 1997. The Issues In their Memorandum dated March 11, 1996, petitioners summarized the issues as follows: A. Whether the petition presents a political question or is otherwise not justiciable. B. Whether the petitioner members of the Senate who participated in the deliberations and voting leading to the concurrence are estopped from impugning the validity of the Agreement Establishing the World Trade Organization or of the validity of the concurrence. C. Whether the provisions of the Agreement Establishing the World Trade Organization contravene the provisions of Sec. 19, Article II, and Secs. 10 and 12, Article XII, all of the 1987 Philippine Constitution. D. Whether provisions of the Agreement Establishing the World Trade Organization unduly limit, restrict and impair Philippine sovereignty specifically the legislative power

which, under Sec. 2, Article VI, 1987 Philippine Constitution is "vested in the Congress of the Philippines"; E. Whether provisions of the Agreement Establishing the World Trade Organization interfere with the exercise of judicial power. F. Whether the respondent members of the Senate acted in grave abuse of discretion amounting to lack or excess of jurisdiction when they voted for concurrence in the ratification of the constitutionally-infirm Agreement Establishing the World Trade Organization. G. Whether the respondent members of the Senate acted in grave abuse of discretion amounting to lack or excess of jurisdiction when they concurred only in the ratification of the Agreement Establishing the World Trade Organization, and not with the Presidential submission which included the Final Act, Ministerial Declaration and Decisions, and the Understanding on Commitments in Financial Services. On the other hand, the Solicitor General as counsel for respondents 10 "synthesized the several issues raised by petitioners into the following": 1. Whether or not the provisions of the "Agreement Establishing the World Trade Organization and the Agreements and Associated Legal Instruments included in Annexes one (1), two (2) and three (3) of that agreement" cited by petitioners directly contravene or undermine the letter, spirit and intent of Section 19, Article II and Sections 10 and 12, Article XII of the 1987 Constitution. 2. Whether or not certain provisions of the Agreement unduly limit, restrict or impair the exercise of legislative power by Congress. 3. Whether or not certain provisions of the Agreement impair the exercise of judicial power by this Honorable Court in promulgating the rules of evidence.

4. Whether or not the concurrence of the Senate "in the ratification by the President of the Philippines of the Agreement establishing the World Trade Organization" implied rejection of the treaty embodied in the Final Act. By raising and arguing only four issues against the seven presented by petitioners, the Solicitor General has effectively ignored three, namely: (1) whether the petition presents a political question or is otherwise not justiciable; (2) whether petitioner-members of the Senate (Wigberto E. Taada and Anna Dominique Coseteng) are estopped from joining this suit; and (3) whether the respondent-members of the Senate acted in grave abuse of discretion when they voted for concurrence in the ratification of the WTO Agreement. The foregoing notwithstanding, this Court resolved to deal with these three issues thus: (1) The "political question" issue being very fundamental and vital, and being a matter that probes into the very jurisdiction of this Court to hear and decide this case was deliberated upon by the Court and will thus be ruled upon as the first issue; (2) The matter of estoppel will not be taken up because this defense is waivable and the respondents have effectively waived it by not pursuing it in any of their pleadings; in any event, this issue, even if ruled in respondents' favor, will not cause the petition's dismissal as there are petitioners other than the two senators, who are not vulnerable to the defense of estoppel; and (3) The issue of alleged grave abuse of discretion on the part of the respondent senators will be taken up as an integral part of the disposition of the four issues raised by the Solicitor General. During its deliberations on the case, the Court noted that the respondents did not question the locus standi of petitioners. Hence, they are also deemed to have waived the benefit of such issue. They probably realized that grave constitutional issues, expenditures of public funds and serious international commitments of the nation are involved here, and that transcendental public interest requires that the substantive issues be met head on and decided on 11 the merits, rather than skirted or deflected by procedural matters. To recapitulate, the issues that will be ruled upon shortly are:

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

In seeking to nullify an act of the Philippine Senate on the ground that it contravenes the Constitution, the petition no doubt raises a justiciable controversy. Where an action of the legislative branch is seriously alleged to have infringed the Constitution, it becomes not only the right but in fact the duty of the judiciary to settle the dispute. "The question thus posed is judicial rather than political. The duty (to adjudicate) remains to assure that the 12 supremacy of the Constitution is upheld." Once a "controversy as to the application or interpretation of a constitutional provision is raised before this Court (as in the instant case), it becomes a legal issue which the Court is 13 bound by constitutional mandate to decide."

The jurisdiction of this Court to adjudicate the matters 15 is clearly set out in the 1987 Constitution, as follows:

14

raised in the petition

amounting to lack or excess of jurisdiction" on the part of the Senate in ratifying the WTO Agreement and its three annexes. Second Issue: and Economic Nationalism The WTO Agreement

Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government. The foregoing text emphasizes the judicial department's duty and power to strike down grave abuse of discretion on the part of any branch or instrumentality of government including Congress. It is an innovation in our 16 political law. As explained by former Chief Justice Roberto 17 Concepcion, "the judiciary is the final arbiter on the question of whether or not a branch of government or any of its officials has acted without jurisdiction or in excess of jurisdiction or so capriciously as to constitute an abuse of discretion amounting to excess of jurisdiction. This is not only a judicial power but a duty to pass judgment on matters of this nature." As this Court has repeatedly and firmly emphasized in many cases, it will not shirk, digress from or abandon its sacred duty and authority to uphold the Constitution in matters that involve grave abuse of discretion brought before it in appropriate cases, committed by any officer, agency, instrumentality or department of the government. As the petition alleges grave abuse of discretion and as there is no other plain, speedy or adequate remedy in the ordinary course of law, we have no hesitation at all in holding that this petition should be given due course and the vital questions raised therein ruled upon under Rule 65 of the Rules of Court. Indeed, certiorari, prohibition and mandamus are appropriate remedies to raise constitutional issues and to review and/or prohibit/nullify, when proper, acts of legislative and executive officials. On this, we have no equivocation. We should stress that, in deciding to take jurisdiction over this petition, this Court will not review the wisdom of the decision of the President and the Senate in enlisting the country into the WTO, or pass upon the merits of trade liberalization as a policy espoused by said international body. Neither will it rule on the propriety of the government's economic policy of reducing/removing tariffs, taxes, subsidies, quantitative restrictions, and other import/trade barriers. Rather, it will only exercise its constitutional duty "to determine whether or not there had been a grave abuse of discretion
18

This is the lis mota, the main issue, raised by the petition. Petitioners vigorously argue that the "letter, spirit and intent" of the Constitution mandating "economic nationalism" are violated by the so-called "parity provisions" and "national treatment" clauses scattered in various parts not only of the WTO Agreement and its annexes but also in the Ministerial Decisions and Declarations and in the Understanding on Commitments in Financial Services. Specifically, the "flagship" constitutional provisions referred to are Sec 19, Article II, and Secs. 10 and 12, Article XII, of the Constitution, which are worded as follows: Article II DECLARATION AND STATE POLICIES xxx xxx xxx Sec. 19. The State shall develop a self-reliant and independent national economy effectively controlled by Filipinos. xxx xxx xxx Article XII NATIONAL ECONOMY AND PATRIMONY xxx xxx xxx OF PRINCIPLES

Sec. 10. . . . The Congress shall enact measures that will encourage the formation and operation of enterprises whose capital is wholly owned by Filipinos. In the grant of rights, privileges, and concessions covering the national economy and patrimony, the State shall give preference to qualified Filipinos. xxx xxx xxx Sec. 12. The State shall promote the preferential use of Filipino labor, domestic materials and locally produced goods, and adopt measures that help make them competitive. Petitioners aver that these sacred constitutional principles are desecrated by 19 the following WTO provisions quoted in their memorandum: a) In the area of investment measures related to trade in goods (TRIMS, for brevity): Article 2 National Treatment and Quantitative Restrictions. 1. Without prejudice to other rights and obligations under GATT 1994, no Member shall apply any TRIM that is inconsistent with the provisions of Article II or Article XI of GATT 1994. 2. An illustrative list of TRIMS that are inconsistent with the obligations of general elimination of quantitative restrictions provided for in paragraph I of Article XI of GATT 1994 is contained in the Annex to this Agreement." (Agreement on Trade-Related Investment Measures, Vol. 27, Uruguay Round, Legal Instruments, p. 22121, emphasis supplied).

The Annex referred to reads as follows: ANNEX Illustrative List 1. TRIMS that are inconsistent with the obligation of national treatment provided for in paragraph 4 of Article III of GATT 1994 include those which are mandatory or enforceable under domestic law or under administrative rulings, or compliance with which is necessary to obtain an advantage, and which require: (a) the purchase or use by an enterprise of products of domestic origin or from any domestic source, whether specified in terms of particular products, in terms of volume or value of products, or in terms of proportion of volume or value of its local production; or (b) that an enterprise's purchases or use of imported products be limited to an amount related to the volume or value of local products that it exports. 2. TRIMS that are inconsistent with the obligations of general elimination of quantitative restrictions provided for in paragraph 1 of Article XI of GATT 1994 include those which are mandatory or enforceable under domestic laws or under administrative rulings, or compliance with which is necessary to obtain an advantage, and which restrict: (a) the importation by an enterprise of products used in or related to the local production that it exports; (b) the importation by an enterprise of products used in or related to its local production by restricting its access to foreign exchange inflows attributable to the enterprise; or

(c) the exportation or sale for export specified in terms of particular products, in terms of volume or value of products, or in terms of a preparation of volume or value of its local production. (Annex to the Agreement on Trade-Related Investment Measures, Vol. 27, Uruguay Round Legal Documents, p. 22125, emphasis supplied). The paragraph 4 of Article III of GATT 1994 referred to is quoted as follows: The products of the territory of any contracting party imported into the territory of any other contracting party shall be accorded treatment no less favorable than that accorded to like products of national origin in respect of laws, regulations and requirements affecting their internal sale, offering for sale, purchase, transportation, distribution or use, the provisions of this paragraph shall not prevent the application of differential internal transportation charges which are based exclusively on the economic operation of the means of transport and not on the nationality of the product." (Article III, GATT 1947, as amended by the Protocol Modifying Part II, and Article XXVI of GATT, 14 September 1948, 62 UMTS 82-84 in relation to paragraph 1(a) of the General Agreement on Tariffs and Trade 1994, Vol. 1, Uruguay Round, Legal Instruments p. 177, emphasis supplied). (b) In the area of trade related aspects of intellectual property rights (TRIPS, for brevity): Each Member shall accord to the nationals of other Members treatment

no less favourable than that it accords to its own nationals with regard to the protection of intellectual property. . . (par. 1 Article 3, Agreement on TradeRelated Aspect of Intellectual Property rights, Vol. 31, Uruguay Round, Legal Instruments, p. 25432 (emphasis supplied) (c) In the area of the General Agreement on Trade in Services: National Treatment 1. In the sectors inscribed in its schedule, and subject to any conditions and qualifications set out therein, each Member shall accord to services and service suppliers of any other Member, in respect of all measures affecting the supply of services, treatment no less favourable than it accords to its own like services and service suppliers. 2. A Member may meet the requirement of paragraph I by according to services and service suppliers of any other Member, either formally suppliers of any other Member, either formally identical treatment or formally different treatment to that it accords to its own like services and service suppliers. 3. Formally identical or formally different treatment shall be considered to be less favourable if it modifies the conditions of completion in favour of services or service suppliers of the Member compared to like services or service suppliers of any other Member. (Article XVII, General Agreement on Trade in Services, Vol. 28, Uruguay Round Legal

Instruments, supplied).

p.

22610

emphasis

In the same light, we held in Basco vs. Pagcor that broad constitutional principles need legislative enactments to implement the, thus: On petitioners' allegation that P.D. 1869 violates Sections 11 (Personal Dignity) 12 (Family) and 13 (Role of Youth) of Article II; Section 13 (Social Justice) of Article XIII and Section 2 (Educational Values) of Article XIV of the 1987 Constitution, suffice it to state also that these are merely statements of principles and policies. As such, they are basically not self-executing, meaning a law should be passed by Congress to clearly define and effectuate such principles. In general, therefore, the 1935 provisions were not intended to be selfexecuting principles ready for enforcement through the courts. They were rather directives addressed to the executive and to the legislature. If the executive and the legislature failed to heed the directives of the article, the available remedy was not judicial but political. The electorate could express their displeasure with the failure of the executive and the legislature through the language of the ballot. (Bernas, Vol. II, p. 2). The reasons for denying a cause of action to an alleged infringement of board constitutional principles are sourced from basic considerations of due process and the lack of judicial authority to wade "into the uncharted ocean of social and economic policy making." Mr. Justice Florentino P. Feliciano in 26 his concurring opinion in Oposa vs. Factoran, Jr., explained these reasons as follows: My suggestion is simply that petitioners must, before the trial court, show a more specific legal right a right cast in language of a significantly lower order of generality than Article II (15) of the Constitution that is or may be violated by the actions, or failures to act, imputed to the public respondent by petitioners so that the trial court can validly render judgment grating all or part of the relief prayed for. To my mind, the court should be understood as

25

It is petitioners' position that the foregoing "national treatment" and "parity provisions" of the WTO Agreement "place nationals and products of member countries on the same footing as Filipinos and local products," in contravention of the "Filipino First" policy of the Constitution. They allegedly render meaningless the phrase "effectively controlled by Filipinos." The constitutional conflict becomes more manifest when viewed in the context of the clear duty imposed on the Philippines as a WTO member to ensure the conformity of its laws, regulations and administrative procedures with its 20 obligations as provided in the annexed agreements. Petitioners further argue that these provisions contravene constitutional limitations on the role exports play in national development and negate the preferential treatment accorded to Filipino labor, domestic materials and locally produced goods. On the other hand, respondents through the Solicitor General counter (1) that such Charter provisions are not self-executing and merely set out general policies; (2) that these nationalistic portions of the Constitution invoked by petitioners should not be read in isolation but should be related to other relevant provisions of Art. XII, particularly Secs. 1 and 13 thereof; (3) that read properly, the cited WTO clauses do not conflict with Constitution; and (4) that the WTO Agreement contains sufficient provisions to protect developing countries like the Philippines from the harshness of sudden trade liberalization. We shall now discuss and rule on these arguments. Declaration Not Self-Executing of Principles

By its very title, Article II of the Constitution is a "declaration of principles and 21 state policies." The counterpart of this article in the 1935 Constitution is called the "basic political creed of the nation" by Dean Vicente 22 Sinco. These principles in Article II are not intended to be self-executing 23 principles ready for enforcement through the courts. They are used by the judiciary as aids or as guides in the exercise of its power of judicial review, and by the legislature in its enactment of laws. As held in the leading case 24 of Kilosbayan, Incorporated vs. Morato, the principles and state policies enumerated in Article II and some sections of Article XII are not "selfexecuting provisions, the disregard of which can give rise to a cause of action in the courts. They do not embody judicially enforceable constitutional rights but guidelines for legislation."

simply saying that such a more specific legal right or rights may well exist in our corpus of law, considering the general policy principles found in the Constitution and the existence of the Philippine Environment Code, and that the trial court should have given petitioners an effective opportunity so to demonstrate, instead of aborting the proceedings on a motion to dismiss. It seems to me important that the legal right which is an essential component of a cause of action be a specific, operable legal right, rather than a constitutional or statutory policy, for at least two (2) reasons. One is that unless the legal right claimed to have been violated or disregarded is given specification in operational terms, defendants may well be unable to defend themselves intelligently and effectively; in other words, there are due process dimensions to this matter. The second is a broader-gauge consideration where a specific violation of law or applicable regulation is not alleged or proved, petitioners can be expected to fall back on the expanded conception of judicial power in the second paragraph of Section 1 of Article VIII of the Constitution which reads: Sec. 1. . . . Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government. (Emphasis supplied) When substantive standards as general as "the right to a balanced and healthy ecology" and "the right to health" are combined with remedial standards as broad ranging as "a grave abuse of discretion amounting to lack or excess of jurisdiction," the result will be, it is respectfully submitted,

to propel courts into the uncharted ocean of social and economic policy making. At least in respect of the vast area of environmental protection and management, our courts have no claim to special technical competence and experience and professional qualification. Where no specific, operable norms and standards are shown to exist, then the policy making departments the legislative and executive departments must be given a real and effective opportunity to fashion and promulgate those norms and standards, and to implement them before the courts should intervene. Economic Nationalism Should Be Other Constitutional Mandates Balanced Development of Economy Read to with Attain

On the other hand, Secs. 10 and 12 of Article XII, apart from merely laying down general principles relating to the national economy and patrimony, should be read and understood in relation to the other sections in said article, especially Secs. 1 and 13 thereof which read: Sec. 1. The goals of the national economy are a more equitable distribution of opportunities, income, and wealth; a sustained increase in the amount of goods and services produced by the nation for the benefit of the people; and an expanding productivity as the key to raising the quality of life for all especially the underprivileged. The State shall promote industrialization and full employment based on sound agricultural development and agrarian reform, through industries that make full and efficient use of human and natural resources, and which are competitive in both domestic and foreign markets. However, the State shall protect Filipino enterprises against unfair foreign competition and trade practices. In the pursuit of these goals, all sectors of the economy and all regions of the country shall be given optimum opportunity to develop. . . . xxx xxx xxx

Sec. 13. The State shall pursue a trade policy that serves the general welfare and utilizes all forms and arrangements of exchange on the basis of equality and reciprocity. As pointed out by the Solicitor General, Sec. 1 lays down the basic goals of national economic development, as follows: 1. A more equitable distribution of opportunities, income and wealth; 2. A sustained increase in the amount of goods and services provided by the nation for the benefit of the people; and 3. An expanding productivity as the key to raising the quality of life for all especially the underprivileged. With these goals in context, the Constitution then ordains the ideals of economic nationalism (1) by expressing preference in favor of qualified Filipinos "in the grant of rights, privileges and concessions covering the 27 national economy and patrimony" and in the use of "Filipino labor, domestic materials and locally-produced goods"; (2) by mandating the State 28 to "adopt measures that help make them competitive; and (3) by requiring the State to "develop a self-reliant and independent national economy 29 effectively controlled by Filipinos." In similar language, the Constitution takes into account the realities of the outside world as it requires the pursuit of "a trade policy that serves the general welfare and utilizes all forms and 30 arrangements of exchange on the basis of equality ad reciprocity"; and speaks of industries "which are competitive in both domestic and foreign markets" as well as of the protection of "Filipino enterprises against unfair foreign competition and trade practices." It is true that in the recent case of Manila Prince Hotel vs. Government 31 Service Insurance System, et al., this Court held that "Sec. 10, second par., Art. XII of the 1987 Constitution is a mandatory, positive command which is complete in itself and which needs no further guidelines or implementing laws or rule for its enforcement. From its very words the provision does not require any legislation to put it in operation. It is per se judicially enforceable." However, as the constitutional provision itself states, it is enforceable only in regard to "the grants of rights, privileges and concessions covering national economy and patrimony" and not to every aspect of trade and commerce. It refers to exceptions rather than the rule. The issue here is not whether this paragraph of Sec. 10 of Art. XII is selfexecuting or not. Rather, the issue is whether, as a rule, there are enough

balancing provisions in the Constitution to allow the Senate to ratify the Philippine concurrence in the WTO Agreement. And we hold that there are. All told, while the Constitution indeed mandates a bias in favor of Filipino goods, services, labor and enterprises, at the same time, it recognizes the need for business exchange with the rest of the world on the bases of equality and reciprocity and limits protection of Filipino enterprises only 32 against foreign competition and trade practices that are unfair. In other words, the Constitution did not intend to pursue an isolationist policy. It did not shut out foreign investments, goods and services in the development of the Philippine economy. While the Constitution does not encourage the unlimited entry of foreign goods, services and investments into the country, it does not prohibit them either. In fact, it allows an exchange on the basis of equality and reciprocity, frowning only on foreign competition that is unfair. WTO Recognizes Protect Weak Economies Need to

Upon the other hand, respondents maintain that the WTO itself has some built-in advantages to protect weak and developing economies, which comprise the vast majority of its members. Unlike in the UN where major states have permanent seats and veto powers in the Security Council, in the WTO, decisions are made on the basis of sovereign equality, with each member's vote equal in weight to that of any other. There is no WTO equivalent of the UN Security Council. WTO decides by consensus whenever possible, otherwise, decisions of the Ministerial Conference and the General Council shall be taken by the majority of the votes cast, except in cases of interpretation of the Agreement or waiver of the obligation of a member which would require three fourths vote. Amendments would require two thirds vote in general. Amendments to MFN provisions and the Amendments provision will require assent of all members. Any member may withdraw from the Agreement upon the expiration of six months from the date of notice of 33 withdrawals. Hence, poor countries can protect their common interests more effectively through the WTO than through one-on-one negotiations with developed countries. Within the WTO, developing countries can form powerful blocs to push their economic agenda more decisively than outside the Organization. This is not merely a matter of practical alliances but a negotiating strategy

rooted in law. Thus, the basic principles underlying the WTO Agreement recognize the need of developing countries like the Philippines to "share in the growth in international trade commensurate with the needs of their economic development." These basic principles are found in the 34 preamble of the WTO Agreement as follows: The Parties to this Agreement, Recognizing that their relations in the field of trade and economic endeavour should be conducted with a view to raising standards of living, ensuring full employment and a large and steadily growing volume of real income and effective demand, and expanding the production of and trade in goods and services, while allowing for the optimal use of the world's resources in accordance with the objective of sustainable development, seeking both to protect and preserve the environment and to enhance the means for doing soin a manner consistent with their respective needs and concerns at different levels of economic development, Recognizing further that there is need for positive efforts designed to ensure that developing countries, and especially the least developed among them, secure a share in the growth in international trade commensurate with the needs of their economic development, Being desirous of contributing to these objectives by entering into reciprocal and mutually advantageous arrangements directed to the substantial reduction of tariffs and other barriers to trade and to the elimination of discriminatory treatment in international trade relations, Resolved, therefore, to develop an integrated, more viable and durable multilateral trading system encompassing the General Agreement on Tariffs and Trade, the results of past trade liberalization efforts, and all of the results of the Uruguay Round of Multilateral Trade Negotiations, Determined to preserve the basic principles and to further the objectives underlying this multilateral trading system, . . . (emphasis supplied.)

Specific WTO Protect Developing Countries

Provisos

So too, the Solicitor General points out that pursuant to and consistent with the foregoing basic principles, the WTO Agreement grants developing countries a more lenient treatment, giving their domestic industries some protection from the rush of foreign competition. Thus, with respect to tariffs in general, preferential treatment is given to developing countries in terms of the amount of tariff reduction and the period within which the reduction is to be spread out. Specifically, GATT requires an average tariff reduction rate of 36% for developed countries to be effected within a period of six (6) years while developing countries including the Philippines are required to effect an average tariff reduction of only 24% within ten (10) years. In respect to domestic subsidy, GATT requires developed countries to reduce domestic support to agricultural products by20% over six (6) years, as compared to only 13% for developing countries to be effected within ten (10) years. In regard to export subsidy for agricultural products, GATT requires developed countries to reduce their budgetary outlays for export subsidy by 36% and export volumes receiving export subsidy by 21% within a period of six (6) years. For developing countries, however, the reduction rate is only two-thirds of that prescribed for developed countries and a longerperiod of ten (10) years within which to effect such reduction. Moreover, GATT itself has provided built-in protection from unfair foreign competition and trade practices including anti-dumping measures, countervailing measures and safeguards against import surges. Where local businesses are jeopardized by unfair foreign competition, the Philippines can avail of these measures. There is hardly therefore any basis for the statement that under the WTO, local industries and enterprises will all be wiped out and that Filipinos will be deprived of control of the economy. Quite the contrary, the weaker situations of developing nations like the Philippines have been taken into account; thus, there would be no basis to say that in joining the WTO, the respondents have gravely abused their discretion. True, they have made a bold decision to steer the ship of state into the yet uncharted sea of economic liberalization. But such decision cannot be set aside on the ground of grave abuse of discretion, simply because we disagree with it or simply because we believe only in other economic policies. As earlier stated, the Court in taking jurisdiction of this case will not pass upon the advantages and disadvantages of trade liberalization as an

economic policy. It will only perform its constitutional duty of determining whether the Senate committed grave abuse of discretion. Constitution Rule Out Foreign Competition Does Not

competition. On the other hand, respondents claim that WTO/GATT aims to make available to the Filipino consumer the best goods and services obtainable anywhere in the world at the most reasonable prices. Consequently, the question boils down to whether WTO/GATT will favor the general welfare of the public at large. Will adherence to the WTO treaty bring this ideal (of favoring the general welfare) to reality? Will WTO/GATT succeed in promoting the Filipinos' general welfare because it will as promised by its promoters expand the country's exports and generate more employment? Will it bring more prosperity, employment, purchasing power and quality products at the most reasonable rates to the Filipino public? The responses to these questions involve "judgment calls" by our policy makers, for which they are answerable to our people during appropriate electoral exercises. Such questions and the answers thereto are not subject to judicial pronouncements based on grave abuse of discretion. Constitution Designed Future Events and Contingencies to Meet

Furthermore, the constitutional policy of a "self-reliant and independent 35 national economy" does not necessarily rule out the entry of foreign investments, goods and services. It contemplates neither "economic seclusion" nor "mendicancy in the international community." As explained by Constitutional Commissioner Bernardo Villegas, sponsor of this constitutional policy: Economic self-reliance is a primary objective of a developing country that is keenly aware of overdependence on external assistance for even its most basic needs. It does not mean autarky or economic seclusion; rather, it means avoiding mendicancy in the international community. Independence refers to the freedom from undue foreign control of the national economy, especially in such strategic industries as in the 36 development of natural resources and public utilities. The WTO reliance on "most favored nation," "national treatment," and "trade without discrimination" cannot be struck down as unconstitutional as in fact they are rules of equality and reciprocity that apply to all WTO members. Aside from envisioning a trade policy based on "equality and 37 reciprocity," the fundamental law encourages industries that are "competitive in both domestic and foreign markets," thereby demonstrating a clear policy against a sheltered domestic trade environment, but one in favor of the gradual development of robust industries that can compete with the best in the foreign markets. Indeed, Filipino managers and Filipino enterprises have shown capability and tenacity to compete internationally. And given a free trade environment, Filipino entrepreneurs and managers in Hongkong have demonstrated the Filipino capacity to grow and to prosper against the best offered under a policy of laissez faire. Constitution Favors Not Industries or Enterprises Consumers,

No doubt, the WTO Agreement was not yet in existence when the Constitution was drafted and ratified in 1987. That does not mean however that the Charter is necessarily flawed in the sense that its framers might not have anticipated the advent of a borderless world of business. By the same token, the United Nations was not yet in existence when the 1935 Constitution became effective. Did that necessarily mean that the then Constitution might not have contemplated a diminution of the absoluteness of sovereignty when the Philippines signed the UN Charter, thereby effectively surrendering part of its control over its foreign relations to the decisions of various UN organs like the Security Council? It is not difficult to answer this question. Constitutions are designed to meet not only the vagaries of contemporary events. They should be interpreted to cover even future and unknown circumstances. It is to the credit of its drafters that a Constitution can withstand the assaults of bigots and infidels but at the same time bend with the refreshing winds of change necessitated by unfolding events. As one eminent political law writer and respected 38 jurist explains:

The Constitution has not really shown any unbalanced bias in favor of any business or enterprise, nor does it contain any specific pronouncement that Filipino companies should be pampered with a total proscription of foreign

The Constitution must be quintessential rather than superficial, the root and not the blossom, the base and frame-work only of the edifice that is yet to rise. It is but the core of the dream that must take shape, not in a twinkling by mandate of our delegates, but slowly "in the crucible of Filipino minds and hearts," where it will in time develop its sinews and gradually gather its strength and finally achieve its substance. In fine, the Constitution cannot, like the goddess Athena, rise full-grown from the brow of the Constitutional Convention, nor can it conjure by mere fiat an instant Utopia. It must grow with the society it seeks to re-structure and march apace with the progress of the race, drawing from the vicissitudes of history the dynamism and vitality that will keep it, far from becoming a petrified rule, a pulsing, living law attuned to the heartbeat of the nation. Third Issue: The WTO Agreement and Legislative Power The WTO Agreement provides that "(e)ach Member shall ensure the conformity of its laws, regulations and administrative procedures with its 39 obligations as provided in the annexed Agreements." Petitioners maintain that this undertaking "unduly limits, restricts and impairs Philippine sovereignty, specifically the legislative power which under Sec. 2, Article VI of the 1987 Philippine Constitution is vested in the Congress of the Philippines. It is an assault on the sovereign powers of the Philippines because this means that Congress could not pass legislation that will be good for our national interest and general welfare if such legislation will not conform with the WTO Agreement, which not only relates to the trade in goods . . . but also to the flow of investments and money . . . as well as to a 40 whole slew of agreements on socio-cultural matters . . . More specifically, petitioners claim that said WTO proviso derogates from 41 the power to tax, which is lodged in the Congress. And while the Constitution allows Congress to authorize the President to fix tariff rates, import and export quotas, tonnage and wharfage dues, and other duties or imposts, such authority is subject to "specified limits and . . . such limitations 42 and restrictions" as Congress may provide, as in fact it did under Sec. 401 of the Tariff and Customs Code. Sovereignty International Law and Treaties Limited by

This Court notes and appreciates the ferocity and passion by which petitioners stressed their arguments on this issue. However, while sovereignty has traditionally been deemed absolute and all-encompassing on the domestic level, it is however subject to restrictions and limitations voluntarily agreed to by the Philippines, expressly or impliedly, as a member of the family of nations. Unquestionably, the Constitution did not envision a hermit-type isolation of the country from the rest of the world. In its Declaration of Principles and State Policies, the Constitution "adopts the generally accepted principles of international law as part of the law of the land, and adheres to the policy of peace, equality, justice, freedom, 43 cooperation and amity, with all nations." By the doctrine of incorporation, the country is bound by generally accepted principles of international law, 44 which are considered to be automatically part of our own laws. One of the oldest and most fundamental rules in international law is pacta sunt servanda international agreements must be performed in good faith. "A treaty engagement is not a mere moral obligation but creates a legally binding obligation on the parties . . . A state which has contracted valid international obligations is bound to make in its legislations such modifications as may be necessary to ensure the fulfillment of the 45 obligations undertaken." By their inherent nature, treaties really limit or restrict the absoluteness of sovereignty. By their voluntary act, nations may surrender some aspects of their state power in exchange for greater benefits granted by or derived from a convention or pact. After all, states, like individuals, live with coequals, and in pursuit of mutually covenanted objectives and benefits, they also commonly agree to limit the exercise of their otherwise absolute rights. Thus, treaties have been used to record agreements between States concerning such widely diverse matters as, for example, the lease of naval bases, the sale or cession of territory, the termination of war, the regulation of conduct of hostilities, the formation of alliances, the regulation of commercial relations, the settling of claims, the laying down of rules governing conduct in 46 peace and the establishment of international organizations. The sovereignty of a state therefore cannot in fact and in reality be considered absolute. Certain restrictions enter into the picture: (1) limitations imposed by the very nature of membership in the family of nations and (2) limitations imposed by treaty stipulations. As aptly put by John F. Kennedy, "Today, no nation can build its destiny alone. The age of self-sufficient nationalism is 47 over. The age of interdependence is here." UN Charter Limit Sovereignty and Other Treaties

Thus, when the Philippines joined the United Nations as one of its 51 charter members, it consented to restrict its sovereign rights under the "concept of 47 sovereignty as auto-limitation." -A Under Article 2 of the UN Charter, "(a)ll members shall give the United Nations every assistance in any action it takes in accordance with the present Charter, and shall refrain from giving assistance to any state against which the United Nations is taking preventive or enforcement action." Such assistance includes payment of its corresponding share not merely in administrative expenses but also in expenditures for the peace-keeping operations of the organization. In its advisory opinion of July 20, 1961, the International Court of Justice held that money used by the United Nations Emergency Force in the Middle East and in the Congo were "expenses of the United Nations" under Article 17, paragraph 2, of the UN Charter. Hence, all its members must bear their corresponding share in such expenses. In this sense, the Philippine Congress is restricted in its power to appropriate. It is compelled to appropriate funds whether it agrees with such peace-keeping expenses or not. So too, under Article 105 of the said Charter, the UN and its representatives enjoy diplomatic privileges and immunities, thereby limiting again the exercise of sovereignty of members within their own territory. Another example: although "sovereign equality" and "domestic jurisdiction" of all members are set forth as underlying principles in the UN Charter, such provisos are however subject to enforcement measures decided by the Security Council for the maintenance of international peace and security under Chapter VII of the Charter. A final example: under Article 103, "(i)n the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligation under the present charter shall prevail," thus unquestionably denying the Philippines as a member the sovereign power to make a choice as to which of conflicting obligations, if any, to honor. Apart from the UN Treaty, the Philippines has entered into many other international pacts both bilateral and multilateral that involve limitations on Philippine sovereignty. These are enumerated by the Solicitor General in his Compliance dated October 24, 1996, as follows: (a) Bilateral convention with the United States regarding taxes on income, where the Philippines agreed, among others, to exempt from tax, income received in the Philippines by, among others, the Federal Reserve Bank of the United States, the Export/Import Bank of the United States, the Overseas Private Investment Corporation of the United States. Likewise, in said convention, wages, salaries and similar remunerations paid by the United

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

(j) Multilateral Convention on Special Missions, where the Philippines agreed that premises of Special Missions in the Philippines are inviolable and its agents can not enter said premises without consent of the Head of Mission concerned. Special Missions are also exempted from customs duties, taxes and related charges. (k) Multilateral convention on the Law of Treaties. In this convention, the Philippines agreed to be governed by the Vienna Convention on the Law of Treaties. (l) Declaration of the President of the Philippines accepting compulsory jurisdiction of the International Court of Justice. The International Court of Justice has jurisdiction in all legal disputes concerning the interpretation of a treaty, any question of international law, the existence of any fact which, if established, would constitute a breach "of international obligation." In the foregoing treaties, the Philippines has effectively agreed to limit the exercise of its sovereign powers of taxation, eminent domain and police power. The underlying consideration in this partial surrender of sovereignty is the reciprocal commitment of the other contracting states in granting the same privilege and immunities to the Philippines, its officials and its citizens. The same reciprocity characterizes the Philippine commitments under WTOGATT. International treaties, whether relating to nuclear disarmament, human rights, the environment, the law of the sea, or trade, constrain domestic political sovereignty through the assumption of external obligations. But unless anarchy in international relations is preferred as an alternative, in most cases we accept that the benefits of the reciprocal obligations involved outweigh the costs associated with any loss of political sovereignty. (T)rade treaties that structure relations by reference to durable, well-defined substantive norms and objective dispute resolution procedures reduce the risks of larger countries exploiting raw economic power to bully smaller countries, by subjecting power relations to some form of legal ordering. In addition, smaller countries typically stand to gain disproportionately from trade liberalization. This is due to the simple fact that liberalization will provide access

to a larger set of potential new trading relationship than in case of the larger country gaining enhanced success to 48 the smaller country's market. The point is that, as shown by the foregoing treaties, a portion of sovereignty may be waived without violating the Constitution, based on the rationale that the Philippines "adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of . . . cooperation and amity with all nations." Fourth Issue: The WTO Agreement and Judicial Power Petitioners aver that paragraph 1, Article 34 of the General Provisions and Basic Principles of the Agreement on Trade-Related Aspects of Intellectual 49 Property Rights (TRIPS) intrudes on the power of the Supreme Court to 50 promulgate rules concerning pleading, practice and procedures. To understand the scope and meaning of Article 34, TRIPS, fruitful to restate its full text as follows: Article 34 Process Patents: Burden of Proof 1. For the purposes of civil proceedings in respect of the infringement of the rights of the owner referred to in paragraph 1 (b) of Article 28, if the subject matter of a patent is a process for obtaining a product, the judicial authorities shall have the authority to order the defendant to prove that the process to obtain an identical product is different from the patented process. Therefore, Members shall provide, in at least one of the following circumstances, that any identical product when produced without the consent of the patent owner shall, in the absence of proof to the contrary, be deemed to have been obtained by the patented process: (a) if the product obtained by the patented process is new; (b) if there is a substantial likelihood that the identical product was made by the
51

it will be

process and the owner of the patent has been unable through reasonable efforts to determine the process actually used. 2. Any Member shall be free to provide that the burden of proof indicated in paragraph 1 shall be on the alleged infringer only if the condition referred to in subparagraph (a) is fulfilled or only if the condition referred to in subparagraph (b) is fulfilled. 3. In the adduction of proof to the contrary, the legitimate interests of defendants in protecting their manufacturing and business secrets shall be taken into account. From the above, a WTO Member is required to provide a rule of disputable (not the words "in the absence of proof to the contrary") presumption that a product shown to be identical to one produced with the use of a patented process shall be deemed to have been obtained by the (illegal) use of the said patented process, (1) where such product obtained by the patented product is new, or (2) where there is "substantial likelihood" that the identical product was made with the use of the said patented process but the owner of the patent could not determine the exact process used in obtaining such identical product. Hence, the "burden of proof" contemplated by Article 34 should actually be understood as the duty of the alleged patent infringer to overthrow such presumption. Such burden, properly understood, actually refers to the "burden of evidence" (burden of going forward) placed on the producer of the identical (or fake) product to show that his product was produced without the use of the patented process. The foregoing notwithstanding, the patent owner still has the "burden of proof" since, regardless of the presumption provided under paragraph 1 of Article 34, such owner still has to introduce evidence of the existence of the alleged identical product, the fact that it is "identical" to the genuine one produced by the patented process and the fact of "newness" of the genuine product or the fact of "substantial likelihood" that the identical product was made by the patented process. The foregoing should really present no problem in changing the rules of evidence as the present law on the subject, Republic Act No. 165, as amended, otherwise known as the Patent Law, provides a similar presumption in cases of infringement of patented design or utility model, thus:

Sec. 60. Infringement. Infringement of a design patent or of a patent for utility model shall consist in unauthorized copying of the patented design or utility model for the purpose of trade or industry in the article or product and in the making, using or selling of the article or product copying the patented design or utility model. Identity or substantial identity with the patented design or utility model shall constitute evidence of copying. (emphasis supplied) Moreover, it should be noted that the requirement of Article 34 to provide a disputable presumption applies only if (1) the product obtained by the patented process in NEW or (2) there is a substantial likelihood that the identical product was made by the process and the process owner has not been able through reasonable effort to determine the process used. Where either of these two provisos does not obtain, members shall be free to determine the appropriate method of implementing the provisions of TRIPS within their own internal systems and processes. By and large, the arguments adduced in connection with our disposition of the third issue derogation of legislative power will apply to this fourth issue also. Suffice it to say that the reciprocity clause more than justifies such intrusion, if any actually exists. Besides, Article 34 does not contain an unreasonable burden, consistent as it is with due process and the concept of adversarial dispute settlement inherent in our judicial system. So too, since the Philippine is a signatory to most international conventions on patents, trademarks and copyrights, the adjustment in legislation and 52 rules of procedure will not be substantial. Fifth Issue: Concurrence Only in the WTO Not in Other Documents Contained in the Final Act Agreement and

Petitioners allege that the Senate concurrence in the WTO Agreement and its annexes but not in the other documents referred to in the Final Act, namely the Ministerial Declaration and Decisions and the Understanding on Commitments in Financial Services is defective and insufficient and thus constitutes abuse of discretion. They submit that such concurrence in the WTO Agreement alone is flawed because it is in effect a rejection of the Final Act, which in turn was the document signed by Secretary Navarro, in representation of the Republic upon authority of the President. They contend 53 that the second letter of the President to the Senate which enumerated

what constitutes the Final Act should have been the subject of concurrence of the Senate. "A final act, sometimes called protocol de cloture, is an instrument which records the winding up of the proceedings of a diplomatic conference and usually includes a reproduction of the texts of treaties, conventions, recommendations and other acts agreed upon and signed by the 54 plenipotentiaries attending the conference." It is not the treaty itself. It is rather a summary of the proceedings of a protracted conference which may have taken place over several years. The text of the "Final Act Embodying the Results of the Uruguay Round of Multilateral Trade Negotiations" is 55 contained in just one page in Vol. I of the 36-volume Uruguay Round of Multilateral Trade Negotiations. By signing said Final Act, Secretary Navarro as representative of the Republic of the Philippines undertook: (a) to submit, as appropriate, the WTO Agreement for the consideration of their respective competent authorities with a view to seeking approval of the Agreement in accordance with their procedures; and (b) to adopt the Ministerial Declarations and Decisions. The assailed Senate Resolution No. 97 expressed concurrence in exactly what the Final Act required from its signatories, namely, concurrence of the Senate in the WTO Agreement. The Ministerial Declarations and Decisions were deemed adopted without need for ratification. They were approved by the ministers by virtue of Article XXV: 1 of GATT which provides that representatives of the members can meet "to give effect to those provisions of this Agreement which invoke joint action, and generally with a view to facilitating the operation and furthering 56 the objectives of this Agreement." The Understanding on Commitments in Financial Services also approved in Marrakesh does not apply to the Philippines. It applies only to those 27 Members which "have indicated in their respective schedules of commitments on standstill, elimination of monopoly, expansion of operation of existing financial service suppliers, temporary entry of personnel, free transfer and processing of information, and national treatment with respect to access to payment, clearing systems and refinancing available in the 57 normal course of business."

On the other hand, the WTO Agreement itself expresses what multilateral 58 agreements are deemed included as its integral parts, as follows: Article II Scope of the WTO 1. The WTO shall provide the common institutional framework for the conduct of trade relations among its Members in matters to the agreements and associated legal instruments included in the Annexes to this Agreement. 2. The Agreements and associated legal instruments included in Annexes 1, 2, and 3, (hereinafter referred to as "Multilateral Agreements") are integral parts of this Agreement, binding on all Members. 3. The Agreements and associated legal instruments included in Annex 4 (hereinafter referred to as "Plurilateral Trade Agreements") are also part of this Agreement for those Members that have accepted them, and are binding on those Members. The Plurilateral Trade Agreements do not create either obligation or rights for Members that have not accepted them. 4. The General Agreement on Tariffs and Trade 1994 as specified in annex 1A (hereinafter referred to as "GATT 1994") is legally distinct from the General Agreement on Tariffs and Trade, dated 30 October 1947, annexed to the Final Act adopted at the conclusion of the Second Session of the Preparatory Committee of the United Nations Conference on Trade and Employment, as subsequently rectified, amended or modified (hereinafter referred to as "GATT 1947"). It should be added that the Senate was well-aware of what it was concurring in as shown by the members' deliberation on August 25, 1994. After reading 59 the letter of President Ramos dated August 11, 1994, the senators of the Republic minutely dissected what the Senate was concurring in, as 60 follows:

THE CHAIRMAN: Yes. Now, the question of the validity of the submission came up in the first day hearing of this Committee yesterday. Was the observation made by Senator Taada that what was submitted to the Senate was not the agreement on establishing the World Trade Organization by the final act of the Uruguay Round which is not the same as the agreement establishing the World Trade Organization? And on that basis, Senator Tolentino raised a point of order which, however, he agreed to withdraw upon understanding that his suggestion for an alternative solution at that time was acceptable. That suggestion was to treat the proceedings of the Committee as being in the nature of briefings for Senators until the question of the submission could be clarified. And so, Secretary Romulo, in effect, is the President submitting a new . . . is he making a new submission which improves on the clarity of the first submission? MR. ROMULO: Mr. Chairman, to make sure that it is clear cut and there should be no misunderstanding, it was his intention to clarify all matters by giving this letter. THE CHAIRMAN: Thank you. Can this Committee hear from Senator Taada and later on Senator Tolentino since they were the ones that raised this question yesterday? Senator Taada, please. SEN. TAADA: Thank you, Mr. Chairman. Based on what Secretary Romulo has read, it would now clearly appear that what is being submitted to the Senate for ratification is not the Final Act of the Uruguay Round, but rather the Agreement on the World Trade Organization as well as the Ministerial Declarations and Decisions, and the Understanding and Commitments in Financial Services.

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

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

doubt in its favor. Using the foregoing well-accepted definition of grave abuse of discretion and the presumption of regularity in the Senate's processes, this Court cannot find any cogent reason to impute grave abuse of discretion to the Senate's exercise of its power of concurrence in the WTO 64 Agreement granted it by Sec. 21 of Article VII of the Constitution. It is true, as alleged by petitioners, that broad constitutional principles require the State to develop an independent national economy effectively controlled by Filipinos; and to protect and/or prefer Filipino labor, products, domestic materials and locally produced goods. But it is equally true that such principles while serving as judicial and legislative guides are not in themselves sources of causes of action. Moreover, there are other equally fundamental constitutional principles relied upon by the Senate which mandate the pursuit of a "trade policy that serves the general welfare and utilizes all forms and arrangements of exchange on the basis of equality and reciprocity" and the promotion of industries "which are competitive in both domestic and foreign markets," thereby justifying its acceptance of said treaty. So too, the alleged impairment of sovereignty in the exercise of legislative and judicial powers is balanced by the adoption of the generally accepted principles of international law as part of the law of the land and the adherence of the Constitution to the policy of cooperation and amity with all nations. That the Senate, after deliberation and voting, voluntarily and overwhelmingly gave its consent to the WTO Agreement thereby making it "a part of the law of the land" is a legitimate exercise of its sovereign duty and power. We find no "patent and gross" arbitrariness or despotism "by reason of passion or personal hostility" in such exercise. It is not impossible to surmise that this Court, or at least some of its members, may even agree with petitioners that it is more advantageous to the national interest to strike down Senate Resolution No. 97. But that is not a legal reason to attribute grave abuse of discretion to the Senate and to nullify its decision. To do so would constitute grave abuse in the exercise of our own judicial power and duty. Ineludably, what the Senate did was a valid exercise of its authority. As to whether such exercise was wise, beneficial or viable is outside the realm of judicial inquiry and review. That is a matter between the elected policy makers and the people. As to whether the nation should join the worldwide march toward trade liberalization and economic globalization is a matter that our people should determine in electing their policy makers. After all, the WTO Agreement allows withdrawal of membership, should this be the political desire of a member. The eminent futurist John Naisbitt, author of the best seller Megatrends, 65 predicts an Asian Renaissance where "the East will become the dominant

region of the world economically, politically and culturally in the next century." He refers to the "free market" espoused by WTO as the "catalyst" in this coming Asian ascendancy. There are at present about 31 countries including China, Russia and Saudi Arabia negotiating for membership in the WTO. Notwithstanding objections against possible limitations on national sovereignty, the WTO remains as the only viable structure for multilateral trading and the veritable forum for the development of international trade law. The alternative to WTO is isolation, stagnation, if not economic selfdestruction. Duly enriched with original membership, keenly aware of the advantages and disadvantages of globalization with its on-line experience, and endowed with a vision of the future, the Philippines now straddles the crossroads of an international strategy for economic prosperity and stability in the new millennium. Let the people, through their duly authorized elected officers, make their free choice. WHEREFORE, the petition is DISMISSED for lack of merit. SO ORDERED.

G.R. No. L-14279

October 31, 1961

THE COMMISSIONER OF CUSTOMS and THE COLLECTOR OF CUSTOMS, petitioners, vs. EASTERN SEA TRADING, respondent. CONCEPCION, J.:
Petition for review of a judgment of the Court of Tax Appeals reversing a decision of the Commissioner of Customs. Respondent Eastern Sea Trading was the consignee of several shipments of onion and garlic which arrived at the Port of Manila from August 25 to September 7, 1954. Some shipments came from Japan and others from Hong Kong. In as much as none of the shipments had the certificate required by Central Bank Circulars Nos. 44 and 45 for the release thereof, the goods thus imported were seized and subjected to forfeiture proceedings for alleged violations of section 1363(f) of the Revised Administrative Code, in relation to the aforementioned circulars of the Central Bank. In due course, the Collector of Customs of Manila rendered a decision on September 4, 1956, declaring said goods forfeited to the Government and the goods having been, in the meantime, released to the consignees on surety bonds, filed by the same, as principal, and the Alto Surety & Insurance Co., Inc., as surety, in compliance with orders of the Court of First Instance of Manila, in Civil Cases Nos. 23942 and 23852 thereof directing that the amounts of said bonds be paid, by said principal and surety, jointly and severally, to the Bureau of Customs, within thirty (30) days from notice. On appeal taken by the consignee, said decision was affirmed by the Commissioner of Customs on December 27, 1956. Subsequently, the consignee sought a review of the decision of said two (2) officers by the Court of Tax Appeals, which reversed the decision of the Commissioner of Customs and ordered that the aforementioned bonds be cancelled and withdrawn. Hence, the present petition of the Commissioner of Customs for review of the decision of the Court of Tax Appeals. The latter is based upon the following premises, namely: that the Central Bank has no authority to regulate transactions not involving foreign exchange; that the shipments in question are in the nature of "no-dollar" imports; that, as such, the aforementioned shipments do not involve foreign exchange; that, insofar as a Central Bank license and a certificate

authorizing the importation or release of the goods under consideration are required by Central Bank Circulars Nos. 44 and 45, the latter are null and void; and that the seizure and forfeiture of the goods imported from Japan 1 cannot be justified under Executive Order No. 328, not only because the 2 same seeks to implement an executive agreement extending the 3 4 effectivity of our Trades and Financial Agreements with Japan which (executive agreement), it believed, is of dubious validity, but, also, because there is no governmental agency authorized to issue the import license required by the aforementioned executive order. The authority of the Central Bank to regulate no-dollar imports and the validity of the aforementioned Circulars Nos. 44, and 45 have already been passed upon and repeatedly upheld by this Court (Pascual vs. Commissioner of Customs, L-10979 [June 30, 1959]; Acting Commissioner of Customs vs. Leuterio, L-9142 [October 17, 1959] Commissioner of Customs vs. Pascual, L-9836 [November 18, 1959]; Commissioner of Customs vs. Serree Investment Co., L-12007 [May 16, 1960]; Commissioner of Customs vs. Serree Investment Co., L-14274 [November 29, 1960]), for the reason that the broad powers of the Central Bank, under its charter, to maintain our monetary stability and to preserve the international value of our currency, under section 2 of Republic Act No. 265, in relation to section 14 of said Act authorizing the bank to issue such rules and regulations as it may consider necessary for the effective discharge of the responsibilities and the exercise of the powers assigned to the Monetary Board and to the Central Bank connote the authority to regulate no-dollar imports, owing to the influence and effect that the same may and do have upon the stability of our peso and its international value. The Court of Tax Appeals entertained doubts on the legality of the executive agreement sought to be implemented by Executive Order No. 328, owing to the fact that our Senate had not concurred in the making of said executive agreement. The concurrence of said House of Congress is required by our fundamental law in the making of "treaties" (Constitution of the Philippines, Article VII, Section 10[7]), which are, however, distinct and different from "executive agreements," which may be validly entered into without such concurrence. Treaties are formal documents which require ratification with the approval of two thirds of the Senate. Executive agreements become binding through executive action without the need of a vote by the Senate or by Congress. xxx xxx xxx

. . . 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-favorednation 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. xxx xxx xxx

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. Constitutional Law, Vol. I [2d ed.], pp. 537540; Moore, International Law Digest, Vol. V, pp. 210-218; Hackworth, International Law Digest, Vol. V, pp. 390-407). (Emphasis supplied.) In this connection, Francis B. Sayre, former U.S. High Commissioner to the Philippines, said in his work on "The Constitutionality of Trade Agreement Acts": Agreements concluded by the President which fall short of treaties are commonly referred to as executive agreements and are no less common in our scheme of government than are the more formal instruments treaties and conventions. They sometimes take the form of exchanges of notes and at other times that of more formal documents denominated "agreements" time or "protocols". The point where ordinary correspondence between this and other governments ends and agreements whether denominated executive agreements or exchanges of notes or otherwise begin, may sometimes be difficult of ready ascertainment. 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-agreements act, have been negotiated with foreign governments. . . . It would seem to be sufficient, in order to show that the trade agreements under the act of 1934 are not anomalous in character, that they are not treaties, and that they have abundant precedent in our history, to refer to certain classes of agreements heretofore entered into by the Executive without the approval of the Senate. They cover such subjects as the inspection of vessels, navigation dues, income tax on shipping profits, the admission of civil aircraft, customs matters, and commercial relations generally, international claims, postal matters, the registration of trademarks and copyrights, etcetera. Some of them were concluded not by specific congressional authorization but in conformity with policies declared in acts of Congress with respect to the general subject matter, such as tariff acts; while still others, particularly those with respect of the settlement of claims against foreign governments,

Agreements with respect to the registration of trade-marks have been concluded by the Executive with various countries under the Act of Congress of March 3, 1881 (21 Stat. 502). Postal conventions regulating the reciprocal treatment of mail matters, money orders, parcel post, etc., have been concluded by the Postmaster General with various countries under authorization by Congress beginning with the Act of February 20, 1792 (1 Stat. 232, 239). Ten executive agreements were concluded by the President pursuant to the McKinley Tariff Act of 1890 (26 Stat. 567, 612), and nine such agreements were entered into under the Dingley Tariff Act 1897 (30 Stat. 151, 203, 214). A very much larger number of agreements, along the lines of the one with Rumania previously referred to, providing for most-favored-nation treatment in customs and related matters have been entered into since the passage of the Tariff Act of 1922, not by direction of the Act but in harmony with it. xxx xxx xxx

International agreements involving political issues or changes of national policy and those involving international arrangements of a permanent character usually take the form of treaties. But international agreements embodyingadjustments of detail carrying out well-established national policies and traditions and those involving arrangements of a more or less temporary nature usually take the form of executive agreements. xxx xxx xxx

Furthermore, the United States Supreme Court has expressly recognized the validity and constitutionality of executive

were concluded independently of any legislation." (39 Columbia Law Review, pp. 651, 755.) The validity of the executive agreement in question is thus patent. In fact, the so-called Parity Rights provided for in the Ordinance Appended to our Constitution were, prior thereto, the subject of an executive agreement, made without the concurrence of two-thirds (2/3) of the Senate of the United States. Lastly, the lower court held that it would be unreasonable to require from respondent-appellee an import license when the Import Control Commission was no longer in existence and, hence, there was, said court believed, no agency authorized to issue the aforementioned license. This conclusion is untenable, for the authority to issue the aforementioned licenses was not vested exclusively upon the Import Control Commission or Administration. Executive Order No. 328 provided for export or import licenses "from the Central Bank of the Philippines or the Import Control Administration" or Commission. Indeed, the latter was created only to perform the task of implementing certain objectives of the Monetary Board and the Central Bank, which otherwise had to be undertaken by these two (2) agencies. Upon the abolition of said Commission, the duty to provide means and ways for the accomplishment of said objectives had merely to be discharged directly by the Monetary Board and the Central Bank, even if the aforementioned Executive Order had been silent thereon. WHEREFORE, the decision appealed from is hereby reversed and another one shall be entered affirming that of the Commissioner of Customs, with cost against respondents defendant-appellee, Eastern Sea Trading. It is so ordered.

G.R. No. 167919

February 14, 2007

PLARIDEL M. ABAYA, COMMODORE PLARIDEL C. GARCIA (retired) and PMA 59 FOUNDATION, INC., rep. by its President, COMMODORE CARLOS L. AGUSTIN (retired), Petitioners, vs. HON. SECRETARY HERMOGENES E. EBDANE, JR., in his capacity as Secretary of the DEPARTMENT OF PUBLIC WORKS and HIGHWAYS, HON. SECRETARY EMILIA T. BONCODIN, in her capacity as Secretary of the DEPARTMENT OF BUDGET and MANAGEMENT, HON. SECRETARY CESAR V. PURISIMA, in his capacity as Secretary of the DEPARTMENT OF FINANCE, HON. TREASURER NORMA L. LASALA, in her capacity as Treasurer of the Bureau of Treasury, and CHINA ROAD and BRIDGE CORPORATION, Respondents. DECISION CALLEJO, SR., J.:
Before the Court is the petition for certiorari and prohibition under Rule 65 of the Rules of Court seeking to set aside and nullify Resolution No. PJHL-A-04-012 dated May 7, 2004 issued by the Bids and Awards Committee (BAC) of the Department of Public Works and Highways (DPWH) and approved by then DPWH Acting Secretary Florante Soriquez. The assailed resolution recommended the award to private respondent China Road & Bridge Corporation of the contract for the implementation of civil works for Contract Package No. I (CP I), which consists of the improvement/rehabilitation of the San Andres (Codon)-Virac-Jct. Bago-Viga road, with the length of 79.818 kilometers, in the island province of Catanduanes. The CP I project is one of the four packages comprising the project for the improvement/rehabilitation of the Catanduanes Circumferential Road, covering a total length of about 204.515 kilometers, which is the main highway in Catanduanes Province. The road section (Catanduanes Circumferential Road) is part of the Arterial Road Links Development Project (Phase IV) funded under Loan Agreement No. PHP204 dated December 28, 1999 between the Japan Bank for International Cooperation (JBIC) and the Government of the Republic of the Philippines. Background

Based on the Exchange of Notes dated December 27, 1999, 1 the Government of Japan and the Government of the Philippines, through their respective representatives, namely, Mr. Yoshihisa Ara, Ambassador Extraordinary and Plenipotentiary of Japan to the Republic of the Philippines, and then Secretary of Foreign Affairs Domingo L. Siazon, have reached an understanding concerning Japanese loans to be extended to the Philippines. These loans were aimed at promoting our countrys economic stabilization and development efforts. The Exchange of Notes consisted of two documents: (1) a Letter from the Government of Japan, signed by Ambassador Ara, addressed to then Secretary of Foreign Affairs Siazon, confirming the understanding reached between the two governments concerning the loans to be extended by the Government of Japan to the Philippines; and (2) a document denominated as Records of Discussion where the salient terms of the loans as set forth by the Government of Japan, through the Japanese delegation, were reiterated and the said terms were accepted by the Philippine delegation. Both Ambassador Ara and then Secretary Siazon signed the Records of Discussion as representatives of the Government of Japan and Philippine Government, respectively. The Exchange of Notes provided that the loans to be extended by the Government of Japan to the Philippines consisted of two loans: Loan I and Loan II. The Exchange of Notes stated in part: I 1. A loan in Japanese yen up to the amount of seventy-nine billion eight hundred and sixty-one million yen (Y79,861,000,000) (hereinafter referred to as "the Loan I") will be extended, in accordance with the relevant laws and regulations of Japan, to the Government of the Republic of the Philippines (hereinafter referred to as "the Borrower I") by the Japan Bank for International Cooperation (hereinafter referred to as "the Bank") to implement the projects enumerated in the List A attached hereto (hereinafter referred to as "the List A") according to the allocation for each project as specified in the List A. 2. (1) The Loan I will be made available by loan agreements to be concluded between the Borrower I and the Bank. The terms and conditions of the Loan I as well as the procedure for its utilization will be governed by said loan agreements which will contain, inter alia, the following principles: ... (2) Each of the loan agreements mentioned in sub-paragraph (1) above will be concluded after the Bank is satisfied of the feasibility, including environmental consideration, of the project to which such loan agreement relates.

3. (1) The Loan I will be made available to cover payments to be made by the Philippine executing agencies to suppliers, contractors and/or consultants of eligible source countries under such contracts as may be entered into between them for purchases of products and/or services required for the implementation of the projects enumerated in the List A, provided that such purchases are made in such eligible source countries for products produced in and/or services supplied from those countries. (2) The scope of eligible source countries mentioned in subparagraph (1) above will be agreed upon between the authorities concerned of the two Governments. (3) A part of the Loan I may be used to cover eligible local currency requirements for the implementation of the projects enumerated in the List A. 4. With regard to the shipping and marine insurance of the products purchased under the Loan I, the Government of the Republic of the Philippines will refrain from imposing any restrictions that may hinder fair and free competition among the shipping and marine insurance companies. x x x x2 1awphi1.net Pertinently, List A, which specified the projects to be financed under the Loan I, includes the Arterial Road Links Development Project (Phase IV), to wit: LIST A Maximum amount in million yen) 1. Secondary Education Development and Improvement Project 7,210 2. Rural Water Supply Project (Phase V) 951 xxxx 3. Bohol Irrigation Project (Phase II) 6,078 4. Agrarian Reform Infrastructure Support Project (Phase II) 16,990 5. Arterial Road Links Development Project (Phase IV) 15,384 6. Cordillera Road Improvement Project 5,852

7. Philippines-Japan Friendship Highway Mindanao Section Rehabilitation Project (Phase II) 7,434 8. Rehabilitation and Maintenance of Bridges Along Arterial Roads Project (Phase IV) 5,068 9. Maritime Safety Improvement Project (Phase C) 4,714 10. Pinatubo Hazard Urgent Mitigation Project (Phase II) 9,013 11. Pasig-Marikina River Channel Improvement Project (Phase I) 1,167 Total 79,8613 The Exchange of Notes further provided that: III xxxx 3. The Government of the Republic of the Philippines will ensure that the products and/or services mentioned in sub-paragraph (1) of paragraph 3 of Part I and subparagraph (1) of paragraph 4 of Part II are procured in accordance with the guidelines for procurement of the Bank, which set forth, inter alia, the procedures of international tendering to be followed except where such procedures are inapplicable or inappropriate. x x x x4 The Records of Discussion, which formed part of the Exchange of Notes, also stated in part, thus:

1. With reference to sub-paragraph (3) of paragraph 3 of Part I of the Exchange of Notes concerning the financing of eligible local currency requirements for the implementation of the projects mentioned in the said sub-paragraph, the representative of the Japanese delegation stated that: (1) such requirement of local currency as general administrative expenses, interest during construction, taxes and duties, expenses concerning office, remuneration to employees of the executing agencies and housing, not directly related to the implementation of the said projects, as well as

purchase of land properties, compensation and the like, however, will not be considered as eligible for financing under the Loan I; and (2) the procurement of products and/or services will be made in accordance with the procedures of international competitive tendering except where such procedures are inapplicable and inappropriate. x x x x5 Thus, in accordance with the agreement reached by the Government of Japan and the Philippine Government, as expressed in the Exchange of Notes between the representatives of the two governments, the Philippines obtained from and was granted a loan by the JBIC. Loan Agreement No. PH-P204 dated December 28, 1999, in particular, stated as follows: Loan Agreement No. PH-P204, dated December 28, 1999, between JAPAN BANK FOR INTERNATIONAL COOPERATION and the GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES. In the light of the contents of the Exchange of Notes between the Government of Japan and the Government of the Republic of the Philippines dated December 27, 1999, concerning Japanese loans to be extended with a view to promoting the economic stabilization and development efforts of the Republic of the Philippines. JAPAN BANK FOR INTERNATIONAL COOPERATION (hereinafter referred to as "the BANK") and THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES (hereinafter referred to as "the Borrower") herewith conclude the following Loan Agreement (hereinafter referred to as "the Loan Agreement", which includes all agreements supplemental hereto). x x x x6 Under the terms and conditions of Loan Agreement No. PH-P204, JBIC agreed to lend the Philippine Government an amount not exceeding FIFTEEN BILLION THREE HUNDRED EIGHTY-FOUR MILLION Japanese Yen (Y 15,384,000,000) as principal for the implementation of the Arterial Road Links Development Project (Phase IV) on the terms and conditions set forth in the Loan Agreement and in accordance with the relevant laws and regulations of Japan.7 The said amount shall be used for the purchase of eligible goods and services necessary for the implementation of the above-mentioned project from suppliers, contractors or consultants. 8 Further, it was provided under the said loan agreement that other terms and conditions generally applicable thereto shall be set forth in the General Terms and Conditions, dated November 1987, issued by the Overseas Economic Cooperation Fund (OECF) and for the purpose, reference to "the OECF" and "Fund" therein (General Terms and Conditions) shall be substituted by "the JBIC" and "Bank,"

respectively.9 Specifically, the guidelines for procurement of all goods and services to be financed out of the proceeds of the said loan shall be as stipulated in the Guidelines for Procurement under OECF Loans dated December 1997 (herein referred to as JBIC Procurement Guidelines).10 As mentioned earlier, the proceeds of Loan Agreement No. PH-P204 was to be used to finance the Arterial Road Links Development Project (Phase IV), of which the Catanduanes Circumferential Road was a part. This road section, in turn, was divided into four contract packages (CP): CP I: San Andres (Codon)-Virac-Jct. Bato- Viga Road - 79.818 kms CP II: Viga-Bagamanoc Road - 10.40 kms. CP III: Bagamanoc-Pandan Road - 47.50 kms. CP IV: Pandan-Caramoran-Codon Road - 66.40 kms.11 Subsequently, the DPWH, as the government agency tasked to implement the project, caused the publication of the "Invitation to Prequalify and to Bid" for the implementation of the CP I project in two leading national newspapers, namely, the Manila Times and Manila Standard on November 22 and 29, and December 5, 2002. A total of twenty-three (23) foreign and local contractors responded to the invitation by submitting their accomplished prequalification documents on January 23, 2003. In accordance with the established prequalification criteria, eight contractors were evaluated or considered eligible to bid as concurred by the JBIC. One of them, however, withdrew; thus, only seven contractors submitted their bid proposals. The bid documents submitted by the prequalified contractors/bidders were examined to determine their compliance with the requirements as stipulated in Article 6 of the Instruction to Bidders.12 After the lapse of the deadline for the submission of bid proposals, the opening of the bids commenced immediately. Prior to the opening of the respective bid proposals, it was announced that the Approved Budget for the Contract (ABC) was in the amount of P738,710,563.67.

The result of the bidding revealed the following three lowest bidders and their respective bids vis--vis the ABC:13

Name of Bidder 1) China Road And Bridge Corporation 2) Cavite Ideal Intl Const. Devt. Corp. 3) Italian Thai Devt. Public Company, Ltd.

Original Bid As Read (Pesos) P 993,183,904.98 P1,099,926,598.11

As-Corrected Bid Amount (Pesos) P952,564,821.71 P1,099,926,598.11

Variance 28.95% 48.90%

Petitioner Plaridel M. Abaya claims that he filed the instant petition as a taxpayer, former lawmaker, and a Filipino citizen. Petitioner Plaridel C. Garcia likewise claims that he filed the suit as a taxpayer, former military officer, and a Filipino citizen. Petitioner PMA 59 Foundation, Inc., on the other hand, is a non-stock, non-profit corporation organized under the existing Philippine laws. It claims that its members are all taxpayers and alumni of the Philippine Military Academy. It is represented by its President, Carlos L. Agustin. Named as public respondents are the DPWH, as the government agency tasked with the implementation of government infrastructure projects; the Department of Budget and Management (DBM) as the government agency that authorizes the release and disbursement of public funds for the implementation of government infrastructure projects; and the Department of Finance (DOF) as the government agency that acts as the custodian and manager of all financial resources of the government. Also named as individual public respondents are Hermogenes E. Ebdane, Jr., Emilia T. Boncodin and Cesar V. Purisima in their capacities as former Secretaries of the DPWH, DBM and DOF, respectively. On the other hand, public respondent Norma L. Lasala was impleaded in her capacity as Treasurer of the Bureau of Treasury. Private respondent China Road & Bridge Corporation is a duly organized corporation engaged in the business of construction. The Petitioners Case The petitioners mainly seek to nullify DPWH Resolution No. PJHL-A-04-012 dated May 7, 2004, which recommended the award to private respondent China Road & Bridge Corporation of the contract for the implementation of the civil works of CP I. They also seek to annul the contract of agreement subsequently entered into by and between the DPWH and private respondent China Road & Bridge Corporation pursuant to the said resolution. They pose the following issues for the Courts resolution: I. Whether or not Petitioners have standing to file the instant Petition.

P1,125,022,075.34

P1,125,392,475.36

52.35%

The bid of private respondent China Road & Bridge Corporation was corrected from the original P993,183,904.98 (with variance of 34.45% from the ABC) to P952,564,821.71 (with variance of 28.95% from the ABC) based on their letter clarification dated April 21, 2004.14 After further evaluation of the bids, particularly those of the lowest three bidders, Mr. Hedifume Ezawa, Project Manager of the Catanduanes Circumferential Road Improvement Project (CCRIP), in his Contractors Bid Evaluation Report dated April 2004, recommended the award of the contract to private respondent China Road & Bridge Corporation: In accordance with the Guidelines for the Procurements under ODA [Official Development Assistance] Loans, the Consultant hereby recommends the award of the contract for the construction of CP I, San Andres (Codon) Virac Jct. Bato Viga Section under the Arterial Road Links Development Projects, Phase IV, JBIC Loan No. PH-P204 to the Lowest Complying Bidder, China Road and Bridge Corporation, at its total corrected bid amount of Nine Hundred Fifty-Two Million Five Hundred SixtyFour Thousand Eight Hundred Twenty-One & 71/100 Pesos.15 The BAC of the DPWH, with the approval of then Acting Secretary Soriquez, issued the assailed Resolution No. PJHL-A-04-012 dated May 7, 2004 recommending the award in favor of private respondent China Road & Bridge Corporation of the contract for the implementation of civil works for CP I, San Andres (Codon) Virac Jct. Bato Viga Road (Catanduanes Circumferential Road Improvement Project) of the Arterial Roads Links Development Project, Phase IV, located in Catanduanes Province, under JBIC Loan Agreement No. PH-P204.16 On September 29, 2004, a Contract of Agreement was entered into by and between the DPWH and private respondent China Road & Bridge Corporation for the implementation of the CP I project. The Parties

II. Whether or not Petitioners are entitled to the issuance of a Writ of Certiorari reversing and setting aside DPWH Resolution No. PJHL-A-04012, recommending the award of the Contract Agreement for the implementation of civil works for CPI, San Andres (CODON)-VIRAC-JCT BATO-VIGA ROAD (CATANDUANES CIRCUMFERENTIAL ROAD IMPROVEMENT PROJECT) of the Arterial Road Links Development Project, Phase IV, located in Catanduanes Province, under JBIC L/A No. PH-P204, to China Road & Bridge Corporation. III. Whether or not the Contract Agreement executed by and between the Republic of the Philippines, through the Department of Public Works and

Highways, and the China Road & Bridge Corporation, for the implementation of civil works for CPI, San Andres (CODON)-VIRAC-JCT BATO-VIGA ROAD (CATANDUANES CIRCUMFERENTIAL ROAD IMPROVEMENT PROJECT) of the Arterial Road Links Development Project, Phase IV, located in Catanduanes Province, under JBIC L/A No. PH-P204, is void ab initio. IV. Whether or not Petitioners are entitled to the issuance of a Writ of Prohibition permanently prohibiting the implementation of DPWH Resolution No. PJHL-A-04-012 and the Contract Agreement executed by and between the Republic of the Philippines (through the Department of Public Works and Highways) and the China Road & Bridge Corporation, and the disbursement of public funds by the [D]epartment of [B]udget and [M]anagement for such purpose. V. Whether or not Petitioners are entitled to a Preliminary Injunction and/or a Temporary Restraining Order immediately enjoining the implementation of DPWH Resolution No. PJHL-A-04-012 and the Contract Agreement executed by and between the Republic of the Philippines (through the Department of Public Works and Highways) and the China Road & Bridge Corporation, and the disbursement of public funds by the Department of Budget and Management for such purpose, during the pendency of this case.17 Preliminarily, the petitioners assert that they have standing or locus standi to file the instant petition. They claim that as taxpayers and concerned citizens, they have the right and duty to question the expenditure of public funds on illegal acts. They point out that the Philippine Government allocates a peso-counterpart for CP I, which amount is appropriated by Congress in the General Appropriations Act; hence, funds that are being utilized in the implementation of the questioned project also partake of taxpayers money. The present action, as a taxpayers suit, is thus allegedly proper. They likewise characterize the instant petition as one of transcendental importance that warrants the Courts adoption of a liberal stance on the issue of standing. It cited several cases where the Court brushed aside procedural technicalities in order to resolve issues involving paramount public interest and transcendental importance.18 Further, petitioner Abaya asserts that he possesses the requisite standing as a former member of the House of Representatives and one of the principal authors of Republic Act No. 9184 (RA 9184)19 known as the Government Procurement Reform Act, the law allegedly violated by the public respondents. On the substantive issues, the petitioners anchor the instant petition on the contention that the award of the contract to private respondent China Road & Bridge Corporation violates RA 9184, particularly Section 31 thereof which reads:

SEC. 31. Ceiling for Bid Prices. The ABC shall be the upper limit or ceiling for the Bid prices. Bid prices that exceed this ceiling shall be disqualified outright from further participating in the bidding. There shall be no lower limit to the amount of the award. In relation thereto, the petitioners cite the definition of the ABC, thus: SEC. 5. Definition of Terms. xxx (a) Approved Budget for the Contract (ABC). refers to the budget for the contract duly approved by the Head of the Procuring Entity, as provided for in the General Appropriations Act and/or continuing appropriations, in the case of National Government Agencies; the Corporate Budget for the contract approved by the governing Boards, pursuant to E.O. No. 518, series of 1979, in the case of Government-Owned and/or Controlled Corporations, Government Financial Institutions and State Universities and Colleges; and the Budget for the contract approved by the respective Sanggunian, in the case of Local Government Units. xxx The petitioners theorize that the foregoing provisions show the mandatory character of ceilings or upper limits of every bid. Under the above-quoted provisions of RA 9184, all bids or awards should not exceed the ceilings or upper limits; otherwise, the contract is deemed void and inexistent. Resolution No. PJHL-A-04-012 was allegedly issued with grave abuse of discretion because it recommended the award of the contract to private respondent China Road & Bridge Corporation whose bid was more than P200 million overpriced based on the ABC. As such, the award is allegedly illegal and unconscionable. In this connection, the petitioners opine that the contract subsequently entered into by and between the DPWH and private respondent China Road & Bridge Corporation is void ab initio for being prohibited by RA 9184. They stress that Section 31 thereof expressly provides that "bid prices that exceed this ceiling shall be disqualified outright from participating in the bidding." The upper limit or ceiling is called the ABC and since the bid of private respondent China Road & Bridge Corporation exceeded the ABC for the CP I project, it should have been allegedly disqualified from the bidding process and should not, by law, have been awarded the said contract. They invoke Article 1409 of the Civil Code: ART. 1409. The following contracts are inexistent and void from the beginning: (1) Those whose cause, object or purpose is contrary to law, morals, good customs, public order or public policy;

(2) Those which are absolutely simulated or fictitious; (3) Those whose cause or object did not exist at the time of the transaction; (4) Those whose object is outside the commerce of men; (5) Those which contemplate an impossible service; (6) Those where the intention of the parties relative to the principal object of the contract cannot be ascertained; (7) Those expressly prohibited or declared void by law. For violating the above provision, the contract between the DPWH and private respondent China Road & Bridge Corporation is allegedly inexistent and void ab initio and can produce no effects whatsoever. It is the contention of the petitioners that RA 9184 is applicable to both local- and foreign-funded procurement contracts. They cite the following excerpt of the deliberations of the Bicameral Conference Committee on the Disagreeing Provisions of Senate Bill No. 2248 and House Bill No. 4809:20 REP. ABAYA. Mr. Chairman, can we just propose additional amendments? Can we go back to Section 4, Mr. Chairman? THE CHAIRMAN (SEN. ANGARA). Section? Section ano, Del, 4? Definition definition of terms. REP. ABAYA. Sa House bill, it is sa scope and application. THE CHAIRMAN (SEN. ANGARA). Okay. REP. ABAYA. It should read as follows: "This Act shall apply to the procurement of goods, supplies and materials, infrastructure projects and consulting services regardless of funding source whether local or foreign by the government." THE CHAIRMAN (SEN. ANGARA). Okay, accepted. We accept. The Senate accepts it.21 xxx xxx xxx THE CHAIRMAN (SEN ANGARA). Just take note of that ano. Medyo nga problematic yan eh. Now, just for the record Del, can you repeat again the justification for

including foreign funded contracts within the scope para malinaw because the World Bank daw might raise some objection to it. REP. ABAYA. Well, Mr. Chairman, we should include foreign funded projects kasi these are the big projects. To give an example, if you allow bids above government estimate, lets say take the case of 500 million project, included in that 500 million is the 20 percent profit. If you allow them to bid above government estimate, they will add another say 28 percent of (sic) 30 percent, 30 percent of 500 million is another 150 million. Ito, this is a rich source of graft money, aregluhan na lang, 150 million, five contractors will gather, "O eto 20 million, 20 million, 20 million." So, it is rigged. Yun ang practice na nangyayari. If we eliminate that, if we have a ceiling then, it will not be very tempting kasi walang extra money na pwedeng ibigay sa ibang contractor. So this promote (sic) collusion among bidders, of course, with the cooperation of irresponsible officials of some agencies. So we should have a ceiling to include foreign funded projects.22 The petitioners insist that Loan Agreement No. PH-P204 between the JBIC and the Philippine Government is neither a treaty, an international nor an executive agreement that would bar the application of RA 9184. They point out that to be considered a treaty, an international or an executive agreement, the parties must be two sovereigns or States whereas in the case of Loan Agreement No. PH-P204, the parties are the Philippine Government and the JBIC, a banking agency of Japan, which has a separate juridical personality from the Japanese Government. They further insist on the applicability of RA 9184 contending that while it took effect on January 26, 200323 and Loan Agreement No. PH-P204 was executed prior thereto or on December 28, 1999, the actual procurement or award of the contract to private respondent China Road & Bridge Corporation was done after the effectivity of RA 9184. The said law is allegedly specific as to its application, which is on the actual procurement of infrastructure and other projects only, and not on the loan agreements attached to such projects. Thus, the petition only prays for the annulment of Resolution No. PJHL-A-04-012 as well as the contract between the DPWH and private respondent China Road & Bridge Corporation. The petitioners clarify that they do not pray for the annulment of Loan Agreement No. PH-P204. Since the subject procurement and award of the contract were done after the effectivity of RA 9184, necessarily, the procurement rules established by that law allegedly apply, and not Presidential Decree No. 1594 (PD 1594)24 and Executive Order No. 40 (EO 40), series of 2001, 25 as contended by the respondents. The latter laws, including their implementing rules, have allegedly been repealed by RA 9184. Even RA 4860, as amended, known as the Foreign Borrowings Act, the petitioners posit, may have also been repealed or modified by RA 9184 insofar as its provisions are inconsistent with the latter. The petitioners also argue that the "Implementing Rules and Regulations (IRR) of RA 9184, Otherwise Known as the Government Procurement Reform Act, Part A" (IRR-A) cited by the respondents is not applicable as these rules only govern domesticallyfunded procurement contracts. They aver that the implementing rules to govern foreign-funded procurement, as in the present case, have yet to be drafted and in fact,

there are concurrent resolutions drafted by both houses of Congress for the Reconvening of the Joint Congressional Oversight Committee for the formulation of the IRR for foreign-funded procurements under RA 9184. The petitioners maintain that disbursement of public funds to implement a patently void and illegal contract is itself illegal and must be enjoined. They bring to the Courts attention the fact that the works on the CP I project have already commenced as early as October 2004. They thus urge the Court to issue a writ of certiorari to set aside Resolution No. PJHL-A-04-012 as well as to declare null and void the contract entered into between the DPWH and private respondent China Road & Bridge Corporation. They also pray for the issuance of a temporary restraining order and, eventually, a writ of prohibition to permanently enjoin the DPWH from implementing Resolution No. PJHL-A-04-012 and its contract with private respondent China Road & Bridge Corporation as well as the DBM from disbursing funds for the said purpose. The Respondents Counter-Arguments The public respondents, namely the DPWH, DBM and DOF, and their respective named officials, through the Office of the Solicitor General, urge the Court to dismiss the petition on grounds that the petitioners have no locus standi and, in any case, Resolution No. PJHL-A-04-012 and the contract between the DPWH and private respondent China Road & Bridge Corporation are valid. According to the public respondents, a taxpayers locus standi was recognized in the following cases: (a) where a tax measure is assailed as unconstitutional; 26 (b) where there is a question of validity of election laws;27 (c) where legislators questioned the validity of any official action upon the claim that it infringes on their prerogatives as legislators;28 (d) where there is a claim of illegal disbursement or wastage of public funds through the enforcement of an invalid or unconstitutional law; 29 (e) where it involves the right of members of the Senate or House of Representatives to question the validity of a presidential veto or condition imposed on an item in an appropriation bill;30 or (f) where it involves an invalid law, which when enforced will put the petitioner in imminent danger of sustaining some direct injury as a result thereof, or 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 complained of.31 None of the above considerations allegedly obtains in the present case. It is also the view of the public respondents that the fact that petitioner Abaya was a former lawmaker would not suffice to confer locus standi on himself. Members of Congress may properly challenge the validity of an official act of any department of the government only upon showing that the assailed official act affects or impairs their rights and prerogatives as legislators. The public respondents further assail the standing of the petitioners to file the instant suit claiming that they failed to allege any specific injury suffered nor an interest that is direct and personal to them. If at all, the interest or injuries claimed by the petitioners

are allegedly merely of a general interest common to all members of the public. Their interest is allegedly too vague, highly speculative and uncertain to satisfy the requirements of locus standi. The public respondents find it noteworthy that the petitioners do not raise issues of constitutionality but only of contract law, which the petitioners not being privies to the agreement cannot raise. This is following the principle that a stranger to a contract cannot sue either or both the contracting parties to annul and set aside the same except when he is prejudiced on his rights and can show detriment which would positively result to him from the implementation of the contract in which he has no intervention. There being no particularized interest or elemental substantial injury necessary to confer locus standi, the public respondents implore the Court to dismiss the petition. On the merits, the public respondents maintain that the imposition of ceilings or upper limits on bid prices in RA 9184 does not apply because the CP I project and the entire Catanduanes Circumferential Road Improvement Project, financed by Loan Agreement No. PH-P204 executed between the Philippine Government and the JBIC, is governed by the latters Procurement Guidelines which precludes the imposition of ceilings on bid prices. Section 5.06 of the JBIC Procurement Guidelines reads: Section 5.06. Evaluation and Comparison of Bids. xxx (e) Any procedure under which bids above or below a predetermined bid value assessment are automatically disqualified is not permitted. It was explained that other foreign banks such as the Asian Development Bank (ADB) and the World Bank (WB) similarly prohibit the bracketing or imposition of a ceiling on bid prices. The public respondents stress that it was pursuant to Loan Agreement No. PH-P204 that the assailed Resolution No. PJHL-A-04-012 and the subsequent contract between the DPWH and private respondent China Road & Bridge Corporation materialized. They likewise aver that Loan Agreement No. PH-P204 is governed by RA 4860, as amended, or the Foreign Borrowings Act. Section 4 thereof states: SEC. 4. In the contracting of any loan, credit or indebtedness under this Act, the President of the Philippines may, when necessary, agree to waive or modify, the application of any law granting preferences or imposing restrictions on international competitive bidding, including among others [Act No. 4239, Commonwealth Act No. 138], the provisions of [CA 541], insofar as such provisions do not pertain to constructions primarily for national defense or security purposes, [RA 5183]; Provided, however, That as far as practicable, utilization of the services of qualified domestic firms in the prosecution of projects financed under this Act shall be encouraged:

Provided, further, That in case where international competitive bidding shall be conducted preference of at least fifteen per centum shall be granted in favor of articles, materials or supplies of the growth, production or manufacture of the Philippines: Provided, finally, That the method and procedure in comparison of bids shall be the subject of agreement between the Philippine Government and the lending institution. DOJ Opinion No. 46, Series of 1987, is relied upon by the public respondents as it opined that an agreement for the exclusion of foreign assisted projects from the coverage of local bidding regulations does not contravene existing legislations because the statutory basis for foreign loan agreements is RA 4860, as amended, and under Section 4 thereof, the President is empowered to waive the application of any law imposing restrictions on the procurement of goods and services pursuant to such loans. Memorandum Circular Nos. 104 and 108, issued by the President, to clarify RA 4860, as amended, and PD 1594, relative to the award of foreign-assisted projects, are also invoked by the public respondents, to wit: Memorandum Circular No. 104: In view of the provisions of Section 4 of Republic Act No. 4860, as amended, otherwise known as the "Foreign Borrowings Act" xxx It is hereby clarified that foreign-assisted infrastructure projects may be exempted from the application for the pertinent provisions of the Implementing Rules and Regulations (IRR) of Presidential Decree (P.D.) No. 1594 relative to the method and procedure in the comparison of bids, which matter may be the subject of agreement between the infrastructure agency concerned and the lending institution. It should be made clear however that public bidding is still required and can only be waived pursuant to existing laws. Memorandum Circular No. 108: In view of the provisions of Section 4 of Republic Act No. 4860, as amended, otherwise known as the "Foreign Borrowings Act", it is hereby clarified that, for projects supported in whole or in part by foreign assistance awarded through international or local competitive bidding, the government agency concerned may award the contract to the lowest evaluated bidder at his bid price consistent with the provisions of the applicable loan/grant agreement. Specifically, when the loan/grant agreement so stipulates, the government agency concerned may award the contract to the lowest bidder even if his/its bid exceeds the approved agency estimate.

It is understood that the concerned government agency shall, as far as practicable, adhere closely to the implementing rules and regulations of Presidential Decree No. 1594 during loan/grant negotiation and the implementation of the projects. 32 The public respondents characterize foreign loan agreements, including Loan Agreement No. PH-P204, as executive agreements and, as such, should be observed pursuant to the fundamental principle in international law of pacta sunt servanda.33 They cite Section 20 of Article VII of the Constitution as giving the President the authority to contract foreign loans: SEC. 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 decisions 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. The Constitution, the public respondents emphasize, recognizes the enforceability of executive agreements in the same way that it recognizes generally accepted principles of international law as forming part of the law of the land.34 This recognition allegedly buttresses the binding effect of executive agreements to which the Philippine Government is a signatory. It is pointed out by the public respondents that executive agreements are essentially contracts governing the rights and obligations of the parties. A contract, being the law between the parties, must be faithfully adhered to by them. Guided by the fundamental rule of pacta sunt servanda, the Philippine Government bound itself to perform in good faith its duties and obligations under Loan Agreement No. PH-P204. The public respondents further argue against the applicability of RA 9184 stating that it was signed into law on January 10, 2003.35 On the other hand, Loan Agreement No. PH-P204 was executed on December 28, 1999, where the laws then in force on government procurements were PD 1594 and EO 40. The latter law (EO 40), in particular, excluded from its application "any existing and future government commitments with respect to the bidding and award of contracts financed partly or wholly with funds from international financing institutions as well as from bilateral and other similar foreign sources." The applicability of EO 40, not RA 9184, is allegedly bolstered by the fact that the "Invitation to Prequalify and to Bid" for the implementation of the CP I project was published in two leading national newspapers, namely, the Manila Times and Manila Standard on November 22, 29 and December 5, 2002, or before the signing into law of RA 9184 on January 10, 2003. In this connection, the public respondents point to Section 77 of IRR-A, which reads: SEC. 77. Transitory Clause.

In all procurement activities, if the advertisement or invitation for bids was issued prior to the effectivity of the Act, the provisions of EO 40 and its IRR, PD 1594 and its IRR, RA 7160 and its IRR, or other applicable laws as the case may be, shall govern. In cases where the advertisements or invitations for bids were issued after the effectivity of the Act but before the effectivity of this IRR-A, procuring entities may continue adopting the procurement procedures, rules and regulations provided in EO 40 and its IRR, or other applicable laws, as the case may be. Section 4 of RA 9184 is also invoked by the public respondents as it provides: SEC. 4. Scope and Applications. This Act shall apply to the Procurement of Infrastructure Projects, Goods and Consulting Services, regardless of source of funds, whether local or foreign, by all branches and instrumentalities of government, its departments, offices and agencies, including government-owned and/or controlled corporations and local government units, subject to the provisions of Commonwealth Act No. 138. Any treaty or international or executive agreement affecting the subject matter of this Act to which the Philippine government is a signatory shall be observed. It is also the position of the public respondents that even granting arguendo that Loan Agreement No. PH-P204 were an ordinary loan contract, still, RA 9184 is inapplicable under the non-impairment clause36 of the Constitution. The said loan agreement expressly provided that the procurement of goods and services for the project financed by the same shall be governed by the Guidelines for Procurement under OECF Loans dated December 1997. Further, Section 5.06 of the JBIC Procurement Guidelines categorically provides that "[a]ny procedure under which bids above or below a predetermined bid value assessment are automatically disqualified is not permitted." The public respondents explain that since the contract is the law between the parties and Loan Agreement No. PH-P204 states that the JBIC Procurement Guidelines shall govern the parties relationship and further dictates that there be no ceiling price for the bidding, it naturally follows that any subsequent law passed contrary to the letters of the said contract would have no effect with respect to the parties rights and obligations arising therefrom. To insist on the application of RA 9184 on the bidding for the CP I project would, notwithstanding the terms and conditions of Loan Agreement No. PH-P204, allegedly violate the constitutional provision on non-impairment of obligations and contracts, and destroy vested rights duly acquired under the said loan agreement. Lastly, the public respondents deny that there was illegal disbursement of public funds by the DBM. They asseverate that all the releases made by the DBM for the implementation of the entire Arterial Road Links Project Phase IV, which includes the Catanduanes Circumferential Road Improvement Project, were covered by the necessary appropriations made by law, specifically the General Appropriations Act

(GAA). Further, the requirements and procedures prescribed for the release of the said funds were duly complied with. For its part, private respondent China Road & Bridge Corporation similarly assails the standing of the petitioners, either as taxpayers or, in the case of petitioner Abaya, as a former lawmaker, to file the present suit. In addition, it is also alleged that, by filing the petition directly to this Court, the petitioners failed to observe the hierarchy of courts. On the merits, private respondent China Road & Bridge Corporation asserts that the applicable law to govern the bidding of the CP I project was EO 40, not RA 9184, because the former was the law governing the procurement of government projects at the time that it was bidded out. EO 40 was issued by the Office of the President on October 8, 2001 and Section 1 thereof states that: SEC. 1. Scope and Application. This Executive Order shall apply to the procurement of: (a) goods, supplies, materials and related services; (b) civil works; and (c) consulting services, by all National Government agencies, including State Universities and Colleges (SUCs), Government-Owned or Controlled Corporations (GOCCs) and Government Financial Institutions (GFIs), hereby referred to as the Agencies. This Executive Order shall cover the procurement process from the pre-procurement conference up to the award of contract. xxx The Invitation to Prequalify and to Bid was first published on November 22, 2002. On the other hand, RA 9184 was signed into law only on January 10, 2003. Since the law in effect at the time the procurement process was initiated was EO 40, private respondent China Road & Bridge Corporation submits that it should be the said law which should govern the entire procurement process relative to the CP I project. EO 40 expressly recognizes as an exception from the application of the provisions thereof on approved budget ceilings, those projects financed by international financing institutions (IFIs) and foreign bilateral sources. Section 1 thereof, quoted in part earlier, further states: SEC. 1. Scope and Application. x x x Nothing in this Order shall negate any existing and future government commitments with respect to the bidding and award of contracts financed partly or wholly with funds from international financing institutions as well as from bilateral and other similar foreign sources. Section 1.2 of the Implementing Rules and Regulations of EO 40 is likewise invoked as it provides:

For procurement financed wholly or partly from Official Development Assistance (ODA) funds from International Financing Institutions (IFIs), as well as from bilateral and other similar foreign sources, the corresponding loan/grant agreement governing said funds as negotiated and agreed upon by and between the Government and the concerned IFI shall be observed. Private respondent China Road & Bridge Corporation thus postulates that following EO 40, the procurement of goods and services for the CP I project should be governed by the terms and conditions of Loan Agreement No. PH-P204 entered into between the JBIC and the Philippine Government. Pertinently, Section 5.06 of the JBIC Procurement Guidelines prohibits the setting of ceilings on bid prices. Private respondent China Road & Bridge Corporation claims that when it submitted its bid for the CP I project, it relied in good faith on the provisions of EO 40. It was allegedly on the basis of the said law that the DPWH awarded the project to private respondent China Road & Bridge Coporation even if its bid was higher than the ABC. Under the circumstances, RA 9184 could not be applied retroactively for to do so would allegedly impair the vested rights of private respondent China Road & Bridge Corporation arising from its contract with the DPWH. It is also contended by private respondent China Road & Bridge Corporation that even assuming arguendo that RA 9184 could be applied retroactively, it is still the terms of Loan Agreement No. PH-P204 which should govern the procurement of goods and services for the CP I project. It supports its theory by characterizing the said loan agreement, executed pursuant to the Exchange of Notes between the Government of Japan and the Philippine Government, as an executive agreement. Private respondent China Road & Bridge Corporation, like the public respondents, cites RA 4860 as the basis for the Exchange of Notes and Loan Agreement No. PHP204. As an international or executive agreement, the Exchange of Notes and Loan Agreement No. PH-P204 allegedly created a legally binding obligation on the parties. The following excerpt of the deliberations of the Bicameral Conference Committee on the Disagreeing Provision of Senate Bill No. 2248 and House Bill No. 4809 is cited by private respondent China Road & Bridge Corporation to support its contention that it is the intent of the lawmakers to exclude from the application of RA 9184 those foreignfunded projects: xxx REP. MARCOS. Yes, Mr. Chairman, to respond and to put into the record, a justification for the inclusion of foreign contracts, may we just state that foreign contracts have, of course, been brought into the ambit of the law because of the Filipino counterpart for this foreign projects, they are no longer strictly foreign in nature but fall under the laws of the Philippine government.

THE CHAIRMAN (SEN. ANGARA). Okay. I think thats pretty clear. I think the possible concern is that some ODA are with strings attached especially the Japanese. The Japanese are quite strict about that, that they are (sic) even provide the architect and the design, etcetera, plus, of course, the goods that will be supplied. Now, I think weve already provided that this is open to all and we will recognize our international agreements so that this bill will not also restrict the flow of foreign funding, because some countries now make it a condition that they supply both services and goods especially the Japanese. So I think we can put a sentence that we continue to honor our international obligations, di ba Laura? MR. ENCARNACION. Actually, subject to any treaty. THE CHAIRMAN (SEN. ANGARA). Yun pala eh. That should allay their anxiety and concern. Okay, buti na lang for the record para malaman nila na we are conscious sa ODA.37 Private respondent China Road & Bridge Corporation submits that based on the provisions of the Exchange of Notes and Loan Agreement No. PH-P204, it was rightfully and legally awarded the CP I project. It urges the Court to dismiss the petition for lack of merit. The Courts Rulings Petitioners, as taxpayers, possess locus standi to file the present suit Briefly stated, locus standi is "a right of appearance in a court of justice on a given question."38 More particularly, it is a partys personal and substantial interest in a case such that he has sustained or will sustain direct injury as a result of the governmental act being challenged. It calls for more than just a generalized grievance. The term "interest" means a material interest, an interest in issue affected by the decree, as distinguished from mere interest in the question involved, or a mere incidental interest.39 Standing or locus standi is a peculiar concept in constitutional law40 and the rationale for requiring a party who challenges the constitutionality of a statute to allege such a personal stake in the outcome of the controversy is "to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions." 41 Locus standi, however, is merely a matter of procedure42 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 voters who actually sue in the public interest.43 Consequently, the Court, in a catena of cases,44 has invariably adopted a liberal stance on locus standi, including those cases involving taxpayers.

The prevailing doctrine in taxpayers suits is to allow taxpayers to question contracts entered into by the national government or government- owned or controlled corporations allegedly in contravention of law.45 A taxpayer is allowed to sue where there is a claim that public funds are illegally disbursed, or that public money is being deflected to any improper purpose, or that there is a wastage of public funds through the enforcement of an invalid or unconstitutional law.46Significantly, a taxpayer need not be a party to the contract to challenge its validity.47 In the present case, the petitioners are suing as taxpayers. They have sufficiently demonstrated that, notwithstanding the fact that the CP I project is primarily financed from loans obtained by the government from the JBIC, nonetheless, taxpayers money would be or is being spent on the project considering that the Philippine Government is required to allocate a peso-counterpart therefor. The public respondents themselves admit that appropriations for these foreign-assisted projects in the GAA are composed of the loan proceeds and the peso-counterpart. The counterpart funds, the Solicitor General explains, refer to the component of the project cost to be financed from government-appropriated funds, as part of the governments commitment in the implementation of the project.48 Hence, the petitioners correctly asserted their standing since a part of the funds being utilized in the implementation of the CP I project partakes of taxpayers money. Further, the serious legal questions raised by the petitioners, e.g., whether RA 9184 applies to the CP I project, in particular, and to foreign-funded government projects, in general, and the fact that public interest is indubitably involved considering the public expenditure of millions of pesos, warrant the Court to adopt in the present case its liberal policy on locus standi. In any case, for reasons which will be discussed shortly, the substantive arguments raised by the petitioners fail to persuade the Court as it holds that Resolution No. PJHL-A-04-012 is valid. As a corollary, the subsequent contract entered into by and between the DPWH and private respondent China Road & Bridge Corporation is likewise valid. History of Philippine Procurement Laws It is necessary, at this point, to give a brief history of Philippine laws pertaining to procurement through public bidding. The United States Philippine Commission introduced the American practice of public bidding through Act No. 22, enacted on October 15, 1900, by requiring the Chief Engineer, United States Army for the Division of the Philippine Islands, acting as purchasing agent under the control of the then Military Governor, to advertise and call for a competitive bidding for the purchase of the necessary materials and lands to be used for the construction of highways and bridges in the Philippine Islands.49 Act No. 74, enacted on January 21, 1901 by the Philippine Commission, required the General Superintendent of Public Instruction to purchase office supplies through competitive public bidding. 50 Act No. 82, approved on January 31, 1901, and Act No. 83, approved on February 6, 1901, required the municipal and provincial governments, respectively, to hold competitive public

biddings in the making of contracts for public works and the purchase of office supplies.51 On June 21, 1901, the Philippine Commission, through Act No. 146, created the Bureau of Supply and with its creation, public bidding became a popular policy in the purchase of supplies, materials and equipment for the use of the national government, its subdivisions and instrumentalities.52 On February 3, 1936, then President Manuel L. Quezon issued Executive Order No. 16 declaring as a matter of general policy that government contracts for public service or for furnishing supplies, materials and equipment to the government should be subjected to public bidding.53 The requirement of public bidding was likewise imposed for public works of construction or repair pursuant to the Revised Administrative Code of 1917. Then President Diosdado Macapagal, in Executive Order No. 40 dated June 1, 1963, reiterated the directive that no government contract for public service or for furnishing supplies, materials and equipment to the government or any of its branches, agencies or instrumentalities, should be entered into without public bidding except for very extraordinary reasons to be determined by a Committee constituted thereunder. Then President Ferdinand Marcos issued PD 1594 prescribing guidelines for government infrastructure projects and Section 454 thereof stated that they should generally be undertaken by contract after competitive public bidding. Then President Corazon Aquino issued Executive Order No. 301 (1987) prescribing guidelines for government negotiated contracts. Pertinently, Section 62 of the Administrative Code of 1987 reiterated the requirement of competitive public bidding in government projects. In 1990, Congress passed RA 6957,55 which authorized the financing, construction, operation and maintenance of infrastructure by the private sector. RA 7160 was likewise enacted by Congress in 1991 and it contains provisions governing the procurement of goods and locally-funded civil works by the local government units. Then President Fidel Ramos issued Executive Order No. 302 (1996), providing guidelines for the procurement of goods and supplies by the national government. Then President Joseph Ejercito Estrada issued Executive Order No. 201 (2000), providing additional guidelines in the procurement of goods and supplies by the national government. Thereafter, he issued Executive Order No. 262 (2000) amending EO 302 (1996) and EO 201 (2000). On October 8, 2001, President Gloria Macapagal-Arroyo issued EO 40, the law mainly relied upon by the respondents, entitled Consolidating Procurement Rules and Procedures for All National Government Agencies, Government-Owned or Controlled Corporations and Government Financial Institutions, and Requiring the Use of the Government Procurement System. It accordingly repealed, amended or modified all executive issuances, orders, rules and regulations or parts thereof inconsistent therewith.56

On January 10, 2003, President Arroyo signed into law RA 9184. It took effect on January 26, 2004, or fifteen days after its publication in two newspapers of general circulation.57 It expressly repealed, among others, EO 40, EO 262 (2000), EO 302(1996) and PD 1594, as amended: SEC. 76. Repealing Clause. This law repeals Executive Order No. 40, series of 2001, entitled "Consolidating Procurement Rules and Procedures for All National Government Agencies, Government Owned or Controlled Corporations and/or Government Financial Institutions, and Requiring the Use of the Government Electronic Procurement System"; Executive Order No. 262, series of 1996, entitled "Amending Executive Order No. 302, series of 1996, entitled Providing Policies, Guidelines, Rules and Regulations for the Procurement of Goods/Supplies by the National Government" and Section 3 of Executive Order No. 201, series of 2000, entitled "Providing Additional Policies and Guidelines in the Procurement of Goods/Supplies by the National Government"; Executive Order No. 302, series of 1996, entitled "Providing Policies, Guidelines, Rules and Regulations for the Procurement of Goods/Supplies by the National Government" and Presidential Decree No. 1594 dated June 11, 1978, entitled "Prescribing Policies, Guidelines, Rules and Regulations for Government Infrastructure Contracts." This law amends Title Six, Book Two of Republic Act No. 7160, otherwise known as the "Local Government Code of 1991"; the relevant provisions of Executive Order No. 164, series of 1987, entitled "Providing Additional Guidelines in the Processing and Approval of Contracts of the National Government"; and the relevant provisions of Republic Act No. 7898 dated February 23, 1995, entitled "An Act Providing for the Modernization of the Armed Forces of the Philippines and for Other Purposes." Any other law, presidential decree or issuance, executive order, letter of instruction, administrative order, proclamation, charter, rule or regulation and/or parts thereof contrary to or inconsistent with the provisions of this Act is hereby repealed, modified or amended accordingly. In addition to these laws, RA 4860, as amended, must be mentioned as Section 4 thereof provides that "[i]n the contracting of any loan, credit or indebtedness under this Act, the President of the Philippines may, when necessary, agree to waive or modify the application of any law granting preferences or imposing restrictions on international competitive bidding x x x Provided, finally, That the method and procedure in the comparison of bids shall be the subject of agreement between the Philippine Government and the lending institution." EO 40, not RA 9184, is applicable to the procurement process undertaken for the CP I project. RA 9184 cannot be given retroactive application. It is not disputed that with respect to the CP I project, the Invitation to Prequalify and to Bid for its implementation was published in two leading national newspapers, namely, the Manila Times and Manila Standard on November 22, 29 and December 5, 2002. At the time, the law in effect was EO 40. On the other hand, RA 9184 took effect two

months later or on January 26, 2003. Further, its full implementation was even delayed as IRR-A was only approved by President Arroyo on September 18, 2003 and subsequently published on September 23, 2003 in the Manila Times and Malaya newspapers.58 The provisions of EO 40 apply to the procurement process pertaining to the CP I project as it is explicitly provided in Section 1 thereof that: SEC. 1. Scope and Application. This Executive Order shall apply to see procurement of (a) goods, supplies, materials and related service; (b) civil works; and (c) consulting services, by all National Government agencies, including State Universities and Colleges (SUCs), Government-Owned or Controlled Corporations (GOCCs) and Government Financial Institutions (GFIs), hereby referred to as "Agencies." This Executive Order shall cover the procurement process from the preprocurement conference up to the award of the contract. Nothing in this Order shall negate any existing and future government commitments with respect to the bidding and award of contracts financed partly or wholly with funds from international financing institutions as well as from bilateral and similar foreign sources. The procurement process basically involves the following steps: (1) pre-procurement conference; (2) advertisement of the invitation to bid; (3) pre-bid conference; (4) eligibility check of prospective bidders; (5) submission and receipt of bids; (6) modification and withdrawal of bids; (7) bid opening and examination; (8) bid evaluation; (9) post qualification; (10) award of contract and notice to proceed.59 Clearly then, when the Invitation to Prequalify and to Bid for the implementation of the CP I project was published on November 22, 29 and December 5, 2002, the procurement process thereof had already commenced and the application of EO 40 to the procurement process for the CP I project had already attached. RA 9184 cannot be applied retroactively to govern the procurement process relative to the CP I project because it is well settled that a law or regulation has no retroactive application unless it expressly provides for retroactivity.60 Indeed, Article 4 of the Civil Code is clear on the matter: "[l]aws shall have no retroactive effect, unless the contrary is provided." In the absence of such categorical provision, RA 9184 will not be applied retroactively to the CP I project whose procurement process commenced even before the said law took effect. That the legislators did not intend RA 9184 to have retroactive effect could be gleaned from the IRR-A formulated by the Joint Congressional Oversight Committee (composed of the Chairman of the Senate Committee on Constitutional Amendments and Revision of Laws, and two members thereof appointed by the Senate President and the Chairman of the House Committee on Appropriations, and two members thereof appointed by the Speaker of the House of Representatives) and the Government Procurement Policy Board (GPPB). Section 77 of the IRR-A states, thus:

SEC. 77. Transitory Clause In all procurement activities, if the advertisement or invitation for bids was issued prior to the effectivity of the Act, the provisions of E.O. 40 and its IRR, P.D. 1594 and its IRR, R.A. 7160 and its IRR, or other applicable laws, as the case may be, shall govern. In cases where the advertisements or invitations for bids were issued after the effectivity of the Act but before the effectivity of this IRR-A, procuring entities may continue adopting the procurement procedures, rules and regulations provided in E.O. 40 and its IRR, P.D. 1594 and its IRR, R.A. 7160 and its IRR, or other applicable laws, as the case may be. In other words, under IRR-A, if the advertisement of the invitation for bids was issued prior to the effectivity of RA 9184, such as in the case of the CP I project, the provisions of EO 40 and its IRR, and PD 1594 and its IRR in the case of national government agencies, and RA 7160 and its IRR in the case of local government units, shall govern. Admittedly, IRR-A covers only fully domestically-funded procurement activities from procurement planning up to contract implementation and that it is expressly stated that IRR-B for foreign-funded procurement activities shall be subject of a subsequent issuance.61 Nonetheless, there is no reason why the policy behind Section 77 of IRRA cannot be applied to foreign-funded procurement projects like the CP I project. Stated differently, the policy on the prospective or non-retroactive application of RA 9184 with respect to domestically-funded procurement projects cannot be any different with respect to foreign-funded procurement projects like the CP I project. It would be incongruous, even absurd, to provide for the prospective application of RA 9184 with respect to domestically-funded procurement projects and, on the other hand, as urged by the petitioners, apply RA 9184 retroactively with respect to foreign- funded procurement projects. To be sure, the lawmakers could not have intended such an absurdity. Thus, in the light of Section 1 of EO 40, Section 77 of IRR-A, as well as the fundamental rule embodied in Article 4 of the Civil Code on prospectivity of laws, the Court holds that the procurement process for the implementation of the CP I project is governed by EO 40 and its IRR, not RA 9184. Under EO 40, the award of the contract to private respondent China Road & Bridge Corporation is valid Section 25 of EO 40 provides that "[t]he approved budget of the contract shall be the upper limit or ceiling of the bid price. Bid prices which exceed this ceiling shall be disqualified outright from further participating in the bidding. There shall be no lower limit to the amount of the award. x x x" It should be observed that this text is almost

similar to the wording of Section 31 of RA 9184, relied upon by the petitioners in contending that since the bid price of private respondent China Road & Bridge Corporation exceeded the ABC, then it should not have been awarded the contract for the CP I project. Nonetheless, EO 40 expressly recognizes as an exception to its scope and application those government commitments with respect to bidding and award of contracts financed partly or wholly with funds from international financing institutions as well as from bilateral and other similar foreign sources. The pertinent portion of Section 1 of EO 40 is quoted anew: SEC. 1. Scope and Application. x x x Nothing in this Order shall negate any existing and future government commitments with respect to the bidding and award of contracts financed partly or wholly with funds from international financing institutions as well as from bilateral and similar foreign sources. In relation thereto, Section 4 of RA 4860, as amended, was correctly cited by the respondents as likewise authorizing the President, in the contracting of any loan, credit or indebtedness thereunder, "when necessary, agree to waive or modify the application of any law granting preferences or imposing restrictions on international competitive bidding x x x." The said provision of law further provides that "the method and procedure in the comparison of bids shall be the subject of agreement between the Philippine Government and the lending institution." Consequently, in accordance with these applicable laws, the procurement of goods and services for the CP I project is governed by the corresponding loan agreement entered into by the government and the JBIC, i.e., Loan Agreement No. PH-P204. The said loan agreement stipulated that the procurement of goods and services for the Arterial Road Links Development Project (Phase IV), of which CP I is a component, is to be governed by the JBIC Procurement Guidelines. Section 5.06, Part II (International Competitive Bidding) thereof quoted earlier reads: Section 5.06. Evaluation and Comparison of Bids xxx (e) Any procedure under which bids above or below a predetermined bid value assessment are automatically disqualified is not permitted.62 It is clear that the JBIC Procurement Guidelines proscribe the imposition of ceilings on bid prices. On the other hand, it enjoins the award of the contract to the bidder whose bid has been determined to be the lowest evaluated bid. The pertinent provision, quoted earlier, is reiterated, thus:

Section 5.09. Award of Contract The contract is to be awarded to the bidder whose bid has been determined to be the lowest evaluated bid and who meets the appropriate standards of capability and financial resources. A bidder shall not be required as a condition of award to undertake responsibilities or work not stipulated in the specifications or to modify the bid.63 Since these terms and conditions are made part of Loan Agreement No. PH-P204, the government is obliged to observe and enforce the same in the procurement of goods and services for the CP I project. As shown earlier, private respondent China Road & Bridge Corporations bid was the lowest evaluated bid, albeit 28.95% higher than the ABC. In accordance with the JBIC Procurement Guidelines, therefore, it was correctly awarded the contract for the CP I project. Even if RA 9184 were to be applied retroactively, the terms of the Exchange of Notes dated December 27, 1999 and Loan Agreement No. PH-P204 would still govern the procurement for the CP I project For clarity, Section 4 of RA 9184 is quoted anew, thus: SEC. 4. Scope and Applications. This Act shall apply to the Procurement of Infrastructure Projects, Goods and Consulting Services, regardless of source of funds, whether local or foreign, by all branches and instrumentalities of government, its departments, offices and agencies, including government-owned and/or controlled corporations and local government units, subject to the provisions of Commonwealth Act No. 138. Any treaty or international or executive agreement affecting the subject matter of this Act to which the Philippine government is a signatory shall be observed. The petitioners, in order to place the procurement process undertaken for the CP I project within the ambit of RA 9184, vigorously assert that Loan Agreement No. PHP204 is neither a treaty, an international agreement nor an executive agreement. They cite Executive Order No. 459 dated November 25, 1997 where the three agreements are defined in this wise: 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.64 The petitioners mainly argue that Loan Agreement No. PH-P204 does not fall under any of the three categories because to be any of the three, an agreement had to be one where the parties are the Philippines as a State and another State. The JBIC, the petitioners maintain, is a Japanese banking agency, which presumably has a separate juridical personality from the Japanese Government. The petitioners arguments fail to persuade. The Court holds that Loan Agreement No. PH-P204 taken in conjunction with the Exchange of Notes dated December 27, 1999 between the Japanese Government and the Philippine Government is an executive agreement. To recall, Loan Agreement No. PH-P204 was executed by and between the JBIC and the Philippine Government pursuant to the Exchange of Notes executed by and between Mr. Yoshihisa Ara, Ambassador Extraordinary and Plenipotentiary of Japan to the Philippines, and then Foreign Affairs Secretary Siazon, in behalf of their respective governments. The Exchange of Notes expressed that the two governments have reached an understanding concerning Japanese loans to be extended to the Philippines and that these loans were aimed at promoting our countrys economic stabilization and development efforts. Loan Agreement No. PH-P204 was subsequently executed and it declared that it was so entered by the parties "[i]n the light of the contents of the Exchange of Notes between the Government of Japan and the Government of the Republic of the Philippines dated December 27, 1999, concerning Japanese loans to be extended with a view to promoting the economic stabilization and development efforts of the Republic of the Philippines."65 Under the circumstances, the JBIC may well be considered an adjunct of the Japanese Government. Further, Loan Agreement No. PH-P204 is indubitably an integral part of the Exchange of Notes. It forms part of the Exchange of Notes such that it cannot be properly taken independent thereof. In this connection, it is well to understand the definition of an "exchange of notes" under international law. The term is defined in the United Nations Treaty Collection in this wise: 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.66

It is stated that "treaties, agreements, conventions, charters, protocols, declarations, memoranda of understanding, modus vivendi and exchange of notes" all refer to "international instruments binding at international law."67 It is further explained thatAlthough these instruments differ from each other by title, they all have common features and international law has applied basically the same rules to all these instruments. These rules are the result of long practice among the States, which have accepted them as binding norms in their mutual relations. Therefore, they are regarded as international customary law. Since there was a general desire to codify these customary rules, two international conventions were negotiated. The 1969 Vienna Convention on the Law of Treaties ("1969 Vienna Convention"), which entered into force on 27 January 1980, contains rules for treaties concluded between States. The 1986 Vienna Convention on the Law of Treaties between States and International Organizations ("1986 Vienna Convention"), which has still not entered into force, added rules for treaties with international organizations as parties. Both the 1969 Vienna Convention and the 1986 Vienna Convention do not distinguish between the different designations of these instruments. Instead, their rules apply to all of those instruments as long as they meet the common requirements.68 Significantly, an exchange of notes is considered a form of an executive agreement, which becomes binding through executive action without the need of a vote by the Senate or Congress. The following disquisition by Francis B. Sayre, former United States High Commissioner to the Philippines, entitled "The Constitutionality of Trade Agreement Acts," quoted in Commissioner of Customs v. Eastern Sea Trading,69 is apropos: Agreements concluded by the President which fall short of treaties are commonly referred to as executive agreements and are no less common in our scheme of government than are the more formal instruments treaties and conventions. They sometimes take the form of exchange of notes and at other times that of more formal documents denominated "agreements" or "protocols". 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. 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-agreements act, have been negotiated with foreign governments. x x x70 The Exchange of Notes dated December 27, 1999, stated, inter alia, that the Government of Japan would extend loans to the Philippines with a view to promoting its economic stabilization and development efforts; Loan I in the amount ofY79,8651,000,000 would be extended by the JBIC to the Philippine Government to implement the projects in the List A (including the Arterial Road Links Development Project - Phase IV); and that such loan (Loan I) would be used to cover payments to be made by the Philippine executing agencies to suppliers, contractors and/or consultants of eligible source countries under such contracts as may be entered into between them for purchases of products and/or services required for the implementation of the projects enumerated in the List A.71 With respect to the

procurement of the goods and services for the projects, it bears reiterating that as stipulated: 3. The Government of the Republic of the Philippines will ensure that the products and/or services mentioned in sub-paragraph (1) of paragraph 3 of Part I and subparagraph (1) of paragraph 4 of Part II are procured in accordance with the guidelines for procurement of the Bank, which set forth, inter alia, the procedures of international tendering to be followed except where such procedures are inapplicable or inappropriate.72 The JBIC Procurements Guidelines, as quoted earlier, forbids any procedure under which bids above or below a predetermined bid value assessment are automatically disqualified. Succinctly put, it absolutely prohibits the imposition of ceilings on bids. Under the fundamental principle of international law of pacta sunt servanda, 73 which is, in fact, embodied in Section 4 of RA 9184 as it provides that "[a]ny treaty or international or executive agreement affecting the subject matter of this Act to which the Philippine government is a signatory shall be observed," the DPWH, as the executing agency of the projects financed by Loan Agreement No. PH-P204, rightfully awarded the contract for the implementation of civil works for the CP I project to private respondent China Road & Bridge Corporation. WHEREFORE, premises considered, the petition is DISMISSED. SO ORDERED.

G.R. No. L-10500

June 30, 1959

USAFFE VETERANS ASSOCIATION, INC., plaintiff-appellant, vs. THE TREASURER OF THE PHILIPPINES, ET AL., defendantsappellees. Lorenzo B. Camins, Castor C. Ames and Alberto M. K. Jamir for appellant. Office of the Solicitor General Ambrosio Padilla, Assistant Solicitor General Jose P. Alejandro and Solicitor Jorge R. Coquia for appellees. BENGZON, J.: The central issue in this litigation concerns the validity of the Romulo-Snyder Agreement (1950) whereby the Philippine Government undertook to return to the United States Government in ten annual installments, a total of about 35-million dollars advanced by the United States to, but unexpanded by, the National Defense Forces of the Philippines. In October 1954, the USAFFE Veterans Associations Inc., hereafter called Usaffe Veterans, for itself and for many other Filipino veterans of World War II, ex-members of the United States Armed Forces in the Far East (USAFFE) prayed in its complaint before the Manila court of first instance that said Agreement be annulled, that payments thereunder be declared illegal and that defendants as officers of the Philippine Republic be restrained from disbursing any funds in the National Treasury in pursuance of said Agreement. Said Usaffe Veterans further asked that the moneys available, instead of being remitted to the United States, should be turned over to the Finance Service of the Armed Forces of the Philippines for the payment of all pending claims of the veterans represented by plaintiff.

The complaint rested on plaintiff's three propositions: first, that the funds to be "returned" under the Agreement were funds appropriated by the American Congress for the Philippine army, actually delivered to the Philippine Government and actually owned by said Government; second, that U.S. Secretary Snyder of the Treasury, had no authority to retake such funds from the P.I. Government; and third, that Philippine foreign Secretary Carlos P. Romulo had no authority to return or promise to return the aforesaid sums of money through the so-called RomuloSnyder Agreement. The defendants moved to dismiss, alleging Governmental immunity from suit. But the court required an answer, and then heard the case merits. Thereafter, it dismissed the complaint, upheld the validity of the Agreement and dissolved the preliminary injunction i had previously issued. The plaintiff appealed. On July 26, 1941, foreseeing the War in the Pacific, President Franklin D. Roosevelt, called into the service of the Armed Forces of the United States, for the duration of the emergency, all the organized military forces of the Philippine Commonwealth. His order was published here by Proclamation No. 740 of President Quezon on August 10, 1941. In October 1941, by two special orders, General Douglas MacArthur, Commanding General of the United States Army Forces in the Far East (known as USAFFE) placed under his command all the Philippine Army units including the Philippine Constabulary, about 100,000 officers and soldiers. For the expenses incident to such incorporation, mobilization and activities, the Congress of the United States provided in its Appropriation Act of December 17, 1941 (Public Law No. 353, 77th Congress) as follows: For all expenses necessary for the mobilization, operation and maintenance of the Army of the Philippines, including expenses connected with calling into the service of the armed forces of the United States the organized military

forces of the Government of the Commonwealth of the Philippines, . . . but shall be expanded and accounted for in the manner prescribed by the President of the United States, S269,000.00; to remain available until June 30, 1943,which shall be available for payment to the Government of the Commonwealth of the Philippines upon its written request, either in advance of or in reimbursement for all or any part of the estimated or actual costs, as authorized by the Commanding General, United States Army Forces in the Far East, of necessary expenses for the purposes aforesaid. . . . (Emphasis Ours.) In subsequent Acts, the U.S. Congress appropriated moneys in language identical to the above: S28,313,000.00 for the fiscal year ending June 30, 1943; and S100,000,000 each year, for the fiscal years ending June 30, 1944, June 30, 1945, and June 30, 1946.1 The last pertinent appropriation was Public law No. 301 (79th Congress) known as the Rescission Act. It simply set aside 200 million dollars for the Army for the fiscal year ending June 30, 1946. Now, pursuant to the power reserved to him under Public Law 353 above-quoted, President Roosevelt issued on January 3, 1942, his executive Order No. 9011 prescribing partly as follows: 2. (a) Necessary expenditures from funds in the Philippine Treasury for the purposes authorized by the Act of December 17, 1941, will be made by disbursing officers of the Army of the Philippines on the approval of authority of the Commanding General, United States Army Forces in the Far East, and such purposes as he may deem proper, and his determination thereon shall be final and conclusive upon the accounting officers of the Philippine Government, and such expenditures will be accounted for in accordance with procedures established by the Philippine Commonwealth Laws and regulations. (Emphasis Ours.)

Out of the total amounts thus appropriated by the United States Congress as above itemized, P570,863,000.00 was transferred directly to the Philippines Armed Forces by means of vouchers which stated "Advance of Funds under Public law 353-77th Congress and Executive Order No. 9011". This amount was used (mostly) to discharge in the Philippine Islands the monetary obligations assumed by the U.S. Government as a result of the induction of the Philippine Armed Forces into the U.S. Army, and of its operations beginning in 1941. Part of these obligations consisted in the claims of Filipino USAFFE soldiers for arrears in pay and in the charges for supplies used by them and the guerrillas. Of the millions so transferred, there remained unexpended and uncommitted in the possession of the Philippine Armed Forces as of December 31, 1949 about 35 million dollars. As at that time, the Philippine Government badly needed funds for its activities, President Quirino, through Governor Miguel Cuaderno of the Central Bank proposed to the corresponding officials of the U.S. Government the retention of the 35-million dollars as a loan, and for its repayment in ten annual installments. After protracted negotiations the deal was concluded, and the Romulo-Snyder Agreement was signed in Washington on November 6, 1950, by the then Philippine Secretary of Foreign Affairs, Carlos P. Romulo, and the then American Secretary of the Treasury, John W. Snyder. Principal stipulation therein was this paragraph: 3. The Government of the Republic of the Philippines further agrees to pay the dollar amount payable hereunder to the Secretary of the Treasury of the United States in ten annual installments, the first nine payments to be in the amount of S3,500,000.00 and the final residual payment to be in the amount determined by deducting the total of the previous principal payments from the total amount of dollars to be paid to the Secretary of the Treasury of the United States, the latter

amount to be determined as provided in Article II hereof. . .. It should be added that the agreement, made on the basis of the parties' belief that S35-million was the outstanding balance, provided in its article II for an audit by appropriate officers to compute the exact amount due. In compliance with the Agreement, this Government has appropriated by law and paid to the United States up to and including 1954, yearly installments totaling of P33,187,663.24. There is no reason to doubt that subsequent budgets failed to make the corresponding appropriations for other installments. In this appeal, the Usaffe Veterans reiterated with extended arguments, their basic propositions. They insists: first, the money delivered to the U.S. to the Armed Forces of the Philippine Island were straight payments for military services; ownership thereof vested in the Philippine Government upon delivery, and consequently, there was nothing to return, nothing to consider as a loan; and second, the Romulo-Snyder Agreement was void because it was not binding on the Philippine Government for lack of authority of the officers who concluded the same. With regard to the first point, it must be remembered that the first Congressional Act of December 17, 1941 (Public Law No. 353) appropriating S269-million expressly said the amount "shall be available for payment to the Government of the Commonwealth of the Philippines upon its written request, either in advance of or in reimbursement for all or any part of the estimated or actual costs" of operation, mobilization and maintenance of the Philippine Army. Note carefully, the money is to handled to the Philippine Government either in advance of expenditures or in reimbursement thereof. All the vouchers signed upon receipt of the money state clearly, " Advance of funds under Public law 3537th Congress and Executive Order No. 9011".

In any system of accounting, advances of funds for expenditures contemplate disbursements to be reported, and credited if approved, against such advances, the unexpended sums to be returned later. In fact, the Congressional law itself required accounting "in the manner prescribed by the President of the U.S." and said President in his Executive Order No. 9011, outlined the procedure whereby advanced funds shall be accounted for. Furthermore, it requires as a condition sine qua non that all expenditures shall first be approved by the Commanding General, United States Army Forces Army Forces in the Far East. Now, these ideas of "funds advanced" to meet such expenditures of the Philippine Army as may be approved by the USAFFE Commanding-General, in connection with the requirement of accounting therefor evidently contradict appellant's thesis that the moneys represented straight payments to the Philippine Government for its armed services, and passed into the absolute control of such Government. In fact, the respective army officers of both nations,2 who are presumed to know their business, have consistently regarded the money as funds advanced, to be subsequently accounted for which means submission of expenditures, and if approved, return of unexpended balance. Now then, it is undeniable that upon a final rendition of accounts by the Philippine Government, a superabit resulted of at least 35 million dollars in favor of the U. S. Instead of returning such amount in one lump sum, our Executive Department arranged for its repayment in ten annual installments. Prima facie such arrangement should raise no valid objection, given the obligation to return-which we know exists. Yet plaintiff attempts to block such repayment because many alleged claims of veterans have not been processed and paid, December 31, 1949, having been fixed as the deadline for the presentation and/or payment of such claims. Plaintiff obviously

calculates that if the return is prevented and the money kept here, it might manage to persuade the powers-that-be extend the deadline anew. Hence the two-pronged attack: (a) no obligation to repay; (b) the officers who promised to repay had no authority to bind this Government. The first ground has proved untenable. On the second, there is no doubt that President Quirino approved the negotiations. And he had power to contract budgetary loans under Republic Act No. 213, amending the Republic Act No. 16. The most important argument, however, rests on the lack of ratification of the Agreement by the Senate of the Philippines to make it binding on this Government. On this matter, the defendants explain as follows: That the agreement is not a "treaty" as that term is used in the Constitution, is conceded. The agreement was never submitted to the Senate for concurrence (Art. VII, Sec. 10 (7). However, it must be noted that treaty is not the only form that an international agreement may assume. For the grant of the treaty-making power to the Executive and the Senate does not exhaust the power of the government over international relations. Consequently, executive agreements may be entered with other states and are effective even without the concurrence of the Senate (Sinco, Philippine Political Law, 10th ed., 303; Taada and Fernando, Constitution of the Philippines, 4th ed., Vol. II, 1055). It is observed in this connection that from the point of view of the 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 (Hackworth, Digest of International Law, Vol. 5, 395, citing U. S. vs. Belmont, 301 U. S. 342, State of Russia vs. National City Bank of New York, 69 F. (2d) 44; United States vs. Pink, 315 U. S. 203; Altman & Co., vs. United States, 224 U. S. 583. See

also McDougal and Lans, "Treaties and Executive Agreements 54 Yale Law Journal 181, 318, et seg.; and Sinco; Op. cit. 305) "The distinction between so-called executive agreements" and "treaties" is purely a constitutional one and has no international legal significance" (Research in International Law Draft Convention on the Law of Treaties (Harvard Law School), Comment, 29 Am. J. Int.) Law Supp. 653, 897. See also Hackworth, op. cit. 391). There are now various forms of such pacts or agreements entered into by and between sovereign states which do not necessarily come under the strict sense of a treaty and which do not require ratification or consent of the legislative body of the State, but nevertheless, are considered valid international agreements. In a survey of the practice of States made by Harvard Research in the Draft Convention in the Law of Treaties (1935, pp. 711713) it has been shown that there had been more executive agreements entered into by States than treaties (Hudson, International Legislation, I, p. ixii-xcvii). In the leading case of Altman vs, U. S., 224, U. S. 583, it was held that "an international compact negotiated between the representatives of two sovereign nations and made in the name and or behalf of the contracting parties and dealing with important commercial relations between the two countries, is a treaty both internationally although as an executive agreement it is not technically a treaty requiring the advice and consent of the Senate. (Herbert Briggs, The Law of Nations, 1947 ed., p. 489). Nature of Executive Agreements. Executive Agreements fall into two classes: (1) agreements made purely as executive acts affecting external relations and independent of or without legislative authorization, which may be termed as

presidential agreements and (2) agreements entered into in pursuants of acts of Congress, which have been designated as Congressional-Executive Agreements (Sinco, supra, 304; Hackworth, supra, 390; McDougal and Lans, supra, 204-205; Hyke, International Law, 2nd ed., Vol. II; et seq.) The Romulo-Snyder Agreement may fall under any of these two classes, for precisely on September 18, 1946, Congress of the Philippines specifically authorized the President of the Philippines to obtain such loans or incur such indebtedness with the Government of the United States, its agencies or instrumentalities (Republic Act No. 16, September 18, 1946, amended by Republic Act No. 213, June 1, 1948). . . . Even granting, arguendo, that there was no legislative authorization, it is hereby maintained that the RomuloSnyder Agreement was legally and validly entered into to conform to the second category, namely, "agreements entered into purely as executive acts without legislative authorization." This second category usually includes money agreements relating to the settlement of pecuniary claims of citizens. It may be said that this method of settling such claims has come to be the usual way of dealing with matters of this kind (Memorandum of the Solicitor of the Department of State (Nielson) sent to Senator Lodge by the Under-Secretary of State (Philip), August 23, 1922, MS Dept. of State, file 711.00/98a). Such considerations seems persuasive; indeed, the Agreement was not submitted to the U.S. Senate either; but we do not stop to check the authorities above listed nor test the conclusions derived therefrom in order to render a definite pronouncement, for the reason that our Senate Resolution No. 153 practically admits the validity and binding force of such Agreement. Furthermore, the acts of Congress Appropriating funds for the yearly installments necessary to comply with such Agreements constitute a

ratification thereof, which places the question the validity out of the Court's reach, no constitutional principle having been invoked to restrict Congress' plenary power to appropriate funds-loan or no loan. In conclusion, plaintiff, to say the least, failed to make a clear case for the relief demanded; its petition was therefore, properly denied.

G.R. No. 183591

October 14, 2008

THE PROVINCE OF NORTH COTABATO, duly represented by GOVERNOR JESUS SACDALAN and/or VICE-GOVERNOR EMMANUEL PIOL, for and in his own behalf, petitioners, vs. THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP), represented by SEC. RODOLFO GARCIA, ATTY. LEAH ARMAMENTO, ATTY. SEDFREY CANDELARIA, MARK RYAN SULLIVAN and/or GEN. HERMOGENES ESPERON, JR., the latter in his capacity as the present and duly-appointed Presidential Adviser on the Peace Process (OPAPP) or the so-called Office of the Presidential Adviser on the Peace Process, respondents. x--------------------------------------------x G.R. No. 183752 October 14, 2008

THE CITY OF ILIGAN, duly represented by CITY MAYOR LAWRENCE LLUCH CRUZ, petitioner, vs. THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP), represented by SEC. RODOLFO GARCIA, ATTY. LEAH ARMAMENTO, ATTY. SEDFREY CANDELARIA, MARK RYAN SULLIVAN; GEN. HERMOGENES ESPERON, JR., in his capacity as the present and duly appointed Presidential Adviser on the Peace Process; and/or SEC. EDUARDO ERMITA, in his capacity as Executive Secretary. respondents. x--------------------------------------------x G.R. No. 183951 October 14, 2008

CITY GOVERNMENT OF ZAMBOANGA, as represented by HON. CELSO L. LOBREGAT, City Mayor of Zamboanga, and in his personal capacity as resident of the City of Zamboanga, Rep. MA. ISABELLE G. CLIMACO, District 1, and Rep. ERICO BASILIO A. FABIAN, District 2, City of Zamboanga, petitioners, vs. THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE NEGOTIATING PANEL (GRP), as represented by RODOLFO C. GARCIA, LEAH ARMAMENTO, SEDFREY CANDELARIA, MARK RYAN SULLIVAN and HERMOGENES ESPERON, in his capacity as the Presidential Adviser on Peace Process, respondents. x--------------------------------------------x G.R. No. 183893 October 14, 2008

THE PROVINCIAL GOVERNMENT OF ZAMBOANGA DEL NORTE, as represented by HON. ROLANDO E. YEBES, in his capacity as Provincial Governor, HON. FRANCIS H. OLVIS, in his capacity as Vice-Governor and Presiding Officer of the Sangguniang Panlalawigan, HON. CECILIA JALOSJOS CARREON, Congresswoman, 1stCongressional District, HON. CESAR G. JALOSJOS, Congressman, 3rd Congressional District, and Members of the Sangguniang Panlalawigan of the Province of Zamboanga del Norte, namely, HON. SETH FREDERICK P. JALOSJOS, HON. FERNANDO R. CABIGON, JR., HON. ULDARICO M. MEJORADA II, HON. EDIONAR M. ZAMORAS, HON. EDGAR J. BAGUIO, HON. CEDRIC L. ADRIATICO, HON. FELIXBERTO C. BOLANDO, HON. JOSEPH BRENDO C. AJERO, HON. NORBIDEIRI B. EDDING, HON. ANECITO S. DARUNDAY, HON. ANGELICA J. CARREON and HON. LUZVIMINDA E. TORRINO, petitioners, vs. THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE NEGOTIATING PANEL [GRP], as represented by HON. RODOLFO C. GARCIA and HON. HERMOGENES ESPERON, in his capacity as the Presidential Adviser of Peace Process, respondents.

x--------------------------------------------x G.R. No. 183962 October 14, 2008

THE PROVINCE OF SULTAN KUDARAT, rep. by HON. SUHARTO T. MANGUDADATU, in his capacity as Provincial Governor and a resident of the Province of Sultan Kudarat, petitioner-in-intervention. x-------------------------------------------x RUY ELIAS LOPEZ, for and in his own behalf and on behalf of Indigenous Peoples in Mindanao Not Belonging to the MILF, petitioner-in-intervention. x--------------------------------------------x CARLO B. GOMEZ, GERARDO S. DILIG, NESARIO G. AWAT, JOSELITO C. ALISUAG and RICHALEX G. JAGMIS, as citizens and residents of Palawan, petitioners-in-intervention. x--------------------------------------------x MARINO RIDAO and KISIN BUXANI, petitioners-in-intervention. x--------------------------------------------x MUSLIM LEGAL ASSISTANCE FOUNDATION, INC (MUSLAF), respondent-in-intervention. x--------------------------------------------x MUSLIM MULTI-SECTORAL MOVEMENT FOR PEACE & DEVELOPMENT (MMMPD), respondent-in-intervention. x--------------------------------------------x DECISION

ERNESTO M. MACEDA, JEJOMAR C. BINAY, and AQUILINO L. PIMENTEL III, petitioners, vs. THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE NEGOTIATING PANEL, represented by its Chairman RODOLFO C. GARCIA, and the MORO ISLAMIC LIBERATION FRONT PEACE NEGOTIATING PANEL, represented by its Chairman MOHAGHER IQBAL, respondents. x--------------------------------------------x FRANKLIN M. DRILON and ADEL ABBAS TAMANO, petitioners-in-intervention. x--------------------------------------------x SEN. MANUEL A. ROXAS, petitioners-in-intervention. x--------------------------------------------x MUNICIPALITY OF LINAMON duly represented by its Municipal Mayor NOEL N. DEANO, petitioners-in-intervention, x--------------------------------------------x THE CITY OF ISABELA, BASILAN PROVINCE, represented by MAYOR CHERRYLYN P. SANTOS-AKBAR,petitioners-inintervention. x--------------------------------------------x

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 (MOAAD) 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 theImplementing Guidelines on the Security Aspect of the Tripoli Agreement 2001 leading to a ceasefire status between the parties. This was followed by the Implementing Guidelines on the Humanitarian Rehabilitation and Development Aspects of the Tripoli Agreement 2001, which was signed on May 7, 2002 at Putrajaya, Malaysia. Nonetheless, there were many incidence of violence between government forces and the MILF from 2002 to 2003. Meanwhile, then MILF Chairman Salamat Hashim passed away on July 13, 2003 and he was replaced by Al Haj Murad, who was then the chief peace negotiator of the MILF. Murad's position as chief peace negotiator was taken over by Mohagher Iqbal.6 In 2005, several exploratory talks were held between the parties in Kuala Lumpur, eventually leading to the crafting of the draft MOA-AD in its final form, which, as mentioned, was set to be signed last August 5, 2008. II. STATEMENT OF THE PROCEEDINGS

Before the Court is what is perhaps the most contentious "consensus" ever embodied in an instrument - the MOA-AD which is assailed principally by the present petitions bearing docket numbers 183591, 183752, 183893, 183951 and 183962. Commonly impleaded as respondents are the GRP Peace Panel on Ancestral Domain7 and the Presidential Adviser on the Peace Process (PAPP) Hermogenes Esperon, Jr. On July 23, 2008, the Province of North Cotabato8 and ViceGovernor Emmanuel Piol filed a petition, docketed as G.R. No. 183591, for Mandamus and Prohibition with Prayer for the Issuance of Writ of Preliminary Injunction and Temporary Restraining Order.9 Invoking the right to information on matters of public concern, petitioners seek to compel respondents to disclose and furnish them the complete and official copies of the MOA-AD including its attachments, and to prohibit the slated signing of the MOA-AD, pending the disclosure of the contents of the MOA-AD and the holding of a public consultation thereon. Supplementarily, petitioners pray that the MOA-AD be declared unconstitutional.10 This initial petition was followed by another one, docketed as G.R. No. 183752, also for Mandamus and Prohibition11 filed by the City of Zamboanga,12 Mayor Celso Lobregat, Rep. Ma. Isabelle Climaco and Rep. Erico Basilio Fabian who likewise pray for similar injunctive reliefs. Petitioners herein moreover pray that the City of Zamboanga be excluded from the Bangsamoro Homeland and/or Bangsamoro Juridical Entity and, in the alternative, that the MOA-AD be declared null and void. By Resolution of August 4, 2008, the Court issued a Temporary Restraining Order commanding and directing public respondents and their agents to cease and desist from formally signing the MOA-AD.13 The Court also required the Solicitor General to submit to the Court and petitioners the official copy of the final draft of the MOA-AD,14 to which she complied.15

Meanwhile, the City of Iligan16 filed a petition for Injunction and/or Declaratory Relief, docketed as G.R. No. 183893, praying that respondents be enjoined from signing the MOA-AD or, if the same had already been signed, from implementing the same, and that the MOA-AD be declared unconstitutional. Petitioners herein additionally implead Executive Secretary Eduardo Ermita as respondent. The Province of Zamboanga del Norte,17 Governor Rolando Yebes, Vice-Governor Francis Olvis, Rep. Cecilia JalosjosCarreon, Rep. Cesar Jalosjos, and the members18 of the Sangguniang Panlalawigan of Zamboanga del Norte filed on August 15, 2008 a petition for Certiorari, Mandamus and Prohibition,19 docketed as G.R. No. 183951. They pray, inter alia, that the MOA-AD be declared null and void and without operative effect, and that respondents be enjoined from executing the MOA-AD. On August 19, 2008, Ernesto Maceda, Jejomar Binay, and Aquilino Pimentel III filed a petition for Prohibition,20 docketed asG.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. Petitionersin-Intervention include Senator Manuel A. Roxas, former Senate President Franklin Drilon and Atty. Adel Tamano, the City of Isabela21 and Mayor Cherrylyn Santos-Akbar, the Province of Sultan Kudarat22 and Gov. Suharto Mangudadatu, the Municipality of Linamon in Lanao del Norte,23 Ruy Elias Lopez of Davao City and of the Bagobo tribe,Sangguniang Panlungsod member Marino Ridao and businessman Kisin Buxani, both of Cotabato City; and lawyers Carlo Gomez,

Gerardo Dilig, Nesario Awat, Joselito Alisuag, Richalex Jagmis, all of Palawan City. The Muslim Legal Assistance Foundation, Inc. (Muslaf) and the Muslim Multi-Sectoral Movement for Peace and Development (MMMPD) filed their respective Comments-inIntervention. By subsequent Resolutions, the Court ordered the consolidation of the petitions. Respondents filed Comments on the petitions, while some of petitioners submitted their respective Replies. Respondents, by Manifestation and Motion of August 19, 2008, stated that the Executive Department shall thoroughly review the MOA-AD and pursue further negotiations to address the issues hurled against it, and thus moved to dismiss the cases. In the succeeding exchange of pleadings, respondents' motion was met with vigorous opposition from petitioners. The cases were heard on oral argument on August 15, 22 and 29, 2008 that tackled the following principal issues: 1. Whether the petitions have become moot and academic (i) insofar as the mandamus aspect is concerned, in view of the disclosure of official copies of the final draft of the Memorandum of Agreement (MOA); and (ii) insofar as the prohibition aspect involving the Local Government Units is concerned, if it is considered that consultation has become fait accompli with the finalization of the draft; 2. Whether the constitutionality and the legality of the MOA is ripe for adjudication;

3. Whether respondent Government of the Republic of the Philippines Peace Panel committed grave abuse of discretion amounting to lack or excess of jurisdiction when it negotiated and initiated the MOA vis--vis ISSUES Nos. 4 and 5; 4. Whether there is a violation of the people's right to information on matters of public concern (1987 Constitution, Article III, Sec. 7) 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 ofdarul-mua'hada (or territory under compact) and dar-ul-sulh (or territory under peace agreement) that partakes the nature of a treaty device." During the height of the Muslim Empire, early Muslim jurists tended to see the world through a simple dichotomy: there was the dar-ul-Islam (the Abode of Islam) and dar-ul-harb (the Abode of War). The first referred to those lands where Islamic laws held sway, while the second denoted those lands where Muslims were persecuted or where Muslim laws were outlawed or ineffective.27 This way of viewing the world, however, became more complex through the centuries as the Islamic world became part of the international community of nations. As Muslim States entered into treaties with their neighbors, even with distant States and inter-governmental organizations, the classical division of the world into dar-ul-Islam and dar-ulharb eventually lost its meaning. New terms were drawn up to describe novel ways of perceiving non-Muslim territories. For instance, areas like dar-ul-mua'hada (land of compact) and darul-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 oforder), on the other hand, referred to countries which, though not bound by treaty with Muslim States, maintained freedom of religion for Muslims.28 It thus appears that the "compact rights entrenchment" emanating from the regime of dar-ul-mua'hada and dar-ul-sulhsimply refers to all other agreements between the MILF and the Philippine

government - the Philippines being the land of compact and peace agreement - that partake of the nature of a treaty device, "treaty" being broadly defined as "any solemn agreement in writing that sets out understandings, obligations, and benefits for both parties which provides for a framework that elaborates the principles declared in the [MOA-AD]."29 The MOA-AD states that the Parties "HAVE AGREED AND ACKNOWLEDGED AS FOLLOWS," and starts with its main body. The main body of the MOA-AD is divided into four strands, namely, Concepts and Principles, Territory, Resources, and Governance. A. CONCEPTS AND PRINCIPLES This strand begins with the statement that it is "the birthright of all Moros and all Indigenous peoples of Mindanao to identify themselves and be accepted as Bangsamoros.'" It defines "Bangsamoro people" as the natives or original inhabitants of Mindanao and its adjacent islands including Palawan and the Sulu archipelago at the time of conquest or colonization, and their descendants whether mixed or of full blood, including their spouses.30 Thus, the concept of "Bangsamoro," as defined in this strand of the 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 alsoincludes 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 "internalwaters," defined as extending fifteen (15) kilometers from the coastline of the BJE area;42 that the BJE shall also have "territorial waters," which shall stretch beyond the BJE internal waters up to the baselines of the Republic of the Philippines (RP) south east and south west of mainland Mindanao; and that within these territorial waters, the BJE and the "Central

Government" (used interchangeably with RP) shall exercise joint jurisdiction, authority and management over all natural resources.43 Notably, the jurisdiction over the internal waters is not similarly described as "joint." The MOA-AD further provides for the sharing of minerals on the territorial waters between the Central Government and the BJE, in favor of the latter, through production sharing and economic cooperation agreement.44 The activities which the Parties are allowed to conduct on the territorial waters are enumerated, among which are the exploration and utilization of natural resources, regulation of shipping and fishing activities, and the enforcement of police and safety measures.45There 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 BJE's participation in international meetings and events" like those of the ASEAN and the specialized agencies of the UN. The BJE is to be entitled to participate in Philippine official missions and delegations for the negotiation of border agreements or protocols for environmental protection and equitable sharing of incomes and revenues involving the bodies of water adjacent to or between the islands forming part of the ancestral domain.47

With regard to the right of exploring for, producing, and obtaining all potential sources of energy, petroleum, fossil fuel, mineral oil and natural gas, the jurisdiction and control thereon is to be vested in the BJE "as the party having control within its territorial jurisdiction." This right carries the proviso that, "in times of national emergency, when public interest so requires," the Central Government may, for a fixed period and under reasonable terms as may be agreed upon by both Parties, assume or direct the operation of such resources.48 The sharing between the Central Government and the BJE of total production pertaining to natural resources is to be 75:25 in favor of the BJE.49 The MOA-AD provides that legitimate grievances of the Bangsamoro people arising from any unjust dispossession of their territorial and proprietary rights, customary land tenures, or their marginalization shall be acknowledged. Whenever restoration is no longer possible, reparation is to be in such form as mutually determined by the Parties.50 The BJE may modify or cancel the forest concessions, timber licenses, contracts or agreements, mining concessions, Mineral Production and Sharing Agreements (MPSA), Industrial Forest Management Agreements (IFMA), and other land tenure instruments granted by the Philippine Government, including those issued by the present ARMM.51 D. GOVERNANCE The MOA-AD binds the Parties to invite a multinational third-party to observe and monitor the implementation of theComprehensive 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. 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 preliminarycharacter of the MOA-AD, there are no concrete acts that could possibly violate petitioners' and intervenors' rights since the acts complained of are mere contemplated steps toward the formulation of a final peace agreement. Plainly, petitioners and intervenors' perceived injury, if at all, is merely imaginary and illusory

apart from being unfounded and based on mere conjectures. (Underscoring supplied) The Solicitor General cites63 the following provisions of the MOAAD: 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 MOAAD. xxxx GOVERNANCE xxxx 7. The Parties agree that mechanisms and modalities for the actual implementation of this MOA-AD shall be spelt

out in the Comprehensive Compact to mutually take such steps to enable it to occur effectively. Any provisions of the MOA-AD requiring amendments to the existing legal framework shall come into force upon the signing of a Comprehensive Compact and upon effecting the necessary changes to the legal framework with due regard to non-derogation of prior agreements and within the stipulated timeframe to be contained in the Comprehensive Compact.64 (Underscoring supplied) The Solicitor General's arguments fail to persuade. Concrete acts under the MOA-AD are not necessary to render the present controversy ripe. In Pimentel, Jr. v. Aguirre,65this Court held: x x x [B]y the mere enactment of the questioned law or the approval of the challenged action, the dispute is said to have ripened into a judicial controversy even without any other overt act. Indeed, even a singular violation of the Constitution and/or the law is enough to awaken judicial duty. xxxx By the same token, when an act of the President, who in our constitutional scheme is a coequal of Congress, is seriously alleged to have infringed the Constitution and the laws x x x settling the dispute becomes the duty and the responsibility of the courts.66 In Santa Fe Independent School District v. Doe,67 the United States Supreme Court held that the challenge to the constitutionality of the school's policy allowing student-led prayers and speeches before games was ripe for adjudication, even if no

public prayer had yet been led under the policy, because the policy was being challenged as unconstitutional on its face.68 That the law or act in question is not yet effective does not negate ripeness. For example, in New York v. United States,69decided 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.72Mandamus 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 MOAAD violate the Constitution. The MOA-AD provides that "any provisions of the MOA-AD requiring amendments to the existing legal framework shall come into force upon the signing of a Comprehensive Compact and upon effecting the necessary changes to the legal framework," implying an amendment of the Constitution to accommodate the MOA-AD. This stipulation, in effect, guaranteed to the MILF the amendment of the Constitution. Such act constitutes another violation of its authority. Again, these points will be discussed in more detail later. As the petitions allege acts or omissions on the part of respondent that exceed their authority, by violating their duties under E.O. No. 3 and the provisions of the Constitution and statutes, the petitions make a prima facie case for Certiorari, Prohibition, and Mandamus, and an actual case or controversy ripe for adjudication exists. When an act of a branch of government is seriously alleged to have infringed the Constitution, it becomes not only the right but in fact the duty of the judiciary to settle the dispute.77 B. LOCUS STANDI For a party to have locus standi, one must allege "such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions."78 Because constitutional cases are often public actions in which the relief sought is likely to affect other persons, a preliminary

question frequently arises as to this interest in the constitutional question raised.79 When suing as a citizen, the person complaining must allege that he has been or is about to be denied some right or privilege to which he is lawfully entitled or that he is about to be subjected to some burdens or penalties by reason of the statute or act complained of.80 When the issue concerns a public right, it is sufficient that the petitioner is a citizen and has an interest in the execution of the laws.81 For a taxpayer, one is allowed to sue where there is an assertion that public funds are illegally disbursed or deflected to an illegal purpose, or that there is a wastage of public funds through the enforcement of an invalid or unconstitutional law.82The Court retains discretion whether or not to allow a taxpayer's suit.83 In the case of a legislator or member of Congress, an act of the Executive that injures the institution of Congress causes a derivative but nonetheless substantial injury that can be questioned by legislators. A member of the House of Representatives has standing to maintain inviolate the prerogatives, powers and privileges vested by the Constitution in his office.84 An organization may be granted standing to assert the rights of its members,85 but the mere invocation by 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. MacapagalArroyo,89 where technicalities of procedure were brushed aside, the constitutional issues raised being of paramount public interest or of transcendental importance deserving the attention of the Court in view of their seriousness, novelty and weight as precedents.90 The Court's forbearing stance on locus standi on issues involving constitutional issues has for its purpose the protection of fundamental rights. In not a few cases, the Court, in keeping with its duty under the Constitution to determine whether the other branches of government have kept themselves within the limits of the Constitution and the laws and have not abused the discretion given them, has brushed aside technical rules of procedure.91 In the petitions at bar, petitioners Province of North Cotabato (G.R. No. 183591) Province of Zamboanga del Norte(G.R. No. 183951), City of Iligan (G.R. No. 183893) and City of Zamboanga (G.R. No. 183752) and petitioners-inintervention 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 public's constitutional right to be informed of the MOA-AD, as well as on a genuine legal interest in the matter in litigation, or in the success or failure of either of the parties. He thus possesses the requisite standing as an intervenor. With respect to Intervenors Ruy Elias Lopez, as a former congressman of the 3rd district of Davao City, a taxpayer and a member of the Bagobo tribe; Carlo B. Gomez, et al., as members of the IBP Palawan chapter, citizens and taxpayers;Marino Ridao, as taxpayer, resident and member of the Sangguniang Panlungsod of Cotabato City; and Kisin Buxani, as taxpayer, they failed to allege any proper legal interest in the present petitions. Just the same, the Court exercises its discretion to relax the procedural technicality on locus standi given the paramount public interest in the issues at hand. 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 nongovernment organization of Muslim lawyers, allege that they

stand to be benefited or prejudiced, as the case may be, in the resolution of the petitions concerning the MOA-AD, and prays for the denial of the petitions on the grounds therein stated. Such legal interest suffices to clothe them with standing. B. MOOTNESS Respondents insist that the present petitions have been rendered moot with the satisfaction of all the reliefs prayed for by petitioners and the subsequent pronouncement of the Executive Secretary that "[n]o matter what the Supreme Court ultimately decides[,] the government will not sign the MOA."92 In lending credence to this policy decision, the Solicitor General points out that the President had already disbanded the GRP Peace Panel.93 In David v. Macapagal-Arroyo,94 this Court held that the "moot and academic" principle not being a magical formula that automatically dissuades courts in resolving a case, it will decide cases, otherwise moot and academic, if it finds that (a) there is a grave violation of the Constitution;95 (b) the situation is of exceptional character and paramount public interest is involved;96 (c) the constitutional issue raised requires formulation of controlling principles to guide the bench, the bar, and the public;97 and (d) the case is capable of repetition yet evading review.98 Another exclusionary circumstance that may be considered is where there is a voluntary cessation of the activity complained of by the defendant or doer. Thus, once a suit is filed and the doer voluntarily ceases the challenged conduct, it does not automatically deprive the tribunal of power to hear and determine the case and does not render the case moot especially when the plaintiff seeks damages or prays for injunctive relief against the possible recurrence of the violation.99

The present petitions fall squarely into these exceptions to thus thrust them into the domain of judicial review. The grounds cited above in David are just as applicable in the present cases as they were, not only in David, but also in Province of Batangas v. Romulo100 and Manalo v. Calderon101 where the Court similarly decided them on the merits, supervening events that would ordinarily have rendered the same moot notwithstanding. Petitions not mooted Contrary then to the asseverations of respondents, the nonsigning of the MOA-AD and the eventual dissolution of the GRP Peace Panel did not moot the present petitions. It bears emphasis that the signing of the MOA-AD did not push through due to the Court's issuance of a Temporary Restraining Order. Contrary too to respondents' position, the MOA-AD cannot be considered a mere "list of consensus points," especially given its nomenclature, the need to have it signed or initialed by all the parties concerned on August 5, 2008, and thefar-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 ongoingand 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 MOAAD,102 the manifestation that it will not be signed as well as the disbanding of the GRP Panel not withstanding. Petitions are imbued with paramount public interest

There is no gainsaying that the petitions are imbued with paramount public interest, involving a significant part of the country's territory and the wide-ranging political modifications of affected LGUs. The assertion that the MOA-AD is subject to further legal enactments including possible Constitutional amendments more than ever provides impetus for the Court to formulate controlling principles to guide the bench, the bar, the public and, in this case, the government and its negotiating entity. Respondents cite Suplico v. NEDA, et al.103 where the Court did not "pontificat[e] on issues which no longer legitimately constitute an actual case or controversy [as this] will do more harm than good to the nation as a whole." The present petitions must be differentiated from Suplico. Primarily, in Suplico, what was assailed and eventually cancelled was a stand-alone government procurement contract for a national broadband network involving a one-time contractual relation between two parties-the government and a private foreign corporation. As the issues therein involved specific government procurement policies and standard principles on contracts, the majority opinion in Suplico found nothing exceptional therein, the factual circumstances being peculiar only to the transactions and parties involved in the controversy. The MOA-AD is part of a series of agreements In the present controversy, the MOA-AD is a significant part of a series of agreements necessary to carry out the Tripoli Agreement 2001. The MOA-AD which dwells on the Ancestral Domain Aspect of said Tripoli Agreement is the third such component to be undertaken following the implementation of the Security Aspect in August 2001 and theHumanitarian, 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 can be assured," it is minded to render a decision on the merits in the present petitions to formulate controlling principles to guide the bench, the bar, the public and, most especially, the government in negotiating with the MILF regarding Ancestral Domain. Respondents invite the Court's attention to the separate opinion of then Chief Justice Artemio Panganiban in Sanlakas v. Reyes104 in which he stated that the doctrine of "capable of repetition yet evading review" can override mootness, "provided the party raising it in a proper case has been and/or continue to be prejudiced or damaged as a direct result of their issuance." They contend that the Court must have jurisdiction over the subject matter for the doctrine to be invoked. The present petitions all contain prayers for Prohibition over which this Court exercises original jurisdiction. While G.R. No. 183893 (City of Iligan v. GRP) is a petition for Injunction and Declaratory Relief, the Court will treat it as one for Prohibition as it has far reaching implications and raises questions that need to be resolved.105 At all events, the Court has jurisdiction over most if not the rest of the petitions.

Indeed, the present petitions afford a proper venue for the Court to again apply the doctrine immediately referred to as what it had done in a number of landmark cases.106 There is a reasonable expectation that petitioners, particularly the Provinces of North Cotabato, Zamboanga del Norte and Sultan 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 nation's problems, nor a meaningful democratic decision-making if they are denied access to information of general interest. Information is needed to enable the members of society to cope with the exigencies of the times. As has been aptly observed: "Maintaining the flow of such information depends on protection for both its acquisition and its dissemination since, if either process is interrupted, the flow inevitably ceases." x x x111 In the same way that free discussion enables members of society to cope with the exigencies of their time, access to information of

general interest aids the people in democratic decision-making by giving them a better perspective of the vital issues confronting the nation112 so that they may be able to criticize and participate in the affairs of the government in a responsible, reasonable and effective manner. It is by ensuring an unfettered and uninhibited exchange of ideas among a well-informed public that a government remains responsive to the changes desired by the people.113 The MOA-AD is a matter of public concern That the subject of the information sought in the present cases is a matter of public concern114 faces no serious challenge. In fact, respondents admit that the MOA-AD is indeed of public concern.115 In previous cases, the Court found that the regularity of real estate transactions entered in the Register of Deeds,116 the need for adequate notice to the public of the various laws,117 the civil service eligibility of a public employee,118 the proper management of GSIS funds allegedly used to grant loans to public officials,119 the recovery of the Marcoses' alleged ill-gotten wealth,120 and the identity of party-list nominees,121 among others, are matters of public concern. Undoubtedly, the MOA-AD subject of the present cases is of public concern, involving as it does the sovereignty and territorial integrity of the State, which directly affects the lives of the public at large. Matters of public concern covered by the right to information include steps and negotiations leading to the consummation of the contract. In not distinguishing as to the executory nature or commercial character of agreements, the Court has categorically ruled: x x x [T]he right to information "contemplates inclusion of negotiations leading to the consummation of the transaction." Certainly, a consummated contract is not a requirement for the exercise of the right to information. Otherwise, the people can never exercise the right if no

contract is consummated, and if one is consummated, it may be too late for the public to expose its defects. Requiring a consummated contract will keep the public in the dark until the contract, which may be grossly disadvantageous to the government or even illegal, becomes fait accompli. This negates the State policy of full transparency on matters of public concern, a situation which the framers of the Constitution could not have intended. Such a requirement will prevent the citizenry from participating in the public discussion of any proposedcontract, effectively truncating a basic right enshrined in the Bill of Rights. We can allow neither an emasculation of a constitutional right, nor a retreat by the State of its avowed "policy of full disclosure of all its transactions involving public interest."122 (Emphasis and italics in the original) Intended as a "splendid symmetry"123 to the right to information under the Bill of Rights is the policy of public disclosure under Section 28, Article II of the Constitution reading: Sec. 28. Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public disclosure of all its transactions involving public interest.124 The policy of full public disclosure enunciated in above-quoted Section 28 complements the right of access to information on matters of public concern found in the Bill of Rights. The right to information guarantees the right of the people to demand information, while Section 28 recognizes the duty of officialdom to give information even if nobody demands.125 The policy of public disclosure establishes a concrete ethical principle for the conduct of public affairs in a genuinely open democracy, with the people's right to know as the centerpiece. It

is a mandate of the State to be accountable by following such policy.126 These provisions are vital to the exercise of the freedom of expression and essential to hold public officials at all times accountable to the people.127 Whether Section 28 is self-executory, the records of the deliberations of the Constitutional Commission so disclose: MR. SUAREZ. And since this is not self-executory, this policy will not be enunciated or will not be in force and effect until after Congress shall have provided it. MR. OPLE. I expect it to influence the climate of public ethics immediately but, of course, the implementing law will have to be enacted by Congress, Mr. Presiding Officer.128 The following discourse, after Commissioner Hilario Davide, Jr., sought clarification on the issue, is enlightening. MR. DAVIDE. I would like to get some clarifications on this. Mr. Presiding Officer, did I get the Gentleman correctly as having said that this is not a self-executing provision? It would require a legislation by Congress to implement? MR. OPLE. Yes. Originally, it was going to be selfexecuting, but I accepted an amendment from Commissioner Regalado, so that the safeguards on national interest are modified by the clause "as may be provided by law" MR. DAVIDE. But as worded, does it not mean that this will immediately take effect and Congress may provide for reasonable safeguards on the sole ground national interest?

MR. OPLE. Yes. I think so, Mr. Presiding Officer, I said earlier that it should immediately influence the climate of the conduct of public affairs but, of course, Congress here may no longer pass a law revoking it, or if this is approved, revoking this principle, which is inconsistent with this policy.129 (Emphasis supplied) Indubitably, the effectivity of the policy of public disclosure need not await the passing of a statute. As Congress cannot revoke this principle, it is merely directed to provide for "reasonable safeguards." The complete and effective exercise of the right to information necessitates that its complementary provision on public disclosure derive the same self-executory nature. Since both provisions go hand-in-hand, it is absurd to say that the broader130 right to information on matters of public concern is already enforceable while the correlative duty of the State to disclose its transactions involving public interest is not enforceable until there is an enabling law. Respondents cannot thus point to the absence of an implementing legislation as an excuse in not effecting such policy. An essential element of these freedoms is to keep open a continuing dialogue or process of communication between the government and the people. It is in the interest of the State that the channels for free political discussion be maintained to the end that the government may perceive and be responsive to the people's will.131 Envisioned to be corollary to the twin rights to information and disclosure is the design for feedback mechanisms. MS. ROSARIO BRAID. Yes. And lastly, Mr. Presiding Officer, will the people be able to participate? Will the government provide feedback mechanisms so that the people can participate and can react where the existing media facilities are not able to provide full feedback mechanisms to the government? I suppose this will be part of the government implementing operational mechanisms.

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

and local levels to build consensus for a peace agenda and process, and the mobilization and facilitation of people's participation in the peace process."135 Clearly, E.O. No. 3 contemplates not just the conduct of a plebiscite to effectuate "continuing" consultations, contrary to respondents' position that plebiscite is "more than sufficient consultation."136 Further, E.O. No. 3 enumerates the functions and responsibilities of the PAPP, one of which is to "[c]onduct regular dialogues with the National Peace Forum (NPF) and other peace partners to seek relevant information, comments, recommendations as well as to render appropriate and timely reports on the progress of the comprehensive peace process."137 E.O. No. 3 mandates the establishment of the NPF to be "the principal forum for the PAPP to consult with and seek advi[c]e from the peace advocates, peace partners and concerned sectors of society on both national and local levels, on the implementation of the comprehensive peace process, as well as for government[-]civil society dialogue and consensus-building on peace agenda and initiatives."138 In fine, E.O. No. 3 establishes petitioners' right to be consulted on the peace agenda, as a corollary to the constitutional right to information and disclosure. PAPP Esperon committed grave abuse of discretion The PAPP committed grave abuse of discretion when he failed to carry out the pertinent consultation. The furtive process by which the MOA-AD was designed and crafted runs contrary to and in excess of the legal authority, and amounts to a whimsical, capricious, oppressive, arbitrary and despotic exercise thereof. The Court may not, of course, require the PAPP to conduct the consultation in a particular way or manner. It may, however,

require him to comply with the law and discharge the functions within the authority granted by the President.139 Petitioners are not claiming a seat at the negotiating table, contrary to respondents' retort in justifying the denial of petitioners' right to be consulted. Respondents' stance manifests the manner by which they treat the salient provisions of E.O. No. 3 on people's participation. Such disregard of the express mandate of the President is not much different from superficial conduct toward token provisos that border on classic lip service.140 It illustrates a gross evasion of positive duty and a virtual refusal to perform the duty enjoined. As for respondents' invocation of the doctrine of executive privilege, it is not tenable under the premises. The argument defies sound reason when contrasted with E.O. No. 3's explicit provisions on continuing consultation and dialogue on bothnational and local levels. The executive order even recognizes the exercise of the public's right even before the GRP makes its official recommendations or before the government proffers its definite propositions.141 It bear emphasis that E.O. No. 3 seeks to elicit relevant advice, information, comments and recommendations from the people through dialogue. AT ALL EVENTS, respondents effectively waived the defense of executive privilege in view of their unqualified disclosure of the official copies of the final draft of the MOA-AD. By unconditionally complying with the Court's August 4, 2008 Resolution, without a prayer for the document's disclosure in camera, or without a manifestation that it was complying therewith ex abundante ad cautelam. Petitioners' assertion that the Local Government Code (LGC) of 1991 declares it a State policy to "require all national agencies and offices to conduct periodic consultations with appropriate local government units, 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 theeviction 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 theraison d'etre of the MOA-AD, without which all other stipulations or "consensus points" necessarily must fail. In proceeding to make a sweeping declaration on ancestral domain, without complying with the IPRA, which is cited as one of the TOR of the MOAAD, 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 MOAAD, 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 theenvisioned relationship between the BJE and the Central Government. 4. The relationship between the Central Government and the Bangsamoro juridical entity shall beassociative characterized by shared authority and responsibility with a structure of governance based on executive, legislative, judicial and administrative institutions with defined powers and functions in the comprehensive compact. A period of transition shall be established in a comprehensive peace compact specifying the relationship between the Central Government and the BJE. (Emphasis and underscoring supplied) The nature of the "associative" relationship may have been intended to be defined more precisely in the still to be forged Comprehensive Compact. Nonetheless, given that there is a concept of "association" in international law, and the MOA-AD -

by its inclusion of international law instruments in its TOR- placed itself in an international legal context, that concept of association may be brought to bear in understanding the use of the term "associative" in the MOA-AD. Keitner and Reisman state that [a]n association is formed when two states of unequal power voluntarily establish durable links. In the basic model,one state, the associate, delegates certain responsibilities to the other, the principal, while maintaining its international status as a state. Free associations represent a middle ground between integration and independence. x x x150 (Emphasis and underscoring supplied) For purposes of illustration, the Republic of the Marshall Islands and the Federated States of Micronesia (FSM), formerly part of the U.S.-administered Trust Territory of the Pacific Islands,151 are associated states of the U.S. pursuant to a Compact of Free Association. The currency in these countries is the U.S. dollar, indicating their very close ties with the U.S., yet they issue their own travel documents, which is a mark of their statehood. Their international legal status as states was confirmed by the UN Security Council and by their admission to UN membership. According to their compacts of free association, the Marshall Islands and the FSM generally have the capacity to conduct foreign affairs in their own name and right, such capacity extending to matters such as the law of the sea, marine resources, trade, banking, postal, civil aviation, and cultural relations. The U.S. government, when conducting its foreign affairs, is obligated to consult with the governments of the Marshall Islands or the FSM on matters which it (U.S. government) regards as relating to or affecting either government.

In the event of attacks or threats against the Marshall Islands or the FSM, the U.S. government has the authority and obligation to defend them as if they were part of U.S. territory. The U.S. government, moreover, has the option of establishing and using military areas and facilities within these associated states and has the right to bar the military personnel of any third country from having access to these territories for military purposes. It bears noting that in U.S. constitutional and international practice, free association is understood as an international association between sovereigns. The Compact of Free Association is a treaty which is subordinate to the associated nation's national constitution, and each party may terminate the association consistent with the right of independence. It has been said that, with the admission of the U.S.-associated states to the UN in 1990, the UN recognized that the American model of free association is actually based on an underlying status of independence.152 In international practice, the "associated state" arrangement has usually been used as a transitional device of former colonies on their way to full independence. Examples of states that have passed through the status of associated states as a transitional phase are Antigua, St. Kitts-Nevis-Anguilla, Dominica, St. Lucia, St. Vincent and Grenada. All have since become independent states.153 Back to the MOA-AD, it contains many provisions which are consistent with the international legal concept of association, specifically the following: the BJE's capacity to enter into economic and trade relations with foreign countries, the commitment of the Central Government to ensure the BJE's participation in meetings and events in the ASEAN and the specialized UN agencies, and the continuing responsibility of the Central Government over external defense. Moreover, theBJE'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 anassociated state or, at any rate, a status closely approximating it. The concept of association is not recognized under the present Constitution No province, city, or municipality, not even the ARMM, is recognized under our laws as having an "associative" relationship with the national government. Indeed, the concept implies powers that go beyond anything ever granted by the Constitution to any local or regional government. It also implies the recognition of the associated entity as a state. The Constitution, however, does not contemplate any state in this jurisdiction other than the Philippine State, much less does it provide for a transitory status that aims to prepare any part of Philippine territory for independence. Even the mere concept animating many of the MOA-AD's provisions, therefore, already requires for its validity the amendment of constitutional provisions, specifically the following provisions of Article X: SECTION 1. The territorial and political subdivisions of the Republic of the Philippines are the provinces, cities, municipalities, and barangays. There shall be autonomous regions in Muslim Mindanao and the Cordilleras as hereinafter provided. SECTION 15. There shall be created autonomous regions in Muslim Mindanao and in the Cordilleras consisting of

provinces, cities, municipalities, and geographical areas sharing common and distinctive historical and cultural heritage, economic and social structures, and other relevant characteristics within the framework of this Constitution and the national sovereignty as well as territorial integrity of the Republic of the Philippines. The BJE is a far more powerful entity than the autonomous region recognized in the Constitution It is not merely an expanded version of the ARMM, the status of its relationship with the national government being fundamentally different from that of the ARMM. Indeed, BJE is a state in all but name as it meets the criteria of a state laid down in the Montevideo Convention,154 namely, a permanent population, a defined territory, a government, and acapacity 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 Secretary155 instructs: In our system of government, the President, being the head of state, is regarded as the sole organ and authority in external relations and is the country's sole representative with foreign nations. As the chief architect of foreign policy, the President acts as the

country's mouthpiece with respect to international affairs. Hence, the President is vested with the authority to deal with foreign states and governments, extend or withhold recognition, maintain diplomatic relations, enter into treaties, and otherwise transact the business of foreign relations. In the realm of treatymaking, 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 associativearrangement does not uphold national unity. While there may be a semblance of unity because of the associative ties between the BJE and the national government, the act of placing a portion of Philippine territory in a status which, in international practice, has generally been a preparation for independence, is certainly not conducive to national unity. Besides being irreconcilable with the Constitution, the MOA-AD is also inconsistent with prevailing statutory law, among which are R.A. No. 9054156 or the Organic Act of the ARMM, and the IPRA.157 Article X, Section 3 of the Organic Act of the ARMM is a bar to the adoption of the definition of "Bangsamoro people" used in the MOA-AD. Paragraph 1 on Concepts and Principles states: 1. It is the birthright of all Moros and all Indigenous peoples of Mindanao to identify themselves and be accepted as "Bangsamoros". The Bangsamoro people refers to those who are natives or original inhabitants

of Mindanao and its adjacent islands including Palawan and the Sulu archipelago at the time of conquest or colonization of its descendants whether mixed or of full blood. Spouses and their descendants are classified as Bangsamoro. The freedom of choice of the Indigenous people shall be respected. (Emphasis and underscoring supplied) This use of the term Bangsamoro sharply contrasts with that found in the Article X, Section 3 of the Organic Act, which, rather than lumping together the identities of the Bangsamoro and other indigenous peoples living in Mindanao, clearlydistinguishes 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 MOAAD's manner of delineating the ancestral domain of the Bangsamoro people is a clear departure from that procedure. By paragraph 1 of Territory, the Parties simply agree that, subject to the delimitations in the agreed Schedules, "[t]he Bangsamoro homeland and historic territory refer to the land mass as well as the maritime, terrestrial, fluvial and alluvial domains, and the aerial domain, the atmospheric space above it, embracing the Mindanao-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; 9) Pictures and descriptive histories of traditional landmarks such as mountains, rivers, creeks, ridges, hills, terraces and the like; and 10) Write-ups of names and places derived from the native dialect of the community. e) Preparation of Maps. - On the basis of such investigation and the findings of fact based thereon, the Ancestral Domains Office of the NCIP shall prepare a perimeter map, complete with technical descriptions, and a description of the natural features and landmarks embraced therein; f) Report of Investigation and Other Documents. - A complete copy of the preliminary census and a report of

investigation, shall be prepared by the Ancestral Domains Office of the NCIP; g) Notice and Publication. - A copy of each document, including a translation in the native language of the ICCs/IPs concerned shall be posted in a prominent place therein for at least fifteen (15) days. A copy of the document shall also be posted at the local, provincial and regional offices of the NCIP, and shall be published in a newspaper of general circulation once a week for two (2) consecutive weeks to allow other claimants to file opposition thereto within fifteen (15) days from date of such publication: Provided, That in areas where no such newspaper exists, broadcasting in a radio station will be a valid substitute: Provided, further, That mere posting shall be deemed sufficient if both newspaper and radio station are not available; h) Endorsement to NCIP. - Within fifteen (15) days from publication, and of the inspection process, the Ancestral Domains Office shall prepare a report to the NCIP endorsing a favorable action upon a claim that is deemed to have sufficient proof. However, if the proof is deemed insufficient, the Ancestral Domains Office shall require the submission of additional evidence: Provided, That the Ancestral Domains Office shall reject any claim that is deemed patently false or fraudulent after inspection and verification: Provided, further, That in case of rejection, the Ancestral Domains Office shall give the applicant due notice, copy furnished all concerned, containing the grounds for denial. The denial shall be appealable to the NCIP: Provided, furthermore, That in cases where there are conflicting claims among ICCs/IPs on the boundaries of ancestral domain claims, the Ancestral Domains Office shall cause the contending parties to meet and assist them in coming up with a preliminary resolution of the conflict, without prejudice to its full adjudication according to the section below.

xxxx To remove all doubts about the irreconcilability of the MOA-AD with the present legal system, a discussion of not only the Constitution and domestic statutes, but also of international law is in order, for Article II, Section 2 of the Constitution states that the Philippines "adopts the generally accepted principles of international law as part of the law of the land." Applying this provision of the Constitution, the Court, in Mejoff v. Director of Prisons,158 held that the Universal Declaration of Human Rights is part of the law of the land on account of which it ordered the release on bail of a detained alien of Russian descent whose deportation order had not been executed even after two years. Similarly, the Court in Agustin v. Edu159 applied the aforesaid constitutional provision to the 1968 Vienna Convention on Road Signs and Signals. International law has long recognized the right to selfdetermination of "peoples," understood not merely as the entire population of a State but also a portion thereof. In considering the question of whether the people of Quebec had a right to unilaterally secede from Canada, the Canadian Supreme Court in REFERENCE RE SECESSION OF QUEBEC160 had occasion to acknowledge that "the right of a people to self-determination is now so widely recognized in international conventions that the principle has acquired a status beyond convention' and is considered a general principle of international law." Among the conventions referred to are the International Covenant on Civil and Political Rights161 and the International Covenant on Economic, Social and Cultural Rights162 which state, in Article 1 of both covenants, that all peoples, by virtue of the right of selfdetermination, "freely determine their political status and freely pursue their economic, social, and cultural development."

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

that the exercise of such a right must be sufficiently limited to prevent threats to an existing state's territorial integrity or the stability of relations between sovereign states. x x x x (Emphasis, italics and underscoring supplied) The Canadian Court went on to discuss the exceptional cases in which the right to external self-determination can arise, namely, where a people is under colonial rule, is subject to foreign domination or exploitation outside a colonial context, and - less definitely but asserted by a number of commentators - is blocked from the meaningful exercise of its right to internal selfdetermination. The Court ultimately held that the population of Quebec had no right to secession, as the same is not under colonial rule or foreign domination, nor is it being deprived of the freedom to make political choices and pursue economic, social and cultural development, citing that Quebec is equitably represented in legislative, executive and judicial institutions within Canada, even occupying prominent positions therein. The exceptional nature of the right of secession is further exemplified in the REPORT OF THE INTERNATIONAL COMMITTEE OF JURISTS ON THE LEGAL ASPECTS OF THE AALAND ISLANDS QUESTION.163 There, Sweden presented to the Council of the League of Nations the question of whether the inhabitants of the Aaland Islands should be authorized to determine by plebiscite if the archipelago should remain under Finnish sovereignty or be incorporated in the kingdom of Sweden. The Council, before resolving the question, appointed an International Committee composed of three jurists to submit an opinion on the preliminary issue of whether the dispute should, based on international law, be entirely left to the domestic jurisdiction of Finland. The Committee stated the rule as follows: x x x [I]n the absence of express provisions in international treaties, the right of disposing of national territory is essentially an attribute of the sovereignty

of every State. Positive International Law does not recognize the right of national groups, as such, to separate themselves from the State of which they form part by the simple expression of a wish, any more than it recognizes the right of other States to claim such a separation.Generally speaking, the grant or refusal of the right to a portion of its population of determining its own political fate by plebiscite or by some other method, is, exclusively, an attribute of the sovereignty of every State which is definitively constituted. A dispute between two States concerning such a question, under normal conditions therefore, bears upon a question which International Law leaves entirely to the domestic jurisdiction of one of the States concerned. Any other solution would amount to an infringement of sovereign rights of a State and would involve the risk of creating difficulties and a lack of stability which would not only be contrary to the very idea embodied in term "State," but would also endanger the interests of the international community. If this right is not possessed by a large or small section of a nation, neither can it be held by the State to which the national group wishes to be attached, nor by any other State. (Emphasis and underscoring supplied) The Committee held that the dispute concerning the Aaland Islands did not refer to a question which is left by international law to the domestic jurisdiction of Finland, thereby applying the exception rather than the rule elucidated above. Its ground for departing from the general rule, however, was a very narrow one, namely, the Aaland Islands agitation originated at a time when Finland was undergoing drastic political transformation. The internal situation of Finland was, according to the Committee, so abnormal that, for a considerable time, the conditions required for the formation of a sovereign State did not exist. In the midst of revolution, anarchy, and civil war, the legitimacy of the Finnish national government was disputed by a large section of the people, and it had, in fact, been chased from the capital and

forcibly prevented from carrying out its duties. The armed camps and the police were divided into two opposing forces. In light of these circumstances, Finland was not, during the relevant time period, a "definitively constituted" sovereign state. The Committee, therefore, found that Finland did not possess the right to withhold from a portion of its population the option to separate itself - a right which sovereign nations generally have with respect to their own populations. Turning now to the more specific category of indigenous peoples, this term has been used, in scholarship as well as international, regional, and state practices, to refer to groups with distinct cultures, histories, and connections to land (spiritual and otherwise) that have been forcibly incorporated into a larger governing society. These groups are regarded as "indigenous" since they are the living descendants of pre-invasion inhabitants of lands now dominated by others. Otherwise stated, indigenous peoples, nations, or communities are culturally distinctive groups that find themselves engulfed by settler societies born of the forces of empire and conquest.164 Examples of groups who have been regarded as indigenous peoples are the Maori of New Zealand and the aboriginal peoples of Canada. As with the broader category of "peoples," indigenous peoples situated within states do not have a general right to independence or secession from those states under international law,165 but they do have rights amounting to what was discussed above as the right to internal self-determination. In a historic development last September 13, 2007, the UN General Assembly adopted the United Nations Declaration on the Rights of Indigenous Peoples (UN DRIP) through General Assembly Resolution 61/295. The vote was 143 to 4, the Philippines being included among those in favor, and the four voting against being Australia, Canada, New Zealand, and the U.S. The Declaration clearly recognized the right of indigenous peoples to self-determination, encompassing the right to autonomy or self-government, to wit:

Article 3 Indigenous peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development. Article 4 Indigenous peoples, in exercising their right to selfdetermination, have the right to autonomy or selfgovernmentin 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 selfdetermination 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 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 people's identity is acknowledged to be the responsibility of the State, then surely the protection of rights less significant to them as such peoples would also be the duty of States. Nor is there in the UN DRIP an acknowledgement of the right of indigenous peoples to the aerial domain and atmospheric space. What it upholds, in Article 26 thereof, is the right of indigenous peoples to the lands, territories and resources which they havetraditionally 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. 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 President's power to conduct peace negotiations. That the authority of the President to conduct peace negotiations with rebel groups is not explicitly mentioned in the Constitution does not mean that she has no such authority. In Sanlakas v. Executive Secretary,168 in issue was the authority of the President to declare a state of rebellion - an authority which is not expressly provided for in the Constitution. The Court held thus: "In her ponencia in Marcos v. Manglapus, Justice Cortes put her thesis into jurisprudence. There, the Court, by a slim 8-7 margin, upheld the President's power to forbid the return of her exiled predecessor. The rationale for the majority's ruling rested on the President's . . . unstated residual powers which are implied from the grant of executive power and which arenecessary 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 President's power to conduct peace negotiations is implicitly included in her powers as Chief Executive and Commander-in-Chief. As Chief Executive, the President has the general responsibility to promote public peace, and as Commander-in-Chief, she has the more specific duty to prevent and suppress rebellion and lawless violence.169 As the experience of nations which have similarly gone through internal armed conflict will show, however, peace is rarely attained by simply pursuing a military solution. Oftentimes, changes as far-reaching as a fundamental reconfiguration of the nation's constitutional structure is required. The observations of Dr. Kirsti Samuels are enlightening, to wit: x x x [T]he fact remains that a successful political and governance transition must form the core of any postconflict peace-building mission. As we have observed in Liberia and Haiti over the last ten years, conflict cessation without modification of the political environment, even where state-building is undertaken through technical electoral assistance and institution- or capacity-building, is unlikely to succeed. On average, more than 50 percent of states emerging from conflict return to conflict. Moreover, a substantial proportion of transitions have resulted in weak or limited democracies. The design of a constitution and its constitution-making process can play an important role in the political and governance transition. Constitution-making after conflict is an opportunity to create a common vision of the future of a state and a road map on how to get there. The constitution can be partly a peace agreement and partly a framework setting up the rules by which the new democracy will operate.170

In the same vein, Professor Christine Bell, in her article on the nature and legal status of peace agreements, observed that the typical way that peace agreements establish or confirm mechanisms for demilitarization and demobilization is by linking them to new constitutional structures addressing governance, elections, and legal and human rights institutions.171 In the Philippine experience, the link between peace agreements and constitution-making has been recognized by no less than the framers of the Constitution. Behind the provisions of the Constitution on autonomous regions172 is the framers' intention to implement a particular peace agreement, namely, the Tripoli Agreement of 1976 between the GRP and the MNLF, signed by then Undersecretary of National Defense Carmelo Z. Barbero and then MNLF Chairman Nur Misuari. MR. ROMULO. There are other speakers; so, although I have some more questions, I will reserve my right to ask them if they are not covered by the other speakers. I have only two questions. I heard one of the Commissioners say that local autonomy already exists in the Muslim region; it is working very well; it has, in fact, diminished a great deal of the problems. So, my question is: since that already exists, why do we have to go into something new? MR. OPLE. May I answer that on behalf of Chairman Nolledo. Commissioner Yusup Abubakar is right that certain definite steps have been taken to implement the provisions of the Tripoli Agreement with respect to an autonomous region in Mindanao. This is a good first step, but there is no question that this is merely a partial response to the Tripoli Agreement itself and to the fuller standard of regional autonomy contemplated in that agreement, and now by state policy.173(Emphasis supplied)

The constitutional provisions on autonomy and the statutes enacted pursuant to them have, to the credit of their drafters, been partly successful. Nonetheless, the Filipino people are still faced with the reality of an on-going conflict between the Government and the MILF. If the President is to be expected to find means for bringing this conflict to an end and to achieve lasting peace in Mindanao, then she must be given the leeway to explore, in the course of peace negotiations, solutions that may require changes to the Constitution for their implementation. Being uniquely vested with the power to conduct peace negotiations with rebel groups, the President is in a singular position to know the precise nature of their grievances which, if resolved, may bring an end to hostilities. The President may not, of course, unilaterally implement the solutions that she considers viable, but she may not be prevented from submitting them as recommendations to Congress, which could then, if it is minded, act upon them pursuant to the legal procedures for constitutional amendment and revision. In particular, Congress would have the option, pursuant to Article XVII, Sections 1 and 3 of the Constitution, to propose the recommended amendments or revision to the people, call a constitutional convention, or submit to the electorate the question of calling such a convention. While the President does not possess constituent powers - as those powers may be exercised only by Congress, a Constitutional Convention, or the people through initiative and referendum - she may submit proposals for constitutional change to Congress in a manner that does not involve the arrogation of constituent powers. In Sanidad v. COMELEC,174 in issue was the legality of then President Marcos' act of directly submitting proposals for constitutional amendments to a referendum, bypassing the interim National Assembly which was the body vested by the 1973 Constitution with the power to propose such amendments. President Marcos, it will be recalled, never convened the interim

National Assembly. The majority upheld the President's act, holding that "the urges of absolute necessity" compelled the President as the agent of the people to act as he did, there being no interim National Assembly to propose constitutional amendments. Against this ruling, Justices Teehankee and Muoz Palma vigorously dissented. The Court's concern at present, however, is not with regard to the point on which it was then divided in that controversial case, but on that which was not disputed by either side. Justice Teehankee's dissent,175 in particular, bears noting. While he disagreed that the President may directly submit proposed constitutional amendments to a referendum, implicit in his opinion is a recognition that he would have upheld the President's action along with the majority had the President convened the interim National Assembly and coursed his proposals through it. Thus Justice Teehankee opined: "Since the Constitution provides for the organization of the essential departments of government, defines and delimits the powers of each and prescribes the manner of the exercise of such powers, and the constituent power has not been granted to but has been withheld from the President or Prime Minister, it follows that the President's questioned decrees proposing and submitting constitutional amendments directly to the people (without the intervention of the interim National Assembly in whom the power is expressly vested) are devoid of constitutional and legal basis."176 (Emphasis supplied) From the foregoing discussion, the principle may be inferred that the President - in the course of conducting peace negotiations may validly consider implementing even those policies that require changes to the Constitution, but she maynot unilaterally implement them without the intervention of Congress, or act in any way as if the assent of that body were assumed as a certainty.

Since, under the present Constitution, the people also have the power to directly propose amendments through initiative and referendum, the President may also submit her recommendations to the people, not as a formal proposal to be voted on in a plebiscite similar to what President Marcos did in Sanidad, but for their independent consideration of whether these recommendations merit being formally proposed through initiative. These recommendations, however, may amount to nothing more than the President's suggestions to the people, for any further involvement in the process of initiative by the Chief Executive may vitiate its character as a genuine "people'sinitiative." The only initiative recognized by the Constitution is that which truly proceeds from the people. As the Court stated in Lambino v. COMELEC:177 "The Lambino Group claims that their initiative is the people's voice.' However, the Lambino Group unabashedly states in ULAP Resolution No. 2006-02, in the verification of their petition with the COMELEC, that ULAP maintains its unqualified support to the agenda of Her Excellency President Gloria Macapagal-Arroyo for constitutional reforms.' The Lambino Group thus admits that their people's' initiative is an unqualified support to the agenda'of the incumbent President to change the Constitution. This forewarns the Court to be wary of incantations of people's voice' or sovereign will' in the present initiative." It will be observed that the President has authority, as stated in her oath of office,178 only to preserve and defend the Constitution. Such presidential power does not, however, extend to allowing her to change the Constitution, but simply to recommend proposed amendments or revision. As long as she limits herself to recommending these changes and submits to the proper procedure for constitutional amendments and revision, her mere

recommendation need not be construed as an unconstitutional act. The foregoing discussion focused on the President's authority to propose constitutional amendments, since her authority to propose new legislation is not in controversy. It has been an accepted practice for Presidents in this jurisdiction to propose new legislation. One of the more prominent instances the practice is usually done is in the yearly State of the Nation Address of the President to Congress. Moreover, the annual general appropriations bill has always been based on the budget prepared by the President, which - for all intents and purposes - is a proposal for new legislation coming from the President.179 The "suspensive clause" in the MOA-AD viewed in light of the above-discussed standards Given the limited nature of the President's authority to propose constitutional amendments, she cannot guarantee to any third party that the required amendments will eventually be put in place, nor even be submitted to a plebiscite. The most she could do is submit these proposals as recommendations either to Congress or the people, in whom constituent powers are vested. Paragraph 7 on Governance of the MOA-AD states, however, that all provisions thereof which cannot be reconciled with the present Constitution and laws "shall come into force upon signing of a Comprehensive Compact and upon effecting the necessary changes to the legal framework." This stipulation does not bear the marks of a suspensive condition - defined in civil law as a future and uncertain event - but of a term. It is not a question of whether the necessary changes to the legal framework will be effected, but when. That there is no uncertainty being contemplated is plain from what follows, for the paragraph goes on to state that the contemplated changes shall be "with due regard to non derogation of prior agreementsand within the stipulated timeframe to be contained in the Comprehensive Compact."

Pursuant to this stipulation, therefore, it is mandatory for the GRP to effect the changes to the legal framework contemplated in the MOA-AD - which changes would include constitutional amendments, as discussed earlier. It bears noting that, By the time these changes are put in place, the MOA-AD itself would be counted among the "prior agreements" from which there could be no derogation. What remains for discussion in the Comprehensive Compact would merely be the implementing details for these "consensus points" and, notably, the deadline for effecting the contemplated changes to the legal framework. Plainly, stipulation-paragraph 7 on GOVERNANCE is inconsistent with the limits of the President's authority to propose constitutional amendments, it being a virtual guarantee that the Constitution and the laws of the Republic 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 threeyear transitional period involving the putting up of new administrative structures through Executive Order, such as the Special Zone of Peace and Development (SZOPAD) and the Southern Philippines Council for Peace and Development (SPCPD), while Phase II covered the establishment of the new regional autonomous government through amendment or repeal of R.A. No. 6734, which was then the Organic Act of the ARMM.

The stipulations on Phase II consisted of specific agreements on the structure of the expanded autonomous region envisioned by the parties. To that extent, they are similar to the provisions of the MOA-AD. There is, however, a crucial difference between the two agreements. While the MOA-AD virtually guarantees that the "necessary changes to the legal framework" will be put in place, the GRP-MNLF final peace agreement states thus: "Accordingly, these provisions [on Phase II] shall be recommended by the GRP to Congress for incorporation in the amendatory or repealing law." Concerns have been raised that the MOA-AD would have given rise to a binding international law obligation on the part of the Philippines to change its Constitution in conformity thereto, on the ground that it may be considered either as a binding agreement under international law, or a unilateral declaration of the Philippine government to the international community that it would grant to the Bangsamoro people all the concessions therein stated. Neither ground finds sufficient support in international law, however. The MOA-AD, as earlier mentioned in the overview thereof, would have included foreign dignitaries as signatories. In addition, representatives of other nations were invited to witness its signing in Kuala Lumpur. These circumstances readily lead one to surmise that the MOA-AD would have had the status of a binding international agreement had it been signed. An examination of the prevailing principles in international law, however, leads to the contrary conclusion. The Decision on Challenge to Jurisdiction: Lom Accord Amnesty180 (the Lom Accord case) of the Special Court of Sierra Leone is enlightening. The Lom Accord was a peace agreement signed on July 7, 1999 between the Government of Sierra Leone and the Revolutionary United Front (RUF), a rebel group with which the Sierra Leone Government had been in armed conflict for around eight years at the time of signing. There were noncontracting signatories to the agreement, among which were the

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

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

the international community acting through the Security Council may take note of. That, however, will not convert it to an international agreement which creates an obligation enforceable in international, as distinguished from municipal, law. A breach of the terms of such a peace agreement resulting in resumption of internal armed conflict or creating a threat to peace in the determination of the Security Council may indicate a reversal of the factual situation of peace to be visited with possible legal consequences arising from the new situation of conflict created. Such consequences such as action by the Security Council pursuant to Chapter VII arise from the situation and not from the agreement, nor from the obligation imposed by it. Such action cannot be regarded as a remedy for the breach. A peace agreement which settles an internal armed conflict cannot be ascribed the same status as one which settles an international armed conflict which, essentially, must be between two or more warring States. The Lom Agreement cannot be characterised as an international instrument. x x x" (Emphasis, italics and underscoring supplied) Similarly, that the MOA-AD would have been signed by representatives of States and international organizations not parties to the Agreement would not have sufficed to vest in it a binding character under international law. In another vein, concern has been raised that the MOA-AD would amount to a unilateral declaration of the Philippine State, binding under international law, that it would comply with all the stipulations stated therein, with the result that it would have to amend its Constitution accordingly regardless of the true will of the people. Cited as authority for this view is Australia v. France,181 also known as the Nuclear Tests Case, decided by the International Court of Justice (ICJ).

In the Nuclear Tests Case, Australia challenged before the ICJ the legality of France's nuclear tests in the South Pacific. France refused to appear in the case, but public statements from its President, and similar statements from other French officials including its Minister of Defence, that its 1974 series of atmospheric tests would be its last, persuaded the ICJ to dismiss the case.182 Those statements, the ICJ held, amounted to a legal undertaking addressed to the international community, which required no acceptance from other States for it to become effective. Essential to the ICJ ruling is its finding that the French government intended to be bound to the international community in issuing its public statements, viz: 43. It is well recognized that declarations made by way of unilateral acts, concerning legal or factual situations, may have the effect of creating legal obligations. Declarations of this kind may be, and often are, very specific. When it is the intention of the State making the declaration that it should become bound according to its terms, that intention confers on the declaration the character of a legal undertaking, the State being thenceforth legally required to follow a course of conduct consistent with the declaration. An undertaking of this kind, if given publicly, and with an intent to be bound, even though not made within the context of international negotiations, is binding. In these circumstances, nothing in the nature of a quid pro quo nor any subsequent acceptance of the declaration, nor even any reply or reaction from other States, is required for the declaration to take effect, since such a requirement would be inconsistent with the strictly unilateral nature of the juridical act by which the pronouncement by the State was made. 44. Of course, not all unilateral acts imply obligation; but a State may choose to take up a certain position

in relation to a particular matter with the intention of being bound-the intention is to be ascertained by interpretation of the act. When States make statements by which their freedom of action is to be limited, a restrictive interpretation is called for. xxxx 51. In announcing that the 1974 series of atmospheric tests would be the last, the French Government conveyed to the world at large, including the Applicant, its intention effectively to terminate these tests. It was bound to assume that other States might take note of these statements and rely on their being effective. The validity of these statements and their legal consequences must be considered within the general framework of the security of international intercourse, and the confidence and trust which are so essential in the relations among States. It is from the actual substance of these statements, and from the circumstances attending their making, that the legal implications of the unilateral act must be deduced.The objects of these statements are clear and they were addressed to the international community as a whole, and the Court holds that they constitute an undertaking possessing legal effect. The Court considers *270 that the President of the Republic, in deciding upon the effective cessation of atmospheric tests, gave an undertaking to the international community to which his words were addressed. x x x (Emphasis and underscoring supplied) As gathered from the above-quoted ruling of the ICJ, public statements of a state representative may be construed as aunilateral declaration only when the following conditions are present: the statements were clearly addressed to the international community, the state intended to be bound to that community by its statements, and that not to give legal effect to

those statements would be detrimental to the security of international intercourse. Plainly, unilateral declarations arise only in peculiar circumstances. The limited applicability of the Nuclear Tests Case ruling was recognized in a later case decided by the ICJ entitled Burkina Faso v. Mali,183 also known as the Case Concerning the Frontier Dispute. The public declaration subject of that case was a statement made by the President of Mali, in an interview by a foreign press agency, that Mali would abide by the decision to be issued by a commission of the Organization of African Unity on a frontier dispute then pending between Mali and Burkina Faso. Unlike in the Nuclear Tests Case, the ICJ held that the statement of Mali's President was not a unilateral act with legal implications. It clarified that its ruling in the Nuclear Tests case rested on the peculiar circumstances surrounding the French declaration subject thereof, to wit: 40. In order to assess the intentions of the author of a unilateral act, account must be taken of all the factual circumstances in which the act occurred. For example, in the Nuclear Tests cases, the Court took the view that since the applicant States were not the only ones concerned at the possible continuance of atmospheric testing by the French Government, that Government's unilateral declarations had conveyed to the world at large, including the Applicant, its intention effectively to terminate these tests (I.C.J. Reports 1974, p. 269, para. 51; p. 474, para. 53). In the particular circumstances of those cases, the French Government could not express an intention to be bound otherwise than by unilateral declarations. It is difficult to see how it could have accepted the terms of a negotiated solution with each of the applicants without thereby jeopardizing its contention that its 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 President's statement was not held to be a binding unilateral declaration by the ICJ. As in that case, there was also nothing to hinder the Philippine panel, had it really been its intention to be bound to other States, to manifest that intention

by formal agreement. Here, that formal agreement would have come about by the inclusion in the MOA-AD of a clear commitment to be legally bound to the international community, not just the MILF, and by an equally clear indication that the signatures of the participating 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 maynot 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. The Court, however, finds that the prayers for mandamus have been rendered moot in view of the respondents' action in

providing the Court and the petitioners with the official copy of the final draft of the MOA-AD and its annexes. The people's right to information on matters of public concern under Sec. 7, Article III of the Constitution is in splendid symmetry with the state policy of full public disclosure of all its transactions involving public interest under Sec. 28, Article II of the Constitution. The right to information guarantees the right of the people to demand information, while Section 28 recognizes the duty of officialdom to give information even if nobody demands. The complete and effective exercise of the right to information necessitates that its complementary provision on public disclosure derive the same self-executory nature, subject only to reasonable safeguards or limitations as may be provided by law. The contents of the MOA-AD is a matter of paramount public concern involving public interest in the highest order. In declaring that the right to information contemplates steps and negotiations leading to the consummation of the contract, jurisprudence finds no distinction as to the executory nature or commercial character of the agreement. An essential element of these twin freedoms is to keep a continuing dialogue or process of communication between the government and the people. Corollary to these twin rights is the design for feedback mechanisms. The right to public consultation was envisioned to be a species of these public rights. At least three pertinent laws animate these constitutional imperatives and justify the exercise of the people's right to be consulted on relevant matters relating to the peace agenda. One, E.O. No. 3 itself is replete with mechanics for continuing consultations on both national and local levels and for a principal forum for consensus-building. In fact, it is the duty of the Presidential Adviser on the Peace Process to conduct regular

dialogues to seek relevant information, comments, advice, and recommendations from peace partners and concerned sectors of society. Two, Republic Act No. 7160 or the Local Government Code of 1991 requires all national offices to conduct consultations before any project or program critical to the environment and human ecology including those that may call for the eviction of a particular group of people residing in such locality, is implemented therein. The MOA-AD is one peculiar program 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 veryconcept underlying them, namely, the associative relationship envisioned between the GRP and the BJE, areunconstitutional, for the concept presupposes that the associated entity is a state and implies that the same is on its way to independence. While there is a clause in the MOA-AD stating that the provisions thereof inconsistent with the present legal framework will not be effective until that framework is amended, the same does not cure its defect. The inclusion of provisions in the MOA-AD establishing an associative relationship between the BJE and the Central Government is, itself, a violation of the Memorandum of Instructions From The President dated March 1, 2001, addressed to the government peace panel. Moreover, as the clause is worded, it virtually guarantees that the necessary amendments to the Constitution and the laws will eventually be put in place. Neither the GRP Peace Panel nor the President herself is authorized to make such a guarantee. Upholding such an act would amount to authorizing a usurpation of the constituent powers vested only in Congress, a Constitutional Convention, or the people themselves through the process of initiative, for the only way that the Executive can ensure the outcome of the amendment process is through an undue influence or interference with that process. While the MOA-AD would not amount to an international agreement or unilateral declaration binding on the Philippines under international law, respondents' act of guaranteeing amendments is, by itself, already a constitutional violation that renders the MOA-AD fatally defective.

WHEREFORE, respondents' motion to dismiss is DENIED. The main and intervening petitions are GIVEN DUE COURSE and hereby GRANTED. The Memorandum of Agreement on the Ancestral Domain Aspect of the GRP-MILF Tripoli Agreement on Peace of 2001 is declared contrary to law and the Constitution. SO ORDERED.

SENATOR AQUILINO PIMENTEL, JR., G.R. No. 158088 REP. ETTA ROSALES, PHILIPPINE COALITION FOR THE ESTABLISHMENT OF THE INTERNATIONAL Present : CRIMINAL COURT, TASK FORCE DETAINEES OF THE PHILIPPINES, Davide, Jr., C.J., FAMILIES OF VICTIMS OF Puno, INVOLUNTARY DISAPPEARANCES, Panganiban, BIANCA HACINTHA R. ROQUE, Quisumbing, HARRISON JACOB R. ROQUE, Ynares-Santiago, AHMED PAGLINAWAN, RON P. * SALO, Sandoval-Gutierrez, LEAVIDES G. DOMINGO, EDGARDO *Carpio, CARLO VISTAN, NOEL VILLAROMAN, Austria-Martinez, CELESTE CEMBRANO, LIZA ABIERA, *Corona, JAIME ARROYO, MARWIL LLASOS, Carpio Morales,

CRISTINA ATENDIDO, ISRAFEL Callejo, Sr., FAGELA, and ROMEL BAGARES, Azcuna, Petitioners, nga, ico-Nazario, and - versus -

Ti Ch

Garcia, JJ. OFFICE OF THE EXECUTIVE SECRETARY, represented by Promulgated: HON. ALBERTO ROMULO, and the DEPARTMENT OF FOREIGN AFFAIRS, represented by HON. BLAS OPLE, July 6, 2005 Respondents. x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISION
PUNO J.:

This is a petition for mandamus filed by petitioners to compel the

Office of the Executive Secretary and the Department of Foreign Affairs to transmit the signed copy of the Rome Statute of the International Criminal Court to the Senate of the Philippines for its concurrence in accordance with Section 21, Article VII of the 1987 Constitution. The Rome Statute established the International Criminal Court which shall have the power to exercise its jurisdiction over persons for the most serious crimes of international concern xxx and shall be complementary to the national criminal jurisdictions.[1] Its jurisdiction covers the crime of genocide, crimes against humanity, war crimes and the crime
[2]

Philippines signed the Statute on December 28, 2000 through Charge d Affairs Enrique A. Manalo of the Philippine Mission to the United Nations.[3] Its provisions, however, require that it be subject to ratification, acceptance or approval of the signatory states.[4] Petitioners filed the instant petition to compel the respondents the Office of the Executive Secretary and the Department of Foreign Affairs to transmit the signed text of the treaty to the Senate of the Philippines for ratification. It is the theory of the petitioners that ratification of a treaty, under both domestic law and international law, is a function of the Senate. Hence, it is the duty of the executive department to transmit the signed copy of the Rome Statute to the Senate to allow it to exercise its discretion with respect to ratification of

of

aggression

as

defined

in

the

Statute.

The Statute was opened for signature by all

states in Rome on July 17, 1998 and had remained open for signature until December 31, 2000 at the United Nations Headquarters in New York. The

treaties.

Moreover, petitioners submit that the

A petition for mandamus may be filed 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.[6] We have held that to be given due course, a petition formandamus must have been instituted by a party aggrieved by the alleged inaction of any tribunal, corporation, board or person which unlawfully excludes said party from the

Philippines has a ministerial duty to ratify the Rome Statute under treaty law and customary international law. Petitioners invoke the Vienna Convention on the Law of Treaties enjoining the states to refrain from acts which would defeat the object and purpose of a treaty when they have signed the treaty prior to ratification unless they have made their intention clear not to become parties to the treaty.[5] The Office of the Solicitor General,

enjoyment of a legal right. The petitioner in every case must therefore be an aggrieved party in the sense that he possesses a clear legal right to be enforced and a direct interest in the duty or act to be performed.[7] The Court will exercise its power of judicial review only if the case is brought before it by a party who has the legal standing to raise the constitutional or legal question. Legal standing means a personal and substantial interest in the case

commenting for the respondents, questioned the standing of the petitioners to file the instant suit. It also contended that the petition at bar violates the rule on hierarchy of courts. On the substantive issue raised by petitioners, respondents argue that the executive department has no duty to transmit the Rome Statute to the Senate for concurrence.

such that the party has sustained or will sustain direct injury as a result of the government act that is being challenged. The term interest is material interest, an interest in issue and to be affected by the decree, as distinguished from mere interest in the question involved, or a mere incidental interest.[8] The petition at bar was filed by Senator Aquilino Pimentel, Jr. who asserts his legal standing to file the suit as member of the Senate; Congresswoman Loretta Ann Rosales, a member of the House of Representatives and Chairperson of its Committee on Human Rights; the Philippine Coalition for the Establishment of the International Criminal Court which is composed of individuals and corporate entities dedicated to the Philippine ratification of the Rome Statute; the Task Force Detainees of the Philippines, a juridical entity with the avowed purpose of promoting the cause of human rights and human

rights victims in the country; the Families of Victims of Involuntary Disappearances, a juridical entity duly organized and existing pursuant to Philippine Laws with the avowed purpose of promoting the cause of families and victims of human rights violations in the country; Bianca Hacintha Roque and Harrison Jacob Roque, aged two (2) and one (1), respectively, at the time of filing of the instant petition, and suing under the doctrine of inter-generational rights enunciated in the case of Oposa vs. Factoran, Jr.;[9] and a group of fifth year working law students from the University of the Philippines College of Law who are suing as taxpayers. The question in standing is whether a party has alleged 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.[10] We find that among the petitioners, only Senator Pimentel has the legal standing to file the instant suit. The other petitioners maintain their

As regards Senator Pimentel, it has been held that to the extent the powers of Congress are impaired, so is the power of each member thereof, since his office confers a right to participate in the exercise of the powers of that institution.[11] Thus, legislators have the standing to maintain inviolate the prerogatives, powers and privileges vested by the Constitution in their office and are allowed to sue to question the validity of any official action which they claim infringes their prerogatives as legislators. The petition at bar invokes the power of the Senate to grant or withhold its concurrence to a treaty entered into by the executive branch, in this case, the Rome Statute. The petition seeks to order the executive branch to transmit the copy of the treaty to the Senate to allow it to exercise such authority. Senator

standing as advocates and defenders of human rights, and as citizens of the country. They have not shown, however, that they have sustained or will sustain a direct injury from the non-transmittal of the signed text of the Rome Statute to the Senate. Their contention that they will be deprived of their remedies for the protection and enforcement of their rights does not persuade. The Rome Statute is intended to complement national criminal laws and

courts. Sufficient remedies are available under our national laws to protect our citizens against human rights violations and petitioners can always seek redress for any abuse in our domestic courts.

Pimentel, as member of the institution, certainly has

the legal standing to assert such authority of the Senate. We now go to the substantive issue. The core issue in this petition for mandamus is whether the Executive Secretary and the Department of Foreign Affairs have a ministerial duty to transmit to the Senate the copy of the Rome Statute signed by a member of the Philippine Mission to the United Nations even without the signature of the President. We rule in the negative. 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 countrys sole representative with foreign nations.[12] As the chief architect of foreign policy, the President acts as the countrys 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.[13] In the realm of treaty-making, the President has the sole authority to negotiate with other states. Nonetheless, while the President has the sole authority to negotiate and enter into treaties, the Constitution provides a limitation to his power by requiring the concurrence of 2/3 of all the members of the Senate for the validity of the treaty entered into by him. Section 21, Article VII of the 1987 Constitution provides that 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. The 1935 and the 1973 Constitution also required the concurrence by the legislature to the

treaties entered into by the executive. Section 10 (7), Article VII of the 1935 Constitution provided: Sec. 10. (7) The President shall have the power, with the concurrence of two-thirds of all the Members of the Senate, to make treaties xxx.

of checks and balance necessary in the nations pursuit of political maturity and growth.[15] In filing this petition, the petitioners interpret Section 21, Article VII of the 1987 Constitution to mean that the power to ratify treaties belongs to the

Section 14 (1) Article VIII of the 1973 Constitution stated: Sec. 14. (1) Except as otherwise provided in this Constitution, no treaty shall be valid and effective unless concurred in by a majority of all the Members of the Batasang Pambansa.

Senate. We disagree. Justice Isagani Cruz, in his book on International Law, describes the treaty-making

The participation of the legislative branch in the treaty-making process was deemed essential to provide a check on the executive in the field of foreign relations.[14] By requiring the concurrence of the legislature in the treaties entered into by the President, the Constitution ensures a healthy system

process in this wise: The usual steps in the treatymaking process are: negotiation, signature, ratification, and exchange of the instruments of ratification. The treaty may then be submitted for registration and publication under the U.N. Charter, although this step is not essential to the validity of the agreement as between the parties.

Negotiation may be undertaken directly by the head of state but he now usually assigns this task to his authorized representatives. These representatives are provided with credentials known as full powers, which they exhibit to the other negotiators at the start of the formal discussions. It is standard practice for one of the parties to submit a draft of the proposed treaty which, together with the counter-proposals, becomes the basis of the subsequent negotiations. The negotiations may be brief or protracted, depending on the issues involved, and may even collapse in case the parties are unable to come to an agreement on the points under consideration. If and when the negotiators finally decide on the terms of the treaty, the same is opened for signature. This step is primarily intended as a means of authenticating the instrument and for the purpose of symbolizing the good faith of the parties; but, significantly, it does not indicate the final consent of the state in cases where ratification of the treaty is required. The document is ordinarily signed in accordance with the alternat,

that is, each of the several negotiators is allowed to sign first on the copy which he will bring home to his own state. Ratification, which is the next step, is the formal act by which a state confirms and accepts the provisions of a treaty concluded by its representatives. The purpose of ratification is to enable the contracting states to examine the treaty more closely and to give them an opportunity to refuse to be bound by it should they find it inimical to their interests. It is for this reason that most treaties are made subject to the scrutiny and consent of a department of the government other than that which negotiated them. xxx The last step in the treaty-making process is the exchange of the instruments of ratification, which usually also signifies the effectivity of the treaty unless a different date has been agreed upon by the parties. Where ratification is dispensed with and no effectivity clause

is embodied in the treaty, the instrument is deemed effective upon its [16] signature. [emphasis supplied] Petitioners arguments equate the signing of the treaty by the Philippine representative with

by President Fidel V. Ramos on November 25, 1997 provides the guidelines in the negotiation of international agreements and its ratification. It

mandates that after the treaty has been signed by the Philippine transmitted representative, to the the same of shall be

ratification. It should be underscored that the signing of the treaty and the ratification are two separate and distinct steps in the treaty-making process. As earlier discussed, the signature is primarily intended as a means of authenticating the instrument and as a symbol of the good faith of the parties. It is usually performed by the states authorized representative in the diplomatic mission. Ratification, on the other hand, is the formal act by which a state confirms and accepts the provisions of a treaty concluded by its representative. It is generally held to be an executive act, undertaken by the head of the state or of the government.[17] Thus, Executive Order No. 459 issued

Department

Foreign

Affairs. The Department of Foreign Affairs shall then prepare the ratification papers and forward the signed copy of the treaty to the President for

ratification.

After the President has ratified the

treaty, the Department of Foreign Affairs shall submit the same to the Senate for concurrence. Upon receipt of the concurrence of the Senate, the Department of Foreign Affairs shall comply with the provisions of the treaty to render it effective. Section 7 of

Executive Order No. 459 reads: 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. Agreements. i. Executive

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 subparagraph[s] 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. 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. ii.

Petitioners submission that the Philippines is bound under treaty law and international law to ratify the treaty which it has signed is without basis. The signature does not signify the final consent of the state to the treaty. It is the ratification that binds the state to the provisions thereof. In fact, the Rome Statute itself requires that the signature of the representatives of the states be subject to ratification, acceptance or approval of the signatory states. Ratification is the act by which the provisions of a treaty are formally confirmed and approved by a State. By ratifying a treaty signed in its behalf, a state expresses its willingness to be bound by the provisions of such treaty. After the treaty is signed by the states representative, the President, being accountable to the people, is burdened with the responsibility and the duty to carefully study the contents of the treaty and ensure that they are not inimical to the interest of the

state and its people. Thus, the President has the discretion even after the signing of the treaty by the Philippine representative whether or not to ratify the same. The Vienna Convention on the Law of Treaties does not contemplate to defeat or even restrain this power of the head of states. If that were so, the requirement of ratification of treaties would be pointless and futile. It has been held that a state has no legal or even moral duty to ratify a treaty which has been signed by its plenipotentiaries.[18] There is no legal obligation to ratify a treaty, but it goes without saying that the refusal must be based on substantial grounds and not on superficial or whimsical reasons. Otherwise, the other state would be justified in taking offense.[19] It should be emphasized that under our Constitution, the power to ratify is vested in the President, subject to the concurrence of the

Senate. The role of the Senate, however, is limited only to giving or withholding its consent, or concurrence, to the ratification.[20] Hence, it is within the authority of the President to refuse to submit a treaty to the Senate or, having secured its consent for its ratification, refuse to ratify it.[21] Although the refusal of a state to ratify a treaty which has been signed in its behalf is a serious step that should not be taken lightly,[22] such decision is within the

competence of the President alone, which cannot be encroached by this Court via a writ

of mandamus. This Court has no jurisdiction over actions seeking to enjoin the President in the performance of his official duties.[23] The Court, therefore, cannot issue the writ of mandamus prayed for by the petitioners as it is beyond its jurisdiction to compel the executive branch of the government to transmit the signed text of Rome Statute to the Senate.

IN

VIEW

WHEREOF,

the

petition

is DISMISSED. SO ORDERED.

AKBAYAN CITIZENS ACTION PARTY (AKBAYAN), PAMBANSANG of Origin of the JPEPA, GALLANT SOR negotiator for Rules G.R. No. 170516 KATIPUNAN NG MGA SAMAHAN SA KANAYUNAN capacity as Deputy Commissioner of the Bureau of Cus official (PKSK), ALLIANCE OF PROGRESSIVE LABOR (APL), VICENTE A. for Customs Procedures and Paperless Tra negotiator FABE, Present: ANGELITO R. MENDOZA, MANUEL P. QUIAMBAO, ROSE MA. LUISA GIGETTE IMPERIAL, in her capacity JPEPA, BEATRIX CRUZ-ANGELES, CONG. LORENZO R. TANADA III, CONG. MARIO the Bureau of Local Employment of the Department o PUNO, C.J., JOYO AGUJA, CONG. LORETA ANN P. ROSALES, CONG. (DOLE) and lead negotiator for Movement of Na Employment ANA QUISUMBING, THERESIA HONTIVEROS-BARAQUEL, AND CONG. EMMANUEL of the JPEPA, PASCUAL DE GUZMAN, in his capacity as D YNARES-SANTIAGO, JOEL J. VILLANUEVA, Board of Investments and lead negotiator for Investment o Petitioners, JESUS MOTOOMULL, CARPIO, in his capacity as Director for the Bure AUSTRIA-MARTINEZ, Mutual Recog Standards of the DTI and lead negotiator for CORONA, - versus JPEPA, LOUIE CALVARIO, in his capacity as lead n CARPIO MORALES, Intellectual Property of the JPEPA, ELMER H. DORADO, in h Officer-in-Charge of theAZCUNA, Government Procurement Policy Bo TINGA, THOMAS G. AQUINO, in his capacity as Undersecretary of the Department government agency that is leading the n Support Office, the CHICO-NAZARIO, of Trade and Industry (DTI) and Chairman and Chief Delegate of the Government Procurement of the JPEPA, RICARDO V. PA VELASCO, JR., Philippine Coordinating Committee (PCC) for thecapacity as Chief State Counsel of the Department of Justice (D Japan-Philippines NACHURA, Economic Partnership Agreement, EDSEL T. CUSTODIO, in his capacity as negotiator for Dispute Avoidance and Settlement of the JPE Undersecretary of the Department of Foreign Affairs (DFA) and Co-Chair of SULIT, in his capacityREYES, negotiator for the General as lead LEONARDO-DE R. ERMITA, in hi the PCC for the JPEPA, EDGARDO ABON, in his capacity as Chairman ofJPEPA, EDUARDO CASTRO, & Provisions of the the Tariff Commission and lead negotiator for Competition Policy and andBRION, JJ. ROMULO, in his capacit Executive Secretary, ALBERTO Emergency Measures of the JPEPA, MARGARITA of SONGCO, in her capacity as Assistant Director-General of the National Economic DFA,* Development Authority (NEDA) and lead negotiator for Trade in Services Respondents. and Cooperation of the JPEPA, MALOU MONTERO, in her capacity as Foreign Service Officer I, Office of the Undersecretary for International Economic Relations of the DFA and lead negotiator for the General and Final Provisions of the JPEPA, ERLINDA ARCELLANA, in her capacity as Director of the Board of Investments and lead negotiator for Trade in Goods (General Rules) of the JPEPA, RAQUEL ECHAGUE, in her capacity as lead

House Resolution No. 551 calling for an inquiry into the bilateral trade agreements then being negotiated by the Philippine government, particularly the JPEPA. The Resolution became the basis of an inquiry subsequently conducted by the House Special Committee on Globalization (the House Committee) into the negotiations of the JPEPA. x------------------------------------ - - - - - - - - - - - - - -x DECISION CARPIO MORALES, J.: Petitioners non-government organizations, Congresspersons, citizens and taxpayers seek via the present petition for mandamus and prohibition to obtain from respondents the full text of the JapanPhilippines Economic Partnership Agreement (JPEPA) including the Philippine and Japanese offers submitted during the negotiation process and all pertinent attachments and annexes thereto. Petitioners Congressmen Lorenzo R. Taada III and Mario Joyo Aguja filed on January 25, 2005 In the course of its inquiry, the House Committee requested herein respondent Undersecretary Tomas Aquino (Usec. Aquino), Chairman of the Philippine Coordinating Committee created under Executive Order No. 213 (CREATION OF A PHILIPPINE COORDINATING COMMITTEE TO STUDY THE FEASIBILITY OF THE JAPAN-PHILIPPINES ECONOMIC [1] PARTNERSHIP AGREEMENT) to study and negotiate the proposed JPEPA, and to furnish the Committee with a copy of the latest draft of the JPEPA. Usec. Aquino did not heed the request, however. Congressman Aguja later requested for the same document, but Usec. Aquino, by letter

of November 2, 2005, replied that the Congressman shall be provided with a copy thereof once the negotiations are completed and as soon as a thorough legal review of the proposed agreement has been conducted. In a separate move, the House Committee, through Congressman Herminio G. Teves, requested Executive Secretary Eduardo Ermita to furnish it with all documents on the subject including the latest draft of the proposed agreement, the requests and offers etc.[2] Acting on the request, Secretary Ermita, by letter of June 23, 2005, wrote Congressman Teves as follows:
In its letter dated 15 June 2005 (copy enclosed), [the] D[epartment of] F[oreign] A[ffairs] explains that the Committees request to be furnished all documents on the JPEPA may be difficult to accomplish at this time, since the proposed Agreement has been a work in progress for about three years. A copy of the draft JPEPA will however be forwarded to the Committee as soon as the text thereof is settled and complete. (Emphasis supplied)

Congressman Aguja also requested NEDA Director-General Romulo Neri and Tariff Commission Chairman Edgardo Abon, by letter of July 1, 2005, for copies of the latest text of the JPEPA. Chairman Abon replied, however, by letter of July 12, 2005 that the Tariff Commission does not have a copy of the documents being requested, albeit he was certain that Usec. Aquino would provide the Congressman with a copy once the negotiation is completed. And by letter of July 18, 2005, NEDA Assistant Director-General Margarita R. Songco informed the Congressman that his request addressed to Director-General Neri had been forwarded to Usec. Aquino who would be in the best position to respond to the request. In its third hearing conducted on August 31, 2005, the House Committee resolved to issue a subpoena for the most recent draft of the JPEPA, but the same was not pursued because by Committee Chairman Congressman Teves information, then

House Speaker Jose de Venecia had requested him to hold in abeyance the issuance of the subpoena until the President gives her consent to the disclosure of the documents.[3] Amid speculations that the JPEPA might be signed by the Philippine government within December 2005, the present petition was filed onDecember 9, 2005.[4] The agreement was to be later signed on September 9, 2006 by President Gloria Macapagal-Arroyo and Japanese Prime Minister Junichiro Koizumi in Helsinki, Finland, following which the President endorsed it to the Senate for its concurrence pursuant to Article VII, Section 21 of the Constitution. To date, the JPEPA is still being deliberated upon by the Senate. The JPEPA, which will be the first bilateral free trade agreement to be entered into by the Philippines with another country in the event the Senate grants its consent to it, covers a broad range of topics which respondents enumerate as follows: trade in goods, rules of origin, customs procedures, paperless trading, trade in services,

investment, intellectual property rights, government procurement, movement of natural persons, cooperation, competition policy, mutual recognition, dispute avoidance and settlement, improvement of the business environment, and general and final provisions.[5] While the final text of the JPEPA has now been made accessible to the public since September 11, 2006,[6] respondents do not dispute that, at the time the petition was filed up to the filing of petitioners Reply when the JPEPA was still being negotiated the initial drafts thereof were kept from public view. Before delving on the substantive grounds relied upon by petitioners in support of the petition, the Court finds it necessary to first resolve some material procedural issues. Standing For a petition for mandamus such as the one at bar to be given due course, it must be instituted by a party aggrieved by the alleged inaction of any

tribunal, corporation, board or person which unlawfully excludes said party from the enjoyment of a legal right.[7] Respondents deny that petitioners have such standing to sue. [I]n the interest of a speedy and definitive resolution of the substantive issues raised, however, respondents consider it sufficient to cite a portion of the ruling in Pimentel v. Office of Executive Secretary[8] which emphasizes the need for a personal stake in the outcome of the controversy on questions of standing. In a petition anchored upon the right of the people to information on matters of public concern, which is a public right by its very nature, petitioners need not show that they have any legal or special interest in the result, it being sufficient to show that they are citizens and, therefore, part of the general public which possesses the right.[9] As the present petition is anchored on the right to information and petitioners are all suing in their capacity as citizens and groups of citizens including petitioners-members of the House of Representatives who additionally are suing in their capacity as such, the standing of

petitioners to file the present suit is grounded in jurisprudence. Mootness Considering, however, that [t]he principal relief petitioners are praying for is the disclosure of the contents of the JPEPA prior to its finalization between the two States parties,[10] public disclosure of the text of the JPEPA after its signing by the President, during the pendency of the present petition, has been largely rendered moot and academic. With the Senate deliberations on the JPEPA still pending, the agreement as it now stands cannot yet be considered as final and binding between the two States. Article 164 of the JPEPA itself provides that the agreement does not take effect immediately upon the signing thereof. For it must still go through the procedures required by the laws of each country for its entry into force, viz:
Article 164 Entry into Force

This Agreement shall enter into force on the thirtieth day after the date on which the Governments of the Parties exchange diplomatic notes informing each other that their respective legal procedures necessary for entry into force of this Agreement have been completed. It shall remain in force unless terminated as provided for in Article 165.[11] (Emphasis supplied)

A discussion of the substantive issues, insofar as they impinge on petitioners demand for access to the Philippine and Japanese offers, is thus in order.

Grounds relied upon by petitioners President Arroyos endorsement of the JPEPA to the Senate for concurrence is part of the legal procedures which must be met prior to the agreements entry into force. The text of the JPEPA having then been made accessible to the public, the petition has become moot and academic to the extent that it seeks the disclosure of the full text thereof. The petition is not entirely moot, however, because petitioners seek to obtain, not merely the text of the JPEPA, but also the Philippine and Japanese offers in the course of the negotiations.[12] Petitioners assert, first, that the refusal of the government to disclose the documents bearing on the JPEPA negotiations violates their right to information on matters of public concern[13] and contravenes other constitutional provisions on transparency, such as that on the policy of full public disclosure of all transactions involving public interest.[14] Second, they contend that non-disclosure of the same documents undermines their right to effective and reasonable participation in all levels of social, political, and economic decision-making.[15] Lastly, they proffer that divulging the contents of the JPEPA only after the agreement has been concluded will effectively make the Senate into a mere rubber stamp

of the Executive, in violation of the principle of separation of powers. Significantly, the grounds relied upon by petitioners for the disclosure of the latest text of the JPEPA are, except for the last, the same as those cited for the disclosure of the Philippine and Japanese offers. The first two grounds relied upon by petitioners which bear on the merits of respondents claim of privilege shall be discussed. The last, being purely speculatory given that the Senate is still deliberating on the JPEPA, shall not. The JPEPA is a matter of public concern To be covered by the right to information, the information sought must meet the threshold requirement that it be a matter of public concern. Apropos is the teaching of Legaspi v. Civil Service Commission:
In determining whether or not a particular information is of public concern

there is no rigid test which can be applied. Public concern like public interest is a term that eludes exact definition. Both terms embrace a broad spectrum of subjects which the public may want to know, either because these directly affect their lives, or simply because such matters naturally arouse the interest of an ordinary citizen. In the final analysis, it is for the courts to determine on a case by case basis whether the matter at issue is of interest or importance, as it relates to or affects the public.[16] (Underscoring supplied)

From the nature of the JPEPA as an international trade agreement, it is evident that the Philippine and Japanese offers submitted during the negotiations towards its execution are matters of public concern. This, respondents do not dispute. They only claim that diplomatic negotiations are covered by the doctrine of executive privilege, thus constituting an exception to the right to information and the policy of full public disclosure. Respondents claim of privilege

It is well-established in jurisprudence that neither the right to information nor the policy of full public disclosure is absolute, there being matters which, albeit of public concern or public interest, are recognized as privileged in nature. The types of information which may be considered privileged have been elucidated in Almonte v. Vasquez,[17] Chavez v. PCGG,[18] Chavez v. Public Estates Authority,[19] and most recently in Senate v.Ermita[20] where the Court reaffirmed the validity of the doctrine of executive privilege in this jurisdiction and dwelt on its scope. Whether a claim of executive privilege is valid depends on the ground invoked to justify it and the context in which it is made.[21] In the present case, the ground for respondents claim of privilege is set forth in their Comment, viz:
x x x The categories of information that may be considered privileged includes matters of diplomatic character and under negotiation and review. In this case, the privileged character of the diplomatic negotiations has been categorically invoked and clearly explained by

respondents particularly respondent DTI Senior Undersecretary. The documents on the proposed JPEPA as well as the text which is subject to negotiations and legal review by the parties fall under the exceptions to the right of access to information on matters of public concern and policy of public disclosure. They come within the coverage of executive privilege. At the time when the Committee was requesting for copies of such documents, the negotiations were ongoing as they are still now and the text of the proposed JPEPA is still uncertain and subject to change. Considering the status and nature of such documents then and now, these are evidently covered by executive privilege consistent with existing legal provisions and settled jurisprudence. Practical and strategic considerations likewise counsel against the disclosure of the rolling texts which may undergo radical change or portions of which may be totally abandoned. Furthermore, the negotiations of the representatives of the Philippines as well as of Japan must be allowed to

explore alternatives in the course of the negotiations in the same manner as judicial deliberations and working drafts of opinions are accorded strict confidentiality.[22] (Emphasis and underscoring supplied)

v. Manglapus[24] wherein the Court discussed the reasons for the privilege in more precise terms. In PMPF v. Manglapus, the therein petitioners were seeking information from the Presidents representatives on the state of the then on-going negotiations of the RP-US Military Bases Agreement.[25] The Court denied the petition, stressing that secrecy of negotiations with foreign countries is not violative of the constitutional provisions of freedom of speech or of the press nor of the freedom of access to information. The Resolution went on to state, thus:
The nature of diplomacy requires centralization of authority and expedition of decision which are inherent in executive action. Another essential characteristic of diplomacy is its confidential nature. Although much has been said about open and secret diplomacy, with disparagement of the latter, Secretaries of State Hughes and Stimson have clearly analyzed and justified the practice. In the words of Mr. Stimson:

The ground relied upon by respondents is thus not simply that the information sought involves a diplomatic matter, but that it pertains todiplomatic negotiations then in progress. Privileged character of diplomatic negotiations The privileged character of diplomatic negotiations has been recognized in this jurisdiction. In discussing valid limitations on the right to information, the Court in Chavez v. PCGG held that information on inter-government exchanges prior to the conclusion of treaties and executive agreements may be subject to reasonable safeguards for the sake of national interest.[23] Even earlier, the same privilege was upheld in Peoples Movement for Press Freedom (PMPF)

A complicated negotiation . . . cannot be carried through without many, many private talks and discussion, man to man; many tentative suggestions and proposals. Delegates from other countries come and tell you in confidence of their troubles at home and of their differences with other countries and with other delegates; they tell you of what they would do under certain circumstances and would not do under other circumstances. . . If these reports . . . should become public . . . who would ever trust American Delegations in another conference? (United States Department of State, Press Releases, June 7, 1930, pp. 282-284.). xxxx

There is frequent criticism of the secrecy in which negotiation with foreign powers on nearly all subjects is concerned. This, it is claimed, is incompatible with the substance of democracy. As expressed by one writer, It can be said that there is no more rigid system of silence anywhere in the world. (E.J. Young, Looking Behind the Censorship, J. B. Lippincott Co., 1938) President Wilson in starting his efforts for the conclusion of the World War declared that we must have open covenants, openly arrived at. He quickly abandoned his thought. No one who has studied the question believes that such a method of publicity is possible. In the moment that negotiations are started, pressure groups attempt to muscle in. An illtimed speech by one of the parties or a frank declaration of the concession which are exacted or offered on both sides would quickly lead to widespread propaganda to block the negotiations. After a treaty has been drafted and its terms are fully published, there is ample opportunity for discussion before it is approved. (The

New American Government and Its Works, James T. Young, 4thEdition, p. 194) (Emphasis and underscoring supplied)

(Emphasis supplied; underscoring in the original)

Still in PMPF v. Manglapus, the Court adopted the doctrine in U.S. v. Curtiss-Wright Export Corp.[26] that the President is the sole organ of the nation in its negotiations with foreign countries, viz:
x x x In this vast external realm, with its important, complicated, delicate and manifold problems, the President alone has the power to speak or listen as a representative of the nation. He makes treaties with the advice and consent of the Senate; but he alone negotiates. Into the field of negotiation the Senate cannot intrude; and Congress itself is powerless to invade it. As Marshall said in his great argument of March 7, 1800, in the House of Representatives, The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations. Annals, 6th Cong., col. 613. . .

Applying the principles adopted in PMPF v. Manglapus, it is clear that while the final text of the JPEPA may not be kept perpetually confidential since there should be ample opportunity for discussion before [a treaty] is approved the offers exchanged by the parties during the negotiations continue to be privileged even after the JPEPA is published. It is reasonable to conclude that the Japanese representatives submitted their offers with the understanding that historic [27] confidentiality would govern the same. Disclosing these offers could impair the ability of thePhilippines to deal not only with Japan but with other foreign governments in future negotiations. A ruling that Philippine offers in treaty negotiations should now be open to public scrutiny would discourage future Philippine representatives from frankly expressing their views during negotiations. While, on first impression, it appears wise to deter Philippine representatives from entering

into compromises, it bears noting that treaty negotiations, or any negotiation for that matter, normally involve a process of quid pro quo, andoftentimes negotiators have to be willing to grant concessions in an area of lesser importance in order to obtain more favorable terms in an area of greater national interest. Apropos are the following observations of Benjamin S. Duval, Jr.:
x x x [T]hose involved in the practice of negotiations appear to be in agreement that publicity leads to grandstanding, tends to freeze negotiating positions, and inhibits the give-and-take essential to successful negotiation. As Sissela Bok points out, if negotiators have more to gain from being approved by their own sides than by making a reasoned agreement with competitors or adversaries, then they are inclined to 'play to the gallery . . .'' In fact, the public reaction may leave them little option. It would be a brave, or foolish, Arab leader who expressed publicly a willingness for peace with Israel that did not involve the return of the entire West Bank, or Israeli leader who stated publicly a willingness to remove Israel's

existing settlements from Judea and Samaria in return for peace.[28] (Emphasis supplied)

Indeed, by hampering the ability of our representatives to compromise, we may be jeopardizing higher national goals for the sake of securing less critical ones. Diplomatic negotiations, therefore, are recognized as privileged in this jurisdiction, the JPEPA negotiations constituting no exception. It bears emphasis, however, that such privilege is only presumptive. For as Senate v. Ermita holds, recognizing a type of information as privileged does not mean that it will be considered privileged in all instances. Only after a consideration of the context in which the claim is made may it be determined if there is a public interest that calls for the disclosure of the desired information, strong enough to overcome its traditionally privileged status. Whether petitioners have established the presence of such a public interest shall be discussed later. For now, the Court shall first pass upon the

arguments raised by petitioners against the application of PMPF v. Manglapus to the present case. Arguments proffered by petitioners against the application of PMPF v. Manglapus

Petitioners argue that PMPF v. Manglapus cannot be applied in toto to the present case, there being substantial factual distinctions between the two. To petitioners, the first and most fundamental distinction lies in the nature of the treaty involved. They stress that PMPF v. Manglapusinvolved the Military Bases Agreement which necessarily pertained to matters affecting national security; whereas the present case involves an economic treaty that seeks to regulate trade and commerce between the Philippines and Japan, matters which, unlike those covered by the Military Bases Agreement, are not so vital to national security to disallow their disclosure.

Petitioners argument betrays a faulty assumption that information, to be considered privileged, must involve national security. The recognition in Senate v. Ermita[29] that executive privilege has encompassed claims of varying kinds, such that it may even be more accurate to speak of executive privileges, cautions against such generalization. While there certainly are privileges grounded on the necessity of safeguarding national security such as those involving military secrets, not all are founded thereon. One example is the informers privilege, or the privilege of the Government not to disclose the identity of a person or persons who furnish information of violations of law to officers charged with the enforcement of that law.[30] The suspect involved need not be so notorious as to be a threat to national security for this privilege to apply in any given instance. Otherwise, the privilege would be inapplicable in all but the most high-profile cases, in which case not only would this be contrary to longstanding practice. It would also be highly prejudicial to law enforcement efforts in general.

Also illustrative is the privilege accorded to presidential communications, which are presumed privileged without distinguishing between those which involve matters of national security and those which do not, the rationale for the privilege being that
x x x [a] frank exchange of exploratory ideas and assessments, free from the glare of publicity and pressure by interested parties, is essential to protect the independence of decision-making of those tasked to exercise Presidential, Legislative and Judicial power. [31] x x x (Emphasis supplied)

of government, invoke a general confidentiality privilege to shield its officials and employees from investigations by the proper governmental institutions into possible criminal wrongdoing. [32] This qualification applies whether the privilege is being invoked in the context of a judicial trial or a congressional investigation conducted in aid of legislation.[33] Closely related to the presidential communications privilege is the deliberative process privilege recognized in the United States. As discussed by the U.S. Supreme Court in NLRB v. Sears, Roebuck & Co,[34] deliberative process covers documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated. Notably, the privileged status of such documents rests, not on the need to protect national security but, on the obvious realization that officials will not communicate candidly among themselves if each remark is a potential item of discovery and front page news, the objective of the

In the same way that the privilege for judicial deliberations does not depend on the nature of the case deliberated upon, so presidential communications are privileged whether they involve matters of national security. It bears emphasis, however, that the privilege accorded to presidential communications is not absolute, one significant qualification being that the Executive cannot, any more than the other branches

privilege being to enhance the quality of agency decisions. [35] The diplomatic negotiations privilege bears a close resemblance to the deliberative process and presidential communications privilege. It may be readily perceived that the rationale for the confidential character of diplomatic negotiations, deliberative process, and presidential communications is similar, if not identical. The earlier discussion on PMPF [36] v. Manglapus shows that the privilege for diplomatic negotiations is meant to encourage a frank exchange of exploratory ideas between the negotiating parties by shielding such negotiations from public view. Similar to the privilege for presidential communications, the diplomatic negotiations privilege seeks, through the same means, to protect the independence in decision-making of the President, particularly in its capacity as the sole organ of the nation in its external relations, and its sole representative with foreign nations. And, as with the deliberative process privilege, the privilege accorded to diplomatic negotiations arises, not on account of

the content of the information per se, but because the information is part of a process of deliberation which, in pursuit of the public interest, must be presumed confidential. The decision of the U.S. District Court, District of Columbia in Fulbright & Jaworski v. Department of the Treasury[37] enlightens on the close relation between diplomatic negotiations and deliberative process privileges. The plaintiffs in that case sought access to notes taken by a member of the U.S. negotiating team during the U.S.French tax treaty negotiations. Among the points noted therein were the issues to be discussed, positions which the French and U.S. teams took on some points, the draft language agreed on, and articles which needed to be amended. Upholding the confidentiality of those notes, Judge Green ruled, thus:
Negotiations between two countries to draft a treaty represent a true example of a deliberative process. Much give-and-take must occur for the countries to reach an accord. A

description of the negotiations at any one point would not provide an onlooker a summary of the discussions which could later be relied on as law. It would not be working law as the points discussed and positions agreed on would be subject to change at any date until the treaty was signed by the President and ratified by the Senate. The policies behind the deliberative process privilege support non-disclosure. Much harm could accrue to the negotiations process if these notes were revealed. Exposure of the preagreement positions of the French negotiators might well offend foreign governments and would lead toless candor by the U. S. in recording the events of the negotiations process. As several months pass in between negotiations, this lack of record could hinder readily the U. S. negotiating team. Further disclosure would reveal prematurely adopted policies. If these policies should be changed, public confusion would result easily. Finally, releasing these snapshot

views of the negotiations would be comparable to releasing drafts of the treaty, particularly when the notes state the tentative provisions and language agreed on. As drafts of regulations typically are protected by the deliberative process privilege, Arthur Andersen & Co. v. Internal Revenue Service, C.A. No. 80-705 (D.C.Cir., May 21, 1982), drafts of treaties should be accorded the same protection. (Emphasis and underscoring supplied)

Clearly, the privilege accorded to diplomatic negotiations follows as a logical consequence from the privileged character of the deliberative process.

The Court is not unaware that in Center for International Environmental Law (CIEL), et al. v. Office of U.S. Trade Representative[38] where the plaintiffs sought information relating to the just-completed negotiation of a United States-Chile Free Trade Agreement the same district court, this time under Judge Friedman, consciously refrained

from applying the doctrine in Fulbright and ordered the disclosure of the information being sought.

Since the factual milieu in CIEL seemed to call for the straight application of the doctrine in Fulbright, a discussion of why the district court did not apply the same would help illumine this Courts own reasons for deciding the present case along the lines of Fulbright.

In both Fulbright and CIEL, the U.S. government cited a statutory basis for withholding information, namely, Exemption 5 of the Freedom of Information Act (FOIA).[39] In order to qualify for protection under Exemption 5, a document must satisfy two conditions: (1) it must be eitherinter-agency or intra-agency in nature, and (2) it must be both pre-decisional and part of the agency's deliberative or decision-making [40] process.

Judge Friedman, in CIEL, himself cognizant of a superficial similarity of context between the two cases, based his decision on what he perceived to be a significant distinction: he found the negotiators notes that were sought in Fulbright to be clearly internal, whereas the documents being sought in CIEL were those produced by or exchanged with an outside party, i.e. Chile. The documents subject of Fulbright being clearly internal in character, the question of disclosure therein turned not on the threshold requirement of Exemption 5 that the document be inter-agency, but on whether the documents were part of the agency's pre-decisional deliberative process. On this basis, Judge Friedman found that Judge Green's discussion [in Fulbright] of the harm that could result from disclosure therefore is irrelevant, since the documents at issue [in CIEL] are not inter-agency, and the Court does not reach the question of deliberative process. (Emphasis supplied)

In fine, Fulbright was not overturned. The court in CIEL merely found the same to be irrelevant

in light of its distinct factual setting. Whether this conclusion was valid a question on which this Court would not pass the ruling in Fulbright that [n]egotiations between two countries to draft a treaty represent a true example of a deliberative process was left standing, since the CIEL court explicitly stated that it did not reach the question of deliberative process.

that diplomatic negotiations should also be accorded privileged status, even if the documents subject of the present case cannot be described as purely internal in character.

Going back to the present case, the Court recognizes that the information sought by petitioners includes documents produced and communicated by a party external to the Philippine government, namely, the Japanese representatives in the JPEPA negotiations, and to that extent this case is closer to the factual circumstances of CIEL than those of Fulbright.

It need not be stressed that in CIEL, the court ordered the disclosure of information based on its finding that the first requirement of FOIA Exemption 5 that the documents be inter-agency was not met. In determining whether the government may validly refuse disclosure of the exchanges between the U.S. and Chile, it necessarily had to deal with this requirement, it being laid down by a statute binding on them.

Nonetheless, for reasons which shall be discussed shortly, this Court echoes the principle articulated in Fulbright that the public policy underlying the deliberative process privilege requires

In this jurisdiction, however, there is no counterpart of the FOIA, nor is there any statutory requirement similar to FOIA Exemption 5 in particular. Hence, Philippine courts, when assessing a claim of privilege for diplomatic negotiations, are more free to focus directly on the issue ofwhether the privilege being claimed is indeed supported by public policy, without having

to consider as the CIEL court did if these negotiations fulfill a formal requirement of being inter-agency. Important though that requirement may be in the context of domestic negotiations, it need not be accorded the same significance when dealing with international negotiations.

Petitioners thus conclude that the present case involves the right of members of Congress to demand information on negotiations of international trade agreements from the Executive branch, a matter which was not raised in PMPF v. Manglapus. While indeed the petitioners in PMPF v. Manglapus consisted only of members of the mass media, it would be incorrect to claim that the doctrine laid down therein has no bearing on a controversy such as the present, where the demand for information has come from members of Congress, not only from private citizens. The privileged character accorded to diplomatic negotiations does not ipso facto lose all force and effect simply because the same privilege is now being claimed under different circumstances. The probability of the claim succeeding in the new context might differ, but to say that the privilege, as such, has no validity at all in that context is another matter altogether.

There being a public policy supporting a privilege for diplomatic negotiations for the reasons explained above, the Court sees no reason to modify, much less abandon, the doctrine in PMPF v. Manglapus.

A second point petitioners proffer in their a ttempt to differentiate PMPF v. Manglapus from the present case is the fact that the petitioners therein consisted entirely of members of the mass media, while petitioners in the present case include members of the House of Representatives who invoke their right to information not just as citizens but as members of Congress.

The Courts statement in Senate v. Ermita that presidential refusals to furnish information may be actuated by any of at least three distinct kinds of considerations [state secrets privilege, informers privilege, and a generic privilege for internal deliberations], and may be asserted, with differing degrees of success, in the context of either judicial or legislative investigations,[41] implies that a privilege, once recognized, may be invoked under different procedural settings. That this principle holds true particularly with respect to diplomatic negotiations may be inferred from PMPF v.Manglapus itself, where the Court held that it is the President alone who negotiates treaties, and not even the Senate or the House of Representatives,unless asked, may intrude upon that process. Clearly, the privilege for diplomatic negotiations may be invoked not only against citizens demands for information, but also in the context of legislative investigations. Hence, the recognition granted in PMPF v. Manglapus to the privileged character of diplomatic

negotiations cannot be considered irrelevant in resolving the present case, the contextual differences between the two cases notwithstanding. As third and last point raised against the application of PMPF v. Manglapus in this case, petitioners proffer that the socio-political and historical contexts of the two cases are worlds apart. They claim that the constitutional traditions and concepts prevailing at the time PMPF v.Manglapus came about, particularly the school of thought that the requirements of foreign policy and the ideals of transparency were incompatible with each other or the incompatibility hypothesis, while valid when international relations were still governed by power, politics and wars, are no longer so in this age of international cooperation.[42] Without delving into petitioners assertions respecting the incompatibility hypothesis, the Court notes that the ruling in PMPF v. Manglapusis grounded more on the nature of treaty negotiations as such than on a particular socio-political school of thought. If petitioners are suggesting that the nature

of treaty negotiations have so changed that [a]n illtimed speech by one of the parties or a frank declaration of the concession which are exacted or offered on both sides no longer lead[s] to widespread propaganda to block the negotiations, or that parties in treaty negotiations no longer expect their communications to be governed by historic confidentiality, the burden is on them to substantiate the same. This petitioners failed to discharge. Whether the privilege applies only at certain stages of the negotiation process

recommendations, citing Chavez [44] PCGG and Chavez v. PEA.[45]

v.

The following statement in Chavez v. PEA, however, suffices to show that the doctrine in both that case and Chavez v. PCGG with regard to the duty to disclose definite propositions of the government does not apply to diplomatic negotiations:
We rule, therefore, that the constitutional right to information includes official information on on-going negotiations before a final contract. The information, however, must constitute definite propositions by the government and should not cover recognized exceptions like privileged information, military and diplomatic secrets and similar matters affecting national security and public order. x x x[46] (Emphasis and underscoring supplied)

Petitioners admit that diplomatic negotiations on the JPEPA are entitled to a reasonable amount of confidentiality so as not to jeopardize the diplomatic process. They argue, however, that the same is privileged only at certain stages of the negotiating process, after which such information must necessarily be revealed to the public.[43] They add that the duty to disclose this information was vested in the government when the negotiations moved from the formulation and exploratory stage to the firming up of definite propositions or official

It follows from this ruling that even definite propositions of the government may not be disclosed if they fall under recognized exceptions. The

privilege for diplomatic negotiations is clearly among the recognized exceptions, for the footnote to the immediately quoted ruling cites PMPF v.Manglapus itself as an authority. Whether there is sufficient public overcome the claim of privilege interest to

The criteria to be employed in determining whether there is a sufficient public interest in favor of disclosure may be gathered from cases such asU.S. v. Nixon,[48] Senate Select Committee on Presidential Campaign Activities v. Nixon,[49] and In re Sealed Case.[50] U.S. v. Nixon, which involved a claim of the presidential communications privilege against the subpoena duces tecum of a district court in acriminal case, emphasized the need to balance such claim of privilege against the constitutional duty of courts to ensure a fair administration ofcriminal justice.
x x x the allowance of the privilege to withhold evidence that is demonstrably relevant in a criminal trial would cut deeply into the guarantee of due process of law and gravely impair the basic function of the courts. A Presidents acknowledged need for confidentiality in the communications of his office is general in nature, whereas the constitutional need for production of

It being established that diplomatic negotiations enjoy a presumptive privilege against disclosure, even against the demands of members of Congress for information, the Court shall now determine whether petitioners have shown the existence of a public interest sufficient to overcome the privilege in this instance. To clarify, there are at least two kinds of public interest that must be taken into account. One is the presumed public interest in favor of keeping the subject information confidential, which is the reason for the privilege in the first place, and the other is the public interest in favor of disclosure, the existence of which must be shown by the party asking for information. [47]

relevant evidence in a criminal proceeding is specific and central to the fair adjudication of a particular criminal case in the administration of justice. Without access to specific facts a criminal prosecution may be totally frustrated. The Presidents broad interest in confidentiality of communications will not be vitiated by disclosure of a limited number of conversations preliminarily shown to have some bearing on the pending criminal cases. (Emphasis, italics and underscoring supplied)

would remain confidential. So long as the presumption that the public interest favors confidentiality can be defeated only by a strong showing of need by another institution of government- a showing that the responsibilities of that institution cannot responsibly be fulfilled without access to records of the President's deliberations- we believed inNixon v. Sirica, and continue to believe, that the effective functioning of the presidential office will not be impaired. x x x xxxx

Similarly, Senate Select Committee v. [51] Nixon, which involved a claim of the presidential communications privilege against the subpoenaduces tecum of a Senate committee, spoke of the need to balance such claim with the duty of Congress to perform its legislative functions.
The staged decisional structure established in Nixon v. Sirica was designed to ensure that the President and those upon whom he directly relies in the performance of his duties could continue to work under a general assurance that their deliberations

The sufficiency of the Committee's showing of need has come to depend, therefore, entirely on whether the subpoenaed materials arecritical to the performance of its legislative functions. x x x (Emphasis and underscoring supplied)

In re Sealed Case[52] involved a claim of the deliberative process and presidential communications privileges against a subpoena duces tecumof a grand

jury. On the claim of deliberative process privilege, the court stated:

The deliberative process privilege is a qualified privilege and can be overcome by a sufficient showing of need. This need determination is to be made flexibly on a case-by-case, ad hoc basis. "[E]ach time [the deliberative process privilege] is asserted the district court must undertake a fresh balancing of the competing interests," taking into account factors such as "the relevance of the evidence," "the availability of other evidence," "the seriousness of the litigation," "the role of the government," and the "possibility of future timidity by government employees. x x x (Emphasis, italics and underscoring supplied)

Petitioners go on to assert that the noninvolvement of the Filipino people in the JPEPA negotiation process effectively results in the bargaining away of their economic and property rights without their knowledge and participation, in violation of the due process clause of the Constitution. They claim, moreover, that it is essential for the people to have access to the initial offers exchanged during the negotiations since only through such disclosure can their constitutional right to effectively participate in decision-making be brought to life in the context of international trade agreements. Whether it can accurately be said that the Filipino people were not involved in the JPEPA negotiations is a question of fact which this Court need not resolve. Suffice it to state that respondents had presented documents purporting to show that public consultations were conducted on the JPEPA. Parenthetically, petitioners consider these alleged consultations as woefully selective and inadequate.[53]

Petitioners have failed to present the strong and sufficient showing of need referred to in the immediately cited cases. The arguments they proffer to establish their entitlement to the subject documents fall short of this standard.

AT ALL EVENTS, since it is not disputed that the offers exchanged by the Philippine and Japanese representatives have not been disclosed to the public, the Court shall pass upon the issue of whether access to the documents bearing on them is, as petitioners claim, essential to their right to participate in decisionmaking. The case for petitioners has, of course, been immensely weakened by the disclosure of the full text of the JPEPA to the public since September 11, 2006, even as it is still being deliberated upon by the Senate and, therefore, not yet binding on the Philippines. Were the Senate to concur with the validity of the JPEPA at this moment, there has already been, in the words of PMPF v. Manglapus, ample opportunity for discussion before [the treaty] is approved. The text of the JPEPA having been published, petitioners have failed to convince this Court that they will not be able to meaningfully exercise their right to participate in decision-making unless the initial offers are also published.

It is of public knowledge that various nongovernment sectors and private citizens have already publicly expressed their views on the JPEPA, their comments not being limited to general observations thereon but on its specific provisions. Numerous articles and statements critical of the JPEPA have been posted on the Internet.[54] Given these developments, there is no basis for petitioners claim that access to the Philippine and Japanese offers is essential to the exercise of their right to participate in decision-making. Petitioner-members of the House of Representatives additionally anchor their claim to have a right to the subject documents on the basis of Congress inherent power to regulate commerce, be it domestic or international. They allege that Congress cannot meaningfully exercise the power to regulate international trade agreements such as the JPEPA without being given copies of the initial offers exchanged during the negotiations thereof. In the same vein, they argue that the President cannot exclude Congress from the JPEPA negotiations since

whatever power and authority the President has to negotiate international trade agreements is derived only by delegation of Congress, pursuant to Article VI, Section 28(2) of the Constitution and Sections 401 and 402 of Presidential Decree No. 1464.[55] The subject of Article VI Section 28(2) of the Constitution is not the power to negotiate treaties and international agreements, but the power to fix tariff rates, import and export quotas, and other taxes. Thus it provides:
(2) The Congress may, by law, authorize the President to fix within specified limits, and subject to such limitations and restrictions as it may impose, tariff rates, import and export quotas, tonnage and wharfage dues, and other duties or imposts within the framework of the national development program of the Government.

VII the article on the Executive Department which states:

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.

The doctrine in PMPF v. Manglapus that the treaty-making power is exclusive to the President, being the sole organ of the nation in its external relations, was echoed in BAYAN v. Executive Secretary[56] where the Court held:
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 nation's foreign policy; his "dominance in the field of foreign relations is (then) conceded." Wielding vast powers and influence, his conduct in the external affairs of the nation,

As to the power to negotiate treaties, the constitutional basis thereof is Section 21 of Article

as Jefferson describes, altogether.

is

executive

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. x x x (Italics in the original; emphasis and underscoring supplied)

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. Nonetheless, while the President has the sole authority to negotiate and enter into treaties, the Constitution provides a limitation to his power by requiring the concurrence of 2/3 of all the members of the Senate for the validity of the treaty entered into by him. x x x (Emphasis and underscoring supplied)

The same doctrine was reiterated even more recently in Pimentel v. Executive Secretary[57] where the Court ruled:
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

While the power then to fix tariff rates and other taxes clearly belongs to Congress, and is exercised by the President only by delegation of that body, it has long been recognized that the power to enter into treaties is vested directly and exclusively in

the President, subject only to the concurrence of at least two-thirds of all the Members of the Senate for the validity of the treaty. In this light, the authority of the President to enter into trade agreements with foreign nations provided under P.D. 1464[58] may be interpreted as an acknowledgment of a power already inherent in its office. It may not be used as basis to hold the President or its representatives accountable to Congress for the conduct of treaty negotiations. This is not to say, of course, that the Presidents power to enter into treaties is unlimited but for the requirement of Senate concurrence, since the President must still ensure that all treaties will substantively conform to all the relevant provisions of the Constitution. It follows from the above discussion that Congress, while possessing vast legislative powers, may not interfere in the field of treaty negotiations. While Article VII, Section 21 provides for Senate concurrence, such pertains only to the validity of the treaty under consideration, not to the conduct of negotiations attendant to its conclusion. Moreover, it is not even Congress as a

whole that has been given the authority to concur as a means of checking the treaty-making power of the President, but only the Senate. Thus, as in the case of petitioners suing in their capacity as private citizens, petitioners-members of the House of Representatives fail to present asufficient showing of need that the information sought is critical to the performance of the functions of Congress, functions that do not include treatynegotiation. Respondents alleged failure to timely claim executive privilege On respondents invocation of executive privilege, petitioners find the same defective, not having been done seasonably as it was raised only in their Comment to the present petition and not during the House Committee hearings. That respondents invoked the privilege for the first time only in their Comment to the present petition does not mean that the claim of privilege should not be credited. Petitioners position

presupposes that an assertion of the privilege should have been made during the House Committee investigations, failing which respondents are deemed to have waived it. When the House Committee and petitionerCongressman Aguja requested respondents for copies of the documents subject of this case, respondents replied that the negotiations were still on-going and that the draft of the JPEPA would be released once the text thereof is settled and complete. There was no intimation that the requested copies are confidential in nature by reason of public policy. The response may not thus be deemed a claim of privilege by the standards of Senate v. Ermita, which recognizes as claims of privilege only those which are accompanied by precise and certain reasons for preserving the confidentiality of the information being sought. Respondents failure to claim the privilege during the House Committee hearings may not, however, be construed as a waiver thereof by the Executive branch. As the immediately preceding paragraph indicates, what respondents received from

the House Committee and petitionerCongressman Aguja were mere requests for information. And as priorly stated, the House Committee itself refrained from pursuing its earlier resolution to issue a subpoena duces tecum on account of then Speaker Jose de Venecias alleged request to Committee Chairperson CongressmanTeves to hold the same in abeyance. While it is a salutary and noble practice for Congress to refrain from issuing subpoenas to executive officials out of respect for their office until resort to it becomes necessary, the fact remains that such requests are not a compulsory process. Being mere requests, they do not strictly call for an assertion of executive privilege. The privilege is an exemption to Congress power of inquiry.[59] So long as Congress itself finds no cause to enforce such power, there is no strict necessity to assert the privilege. In this light, respondents failure to invoke the privilege during the House Committee investigations did not amount to a waiver thereof.

The Court observes, however, that the claim of privilege appearing in respondents Comment to this petition fails to satisfy in full the requirement laid down in Senate v. Ermita that the claim should be invoked by the President or through the Executive Secretary by order of the President.[60] Respondents claim of privilege is being sustained, however, its flaw notwithstanding, because of circumstances peculiar to the case. The assertion of executive privilege by the Executive Secretary, who is one of the respondents herein, without him adding the phrase by order of the President, shall be considered as partially complying with the requirement laid down in Senate v. Ermita. The requirement that the phrase by order of the President should accompany the Executive Secretarys claim of privilege is a new rule laid down for the first time in Senate v. Ermita,which was not yet final and executory at the time respondents filed their Comment to the petition.[61] A strict application of this requirement would thus be unwarranted in this case.

Response to the Dissenting Opinion of the Chief Justice We are aware that behind the dissent of the Chief Justice lies a genuine zeal to protect our peoples right to information against any abuse of executive privilege. It is a zeal that We fully share. The Court, however, in its endeavor to guard against the abuse of executive privilege, should be careful not to veer towards the opposite extreme, to the point that it would strike down as invalid even a legitimate exercise thereof. We respond only to the salient arguments of the Dissenting Opinion which have not yet been sufficiently addressed above. 1. After its historical discussion on the allocation of power over international trade agreements in the United States, the dissent concludes that it will be turning somersaults with history to

contend that the President is the sole organ for external relations in that jurisdiction. With regard to this opinion, We make only the following observations: There is, at least, a core meaning of the phrase sole organ of the nation in its external relations which is not being disputed, namely, that the power to directly negotiate treaties and international agreements is vested by our Constitution only in the Executive. Thus, the dissent states that Congress has the power to regulate commerce with foreign nations but does not have the power to negotiate international agreementsdirectly.[62] What is disputed is how this principle applies to the case at bar. The dissent opines that petitioner-members of the House of Representatives, by asking for the subject JPEPA documents, are not seeking todirectly participate in the negotiations of the JPEPA, hence, they cannot be prevented from gaining access to these documents.

On the other hand, We hold that this is one occasion where the following ruling in Agan v. PIATCO[63] and in other cases both before and since should be applied:
This Court has long and consistently adhered to the legal maxim that those that cannot be done directly cannot be done indirectly. To declare the PIATCO contracts valid despite the clear statutory prohibition against a direct government guarantee would not only make a mockery of what the BOT Law seeks to prevent -- which is to expose the government to the risk of incurring a monetary obligation resulting from a contract of loan between the project proponent and its lenders and to which the Government is not a party to -- but would also render the BOT Law useless for what it seeks to achieve - to make use of the resources of the private sector in the financing, operation and maintenance of infrastructure and development projects which are necessary for national growth and development but which the

government, unfortunately, could ill-afford to finance at this point in time.[64]

Similarly, while herein petitioners-members of the House of Representatives may not have been aiming to participate in the negotiations directly, opening the JPEPA negotiations to their scrutiny even to the point of giving them access to the offers exchanged between the Japanese and Philippine delegations would have made a mockery of what the Constitution sought to prevent and rendered it useless for what it sought to achieve when it vested the power of direct negotiation solely with the President. What the U.S. Constitution sought to prevent and aimed to achieve in defining the treaty-making power of the President, which our Constitution similarly defines, may be gathered from Hamiltons explanation of why the U.S. Constitution excludes the House of Representatives from the treaty-making process:
x x x The fluctuating, and taking its future increase into account, the

multitudinous composition of that body, forbid us to expect in it those qualities which are essential to the proper execution of such a trust. Accurate and comprehensive knowledge of foreign politics; a steady and systematic adherence to the same views; a nice and uniform sensibility to national character, decision, secrecy and dispatch; are incompatible with a body so variable and so numerous. The very complication of the business by introducing a necessity of the concurrence of so many different bodies, would of itself afford a solid objection. The greater frequency of the calls upon the house of representatives, and the greater length of time which it would often be necessary to keep them together when convened, to obtain their sanction in the progressive stages of a treaty, would be source of so great inconvenience and expense, as alone ought to condemn the project.[65]

These considerations a fortiori apply in this jurisdiction, since the Philippine Constitution, unlike that of the U.S., does not even grant the Senate the power to advise the Executive in the making of

treaties, but only vests in that body the power to concur in the validity of the treaty after negotiations have been concluded.[66] Much less, therefore, should it be inferred that the House of Representatives has this power. Since allowing petitioner-members of the House of Representatives access to the subject JPEPA documents would set a precedent for future negotiations, leading to the contravention of the public interests articulated above which the Constitution sought to protect, the subject documents should not be disclosed. 2. The dissent also asserts that respondents can no longer claim the diplomatic secrets privilege over the subject JPEPA documents now that negotiations have been concluded, since their reasons for nondisclosure cited in the June 23, 2005 letter of Sec. Ermita, and later in their Comment, necessarily apply only for as long as the negotiations were still pending;

In their Comment, respondents contend that the negotiations of the representatives of the Philippines as well as of Japan must be allowed to explore alternatives in the course of the negotiations in the same manner as judicial deliberations and working drafts of opinions are accorded strict confidentiality. That respondents liken the documents involved in the JPEPA negotiations to judicial deliberations and working drafts of opinions evinces, by itself, that they were claiming confidentiality not only until, but even after, the conclusion of the negotiations. Judicial deliberations do not lose their confidential character once a decision has been promulgated by the courts. The same holds true with respect to working drafts of opinions, which are comparable to intra-agency recommendations. Such intra-agency recommendations are privileged even after the position under consideration by the agency has developed into a definite proposition, hence, the rule in this jurisdiction that agencies have the duty to disclose only definite propositions, and not the interagency and intra-agency communications during the

stage when common assertions are still being formulated.[67] 3. The dissent claims that petitioner-members of the House of Representatives have sufficiently shown their need for the same documents to overcome the privilege. Again, We disagree. The House Committee that initiated the investigations on the JPEPA did not pursue its earlier intention to subpoena the documents. This strongly undermines the assertion that access to the same documents by the House Committee is critical to the performance of its legislative functions. If the documents were indeed critical, the House Committee should have, at the very least, issued a subpoena duces tecum or, like what the Senate did in Senate v. Ermita, filed the present petition as a legislative body, rather than leaving it to the discretion of individual Congressmen whether to pursue an action or not. Such acts would have served as strong indicia that Congress itself finds the subject information to be critical to its legislative functions.

Further, given that respondents have claimed executive privilege, petitioner-members of the House of Representatives should have, at least, shown how its lack of access to the Philippine and Japanese offers would hinder the intelligent crafting of legislation. Mere assertion that the JPEPA covers a subject matter over which Congress has the power to legislate would not suffice. As Senate Select Committee v. Nixon[68]held, the showing required to overcome the presumption favoring confidentiality turns, not only on the nature and appropriateness of the function in the performance of which the material was sought, but also the degree to which the material was necessary to its fulfillment. This petitioners failed to do. Furthermore, from the time the final text of the JPEPA including its annexes and attachments was published, petitioner-members of the House of Representatives have been free to use it for any legislative purpose they may see fit. Since such publication, petitioners need, if any, specifically for the Philippine and Japanese offers leading to the final version of the JPEPA, has become even less apparent.

In asserting that the balance in this instance tilts in favor of disclosing the JPEPA documents, the dissent contends that the Executive has failed to show how disclosing them after the conclusion of negotiations would impair the performance of its functions. The contention, with due respect, misplaces the onus probandi. While, in keeping with the general presumption of transparency, the burden is initially on the Executive to provide precise and certain reasons for upholding its claim of privilege, once the Executive is able to show that the documents being sought are covered by a recognized privilege, the burden shifts to the party seeking information to overcome the privilege by a strong showing of need. When it was thus established that the JPEPA documents are covered by the privilege for diplomatic negotiations pursuant to PMPF v.Manglapus, the presumption arose that their disclosure would impair the performance of executive functions. It was then incumbent on petitioner- requesting parties to show that they have a strong need for the information

sufficient to overcome the privilege. They have not, however. 4. Respecting the failure of the Executive Secretary to explicitly state that he is claiming the privilege by order of the President, the same may not be strictly applied to the privilege claim subject of this case. When the Court in Senate v. Ermita limited the power of invoking the privilege to the President alone, it was laying down a new rule for which there is no counterpart even in the United States from which the concept of executive privilege was adopted. As held in the 2004 case of Judicial Watch, Inc. v. Department of Justice,[69] citing In re Sealed Case,[70] the issue of whether a President must personally invoke the [presidential communications] privilege remains an open question. U.S. v. Reynolds,[71] on the other hand, held that [t]here must be a formal claim of privilege, lodged by the head of the department which has control over the matter, after actual personal consideration by that officer.

The rule was thus laid down by this Court, not in adherence to any established precedent, but with the aim of preventing the abuse of the privilege in light of its highly exceptional nature. The Courts recognition that the Executive Secretary also bears the power to invoke the privilege, provided he does so by order of the President, is meant to avoid laying down too rigid a rule, the Court being aware that it was laying down a new restriction on executive privilege. It is with the same spirit that the Court should not be overly strict with applying the same rule in this peculiar instance, where the claim of executive privilege occurred before the judgment in Senate v. Ermita became final. 5. To show that PMPF v. Manglapus may not be applied in the present case, the dissent implies that the Court therein erred in citing US [72] v.Curtiss Wright and the book entitled The New American Government and Its Work[73] since these authorities, so the dissent claims, may not be used to calibrate the importance of the right to information in the Philippine setting.

The dissent argues that since CurtissWright referred to a conflict between the executive and legislative branches of government, the factual setting thereof was different from that of PMPF v. Manglapus which involved a collision between governmental power over the conduct of foreign affairs and the citizens right to information. That the Court could freely cite CurtissWright a case that upholds the secrecy of diplomatic negotiations against congressional demands for information in the course of laying down a ruling on the public right to information only serves to underscore the principle mentioned earlier that the privileged character accorded to diplomatic negotiations does not ipso facto lose all force and effect simply because the same privilege is now being claimed under different circumstances. PMPF v. Manglapus indeed involved a demand for information from private citizens and not an executive-legislative conflict, but so didChavez v. PEA[74] which held that the [publics] right to information . . . does not extend to matters recognized

as privileged information under the separation of powers. What counts as privileged information in an executive-legislative conflict is thus also recognized as such in cases involving the publics right to information. Chavez v. PCGG[75] also involved the publics right to information, yet the Court recognized as a valid limitation to that right the sameprivileged information based on separation of powers closeddoor Cabinet meetings, executive sessions of either house of Congress, and the internal deliberations of the Supreme Court. These cases show that the Court has always regarded claims of privilege, whether in the context of an executive-legislative conflict or a citizens demand for information, as closely intertwined, such that the principles applicable to one are also applicable to the other. The reason is obvious. If the validity of claims of privilege were to be assessed by entirely different criteria in each context, this may give rise to

the absurd result where Congress would be denied access to a particular information because of a claim of executive privilege, but the general public would have access to the same information, the claim of privilege notwithstanding. Absurdity would be the ultimate result if, for instance, the Court adopts the clear and present danger test for the assessment of claims of privilege against citizens demands for information. If executive information, when demanded by a citizen, is privileged only when there is a clear and present danger of a substantive evil that the State has a right to prevent, it would be very difficult for the Executive to establish the validity of its claim in each instance. In contrast, if the demand comes from Congress, the Executive merely has to show that the information is covered by a recognized privilege in order to shift the burden on Congress to present a strong showing of need. This would lead to a situation where it would be more difficult for Congress to access executive information than it would be for private citizens.

We maintain then that when the Executive has already shown that an information is covered by executive privilege, the party demanding the information must present a strong showing of need, whether that party is Congress or a private citizen. The rule that the same showing of need test applies in both these contexts, however, should not be construed as a denial of the importance of analyzing the context in which an executive privilege controversy may happen to be placed. Rather, it affirms it, for it means that the specific need being shown by the party seeking information in every particular instance is highly significant in determining whether to uphold a claim of privilege. This need is, precisely, part of the context in light of which every claim of privilege should be assessed. Since, as demonstrated above, there are common principles that should be applied to executive privilege controversies across different contexts, the

Court in PMPF v. Manglapus did not err when it cited the Curtiss-Wright case. The claim that the book cited in PMPF v. Manglapus entitled The New American Government and Its Work could not have taken into account the expanded statutory right to information in the FOIA assumes that the observations in that book in support of the confidentiality of treaty negotiations would be different had it been written after the FOIA. Such assumption is, with due respect, at best, speculative. As to the claim in the dissent that [i]t is more doubtful if the same book be used to calibrate the importance of the right of access to information in the Philippine setting considering its elevation as a constitutional right, we submit that the elevation of such right as a constitutional right did not set it free from the legitimate restrictions of executive privilege which is itself constitutionally-based.[76] Hence, the comments in that book which were cited in PMPF v. Manglapus remain valid doctrine.

6. The dissent further asserts that the Court has never used need as a test to uphold or allow inroads into rights guaranteed under the Constitution. With due respect, we assert otherwise. The Court has done so before, albeit without using the term need. In executive privilege controversies, the requirement that parties present a sufficient showing of need only means, in substance, that they should show a public interest in favor of disclosure sufficient in degree to overcome the claim of [77] privilege. Verily, the Court in such cases engages in a balancing of interests. Such a balancing of interests is certainly not new in constitutional adjudication involving fundamental rights. Secretary of Justice v. Lantion,[78] which was cited in the dissent, applied just such a test. Given that the dissent has clarified that it does not seek to apply the clear and present danger test to the present controversy, but the balancing test, there seems to be no substantial dispute between the position laid down in this ponencia and that reflected in the dissent as to what test to apply. It would appear

that the only disagreement is on the results of applying that test in this instance. The dissent, nonetheless, maintains that it suffices that information is of public concern for it to be covered by the right, regardless of the publics need for the information, and that the same would hold true even if they simply want to know it because it interests them. As has been stated earlier, however, there is no dispute that the information subject of this case is a matter of public concern. The Court has earlier concluded that it is a matter of public concern, not on the basis of any specific need shown by petitioners, but from the very nature of the JPEPA as an international trade agreement. However, when the Executive has as in this case invoked the privilege, and it has been established that the subject information is indeed covered by the privilege being claimed, can a party overcome the same by merely asserting that the information being demanded is a matter of public concern, without any further showing required? Certainly not, for that would render the

doctrine of executive privilege of no force and effect whatsoever as a limitation on the right to information, because then the sole test in such controversies would be whether an information is a matter of public concern. Moreover, in view of the earlier discussions, we must bear in mind that, by disclosing the documents of the JPEPA negotiations, the Philippine government runs the grave risk of betraying the trust reposed in it by the Japanese representatives, indeed, by the Japanese government itself. How would the Philippine government then explain itself when that happens? Surely, it cannot bear to say that it just had to release the information because certain persons simply wanted to know it because it interests them. Thus, the Court holds that, in determining whether an information is covered by the right to information, a specific showing of need for such information is not a relevant consideration, but only whether the same is a matter of public concern. When, however, the government has

claimed executive privilege, and it has established that the information is indeed covered by the same, then the party demanding it, if it is to overcome the privilege, must show that that the information is vital, not simply for the satisfaction of its curiosity, but for its ability to effectively and reasonably participate in social, political, and economic decision-making.[79] 7. The dissent maintains that [t]he treaty has thus entered the ultimate stage where the people can exercise their right to participate in the discussion whether the Senate should concur in its ratification or not. (Emphasis supplied) It adds that this right will be diluted unless the people can have access to the subject JPEPA documents. What, to the dissent, is a dilution of the right to participate in decision-making is, to Us, simply a recognition of the qualified nature of the publics right to information. It is beyond dispute that the right to information is not absolute and that the doctrine of executive privilege is a recognized limitation on that right. Moreover, contrary to the submission that the right to participate in decision-making would be

diluted, We reiterate that our people have been exercising their right to participate in the discussion on the issue of the JPEPA, and they have been able to articulate their different opinions without need of access to the JPEPA negotiation documents. Thus, we hold that the balance in this case tilts in favor of executive privilege. 8. Against our ruling that the principles applied in U.S. v. Nixon, the Senate Select Committee case, and In re Sealed Case, are similarly applicable to the present controversy, the dissent cites the caveat in the Nixon case that the U.S. Court was there addressing only the Presidents assertion of privilege in the context of a criminal trial, not a civil litigation nor a congressional demand for information. What this caveat means, however, is only that courts must be careful not to hastily apply the ruling therein to other contexts. It does not, however, absolutely mean that the principles applied in that case may never be applied in such contexts.

Hence, U.S. courts have cited U.S. v. Nixon in support of their rulings on claims of executive privilege in contexts other than a criminal trial, as in the case of Nixon v. Administrator of General Services[80] which involved former President Nixons invocation of executive privilege to challenge the constitutionality of the Presidential Recordings and Materials Preservation Act[81] and the abovementioned In re Sealed Casewhich involved a claim of privilege against a subpoena duces tecum issued in a grand jury investigation. Indeed, in applying to the present case the principles found in U.S. v. Nixon and in the other cases already mentioned, We are merely affirming what the Chief Justice stated in his Dissenting Opinion in Neri v. Senate Committee on [82] Accountability a case involving an executivelegislative conflict over executive privilege. That dissenting opinion stated that, while Nixon was not concerned with the balance between the Presidents generalized interest in confidentiality and congressional demands for information, [n]onetheless the [U.S.] Court laid down

principles and procedures that can serve as torch lights to illumine us on the scope and use of Presidential communication privilege in the case at bar.[83] While the Court was divided in Neri, this opinion of the Chief Justice was not among the points of disagreement, and We similarly hold now that theNixon case is a useful guide in the proper resolution of the present controversy, notwithstanding the difference in context. Verily, while the Court should guard against the abuse of executive privilege, it should also give full recognition to the validity of the privilege whenever it is claimed within the proper bounds of executive power, as in this case. Otherwise, the Court would undermine its own credibility, for it would be perceived as no longer aiming to strike a balance, but seeking merely to water down executive privilege to the point of irrelevance. Conclusion To recapitulate, petitioners demand to be furnished with a copy of the full text of the JPEPA

has become moot and academic, it having been made accessible to the public since September 11, 2006. As for their demand for copies of the Philippine and Japanese offers submitted during the JPEPA negotiations, the same must be denied, respondents claim of executive privilege being valid. Diplomatic negotiations have, since the Court promulgated its Resolution in PMPF v. Manglapus on September 13, 1988, been recognized as privileged in this jurisdiction and the reasons proffered by petitioners against the application of the ruling therein to the present case have not persuaded the Court. Moreover, petitioners both private citizens and members of the House of Representatives have failed to present a sufficient showing of need to overcome the claim of privilege in this case. That the privilege was asserted for the first time in respondents Comment to the present petition, and not during the hearings of the House Special Committee on Globalization, is of no moment, since it

cannot be interpreted as a waiver of the privilege on the part of the Executive branch. For reasons already explained, this Decision shall not be interpreted as departing from the ruling in Senate v. Ermita that executive privilege should be invoked by the President or through the Executive Secretary by order of the President.

WHEREFORE, the petition is DISMISSED. SO ORDERED.