agreements between the two parties beginning in 1996,

PROVINCE OF NORTH COTABATO VS GRP when the GRP-MILF peace negotiations began. On July
PEACE PANEL 18, 1997, the GRP and MILF Peace Panels signed the
568 SCRA 402 (2008) Agreement on General Cessation of Hostilities. The
DECISION
following year, they signed the General Framework of
CARPIO MORALES, J.:
Agreement of Intent on August 27, 1998.
Subject of these consolidated cases is the extent of the
powers of the President in pursuing the peace process. The Solicitor General, who represents respondents,
While the facts surrounding this controversy center on summarizes the MOA-AD by stating that the same
the armed conflict in Mindanao between the government contained, among others, the commitment of the parties
and the Moro Islamic Liberation Front (MILF), the legal to pursue peace negotiations, protect and respect human
issue involved has a bearing on all areas in the country rights, negotiate with sincerity in the resolution and
where there has been a long-standing armed conflict. Yet pacific settlement of the conflict, and refrain from the
again, the Court is tasked to perform a delicate balancing use of threat or force to attain undue advantage while the
act. It must uncompromisingly delineate the bounds peace negotiations on the substantive agenda are on-
within which the President may lawfully exercise her going.[2]
discretion, but it must do so in strict adherence to the
Constitution, lest its ruling unduly restricts the freedom Early on, however, it was evident that there was not
of action vested by that same Constitution in the Chief going to be any smooth sailing in the GRP-MILF peace
Executive precisely to enable her to pursue the peace process. Towards the end of 1999 up to early 2000, the
process effectively. MILF attacked a number of municipalities in Central
I. FACTUAL ANTECEDENTS OF THE PETITIONS Mindanaoand, 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-
On August 5, 2008, the Government of the Republic of out-war against the MILF.
the Philippines (GRP) and the MILF, through the
Chairpersons of their respective peace negotiating When President Gloria Macapagal-Arroyo assumed
panels, were scheduled to sign a Memorandum of office, the military offensive against the MILF was
Agreement on the Ancestral Domain (MOA-AD) Aspect suspended and the government sought a resumption of
of the GRP-MILF Tripoli Agreement on Peace of 2001 the peace talks. The MILF, according to a leading MILF
in Kuala Lumpur, Malaysia. member, initially responded with deep reservation, but
when President Arroyo asked the Government of
The MILF is a rebel group which was established in Malaysia through Prime Minister Mahathir Mohammad
March 1984 when, under the leadership of the late to help convince the MILF to return to the negotiating
Salamat Hashim, it splintered from the Moro National table, the MILF convened its Central Committee to
Liberation Front (MNLF) then headed by Nur Misuari, seriously discuss the matter and, eventually, decided to
on the ground, among others, of what Salamat perceived meet with the GRP.[4]
to be the manipulation of the MNLF away from an
Islamic basis towards Marxist-Maoist orientations. [1] The parties met in Kuala Lumpur on March 24, 2001,
with the talks being facilitated by the Malaysian
The signing of the MOA-AD between the GRP and the government, the parties signing on the same date the
MILF was not to materialize, however, for upon motion Agreement on the General Framework for the
of petitioners, specifically those who filed their cases Resumption of Peace Talks Between the GRP and the
before the scheduled signing of the MOA-AD, this Court MILF. The MILF thereafter suspended all its military
issued a Temporary Restraining Order enjoining the actions.[5]
GRP from signing the same.
Formal peace talks between the parties were held in
The MOA-AD was preceded by a long process of Tripoli, Libya from June 20-22, 2001, the outcome of
negotiation and the concluding of several prior which was the GRP-MILF Tripoli Agreement on Peace
(Tripoli Agreement 2001) containing the basic principles and Temporary Restraining Order.[9] Invoking the right
and agenda on the following aspects of the negotiation: to information on matters of public concern, petitioners
Security Aspect, Rehabilitation Aspect, and Ancestral seek to compel respondents to disclose and furnish them
Domain Aspect. With regard to the Ancestral Domain the complete and official copies of the MOA-AD
Aspect, the parties in Tripoli Agreement 2001 simply including its attachments, and to prohibit the slated
agreed that the same be discussed further by the Parties signing of the MOA-AD, pending the disclosure of the
in their next meeting. contents of the MOA-AD and the holding of a public
consultation thereon. Supplementarily, petitioners pray
A second round of peace talks was held in Cyberjaya, that the MOA-AD be declared unconstitutional.[10]
Malaysia on August 5-7, 2001 which ended with the
signing of the Implementing Guidelines on the Security This initial petition was followed by another one,
Aspect of the Tripoli Agreement 2001 leading to a docketed as G.R. No. 183752, also for Mandamus and
ceasefire status between the parties. This was followed Prohibition[11] filed by the City of Zamboanga,[12] Mayor
by the Implementing Guidelines on the Humanitarian Celso Lobregat, Rep. Ma. Isabelle Climaco and Rep.
Rehabilitation and Development Aspects of the Tripoli Erico Basilio Fabian who likewise pray for similar
Agreement 2001, which was signed on May 7, 2002 at injunctive reliefs.Petitioners herein moreover pray that
Putrajaya, Malaysia.Nonetheless, there were many the City of Zamboanga be excluded from the
incidence of violence between government forces and Bangsamoro Homeland and/or Bangsamoro Juridical
the MILF from 2002 to 2003. Entity and, in the alternative, that the MOA-AD be
declared null and void.
Meanwhile, then MILF Chairman Salamat Hashim
passed away on July 13, 2003 and he was replaced by Al By Resolution of August 4, 2008, the Court issued a
Haj Murad, who was then the chief peace negotiator of Temporary Restraining Order commanding and directing
the MILF. Murads position as chief peace negotiator was public respondents and their agents to cease and desist
taken over by Mohagher Iqbal.[6] from formally signing the MOA-AD.[13] The Court also
required the Solicitor General to submit to the Court and
In 2005, several exploratory talks were held between the petitioners the official copy of the final draft of the
parties in Kuala Lumpur, eventually leading to the MOA-AD,[14] to which she complied.[15]
crafting of the draft MOA-AD in its final form, which,
as mentioned, was set to be signed last August 5, 2008. Meanwhile, the City of Iligan[16] filed a petition for
Injunction and/or Declaratory Relief, docketed as G.R.
II. STATEMENT OF THE PROCEEDINGS 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-
Before the Court is what is perhaps the most contentious AD be declared unconstitutional. Petitioners herein
consensus ever embodied in an instrument the MOA-AD additionally implead Executive Secretary Eduardo
which is assailed principally by the present petitions Ermita as respondent.
bearing docket numbers 183591, 183752, 183893,
183951 and 183962. The Province of Zamboanga del Norte,[17] Governor
Rolando Yebes, Vice-Governor Francis Olvis, Rep.
Commonly impleaded as respondents are the GRP Peace Cecilia Jalosjos-Carreon, Rep. Cesar Jalosjos, and the
Panel on Ancestral Domain[7] and the Presidential members[18] of the Sangguniang Panlalawigan of
Adviser on the Peace Process (PAPP) Hermogenes Zamboanga del Norte filed on August 15, 2008 a
Esperon, Jr. petition for Certiorari, Mandamus and Prohibition,[19]
docketed as G.R. No. 183951. They pray, inter alia, that
On July 23, 2008, the Province of North Cotabato[8] and the MOA-AD be declared null and void and without
Vice-Governor Emmanuel Piol filed a petition, docketed operative effect, and that respondents be enjoined from
as G.R. No. 183591, for Mandamus and Prohibition with executing the MOA-AD.
Prayer for the Issuance of Writ of Preliminary Injunction
On August 19, 2008, Ernesto Maceda, Jejomar Binay, (i) insofar as the mandamus aspect is concerned, in view
and Aquilino Pimentel III filed a petition for Prohibition, of the disclosure of official copies of the final draft of
[20]
docketed as G.R. No. 183962, praying for a judgment the Memorandum of Agreement (MOA); and
prohibiting and permanently enjoining respondents from
formally signing and executing the MOA-AD and or any (ii) insofar as the prohibition aspect involving the Local
other agreement derived therefrom or similar thereto, Government Units is concerned, if it is considered that
and nullifying the MOA-AD for being unconstitutional consultation has become fait accompli with the
and illegal. Petitioners herein additionally implead as finalization of the draft;
respondent the MILF Peace Negotiating Panel
represented by its Chairman Mohagher Iqbal. 2. Whether the constitutionality and the legality of the
Various parties moved to intervene and were granted MOA is ripe for adjudication;
leave of court to file their petitions-/comments-in-
intervention. Petitioners-in-Intervention include Senator 3. Whether respondent Government of the Republic of
Manuel A. Roxas, former Senate President Franklin the Philippines Peace Panel committed grave abuse of
Drilon and Atty. Adel Tamano, the City of Isabela[21] and discretion amounting to lack or excess of jurisdiction
Mayor Cherrylyn Santos-Akbar, the Province of Sultan when it negotiated and initiated the MOA vis--vis
Kudarat[22] and Gov. Suharto Mangudadatu, the ISSUES Nos. 4 and 5;
Municipality of Linamon in Lanao del Norte,[23] Ruy
Elias Lopez of Davao City and of the Bagobo tribe, 4. Whether there is a violation of the peoples right to
Sangguniang Panlungsod member Marino Ridao and information on matters of public concern (1987
businessman Kisin Buxani, both of Cotabato City; and Constitution, Article III, Sec. 7) under a state policy of
lawyers Carlo Gomez, Gerardo Dilig, Nesario Awat, full disclosure of all its transactions involving public
Joselito Alisuag, Richalex Jagmis, all of Palawan City. interest (1987 Constitution, Article II, Sec. 28) including
The Muslim Legal Assistance Foundation, Inc. (Muslaf) publicconsultation under Republic Act No. 7160
and the Muslim Multi-Sectoral Movement for Peace and (LOCAL GOVERNMENT CODE OF 1991)[;]
Development (MMMPD) filed their respective
Comments-in-Intervention. If it is in the affirmative, whether prohibition under Rule
65 of the 1997 Rules of Civil Procedure is an appropriate
By subsequent Resolutions, the Court ordered the remedy;
consolidation of the petitions. Respondents filed
Comments on the petitions, while some of petitioners 5. Whether by signing the MOA, the Government of the
submitted their respective Replies. Republic of the Philippines would be BINDING itself

Respondents, by Manifestation and Motion of August a) to create and recognize the Bangsamoro Juridical
19, 2008, stated that the Executive Department shall Entity (BJE) as a separate state, or a juridical, territorial
thoroughly review the MOA-AD and pursue further or political subdivision not recognized by law;
negotiations to address the issues hurled against it, and
thus moved to dismiss the cases. In the succeeding b) to revise or amend the Constitution and existing laws
exchange of pleadings, respondents motion was met with to conform to the MOA;
vigorous opposition from petitioners.
c) to concede to or recognize the claim of the Moro
The cases were heard on oral argument on August 15, 22 Islamic Liberation Front for ancestral domain in
and 29, 2008 that tackled the following principal issues: violation of Republic Act No. 8371 (THE
INDIGENOUS PEOPLES RIGHTS ACT OF 1997),
1. Whether the petitions have become moot and particularly Section 3(g) & Chapter VII
academic (DELINEATION, RECOGNITION OF ANCESTRAL
DOMAINS)[;]
If in the affirmative, whether the Executive Branch has from the regime of dar-ul-muahada (or territory under
the authority to so bind the Government of the Republic compact) and dar-ul-sulh (or territory under
of the Philippines; peaceagreement) that partakes the nature of a treaty
device.
6. Whether the inclusion/exclusion of the Province of
North Cotabato, Cities of Zamboanga, Iligan and During the height of the Muslim Empire, early Muslim
Isabela, and the Municipality of Linamon, Lanao del jurists tended to see the world through a simple
Norte in/from the areas covered by the projected dichotomy: there was the dar-ul-Islam (the Abode of
Bangsamoro Homeland is a justiciable question; and Islam) and dar-ul-harb (the Abode of War). The first
referred to those lands where Islamic laws held sway,
7. Whether desistance from signing the MOA derogates while the second denoted those lands where Muslims
any prior valid commitments of the Government of the were persecuted or where Muslim laws were outlawed or
Republic of the Philippines.[24] ineffective.[27] This way of viewing the world, however,
became more complex through the centuries as the
The Court, thereafter, ordered the parties to submit their Islamic world became part of the international
respective Memoranda. Most of the parties submitted community of nations.
their memoranda on time.
As Muslim States entered into treaties with their
III. OVERVIEW OF THE MOA-AD neighbors, even with distant States and inter-
governmental organizations, the classical division of the
As a necessary backdrop to the consideration of the world into dar-ul-Islam and dar-ul-harb eventually lost
objections raised in the subject five petitions and six its meaning. New terms were drawn up to describe novel
petitions-in-intervention against the MOA-AD, as well ways of perceiving non-Muslim territories. For instance,
as the two comments-in-intervention in favor of the areas like dar-ul-muahada (land of compact) and dar-ul-
MOA-AD, the Court takes an overview of the MOA. sulh (land of treaty) referred to countries which, though
under a secular regime, maintained peaceful and
The MOA-AD identifies the Parties to it as the GRP and cooperative relations with Muslim States, having been
the MILF. bound to each other by treaty or agreement. Dar-ul-aman
(land of order), on the other hand, referred to countries
Under the heading Terms of Reference (TOR), the which, though not bound by treaty with Muslim States,
MOA-AD includes not only four earlier agreements maintained freedom of religion for Muslims.[28]
between the GRP and MILF, but also two agreements
between the GRP and the MNLF: the 1976 Tripoli It thus appears that the compact rights entrenchment
Agreement, and the Final Peace Agreement on the emanating from the regime of dar-ul-muahada and dar-
Implementation of the 1976 Tripoli Agreement, signed ul-sulh simply refers to all other agreements between the
on September 2, 1996 during the administration of MILF and the Philippine government the Philippines
President Fidel Ramos. being the land of compact and peace agreement that
partake of the nature of a treaty device, treaty being
The MOA-AD also identifies as TOR two local statutes broadly defined as any solemn agreement in writing that
the organic act for the Autonomous Region in Muslim sets out understandings, obligations, and benefits for
Mindanao (ARMM)[25] and the Indigenous Peoples both parties which provides for a framework that
Rights Act (IPRA),[26] and several international law elaborates the principles declared in the [MOA-AD]. [29]
instruments the ILO Convention No. 169 Concerning
Indigenous and Tribal Peoples in Independent Countries The MOA-AD states that the Parties HAVE AGREED
in relation to the UN Declaration on the Rights of the AND ACKNOWLEDGED AS FOLLOWS, and starts
Indigenous Peoples, and the UN Charter, among others. with its main body.

The MOA-AD includes as a final TOR the generic

category of compact rights entrenchment emanating
The main body of the MOA-AD is divided into four The MOA-AD goes on to describe the Bangsamoro
strands, namely, Concepts and Principles, Territory, people as the First Nation with defined territory and with
Resources, and Governance. a system of government having entered into treaties of
amity and commerce with foreign nations.
A. CONCEPTS AND PRINCIPLES The term First Nation is of Canadian origin referring to
the indigenous peoples of that territory, particularly
This strand begins with the statement that it is the those known as Indians. In Canada, each of these
birthright of all Moros and all Indigenous peoples of indigenous peoples is equally entitled to be called First
Mindanao to identify themselves and be accepted as Nation, hence, all of them are usually described
Bangsamoros. It defines Bangsamoro people as the collectively by the plural First Nations.[36] To that extent,
natives or original inhabitants of Mindanao and its the MOA-AD, by identifying the Bangsamoro people as
adjacent islands including Palawan and the Sulu the First Nation suggesting its exclusive entitlement to
archipelago at the time of conquest or colonization, and that designation departs from the Canadian usage of the
their descendants whether mixed or of full blood, term.
including their spouses.[30]
The MOA-AD then mentions for the first time the
Thus, the concept of Bangsamoro, as defined in this Bangsamoro Juridical Entity (BJE) to which it grants the
strand of the MOA-AD, includes not only Moros as authority and jurisdiction over the Ancestral Domain and
traditionally understood even by Muslims,[31]but all Ancestral Lands of the Bangsamoro.[37]
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 B. TERRITORY
of choice consists in has not been specifically defined.
The territory of the Bangsamoro homeland is described
The MOA-AD proceeds to refer to the Bangsamoro as the land mass as well as the maritime, terrestrial,
homeland, the ownership of which is vested exclusively fluvial and alluvial domains, including the aerial domain
in the Bangsamoro people by virtue of their prior rights and the atmospheric space above it, embracing the
of occupation.[32] Both parties to the MOA-AD Mindanao-Sulu-Palawan geographic region.[38]
acknowledge that ancestral domain does not form part of
the public domain.[33] More specifically, the core of the BJE is defined as the
present geographic area of the ARMM thus constituting
The Bangsamoro people are acknowledged as having the the following areas: Lanao del Sur, Maguindanao, Sulu,
right to self-governance, which right is said to be rooted Tawi-Tawi, Basilan, and Marawi City. Significantly, this
on ancestral territoriality exercised originally under the core also includes certain municipalities of Lanao del
suzerain authority of their sultanates and the Pat a Norte that voted for inclusion in the ARMM in the 2001
Pangampong ku Ranaw. The sultanates were described plebiscite.[39]
as states or karajaan/kadatuan resembling a body politic
endowed with all the elements of a nation-state in the Outside of this core, the BJE is to cover other provinces,
modern sense.[34] cities, municipalities and barangays, which are grouped
into two categories, Category A and Category B. Each of
The MOA-AD thus grounds the right to self-governance these areas is to be subjected to a plebiscite to be held on
of the Bangsamoro people on the past suzerain authority different dates, years apart from each other. Thus,
of the sultanates. As gathered, the territory defined as the Category A areas are to be subjected to a plebiscite not
Bangsamoro homeland was ruled by several sultanates later than twelve (12) months following the signing of
and, specifically in the case of the Maranao, by the Pat a the MOA-AD.[40] Category B areas, also called Special
Pangampong ku Ranaw, a confederation of independent Intervention Areas, on the other hand, are to be
principalities (pangampong) each ruled by datus and subjected to a plebiscite twenty-five (25) years from the
sultans, none of whom was supreme over the others.[35] signing of a separate agreement the Comprehensive
Compact.[41]
 water adjacent to or between the islands forming part of
The Parties to the MOA-AD stipulate that the BJE shall the ancestral domain.[47]
have jurisdiction over all natural resources within its
internal waters, defined as extending fifteen (15) With regard to the right of exploring for, producing, and
kilometers from the coastline of the BJE area; [42] that the obtaining all potential sources of energy, petroleum,
BJE shall also have territorial waters, which shall stretch fossil fuel, mineral oil and natural gas, the jurisdiction
beyond the BJE internal waters up to the baselines of the and control thereon is to be vested in the BJE as the
Republic of the Philippines (RP) south east and south party having control within its territorial jurisdiction.
west of mainland Mindanao; and that within these This right carries the proviso that, in times of national
territorialwaters, the BJE and the Central Government emergency, when public interest so requires, the Central
(used interchangeably with RP) shall exercise joint Government may, for a fixed period and under
jurisdiction, authority and management over all natural reasonable terms as may be agreed upon by both Parties,
resources.[43] Notably, the jurisdiction over the internal assume or direct the operation of such resources. [48]
waters is not similarly described as joint.
The sharing between the Central Government and the
The MOA-AD further provides for the sharing of BJE of total production pertaining to natural resources is
minerals on the territorialwaters between the Central to be 75:25 in favor of the BJE.[49]
Government and the BJE, in favor of the latter, through The MOA-AD provides that legitimate grievances of the
production sharing and economic cooperation Bangsamoro people arising from any unjust
agreement.[44] The activities which the Parties are dispossession of their territorial and proprietary rights,
allowed to conduct on the territorial waters are customary land tenures, or their marginalization shall be
enumerated, among which are the exploration and acknowledged. Whenever restoration is no longer
utilization of natural resources, regulation of shipping possible, reparation is to be in such form as mutually
and fishing activities, and the enforcement of police and determined by the Parties.[50]
safety measures.[45] There is no similar provision on the
sharing of minerals and allowed activities with respect to The BJE may modify or cancel the forest concessions,
the internal waters of the BJE. timber licenses, contracts or agreements, mining
concessions, Mineral Production and Sharing
C. RESOURCES Agreements (MPSA), Industrial Forest Management
Agreements (IFMA), and other land tenure instruments
The MOA-AD states that the BJE is free to enter into granted by the Philippine Government, including those
any economic cooperation and trade relations with issued by the present ARMM.[51]
foreign countries and shall have the option to establish
trade missions in those countries. Such relationships and D. GOVERNANCE
understandings, however, are not to include aggression The MOA-AD binds the Parties to invite a multinational
against the GRP. The BJE may also enter into third-party to observe and monitor the implementation of
environmental cooperation agreements.[46] the Comprehensive Compact.This compact is to embody
the details for the effective enforcement and the
The external defense of the BJE is to remain the duty mechanisms and modalities for the actual
and obligation of the Central Government. The Central implementation of the MOA-AD.The MOA-AD
Government is also bound to take necessary steps to explicitly provides that the participation of the third
ensure the BJEs participation in international meetings party shall not in any way affect the status of the
and events like those of the ASEAN and the specialized relationship between the Central Government and the
agencies of the UN.The BJE is to be entitled to BJE.[52]
participate in Philippine official missions and
delegations for the negotiation of border agreements or The associative relationship
protocols for environmental protection and equitable between the Central Government
sharing of incomes and revenues involving the bodies of and the BJE
The MOA-AD describes the relationship of the Central earlier mentioned in the discussion on the strand on
Government and the BJE as associative, characterized by TERRITORY.
shared authority and responsibility. And it states that the
structure of governance is to be based on executive, IV. PROCEDURAL ISSUES
legislative, judicial, and administrative institutions with
defined powers and functions in the Comprehensive
Compact. A. RIPENESS

The MOA-AD provides that its provisions requiring

amendments to the existing legal framework shall take The power of judicial review is limited to actual cases or
effect upon signing of the Comprehensive Compact and controversies.[54] Courts decline to issue advisory
upon effecting the aforesaid amendments, with due opinions or to resolve hypothetical or feigned problems,
regard to the non-derogation of prior agreements and or mere academic questions.[55] The limitation of the
within the stipulated timeframe to be contained in the power of judicial review to actual cases and
Comprehensive Compact. As will be discussed later, controversies defines the role assigned to the judiciary in
much of the present controversy hangs on the legality of a tripartite allocation of power, to assure that the courts
this provision. will not intrude into areas committed to the other
branches of government.[56]
The BJE is granted the power to build, develop and
maintain its own institutions inclusive of civil service, An actual case or controversy involves a conflict of legal
electoral, financial and banking, education, legislation, rights, an assertion of opposite legal claims, susceptible
legal, economic, police and internal security force, of judicial resolution as distinguished from a
judicial system and correctional institutions, the details hypothetical or abstract difference or dispute. There
of which shall be discussed in the negotiation of the must be a contrariety of legal rights that can be
comprehensive compact. interpreted and enforced on the basis of existing law and
jurisprudence.[57] The Court can decide the
As stated early on, the MOA-AD was set to be signed on constitutionality of an act or treaty only when a proper
August 5, 2008 by Rodolfo Garcia and Mohagher Iqbal, case between opposing parties is submitted for judicial
Chairpersons of the Peace Negotiating Panels of the determination.[58]
GRP and the MILF, respectively. Notably, the
penultimate paragraph of the MOA-AD identifies the Related to the requirement of an actual case or
signatories as the representatives of the Parties, meaning controversy is the requirement of ripeness. A question is
the GRP and MILF themselves, and not merely of the ripe for adjudication when the act being challenged has
negotiating panels.[53] In addition, the signature page of had a direct adverse effect on the individual challenging
the MOA-AD states that it is WITNESSED BY Datuk it.[59] For a case to be considered ripe for adjudication, it
Othman Bin Abd Razak, Special Adviser to the Prime is a prerequisite that something had then been
Minister of Malaysia, ENDORSED BY Ambassador accomplished or performed by either branch before a
Sayed Elmasry, Adviser to Organization of the Islamic court may come into the picture,[60] and the petitioner
Conference (OIC) Secretary General and Special Envoy must allege the existence of an immediate or threatened
for Peace Process in Southern Philippines, and SIGNED injury to itself as a result of the challenged action. [61] He
IN THE PRESENCE OF Dr. Albert G. Romulo, must show that he has sustained or is immediately in
Secretary of Foreign Affairs of RP and Dato Seri Utama danger of sustaining some direct injury as a result of the
Dr. Rais Bin Yatim, Minister of Foreign Affairs, act complained of.[62]
Malaysia, all of whom were scheduled to sign the
Agreement last August 5, 2008. The Solicitor General argues that there is no justiciable
controversy that is ripe for judicial review in the present
Annexed to the MOA-AD are two documents containing petitions, reasoning that
the respective lists cum maps of the provinces,
municipalities, and barangays under Categories A and B
The unsigned MOA-AD is simply a list of consensus xxxx
points subject to further negotiations and legislative
enactments as well as constitutional processes aimed at GOVERNANCE
attaining a final peaceful agreement. Simply put, the
MOA-AD remains to be a proposal that does not xxxx
automatically create legally demandable rights and
obligations until the list of operative acts required have 7. The Parties agree that mechanisms and modalities for
been duly complied with. x x x the actual implementation of this MOA-AD shall be
spelt out in the Comprehensive Compact to mutually
xxxx take such steps to enable it to occur effectively.

In the cases at bar, it is respectfully submitted that this Any provisions of the MOA-AD requiring amendments
Honorable Court has no authority to pass upon issues to the existing legal framework shall come into force
based on hypothetical or feigned constitutional problems upon the signing of a Comprehensive Compact and upon
or interests with no concrete bases.Considering the effecting the necessary changes to the legal framework
preliminary character of the MOA-AD, there are no with due regard to non-derogation of prior agreements
concrete acts that could possibly violate petitioners and and within the stipulated timeframe to be contained in
intervenors rights since the acts complained of are mere the Comprehensive Compact.[64](Underscoring supplied)
contemplated steps toward the formulation of a final
peace agreement. Plainly, petitioners and intervenors
perceived injury, if at all, is merely imaginary and The Solicitor Generals arguments fail to persuade.
illusory apart from being unfounded and based on mere
conjectures. (Underscoring supplied) Concrete acts under the MOA-AD are not necessary to
render the present controversy ripe. In Pimentel, Jr. v.
Aguirre,[65] this Court held:
The Solicitor General cites[63] the following provisions of
the MOA-AD: x x x [B]y the mere enactment of the questioned law or
the approval of the challenged action, the dispute is said
TERRITORY to have ripened into a judicial controversy even without
any other overt act. Indeed, even a singular violation of
xxxx the Constitution and/or the law is enough to awaken
judicial duty.
2. Toward this end, the Parties enter into the following
stipulations: xxxx
xxxx
By the same token, when an act of the President, who in
d. Without derogating from the requirements of prior our constitutional scheme is a coequal of Congress, is
agreements, the Government stipulates to conduct and seriously alleged to have infringed the Constitution and
deliver, using all possible legal measures, within twelve the laws x x x settling the dispute becomes the duty and
(12) months following the signing of the MOA-AD, a the responsibility of the courts.[66]
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 In Santa Fe Independent School District v. Doe,[67] the
this framework agreement. Toward this end, the Parties United States Supreme Court held that the challenge to
shall endeavor to complete the negotiations and resolve the constitutionality of the schools policy allowing
all outstanding issues on the Comprehensive Compact student-led prayers and speeches before games was ripe
within fifteen (15) months from the signing of the MOA- for adjudication, even if no public prayer had yet been
AD. led under the policy, because the policy was being
challenged as unconstitutional on its face.[68]
 amendments to the existing legal framework shall come
That the law or act in question is not yet effective does into force upon the signing of a Comprehensive
not negate ripeness. For example, in New York v. United Compact and upon effecting the necessary changes to
States,[69] decided in 1992, the United States Supreme the legal framework, implying an amendment of the
Court held that the action by the State of New York Constitution to accommodate the MOA-AD. This
challenging the provisions of the Low-Level Radioactive stipulation, in effect, guaranteed to the MILF the
Waste Policy Act was ripe for adjudication even if the amendment of the Constitution. Such act constitutes
questioned provision was not to take effect until January another violation of its authority. Again, these points
1, 1996, because the parties agreed that New York had to will be discussed in more detail later.
take immediate action to avoid the provision's As the petitions allege acts or omissions on the part of
consequences.[70] respondent thatexceed their authority, by violating their
duties under E.O. No. 3 and the provisions of the
The present petitions pray for Certiorari,[71] Prohibition, Constitution and statutes, the petitions make a prima
and Mandamus. Certiorari and Prohibition are remedies facie case for Certiorari, Prohibition, and Mandamus,
granted by law when any tribunal, board or officer has and an actual case or controversy ripe for adjudication
acted, in the case of certiorari, or is proceeding, in the exists. When an act of a branch of government is
case of prohibition, without or in excess of its seriously alleged to have infringed the Constitution, it
jurisdiction or with grave abuse of discretion amounting becomes not only the right but in fact the duty of the
to lack or excess of jurisdiction.[72]Mandamus is a judiciary to settle the dispute.[77]
remedy granted by law when any tribunal, corporation,
board, officer or person unlawfully neglects the B. LOCUS STANDI
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 For a party to have locus standi, one must allege such a
of a right or office to which such other is entitled. [73] personal stake in the outcome of the controversy as to
Certiorari, Mandamus and Prohibition are appropriate assure that concrete adverseness which sharpens the
remedies to raise constitutional issues and to review presentation of issues upon which the court so largely
and/or prohibit/nullify, when proper, acts of legislative depends for illumination of difficult constitutional
and executive officials.[74] questions.[78]

The authority of the GRP Negotiating Panel is defined Because constitutional cases are often public actions in
by Executive Order No. 3 (E.O. No. 3), issued on which the relief sought is likely to affect other persons, a
February 28, 2001.[75] The said executive order requires preliminary question frequently arises as to this interest
that [t]he government's policy framework for peace, in the constitutional question raised.[79]
including the systematic approach and the administrative
structure for carrying out the comprehensive peace When suing as a citizen, the person complaining must
process x x x be governed by this Executive Order. [76] allege that he has been or is about to be denied some
right or privilege to which he is lawfully entitled or that
The present petitions allege that respondents GRP Panel he is about to be subjected to some burdens or penalties
and PAPP Esperon drafted the terms of the MOA-AD by reason of the statute or act complained of. [80] When
without consulting the local government units or the issue concerns a public right, it is sufficient that the
communities affected, nor informing them of the petitioner is a citizen and has an interest in the execution
proceedings. As will be discussed in greater detail later, of the laws.[81]
such omission, by itself, constitutes a departure by
respondents from their mandate under E.O. No. 3. For a taxpayer, one is allowed to sue where there is an
assertion that public funds are illegally disbursed or
Furthermore, the petitions allege that the provisions of deflected to an illegal purpose, or that there is a wastage
the MOA-AD violate the Constitution. The MOA-AD of public funds through the enforcement of an invalid or
provides that any provisions of the MOA-AD requiring
unconstitutional law.[82] The Court retains discretion 183893) and City of Zamboanga (G.R. No. 183752) and
whether or not to allow a taxpayers suit.[83] petitioners-in-intervention Province of Sultan Kudarat,
City of Isabela and Municipality of Linamon have locus
In the case of a legislator or member of Congress, an act standi in view of the direct and substantial injury that
of the Executive that injures the institution of Congress they, as LGUs, would suffer as their territories, whether
causes a derivative but nonetheless substantial injury in whole or in part, are to be included in the intended
that can be questioned by legislators. A member of the domain of the BJE. These petitioners allege that they did
House of Representatives has standing to maintain not vote for their inclusion in the ARMM which would
inviolate the prerogatives, powers and privileges vested be expanded to form the BJE territory. Petitioners legal
by the Constitution in his office.[84] standing is thus beyond doubt.

An organization may be granted standing to assert the In G.R. No. 183962, petitioners Ernesto Maceda,
rights of its members,[85] but the mere invocation by the Jejomar Binay and Aquilino Pimentel III would have no
Integrated Bar of the Philippines or any member of the standing as citizens and taxpayers for their failure to
legal profession of the duty to preserve the rule of law specify that they would be denied some right or privilege
does not suffice to clothe it with standing.[86] or there would be wastage of public funds. The fact that
they are a former Senator, an incumbent mayor of
As regards a local government unit (LGU), it can seek Makati City, and a resident of Cagayan de Oro,
relief in order to protect or vindicate an interest of its respectively, is of no consequence. Considering their
own, and of the other LGUs.[87] invocation of the transcendental importance of the issues
at hand, however, the Court grants them standing.
Intervenors, meanwhile, may be given legal standing
upon showing of facts that satisfy the requirements of Intervenors Franklin Drilon and Adel Tamano, in
the law authorizing intervention,[88] such as a legal alleging their standing as taxpayers, assert that
interest in the matter in litigation, or in the success of government funds would be expended for the conduct of
either of the parties. an illegal and unconstitutional plebiscite to delineate the
BJE territory. On that score alone, they can be given
In any case, the Court has discretion to relax the legal standing. Their allegation that the issues involved
procedural technicality on locus standi, given the liberal in these petitions are of undeniable transcendental
attitude it has exercised, highlighted in the case of David importance clothes them with added basis for their
v. Macapagal-Arroyo,[89] where technicalities of personality to intervene in these petitions.
procedure were brushed aside, the constitutional issues
raised being of paramount public interest or of With regard to Senator Manuel Roxas, his standing is
transcendental importance deserving the attention of the premised on his being a member of the Senate and a
Court in view of their seriousness, novelty and weight as citizen to enforce compliance by respondents of the
precedents.[90]The Courts forbearing stance on locus publics constitutional right to be informed of the MOA-
standi on issues involving constitutional issues has for its AD, as well as on a genuine legal interest in the matter
purpose the protection of fundamental rights. in litigation, or in the success or failure of either of the
parties. He thus possesses the requisite standing as an
In not a few cases, the Court, in keeping with its duty intervenor.
under the Constitution to determine whether the other
branches of government have kept themselves within the With respect to Intervenors Ruy Elias Lopez, as a former
limits of the Constitution and the laws and have not congressman of the 3rd district of Davao City, a taxpayer
abused the discretion given them, has brushed aside and a member of the Bagobo tribe; Carlo B. Gomez, et
technical rules of procedure.[91] al., as members of the IBP Palawan chapter, citizens and
taxpayers; Marino Ridao, as taxpayer, resident and
In the petitions at bar, petitioners Province of North member of the Sangguniang Panlungsod of Cotabato
Cotabato (G.R. No. 183591) Province of Zamboanga del City; and Kisin Buxani, as taxpayer, they failed to allege
Norte (G.R. No. 183951), City of Iligan (G.R. No. any proper legal interest in the present petitions. Just the
same, the Court exercises its discretion to relax the plaintiff seeks damages or prays for injunctive relief
procedural technicality on locus standi given the against the possible recurrence of the violation. [99]
paramount public interest in the issues at hand.
The present petitions fall squarely into these exceptions
Intervening respondents Muslim Multi-Sectoral to thus thrust them into the domain of judicial review.
Movement for Peace and Development, an advocacy The grounds cited above in David are just as applicable
group for justice and the attainment of peace and in the present cases as they were, not only in David, but
prosperity in Muslim Mindanao; and Muslim Legal also in Province of Batangas v. Romulo[100] and Manalo
Assistance Foundation Inc., a non-government v. Calderon[101] where the Court similarly decided them
organization of Muslim lawyers, allege that they stand to on the merits, supervening events that would ordinarily
be benefited or prejudiced, as the case may be, in the have rendered the same moot notwithstanding.
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 Petitions not mooted
with standing.

B. MOOTNESS Contrary then to the asseverations of respondents, the

non-signing of the MOA-AD and the eventual
Respondents insist that the present petitions have been dissolution of the GRP Peace Panel did not moot the
rendered moot with the satisfaction of all the reliefs present petitions. It bears emphasis that the signing of
prayed for by petitioners and the subsequent the MOA-AD did not push through due to the Courts
pronouncement of the Executive Secretary that [n]o issuance of a Temporary Restraining Order.
matter what the Supreme Court ultimately decides[,] the
government will not sign the MOA.[92] Contrary too to respondents position, the MOA-AD
cannot be considered a mere list of consensus points,
In lending credence to this policy decision, the Solicitor especially given its nomenclature, the need tohave it
General points out that the President had already signed or initialed by all the parties concerned on August
disbanded the GRP Peace Panel.[93] 5, 2008, and the far-reaching Constitutional implications
of these consensus points, foremost of which is the
In David v. Macapagal-Arroyo,[94] this Court held that creation of the BJE.
the moot and academic principle not being a magical
formula that automatically dissuades courts in resolving In fact, as what will, in the main, be discussed, there is a
a case, it will decide cases, otherwise moot and commitment on the part of respondents to amend and
academic, if it finds that (a) there is a grave violation of effect necessary changes to the existing legal framework
the Constitution;[95] (b) the situation is of exceptional for certain provisions of the MOA-AD to take effect.
character and paramount public interest is involved; [96] Consequently, the present petitions are not confined to
(c) the constitutional issue raised requires formulation of the terms and provisions of the MOA-AD, but to other
controlling principles to guide the bench, the bar, and the on-going and future negotiations and agreements
public;[97] and (d) the case is capable of repetition yet necessary for its realization. The petitions have not,
evading review.[98] therefore, been rendered moot and academic simply by
the public disclosure of the MOA-AD,[102] the
Another exclusionary circumstance that may be manifestation that it will not be signed as well as the
considered is where there is a voluntary cessation of the disbanding of the GRP Panel not withstanding.
activity complained of by the defendant or doer.Thus,
once a suit is filed and the doer voluntarily ceases the Petitions are imbued with paramount public interest
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 There is no gainsaying that the petitions are imbued with
paramount public interest, involving a significant part of
the countrys territory and the wide-ranging political Domain Aspect of the TripoliAgreement 2001, in
modifications of affected LGUs. The assertion that the another or in any form, which could contain similar or
MOA-AD is subject to further legal enactments significantly drastic provisions. While the Court notes
including possible Constitutional amendments more than the word of the Executive Secretary that the government
ever provides impetus for the Court to formulate is committed to securing an agreement that is both
controlling principles to guide the bench, the bar, the constitutional and equitable because that is the only way
public and, in this case, the government and its that long-lasting peace can be assured, it is minded to
negotiating entity. render a decision on the merits in the present petitions to
formulate controlling principles to guide the bench, the
Respondents cite Suplico v. NEDA, et al.[103] where the bar, the public and, most especially, the government in
Court did not pontificat[e] on issues which no longer negotiating with the MILF regarding Ancestral Domain.
legitimately constitute an actual case or controversy [as
this] will do more harm than good to the nation as a Respondents invite the Courts attention to the separate
whole. opinion of then Chief Justice Artemio Panganiban in
Sanlakas v. Reyes[104] in which he stated thatthe doctrine
The present petitions must be differentiated from of capable of repetition yet evading review can override
Suplico. Primarily, in Suplico, what was assailed and mootness, provided the party raising it in a proper case
eventually cancelled was a stand-alone government has been and/or continue to be prejudiced or damaged as
procurement contract for a national broadband network a direct result of their issuance. They contend that the
involving a one-time contractual relation between two Court must have jurisdiction over the subject matter for
partiesthe government and a private foreign corporation. the doctrine to be invoked.
As the issues therein involved specific government
procurement policies and standard principles on The present petitions all contain prayers for Prohibition
contracts, the majority opinion in Suplico found nothing over which this Court exercises original jurisdiction.
exceptional therein, the factual circumstances being While G.R. No. 183893 (City of Iligan v. GRP) is a
peculiar only to the transactions and parties involved in petition for Injunction and Declaratory Relief, the Court
the controversy. will treat it as one for Prohibition as it has far reaching
The MOA-AD is part of a series of agreements implications and raises questions that need to be
resolved.[105] At all events, the Court has jurisdiction over
In the present controversy, the MOA-AD is a significant most if not the rest of the petitions.
part of a series of agreements necessary to carry out the
Tripoli Agreement 2001. The MOA-AD which dwells Indeed, the present petitions afford a proper venue for
on the Ancestral Domain Aspect of said Tripoli the Court to again apply the doctrine immediately
Agreement is the third such component to be undertaken referred to as what it had done in a number of landmark
following the implementation of the Security Aspect in cases.[106] There is a reasonable expectation that
August 2001 and the Humanitarian, Rehabilitation and petitioners, particularly the Provinces of North Cotabato,
Development Aspect in May 2002. Zamboanga del Norte and Sultan Kudarat, the Cities of
Zamboanga, Iligan and Isabela, and the Municipality of
Accordingly, even if the Executive Secretary, in his Linamon, will again be subjected to the same problem in
Memorandum of August 28, 2008 to the Solicitor the future as respondents actions are capable of
General, has stated that no matter what the Supreme repetition, in another or any form.
Court ultimately decides[,] the government will not sign
the MOA[-AD], mootness will not set in in light of the It is with respect to the prayers for Mandamus that the
terms of the Tripoli Agreement 2001. petitions have become moot, respondents having, by
Compliance of August 7, 2008, provided this Court and
Need to formulate principles-guidelines petitioners with official copies of the final draft of the
MOA-AD and its annexes. Too, intervenors have been
Surely, the present MOA-AD can be renegotiated or furnished, or have procured for themselves, copies of the
another one will be drawn up to carry out the Ancestral MOA-AD.
V. SUBSTANTIVE ISSUES 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
As culled from the Petitions and Petitions-in- perception by the public of the nations problems, nor a
Intervention, there are basically two SUBSTANTIVE meaningful democratic decision-making if they are
issues to be resolved, one relating to the manner in denied access to information of general interest.
which the MOA-AD was negotiated and finalized, the Information is needed to enable the members of society
other relating to its provisions, viz: to cope with the exigencies of the times. As has been
aptly observed: Maintaining the flow of such
1. Did respondents violate constitutional and statutory information depends on protection for both its
provisions on public consultation and the right to acquisition and its dissemination since, if either process
information when they negotiated and later initialed the is interrupted, the flow inevitably ceases. x x x[111]
MOA-AD?

2. Do the contents of the MOA-AD violate the In the same way that free discussion enables members of
Constitution and the laws? society to cope with the exigencies of their time, access
ON THE FIRST SUBSTANTIVE ISSUE to information of general interest aids the people in
democratic decision-making by giving them a better
Petitioners invoke their constitutional right to perspective of the vital issues confronting the nation [112]
information on matters of public concern, as provided in so that they may be able to criticize and participate in the
Section 7, Article III on the Bill of Rights: affairs of the government in a responsible, reasonable
and effective manner. It is by ensuring an unfettered and
Sec. 7. The right of the people to information on matters uninhibited exchange of ideas among a well-informed
of public concern shall be recognized. Access to official public that a government remains responsive to the
records, and to documents, and papers pertaining to changes desired by the people.[113]
official acts, transactions, or decisions, as well as to
government research data used as basis for policy The MOA-AD is a matter of public concern
development, shall be afforded the citizen, subject to
such limitations as may be provided by law.[107] That the subject of the information sought in the present
cases is a matter of public concern[114] faces no serious
challenge. In fact, respondents admit that the MOA-AD
As early as 1948, in Subido v. Ozaeta,[108] the Court has is indeed of public concern.[115] In previous cases, the
recognized the statutory right to examine and inspect Court found that the regularity of real estate transactions
public records, a right which was eventually accorded entered in the Register of Deeds,[116] the need for
constitutional status. adequate notice to the public of the various laws, [117] the
civil service eligibility of a public employee, [118] the
The right of access to public documents, as enshrined in proper management of GSIS funds allegedly used to
both the 1973 Constitution and the 1987 Constitution, grant loans to public officials,[119] the recovery of the
has been recognized as a self-executory constitutional Marcoses alleged ill-gotten wealth,[120] and the identity of
right.[109] party-list nominees,[121] among others, are matters of
public concern. Undoubtedly, the MOA-AD subject of
In the 1976 case of Baldoza v. Hon. Judge Dimaano, [110] the present cases is of public concern, involving as it
the Court ruled that access to public records is does the sovereignty and territorial integrity of the State,
predicated on the right of the people to acquire which directly affects the lives of the public at large.
information on matters of public concern since,
undoubtedly, in a democracy, the pubic has a legitimate Matters of public concern covered by the right to
interest in matters of social and political significance. information include steps and negotiations leading to the
consummation of the contract. In not distinguishing as to
the executory nature or commercial character of provisions are vital to the exercise of the freedom of
agreements, the Court has categorically ruled: expression and essential to hold public officials at all
times accountable to the people.[127]
x x x [T]he right to information contemplates inclusion
of negotiations leading to the consummation of the Whether Section 28 is self-executory, the records of the
transaction. Certainly, a consummated contract is not a deliberations of the Constitutional Commission so
requirement for the exercise of the right to information. disclose:
Otherwise, the people can never exercise the right if no
contract is consummated, and if one is consummated, it MR. SUAREZ. And since this is not self-executory, this
may be too late for the public to expose its defects. policy will not be enunciated or will not be in force and
Requiring a consummated contract will keep the public effect until after Congress shall have provided it.
in the dark until the contract, which may be grossly
disadvantageous to the government or even illegal, MR. OPLE. I expect it to influence the climate of public
becomes fait accompli. This negates the State policy of ethics immediately but, of course, the implementing law
full transparency on matters of public concern, a will have to be enacted by Congress, Mr. Presiding
situation which the framers of the Constitution could not Officer.[128]
have intended. Such a requirement will prevent the
citizenry from participating in the public discussion of
any proposedcontract, effectively truncating a basic right The following discourse, after Commissioner Hilario
enshrined in the Bill of Rights.We can allow neither an Davide, Jr., sought clarification on the issue, is
emasculation of a constitutional right, nor a retreat by enlightening.
the State of its avowed policy of full disclosure of all its
transactions involving public interest.[122] (Emphasis and MR. DAVIDE. I would like to get some clarifications on
italics in the original) 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
Intended as a splendid symmetry[123] to the right to implement?
information under the Bill of Rights is the policy of
public disclosure under Section 28, Article II of the MR. OPLE. Yes. Originally, it was going to be self-
Constitution reading: executing, but I accepted an amendment from
Commissioner Regalado, so that the safeguards on
Sec. 28. Subject to reasonable conditions prescribed by national interest are modified by the clause as may be
law, the State adopts and implements a policy of full provided by law
public disclosure of all its transactions involving public
interest.[124] MR. DAVIDE. But as worded, does it not mean that this
will immediately take effect and Congress may provide
The policy of full public disclosure enunciated in above- for reasonable safeguards on the sole ground national
quoted Section 28 complements the right of access to interest?
information on matters of public concernfound in the
Bill of Rights. The right to information guarantees the MR. OPLE. Yes. I think so, Mr. Presiding Officer, I said
right of the people to demand information, while Section earlier that it should immediately influence the climate
28 recognizes the duty of officialdom to give of the conduct of public affairs but, of course, Congress
information even if nobody demands.[125] here may no longer pass a law revoking it, or if this is
approved, revoking this principle, which is inconsistent
The policy of public disclosure establishes a concrete with this policy.[129] (Emphasis supplied)
ethical principle for the conduct of public affairs in a
genuinely open democracy, with the peoples right to
know as the centerpiece. It is a mandate of the State to Indubitably, the effectivity of the policy of public
be accountable by following such policy.[126] These disclosure need not await the passing of a statute. As
Congress cannot revoke this principle, it is merely will be another OMA in the making.[132](Emphasis
directed to provide for reasonable safeguards. The supplied)
complete and effective exercise of the right to
information necessitates that its complementary The imperative of a public consultation, as a species of
provision on public disclosure derive the same self- the right to information, is evident in the marching
executory nature. Since both provisions go hand-in- orders to respondents. The mechanics for the duty to
hand, it is absurd to say that the broader[130] right to disclose information and to conduct public consultation
information on matters of public concern is already regarding the peace agenda and process is manifestly
enforceable while the correlative duty of the State to provided by E.O. No. 3.[133] The preambulatory clause of
disclose its transactions involving public interest is not E.O. No. 3 declares that there is a need to further
enforceable until there is an enabling law. Respondents enhance the contribution of civil society to the
cannot thus point to the absence of an implementing comprehensive peace process by institutionalizing the
legislation as an excuse in not effecting such policy. peoples participation.
One of the three underlying principles of the
An essential element of these freedoms is to keep open a comprehensive peace process is that it should be
continuing dialogue or process of communication community-based, reflecting the sentiments, values and
between the government and the people. It is in the principles important to all Filipinos and shall be defined
interest of the State that the channels for free political not by the government alone, nor by the different
discussion be maintained to the end that the government contending groups only, but by all Filipinos as one
may perceive and be responsive to the peoples will. [131] community.[134] Included as a component of the
Envisioned to be corollary to the twin rights to comprehensive peace process is consensus-building and
information and disclosure is the design for feedback empowerment for peace, which includes continuing
mechanisms. consultations on both national and local levels to build
consensus for a peace agenda and process, and the
MS. ROSARIO BRAID. Yes. And lastly, Mr. Presiding mobilization and facilitation of peoples participation in
Officer, will the people be able to participate? Will the the peace process.[135]
government provide feedback mechanisms so that the
people can participate and can react where the existing Clearly, E.O. No. 3 contemplates not just the conduct of
media facilities are not able to provide full feedback aplebiscite to effectuate continuing consultations,
mechanisms to the government? I suppose this will be contrary to respondents position that plebiscite is more
part of the government implementing operational than sufficient consultation.[136]
mechanisms.
Further, E.O. No. 3 enumerates the functions and
MR. OPLE. Yes. I think through their elected responsibilities of the PAPP, one of which is to
representatives and that is how these courses take place. [c]onduct regular dialogues with the National Peace
There is a message and a feedback, both ways. Forum (NPF) and other peace partners to seek relevant
information, comments, recommendations as well as to
xxxx render appropriate and timely reports on the progress of
the comprehensive peace process.[137] E.O. No. 3
MS. ROSARIO BRAID. Mr. Presiding Officer, may I mandates the establishment of the NPF to be the
just make one last sentence? principal forum for the PAPP to consult with and seek
advi[c]e from the peace advocates, peace partners and
I think when we talk about the feedback network, we are concerned sectors of society on both national and local
not talking about public officials but also network of levels, on the implementation of the comprehensive
private business o[r] community-based organizations peace process, as well as for government[-]civil society
that will be reacting. As a matter of fact, we will put dialogue and consensus-building on peace agenda and
more credence or credibility on the private network of initiatives.[138]
volunteers and voluntary community-based
organizations. So I do not think we are afraid that there
In fine, E.O. No. 3 establishes petitioners right to be prayer for the documents disclosure in camera, or
consulted on the peace agenda, as a corollary to the without a manifestation that it was complying therewith
constitutional right to information and disclosure. ex abundante ad cautelam.

PAPP Esperon committed grave abuse of discretion 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
The PAPP committed grave abuse of discretion when he consultations with appropriate local government units,
failed to carry out the pertinent consultation. The furtive non-governmental and people's organizations, and other
process by which the MOA-AD was designed and concerned sectors of the community before any project
crafted runs contrary to and in excess of the legal or program is implemented in their respective
authority, and amounts to a whimsical, capricious, jurisdictions[142] is well-taken. The LGC chapter on
oppressive, arbitrary and despotic exercise thereof. intergovernmental relations puts flesh into this avowed
policy:
The Court may not, of course, require the PAPP to
conduct the consultation in a particular way or manner. Prior Consultations Required. No project or program
It may, however, require him to comply with the law and shall be implemented by government authorities unless
discharge the functions within the authority granted by the consultations mentioned in Sections 2 (c) and 26
the President.[139] hereof are complied with, and prior approval of the
sanggunian concerned is obtained: Provided, That
Petitioners are not claiming a seat at the negotiating occupants in areas where such projects are to be
table, contrary to respondents retort in justifying the implemented shall not be evicted unless appropriate
denial of petitioners right to be consulted.Respondents relocation sites have been provided, in accordance with
stance manifests the manner by which they treat the the provisions of the Constitution.[143] (Italics and
salient provisions of E.O. No. 3 on peoples participation. underscoring supplied)
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 In Lina, Jr. v. Hon. Pao,[144] the Court held that the
illustrates a gross evasion of positive duty and a virtual above-stated policy and above-quoted provision of the
refusal to perform the duty enjoined. LGU apply only to national programs or projects which
are to be implemented in a particular local
As for respondents invocation of the doctrine of community.Among the programs and projects covered
executive privilege, it is not tenable under the premises. are those that are critical to the environment and human
The argument defies sound reason when contrasted with ecology including those that may call for the eviction of
E.O. No. 3s explicit provisions on continuing a particular group of people residing in the locality
consultation and dialogue on both national and local where these will be implemented.[145] The MOA-AD is
levels. The executive order even recognizes the exercise one peculiar program that unequivocally and unilaterally
of the publics right even before the GRP makes its vests ownership of a vast territory to the Bangsamoro
official recommendations or before the government people,[146] which could pervasively and drastically result
proffers its definite propositions.[141] It bear emphasis to the diaspora or displacement of a great number of
that E.O. No. 3 seeks to elicit relevant advice, inhabitants from their total environment.
information, comments and recommendations from the
people through dialogue. With respect to the indigenous cultural
communities/indigenous peoples (ICCs/IPs), whose
AT ALL EVENTS, respondents effectively waived the interests are represented herein by petitioner Lopez and
defense of executive privilege in view of their are adversely affected by the MOA-AD, the ICCs/IPs
unqualified disclosure of the official copies of the final have, under the IPRA, the right to participate fully at all
draft of the MOA-AD. By unconditionally complying levels of decision-making in matters which may affect
with the Courts August 4, 2008 Resolution, without a their rights, lives and destinies.[147] The MOA-AD, an
instrument recognizing ancestral domain, failed to In general, the objections against the MOA-AD center
justify its non-compliance with the clear-cut mechanisms on the extent of the powers conceded therein to the BJE.
ordained in said Act,[148] which entails, among other Petitioners assert that the powers granted to the BJE
things, the observance of the free and prior informed exceed those granted to any local government under
consent of the ICCs/IPs. present laws, and even go beyond those of the present
Notably, the IPRA does not grant the Executive ARMM. Before assessing some of the specific powers
Department or any government agency the power to that would have been vested in the BJE, however, it
delineate and recognize an ancestral domain claim by would be useful to turn first to a general idea that serves
mere agreement or compromise. The recognition of the as a unifying link to the different provisions of the
ancestral domain is the raison detre of the MOA-AD, MOA-AD, namely, the international law concept of
without which all other stipulations or consensus points association. Significantly, the MOA-AD explicitly
necessarily must fail. In proceeding to make a sweeping alludes to this concept, indicating that the Parties
declaration on ancestral domain, without complying with actually framed its provisions with it in mind.
the IPRA, which is cited as one of the TOR of the MOA-
AD, respondents clearly transcended the boundaries of Association is referred to in paragraph 3 on
their authority. As it seems, even the heart of the MOA- TERRITORY, paragraph 11 on RESOURCES, and
AD is still subject to necessary changes to the legal paragraph 4 on GOVERNANCE. It is in the last
framework. While paragraph 7 on Governance suspends mentioned provision, however, that the MOA-AD most
the effectivity of all provisions requiring changes to the clearly uses it to describe the envisioned relationship
legal framework, such clause is itself invalid, as will be between the BJE and the Central Government.
discussed in the following section.
4. The relationship between the Central Government and
Indeed, ours is an open society, with all the acts of the the Bangsamoro juridical entity shall be associative
government subject to public scrutiny and available characterized by shared authority and responsibility with
always to public cognizance. This has to be so if the a structure of governance based on executive, legislative,
country is to remain democratic, with sovereignty judicial and administrative institutions with defined
residing in the people and all government authority powers and functions in the comprehensive compact. A
emanating from them.[149] period of transition shall be established in a
comprehensive peace compact specifying the
relationship between the Central Government and the
ON THE SECOND SUBSTANTIVE ISSUE BJE. (Emphasis and underscoring supplied)

With regard to the provisions of the MOA-AD, there can The nature of the associative relationship may have been
be no question that they cannot all be accommodated intended to be defined more precisely in the still to be
under the present Constitution and laws.Respondents forged Comprehensive Compact.Nonetheless, given that
have admitted as much in the oral arguments before this there is a concept of association in international law, and
Court, and the MOA-AD itself recognizes the need to the MOA-AD by its inclusion of international law
amend the existing legal framework to render effective instruments in its TOR placed itself in an international
at least some of its provisions. Respondents, nonetheless, legal context, that concept of association may be brought
counter that the MOA-AD is free of any legal infirmity to bear in understanding the use of the term associative
because any provisions therein which are inconsistent in the MOA-AD.
with the present legal framework will not be effective
until the necessary changes to that framework are made. Keitner and Reisman state that
The validity of this argument will be considered
later.For now, the Court shall pass upon how [a]n association is formed when two states of unequal
power voluntarily establish durable links. In the basic
The MOA-AD is inconsistent with the Constitution and model, one state, the associate, delegates certain
laws as presently worded. responsibilities to the other, the principal, while
maintaining its international status as a state. Free
associations represent a middle ground between that the American model of free association is actually
integration and independence. x x x[150] (Emphasis and based on an underlying status of independence.[152]
underscoring supplied)
In international practice, the associated state
arrangement has usually been used as a transitional
For purposes of illustration, the Republic of the Marshall device of former colonies on their way to full
Islands and the Federated States of Micronesia (FSM), independence. Examples of states that have passed
formerly part of the U.S.-administered Trust Territory of through the status of associated states as a transitional
the Pacific Islands,[151] are associated states of the U.S. phase are Antigua, St. Kitts-Nevis-Anguilla, Dominica,
pursuant to a Compact of Free Association. The St. Lucia, St. Vincent and Grenada. All have since
currency in these countries is the U.S. dollar, indicating become independent states.[153]
their very close ties with the U.S., yet they issue their
own travel documents, which is a mark of their Back to the MOA-AD, it contains many provisions
statehood.Their international legal status as states was which are consistent with the international legal concept
confirmed by the UN Security Council and by their of association, specifically the following: the BJEs
admission to UN membership. capacity to enter into economic and trade relations with
foreign countries, the commitment of the Central
According to their compacts of free association, the Government to ensure the BJEs participation in meetings
Marshall Islands and the FSM generally have the and events in the ASEAN and the specialized UN
capacity to conduct foreign affairs in their own name agencies, and the continuing responsibility of the Central
and right, such capacity extending to matters such as the Government over external defense. Moreover, the BJEs
law of the sea, marine resources, trade, banking, postal, right to participate in Philippine official missions
civil aviation, and cultural relations. The U.S. bearing on negotiation of border agreements,
government, when conducting its foreign affairs, is environmental protection, and sharing of revenues
obligated to consult with the governments of the pertaining to the bodies of water adjacent to or between
Marshall Islands or the FSM on matters which it (U.S. the islands forming part of the ancestral domain,
government) regards as relating to or affecting either resembles the right of the governments of FSM and the
government. Marshall Islands to be consulted by the U.S. government
on any foreign affairs matter affecting them.
In the event of attacks or threats against the Marshall
Islands or the FSM, the U.S. government has the These provisions of the MOA indicate, among other
authority and obligation to defend them as if they were things, that the Parties aimed to vest in the BJE the status
part of U.S. territory. The U.S. government, moreover, of an associated state or, at any rate, a status closely
has the option of establishing and using military areas approximating it.
and facilities within these associated states and has the
right to bar the military personnel of any third country The concept of association is notrecognized under the
from having access to these territories for military present Constitution
purposes.
No province, city, or municipality, not even the ARMM,
It bears noting that in U.S. constitutional and is recognized under our laws as having an associative
international practice, free association is understood as relationship with the national government. Indeed, the
an international association between sovereigns.The concept implies powers that go beyond anything ever
Compact of Free Association is a treaty which is granted by the Constitution to any local or regional
subordinate to the associated nations national government. It also implies the recognition of the
constitution, and each party may terminate the associated entity as a state. The Constitution, however,
association consistent with the right of independence. It does not contemplate any state in this jurisdiction other
has been said that, with the admission of the U.S.- than the Philippine State, much less does it provide for a
associated states to the UN in 1990, the UN recognized transitory status that aims to prepare any part of
Philippine territory for independence.
Even the mere concept animating many of the MOA- Article X, Section 18 of the Constitution provides that
ADs provisions, therefore, already requires for its [t]he creation of the autonomous region shall be
validity the amendment of constitutional provisions, effective when approved by a majority of the votes cast
specifically the following provisions of Article X: by the constituent units in a plebiscite called for the
purpose, provided that only provinces, cities, and
SECTION 1. The territorial and political subdivisions of geographic areas voting favorably in such plebiscite
the Republic of the Philippines are the provinces, cities, shall be included in the autonomous region.(Emphasis
municipalities, and barangays. There shall be supplied)
autonomous regions in Muslim Mindanao and the
Cordilleras as hereinafter provided. As reflected above, the BJE is more of a state than an
autonomous region.But even assuming that it is covered
SECTION 15. There shall be created autonomous by the term autonomous region in the constitutional
regions in Muslim Mindanao and in the Cordilleras provision just quoted, the MOA-AD would still be in
consisting of provinces, cities, municipalities, and conflict with it. Under paragraph 2(c) on TERRITORY
geographical areas sharing common and distinctive in relation to 2(d) and 2(e), the present geographic area
historical and cultural heritage, economic and social of the ARMM and, in addition, the municipalities of
structures, and other relevant characteristics within the Lanao del Norte which voted for inclusion in the
framework of this Constitution and the national ARMM during the 2001 plebiscite Baloi, Munai,
sovereignty as well as territorial integrity of the Republic Nunungan, Pantar, Tagoloan and Tangkal are
of the Philippines. 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
The BJE is a far more powerful present components of the ARMM and the above-
entity than the autonomous region mentioned municipalities voted for inclusion therein in
recognized in the Constitution 2001, however, does not render another plebiscite
unnecessary under the Constitution, precisely because
what these areas voted for then was their inclusion in the
It is not merely an expanded version of the ARMM, the ARMM, not the BJE.
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 The MOA-AD, moreover, would not
criteria of a state laid down in the Montevideo comply with Article X, Section 20 of
Convention,[154]namely, a permanent population, a the Constitution
defined territory, a government, and a capacity to enter
into relations with other states. since that provision defines the powers of autonomous
regions as follows:
Even assuming arguendo that the MOA-AD would not
necessarily sever any portion of Philippine territory, the SECTION 20. Within its territorial jurisdiction and
spirit animating it which has betrayed itself by its use of subject to the provisions of this Constitution and national
the concept of association runs counter to the national laws, the organic act of autonomous regions shall
sovereignty and territorial integrity of the Republic. provide for legislative powers over:

The defining concept underlying the relationship (1) Administrative organization;

between the national government and the BJE being (2) Creation of sources of revenues;
itself contrary to the present Constitution, it is not (3) Ancestral domain and natural resources;
surprising that many of the specific provisions of the (4) Personal, family, and property relations;
MOA-AD on the formation and powers of the BJE are in (5) Regional urban and rural planning development;
conflict with the Constitution and the laws. (6) Economic, social, and tourism development;
(7) Educational policies; associative arrangement does not uphold national unity.
(8) Preservation and development of the cultural While there may be a semblance of unity because of the
heritage; and associative ties between the BJE and the national
(9) Such other matters as may be authorized by law for government, the act of placing a portion of Philippine
the promotion of the general welfare of the people of the territory in a status which, in international practice, has
region. (Underscoring supplied) generally been a preparation for independence, is
certainly not conducive to national unity.

Again on the premise that the BJE may be regarded as Besides being irreconcilable with the Constitution, the
an autonomous region, the MOA-AD would require an MOA-AD is also inconsistent with prevailing statutory
amendment that would expand the above-quoted law, among which are R.A. No. 9054[156] or the Organic
provision. The mere passage of new legislation pursuant Act of the ARMM, and the IPRA.[157]
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, Article X, Section 3 of the Organic Act of the ARMM is
comply with other provisions of the Constitution. It a bar to the adoption of the definition of Bangsamoro
would not do, for instance, to merely pass legislation people used in the MOA-AD.Paragraph 1 on
vesting the BJE with treaty-making power in order to CONCEPTS AND PRINCIPLES states:
accommodate paragraph 4 of the strand on
RESOURCES which states: The BJE is free to enter into 1. It is the birthright of all Moros and all Indigenous
any economic cooperation and trade relations with peoples of Mindanao to identify themselves and be
foreign countries: provided, however, that such accepted as Bangsamoros.The Bangsamoro people refers
relationships and understandings do not include to those who are natives or original inhabitants of
aggression against the Government of the Republic of Mindanao and its adjacent islands including Palawan
the Philippines x x x. Under our constitutional system, it and the Sulu archipelago at the time of conquest or
is only the President who has that power. Pimentel v. colonization of its descendants whether mixed or of full
Executive Secretary[155] instructs: blood. Spouses and their descendants are classified as
Bangsamoro. The freedom of choice of the Indigenous
In our system of government, the President, being the people shall be respected. (Emphasis and underscoring
head of state, is regarded as the sole organ and authority supplied)
in external relations and is the country's sole
representative with foreign nations. As the chief This use of the term Bangsamoro sharply contrasts with
architect of foreign policy, the President acts as the that found in the Article X, Section 3 of the Organic Act,
country's mouthpiece with respect to international which, rather than lumping together the identities of the
affairs. Hence, the President is vested with the authority Bangsamoro and other indigenous peoples living in
to deal with foreign states and governments, extend or Mindanao, clearly distinguishes between Bangsamoro
withhold recognition, maintain diplomatic relations, people and Tribal peoples, as follows:
enter into treaties, and otherwise transact the business of
foreign relations. In the realm of treaty-making, the As used in this Organic Act, the phrase indigenous
President has the sole authority to negotiate with other cultural community refers to Filipino citizens residing in
states. (Emphasis and underscoring supplied) the autonomous region who are:

(a) Tribal peoples. These are citizens whose social,

Article II, Section 22 of the Constitution must also be cultural and economic conditions distinguish them from
amended if the scheme envisioned in the MOA-AD is to other sectors of the national community; and
be effected. That constitutional provision states: The
State recognizes and promotes the rights of indigenous (b) Bangsa Moro people. These are citizens who are
cultural communities within the framework of national believers in Islamand who have retained some or all of
unity and development. (Underscoring supplied) An
their own social, economic, cultural, and political which shall be any one (1) of the following authentic
institutions. documents:

1) Written accounts of the ICCs/IPs customs and

Respecting the IPRA, it lays down the prevailing traditions;
procedure for the delineation and recognition of
ancestral domains. The MOA-ADs manner of 2) Written accounts of the ICCs/IPs political structure
delineating the ancestral domain of the Bangsamoro and institution;
people is a clear departure from that procedure. By
paragraph 1 of TERRITORY, the Parties simply agree 3) Pictures showing long term occupation such as those
that, subject to the delimitations in the agreed Schedules, of old improvements, burial grounds, sacred places and
[t]he Bangsamoro homeland and historic territory refer old villages;
to the land mass as well as the maritime, terrestrial,
fluvial and alluvial domains, and the aerial domain, the 4) Historical accounts, including pacts and agreements
atmospheric space above it, embracing the Mindanao- concerning boundaries entered into by the ICCs/IPs
Sulu-Palawan geographic region. concerned with other ICCs/IPs;

Chapter VIII of the IPRA, on the other hand, lays down 5) Survey plans and sketch maps;
a detailed procedure, as illustrated in the following
provisions thereof: 6) Anthropological data;

SECTION 52. Delineation Process. The identification 7) Genealogical surveys;

and delineation of ancestral domains shall be done in
accordance with the following procedures: 8) Pictures and descriptive histories of traditional
communal forests and hunting grounds;
xxxx
9) Pictures and descriptive histories of traditional
b) Petition for Delineation. The process of delineating a landmarks such as mountains, rivers, creeks, ridges,
specific perimeter may be initiated by the NCIP with the hills, terraces and the like; and
consent of the ICC/IP concerned, or through a Petition
for Delineation filed with the NCIP, by a majority of the 10) Write-ups of names and places derived from the
members of the ICCs/IPs; native dialect of the community.

c) Delineation Proper. The official delineation of e) Preparation of Maps. On the basis of such
ancestral domain boundaries including census of all investigation and the findings of fact based thereon, the
community members therein, shall be immediately Ancestral Domains Office of the NCIP shall prepare a
undertaken by the Ancestral Domains Office upon filing perimeter map, complete with technical descriptions, and
of the application by the ICCs/IPs concerned. a description of the natural features and landmarks
Delineation will be done in coordination with the embraced therein;
community concerned and shall at all times include
genuine involvement and participation by the members f) Report of Investigation and Other Documents. A
of the communities concerned; complete copy of the preliminary census and a report of
investigation, shall be prepared by the Ancestral
d) Proof Required. Proof of Ancestral Domain Claims Domains Office of the NCIP;
shall include the testimony of elders or community under
oath, and other documents directly or indirectly attesting g) Notice and Publication. A copy of each document,
to the possession or occupation of the area since time including a translation in the native language of the
immemorial by such ICCs/IPs in the concept of owners 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 Similarly, the Court in Agustin v. Edu[159]applied the
regional offices of the NCIP, and shall be published in a aforesaid constitutional provision to the 1968 Vienna
newspaper of general circulation once a week for two (2) Convention on Road Signs and Signals.
consecutive weeks to allow other claimants to file
opposition thereto within fifteen (15) days from date of International law has long recognized the right to self-
such publication: Provided, That in areas where no such determination of peoples, understood not merely as the
newspaper exists, broadcasting in a radio station will be entire population of a State but also a portion thereof. In
a valid substitute: Provided, further, That mere posting considering the question of whether the people of
shall be deemed sufficient if both newspaper and radio Quebec had a right to unilaterally secede from Canada,
station are not available; the Canadian Supreme Court in REFERENCE RE
SECESSION OF QUEBEC[160] had occasion to
h) Endorsement to NCIP. Within fifteen (15) days from acknowledge that the right of a people to self-
publication, and of the inspection process, the Ancestral determination is now so widely recognized in
Domains Office shall prepare a report to the NCIP international conventions that the principle has acquired
endorsing a favorable action upon a claim that is deemed a status beyond convention and is considered a general
to have sufficient proof. However, if the proof is deemed principle of international law.
insufficient, the Ancestral Domains Office shall require Among the conventions referred to are the International
the submission of additional evidence: Provided, That Covenant on Civil and Political Rights[161] and the
the Ancestral Domains Office shall reject any claim that International Covenant on Economic, Social and
is deemed patently false or fraudulent after inspection Cultural Rights[162] which state, in Article 1 of both
and verification: Provided, further, That in case of covenants, that all peoples, by virtue of the right of self-
rejection, the Ancestral Domains Office shall give the determination, freely determine their political status and
applicant due notice, copy furnished all concerned, freely pursue their economic, social, and cultural
containing the grounds for denial. The denial shall be development.
appealable to the NCIP: Provided, furthermore, That in
cases where there are conflicting claims among ICCs/IPs The peoples right to self-determination should not,
on the boundaries of ancestral domain claims, the however, be understood as extending to a unilateral right
Ancestral Domains Office shall cause the contending of secession. A distinction should be made between the
parties to meet and assist them in coming up with a right of internal and external self-determination.
preliminary resolution of the conflict, without prejudice REFERENCE RE SECESSION OF QUEBEC is again
to its full adjudication according to the section below. instructive:

xxxx (ii) Scope of the Right to Self-determination

To remove all doubts about the irreconcilability of the
MOA-AD with the present legal system, a discussion of 126. The recognized sources of international law
not only the Constitution and domestic statutes, but also establish that the right to self-determination of a people
of international law is in order, for is normally fulfilled through internalself-determination a
peoples pursuit of its political, economic, social and
Article II, Section 2 of the Constitution states that the cultural development within the framework of an
Philippines adopts the generally accepted principles of existing state. A right to external self-determination
international law as part of the law of the land. (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
Applying this provision of the Constitution, the Court, in carefully defined circumstances. x x x
Mejoff v. Director of Prisons,[158] held that the Universal
Declaration of Human Rights is part of the law of the External self-determination can be defined as in the
land on account of which it ordered the release on bail of following statement from the Declaration on Friendly
a detained alien of Russian descent whose deportation Relations, supra, as
order had not been executed even after two years.
The establishment of a sovereign and independent State, on international law, be entirely left to the domestic
the free association or integration with an independent jurisdiction of Finland. The Committee stated the rule as
State or the emergence into any other political status follows:
freely determined by a people constitute modes of
implementing the right of self-determination by that x x x [I]n the absence of express provisions in
people. (Emphasis added) international treaties, the right of disposing of national
territory is essentially an attribute of the sovereignty of
127. The international law principle of self- every State. Positive International Law does not
determination has evolved within a framework of respect recognize the right of national groups, as such, to
for the territorial integrity of existing states. The various separate themselves from the State of which they form
international documents that support the existence of a part by the simple expression of a wish, any more than it
peoples right to self-determination also contain parallel recognizes the right of other States to claim such a
statements supportive of the conclusion that the exercise separation. Generally speaking, the grant or refusal of
of such a right must be sufficiently limited to prevent the right to a portion of its population of determining its
threats to an existing states territorial integrity or the own political fate by plebiscite or by some other method,
stability of relations between sovereign states. is, exclusively, an attribute of the sovereignty of every
State which is definitively constituted. A dispute
x x x x (Emphasis, italics and underscoring supplied) between two States concerning such a question, under
normal conditions therefore, bears upon a question
which International Law leaves entirely to the domestic
The Canadian Court went on to discuss the exceptional jurisdiction of one of the States concerned. Any other
cases in which the right to external self-determination solution would amount to an infringement of sovereign
can arise, namely, where a people is under colonial rule, rights of a State and would involve the risk of creating
is subject to foreign domination or exploitation outside a difficulties and a lack of stability which would not only
colonial context, and less definitely but asserted by a be contrary to the very idea embodied in term State, but
number of commentators is blocked from the meaningful would also endanger the interests of the international
exercise of its right to internal self-determination. The community. If this right is not possessed by a large or
Court ultimately held that the population of Quebec had small section of a nation, neither can it be held by the
no right to secession, as the same is not under colonial State to which the national group wishes to be attached,
rule or foreign domination, nor is it being deprived of nor by any other State. (Emphasis and underscoring
the freedom to make political choices and pursue supplied)
economic, social and cultural development, citing that
Quebec is equitably represented in legislative, executive
and judicial institutions within Canada, even occupying The Committee held that the dispute concerning the
prominent positions therein. Aaland Islands did not refer to a question which is left
by international law to the domestic jurisdiction of
The exceptional nature of the right of secession is further Finland, thereby applying the exception rather than the
exemplified in the REPORT OF THE rule elucidated above. Its ground for departing from the
INTERNATIONAL COMMITTEE OF JURISTS ON general rule, however, was a very narrow one, namely,
THE LEGAL ASPECTS OF THE AALAND ISLANDS the Aaland Islands agitation originated at a time when
QUESTION.[163]There, Sweden presented to the Council Finland was undergoing drastic political transformation.
of the League of Nations the question of whether the The internal situation of Finland was, according to the
inhabitants of the Aaland Islands should be authorized to Committee, so abnormal that, for a considerable time,
determine by plebiscite if the archipelago should remain the conditions required for the formation of a sovereign
under Finnish sovereignty or be incorporated in the State did not exist. In the midst of revolution, anarchy,
kingdom of Sweden. The Council, before resolving the and civil war, the legitimacy of the Finnish national
question, appointed an International Committee government was disputed by a large section of the
composed of three jurists to submit an opinion on the people, and it had, in fact, been chased from the capital
preliminary issue of whether the dispute should, based 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 Article 4
was not, during the relevant time period, a definitively
constituted sovereign state. The Committee, therefore, Indigenous peoples, in exercising their right to self-
found that Finland did not possess the right to withhold determination, have the right to autonomy or self-
from a portion of its population the option to separate government in matters relating to their internal and local
itself a right which sovereign nations generally have affairs, as well as ways and means for financing their
with respect to their own populations. autonomous functions.

Turning now to the more specific category of indigenous Article 5

peoples, this term has been used, in scholarship as well
as international, regional, and state practices, to refer to Indigenous peoples have the right to maintain and
groups with distinct cultures, histories, and connections strengthen their distinct political, legal, economic, social
to land (spiritual and otherwise) that have been forcibly and cultural institutions, while retaining their right to
incorporated into a larger governing society. These participate fully, if they so choose, in the political,
groups are regarded as indigenous since they are the economic, social and cultural life of the State.
living descendants of pre-invasion inhabitants of lands
now dominated by others. Otherwise stated, indigenous
peoples, nations, or communities are culturally Self-government, as used in international legal discourse
distinctive groups that find themselves engulfed by pertaining to indigenous peoples, has been understood as
settler societies born of the forces of empire and equivalent to internal self-determination.[166] The extent
conquest.[164]Examples of groups who have been of self-determination provided for in the UN DRIP is
regarded as indigenous peoples are the Maori of New more particularly defined in its subsequent articles, some
Zealand and the aboriginal peoples of Canada. of which are quoted hereunder:
Article 8
As with the broader category of peoples, indigenous 1. Indigenous peoples and individuals have the right not
peoples situated within states do not have a general right to be subjected to forced assimilation or destruction of
to independence or secession from those states under their culture.
international law,[165] but they do have rights amounting 2. States shall provide effective mechanisms for
to what was discussed above as the right to internal self- prevention of, and redress for:
determination. (a) Any action which has the aim or effect of depriving
them of their integrity as distinct peoples, or of their
In a historic development last September 13, 2007, the cultural values or ethnic identities;
UN General Assembly adopted the United Nations (b) Any action which has the aim or effect of
Declaration on the Rights of Indigenous Peoples (UN dispossessing them of their lands, territories or
DRIP) through General Assembly Resolution 61/295. resources;
The vote was 143 to 4, the Philippines being included (c) Any form of forced population transfer which has
among those in favor, and the four voting against being the aim or effect of violating or undermining any of their
Australia, Canada, New Zealand, and the U.S. The rights;
Declaration clearly recognized the right of indigenous (d) Any form of forced assimilation or integration;
peoples to self-determination, encompassing the right to
autonomy or self-government, to wit: (e) Any form of propaganda designed to promote or
incite racial or ethnic discrimination directed against
Article 3 them.
Article 21
Indigenous peoples have the right to self-determination.
By virtue of that right they freely determine their 1. Indigenous peoples have the right, without
political status and freely pursue their economic, social discrimination, to the improvement of their economic
and cultural development. and social conditions, including, inter alia, in the areas of
education, employment, vocational training and resources, particularly in connection with the
retraining, housing, sanitation, health and social security. development, utilization or exploitation of mineral,
2. States shall take effective measures and, where water or other resources.
appropriate, special measures to ensure continuing
improvement of their economic and social conditions. 3. States shall provide effective mechanisms for just and
Particular attention shall be paid to the rights and special fair redress for any such activities, and appropriate
needs of indigenous elders, women, youth, children and measures shall be taken to mitigate adverse
persons with disabilities. environmental, economic, social, cultural or spiritual
impact.
Article 26
Article 37
1. Indigenous peoples have the right to the lands,
territories and resources which they have traditionally 1. Indigenous peoples have the right to the recognition,
owned, occupied or otherwise used or acquired. observance and enforcement of treaties, agreements and
2. Indigenous peoples have the right to own, use, other constructive arrangements concluded with States
develop and control the lands, territories and resources or their successors and to have States honour and respect
that they possess by reason of traditional ownership or such treaties, agreements and other constructive
other traditional occupation or use, as well as those arrangements.
which they have otherwise acquired.
3. States shall give legal recognition and protection to 2. Nothing in this Declaration may be interpreted as
these lands, territories and resources. Such recognition diminishing or eliminating the rights of indigenous
shall be conducted with due respect to the customs, peoples contained in treaties, agreements and other
traditions and land tenure systems of the indigenous constructive arrangements.
peoples concerned.
Article 38
Article 30
States in consultation and cooperation with indigenous
1. Military activities shall not take place in the lands or peoples, shall take the appropriate measures, including
territories of indigenous peoples, unless justified by a legislative measures, to achieve the ends of this
relevant public interest or otherwise freely agreed with Declaration.
or requested by the indigenous peoples concerned.

2. States shall undertake effective consultations with the

indigenous peoples concerned, through appropriate Assuming that the UN DRIP, like the Universal
procedures and in particular through their representative Declaration on Human Rights, must now be regarded as
institutions, prior to using their lands or territories for embodying customary international law a question
military activities. which the Court need not definitively resolve here the
obligations enumerated therein do not strictly require the
Article 32 Republic to grant the Bangsamoro people, through the
instrumentality of the BJE, the particular rights and
1. Indigenous peoples have the right to determine and powers provided for in the MOA-AD. Even the more
develop priorities and strategies for the development or specific provisions of the UN DRIP are general in scope,
use of their lands or territories and other resources. allowing for flexibility in its application by the different
States.
2. States shall consult and cooperate in good faith with There is, for instance, no requirement in the UN DRIP
the indigenous peoples concerned through their own that States now guarantee indigenous peoples their own
representative institutions in order to obtain their free police and internal security force.Indeed, Article 8
and informed consent prior to the approval of any presupposes that it is the State which will provide
project affecting their lands or territories and other protection for indigenous peoples against acts like the
forced dispossession of their lands a function that is spelt out in the Comprehensive Compact to mutually
normally performed by police officers. If the protection take such steps to enable it to occur effectively.
of a right so essential to indigenous peoples identity is Any provisions of the MOA-AD requiring amendments
acknowledged to be the responsibility of the State, then to the existing legal framework shall come into force
surely the protection of rights less significant to them as upon signing of a Comprehensive Compact and upon
such peoples would also be the duty of States. Nor is effecting the necessary changes to the legal framework
there in the UN DRIP an acknowledgement of the right with due regard to non derogation of prior agreements
of indigenous peoples to the aerial domain and and within the stipulated timeframe to be contained in
atmospheric space. What it upholds, in Article 26 the Comprehensive Compact.
thereof, is the right of indigenous peoples to the lands, Indeed, the foregoing stipulation keeps many
territories and resources which they have traditionally controversial provisions of the MOA-AD from coming
owned, occupied or otherwise used or acquired. into force until the necessary changes to the legal
framework are effected. While the word Constitution is
Moreover, the UN DRIP, while upholding the right of not mentioned in the provision now under consideration
indigenous peoples to autonomy, does not obligate or anywhere else in the MOA-AD, the term legal
States to grant indigenous peoples the near-independent framework is certainly broad enough to include the
status of an associated state. All the rights recognized in Constitution.
that document are qualified in Article 46 as follows:
Notwithstanding the suspensive clause, however,
1. Nothing in this Declaration may be interpreted as respondents, by their mere act of incorporating in the
implying for any State, people, group or person any right MOA-AD the provisions thereof regarding the
to engage in any activity or to perform any act contrary associative relationship between the BJE and the Central
to the Charter of the United Nations or construed as Government, have already violated the Memorandum of
authorizing or encouraging any action which would Instructions From The President dated March 1, 2001,
dismember or impair, totally or in part, the territorial which states that the negotiations shall be conducted in
integrity or political unity of sovereign and independent accordance with x x x the principles of the sovereignty
States. and territorial integrity of the Republic of the
Philippines. (Emphasis supplied)Establishing an
associative relationship between the BJE and the Central
Even if the UN DRIP were considered as part of the law Government is, for the reasons already discussed, a
of the land pursuant to Article II, Section 2 of the preparation for independence, or worse, an implicit
Constitution, it would not suffice to uphold the validity acknowledgment of an independent status already
of the MOA-AD so as to render its compliance with prevailing.
other laws unnecessary.
Even apart from the above-mentioned Memorandum,
It is, therefore, clear that the MOA-AD contains however, the MOA-AD is defective because the
numerous provisions that cannot be reconciled with the suspensive clause is invalid, as discussed below.
Constitution and the laws as presently worded.
Respondents proffer, however, that the signing of the The authority of the GRP Peace Negotiating Panel to
MOA-AD alone would not have entailed any violation negotiate with the MILF is founded on E.O. No. 3,
of law or grave abuse of discretion on their part, Section 5(c), which states that there shall be established
precisely because it stipulates that the provisions thereof Government Peace Negotiating Panels for negotiations
inconsistent with the laws shall not take effect until these with different rebel groups to be appointed by the
laws are amended. They cite paragraph 7 of the MOA- President as her official emissaries to conduct
AD strand on GOVERNANCE quoted earlier, but which negotiations, dialogues, and face-to-face discussions
is reproduced below for convenience: with rebel groups. These negotiating panels are to report
to the President, through the PAPP on the conduct and
7. The Parties agree that the mechanisms and modalities progress of the negotiations.
for the actual implementation of this MOA-AD shall be
It bears noting that the GRP Peace Panel, in exploring The President cannot delegate a power that she herself
lasting solutions to the Moro Problem through its does not possess. May the President, in the course of
negotiations with the MILF, was not restricted by E.O. peace negotiations, agree to pursue reforms that would
No. 3 only to those options available under the laws as require new legislation and constitutional amendments,
they presently stand. One of the components of a or should the reforms be restricted only to those
comprehensive peace process, which E.O. No. 3 solutions which the present laws allow? The answer to
collectively refers to as the Paths to Peace, is the pursuit this question requires a discussion of
of social, economic, and political reforms which may
require new legislation or even constitutional the extent of the Presidents power to conduct peace
amendments. Sec. 4(a) of E.O. No. 3, which reiterates negotiations.
Section 3(a), of E.O. No. 125,[167] states:

SECTION 4. The Six Paths to Peace. The components of That the authority of the President to conduct peace
the comprehensive peace process comprise the processes negotiations with rebel groups is not explicitly
known as the Paths to Peace. These component mentioned in the Constitution does not mean that she has
processes are interrelated and not mutually exclusive, no such authority. In Sanlakas v. Executive Secretary, [168]
and must therefore be pursued simultaneously in a in issue was the authority of the President to declare a
coordinated and integrated fashion. They shall include, state of rebellion an authority which is not expressly
but may not be limited to, the following: provided for in the Constitution. The Court held thus:

a. PURSUIT OF SOCIAL, ECONOMIC AND In her ponencia in Marcos v. Manglapus, Justice Cortes
POLITICAL REFORMS.This component involves the put her thesis into jurisprudence. There, the Court, by a
vigorous implementation of various policies, reforms, slim 8-7 margin, upheld the President's power to forbid
programs and projects aimed at addressing the root the return of her exiled predecessor. The rationale for the
causes of internal armed conflicts and social unrest. This majority's ruling rested on the President's
may require administrative action, new legislation or
even constitutional amendments. . . . unstated residual powers which are implied from the
grant of executive power and which are necessary for
x x x x (Emphasis supplied) 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
The MOA-AD, therefore, may reasonably be perceived Department and in scattered provisions of the
as an attempt of respondents to address, pursuant to this Constitution. This is so, notwithstanding the avowed
provision of E.O. No. 3, the root causes of the armed intent of the members of the Constitutional Commission
conflict in Mindanao. The E.O. authorized them to think of 1986 to limit the powers of the President as a reaction
outside the box, so to speak. Hence, they negotiated and to the abuses under the regime of Mr. Marcos, for the
were set on signing the MOA-AD that included various result was a limitation of specific powers of the
social, economic, and political reforms which cannot, President, particularly those relating to the commander-
however, all be accommodated within the present legal in-chief clause, but not a diminution of the general grant
framework, and which thus would require new of executive power.
legislation and constitutional amendments. Thus, the President's authority to declare a state of
rebellion springs in the main from her powers as chief
The inquiry on the legality of the suspensive clause, executive and, at the same time, draws strength from her
however, cannot stop here, because it must be asked Commander-in-Chief powers. x x x (Emphasis and
underscoring supplied)
whether the President herself may exercise the power Similarly, the Presidents power to conduct peace
delegated to the GRP Peace Panel under E.O. No. 3, Sec. negotiations is implicitly included in her powers as Chief
4(a). Executive and Commander-in-Chief. As Chief
Executive, the President has the general responsibility to
promote public peace, and as Commander-in-Chief, she Defense Carmelo Z. Barbero and then MNLF Chairman
has the more specific duty to prevent and suppress Nur Misuari.
rebellion and lawless violence.[169]
MR. ROMULO. There are other speakers; so, although I
As the experience of nations which have similarly gone have some more questions, I will reserve my right to ask
through internal armed conflict will show, however, them if they are not covered by the other speakers. I
peace is rarely attained by simply pursuing a military have only two questions.
solution. Oftentimes, changes as far-reaching as a I heard one of the Commissioners say that local
fundamental reconfiguration of the nations constitutional autonomy already exists in the Muslim region; it is
structure is required. The observations of Dr. Kirsti working very well; it has, in fact, diminished a great deal
Samuels are enlightening, to wit: of the problems. So, my question is: since that already
exists, why do we have to go into something new?
x x x [T]he fact remains that a successful political and
governance transition must form the core of any post- MR. OPLE. May I answer that on behalf of Chairman
conflict peace-building mission. As we have observed in Nolledo.Commissioner Yusup Abubakar is right that
Liberia and Haiti over the last ten years, conflict certain definite steps have been taken to implement the
cessation without modification of the political provisions of the Tripoli Agreement with respect to an
environment, even where state-building is undertaken autonomous region in Mindanao. This is a good first
through technical electoral assistance and institution- or step, but there is no question that this is merely a partial
capacity-building, is unlikely to succeed. On average, response to the Tripoli Agreement itself and to the fuller
more than 50 percent of states emerging from conflict standard of regional autonomy contemplated in that
return to conflict.Moreover, a substantial proportion of agreement, and now by state policy.[173] (Emphasis
transitions have resulted in weak or limited democracies. supplied)

The design of a constitution and its constitution-making

process can play an important role in the political and The constitutional provisions on autonomy and the
governance transition. Constitution-making after conflict statutes enacted pursuant to them have, to the credit of
is an opportunity to create a common vision of the future their drafters, been partly successful.Nonetheless, the
of a state and a road map on how to get there. The Filipino people are still faced with the reality of an on-
constitution can be partly a peace agreement and partly a going conflict between the Government and the MILF. If
framework setting up the rules by which the new the President is to be expected to find means for bringing
democracy will operate.[170] this conflict to an end and to achieve lasting peace in
In the same vein, Professor Christine Bell, in her article Mindanao, then she must be given the leeway to explore,
on the nature and legal status of peace agreements, in the course of peace negotiations, solutions that may
observed that the typical way that peace agreements require changes to the Constitution for their
establish or confirm mechanisms for demilitarization and implementation. Being uniquely vested with the power
demobilization is by linking them to new constitutional to conduct peace negotiations with rebel groups, the
structuresaddressing governance, elections, and legal President is in a singular position to know the precise
and human rights institutions.[171] nature of their grievances which, if resolved, may bring
an end to hostilities.
In the Philippine experience, the link between peace
agreements and constitution-making has been The President may not, of course, unilaterally implement
recognized by no less than the framers of the the solutions that she considers viable, but she may not
Constitution. Behind the provisions of the Constitution be prevented from submitting them as recommendations
on autonomous regions[172] is the framers intention to to Congress, which could then, if it is minded, act upon
implement a particular peace agreement, namely, the them pursuant to the legal procedures for constitutional
Tripoli Agreement of 1976 between the GRP and the amendment and revision. In particular, Congress would
MNLF, signed by then Undersecretary of National 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 devoid of constitutional and legal basis.[176](Emphasis
constitutional convention, or submit to the electorate the supplied)
question of calling such a convention.

While the President does not possess constituent powers From the foregoing discussion, the principle may be
as those powers may be exercised only by Congress, a inferred that the President in the course of conducting
Constitutional Convention, or the people through peace negotiations may validly consider implementing
initiative and referendum she may submit proposals for even those policies that require changes to the
constitutional change to Congress in a manner that does Constitution, but she may not unilaterally implement
not involve the arrogation of constituent powers. them without the intervention of Congress, or act in any
way as if the assent of that body were assumed as a
In Sanidad v. COMELEC,[174] in issue was the legality of certainty.
then President Marcos act of directly submitting
proposals for constitutional amendments to a Since, under the present Constitution, the people also
referendum, bypassing the interim National Assembly have the power to directly propose amendments through
which was the body vested by the 1973 Constitution initiative and referendum, the President may also submit
with the power to propose such amendments. President her recommendations to the people, not as a formal
Marcos, it will be recalled, never convened the interim proposal to be voted on in a plebiscite similar to what
National Assembly. The majority upheld the Presidents President Marcos did in Sanidad, but for their
act, holding that the urges of absolute necessity independent consideration of whether these
compelled the President as the agent of the people to act recommendations merit being formally proposed
as he did, there being no interim National Assembly to through initiative.
propose constitutional amendments. Against this ruling,
Justices Teehankee and Muoz Palma vigorously These recommendations, however, may amount to
dissented. The Courts concern at present, however, is not nothing more than the Presidents suggestions to the
with regard to the point on which it was then divided in people, for any further involvement in the process of
that controversial case, but on that which was not initiative by the Chief Executive may vitiate its character
disputed by either side. as a genuine peoples initiative. The only initiative
recognized by the Constitution is that which truly
Justice Teehankees dissent,[175] in particular, bears proceeds from the people. As the Court stated in
noting. While he disagreed that the President may Lambino v. COMELEC:[177]
directly submit proposed constitutional amendments to a
referendum, implicit in his opinion is a recognition that The Lambino Group claims that their initiative is the
he would have upheld the Presidents action along with people's voice. However, the Lambino Group
the majority had the President convened the interim unabashedly states in ULAP Resolution No. 2006-02, in
National Assembly and coursed his proposals through it. the verification of their petition with the COMELEC,
Thus Justice Teehankee opined: that ULAP maintains its unqualified support to the
agenda of Her Excellency President Gloria Macapagal-
Since the Constitution provides for the organization of Arroyo for constitutional reforms. The Lambino Group
the essential departments of government, defines and thus admits that their people's initiative is an unqualified
delimits the powers of each and prescribes the manner of support to the agenda of the incumbent President to
the exercise of such powers, and the constituent power change the Constitution. This forewarns the Court to be
has not been granted to but has been withheld from the wary of incantations of people's voice or sovereign will
President or Prime Minister, it follows that the in the present initiative.
Presidents questioned decrees proposing and submitting It will be observed that the President has authority, as
constitutional amendments directly to the people stated in her oath of office,[178] only to preserve and
(without the intervention of the interim National defend the Constitution. Such presidential power does
Assembly in whom the power is expressly vested) are 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 Pursuant to this stipulation, therefore, it is mandatory for
recommending these changes and submits to the proper the GRP to effect the changes to the legal framework
procedure for constitutional amendments and revision, contemplated in the MOA-AD which changes would
her mere recommendation need not be construed as an include constitutional amendments, as discussed earlier.
unconstitutional act. It bears noting that,

The foregoing discussion focused on the Presidents

authority to propose constitutional amendments, since By the time these changes are put in place, the MOA-
her authority to propose new legislation is not in AD itself would be counted among the prior agreements
controversy. It has been an accepted practice for from which there could be no derogation.
Presidents in this jurisdiction to propose new legislation. What remains for discussion in the Comprehensive
One of the more prominent instances the practice is Compact would merely be the implementing details for
usually done is in the yearly State of the Nation Address these consensus points and, notably, the deadline for
of the President to Congress. Moreover, the annual effecting the contemplated changes to the legal
general appropriations bill has always been based on the framework.
budget prepared by the President, which for all intents
and purposes is a proposal for new legislation coming Plainly, stipulation-paragraph 7 on GOVERNANCE is
from the President.[179] inconsistent with the limits of the Presidents authority to
propose constitutional amendments, it being a virtual
The suspensive clause in the MOA-AD viewed in light guarantee that the Constitution and the laws of the
of the above-discussed standards Republic of the Philippines will certainly be adjusted to
conform to all the consensus points found in the MOA-
Given the limited nature of the Presidents authority to AD. Hence, it must be struck down as unconstitutional.
propose constitutional amendments, she cannot
guarantee to any third party that the required A comparison between the suspensive clause of the
amendments will eventually be put in place, nor even be MOA-AD with a similar provision appearing in the 1996
submitted to a plebiscite. The most she could do is final peace agreement between the MNLF and the GRP
submit these proposals as recommendations either to is most instructive.
Congress or the people, in whom constituent powers are
vested. As a backdrop, the parties to the 1996 Agreement
stipulated that it would be implemented in two phases.
Paragraph 7 on Governance of the MOA-AD states, Phase I covered a three-year transitional period
however, that all provisions thereof which cannot be involving the putting up of new administrative structures
reconciled with the present Constitution and laws shall through Executive Order, such as the Special Zone of
come into force upon signing of a Comprehensive Peace and Development (SZOPAD) and the Southern
Compact and upon effecting the necessary changes to Philippines Council for Peace and Development
the legal framework. This stipulation does not bear the (SPCPD), while Phase II covered the establishment of
marks of a suspensive condition defined in civil law as a the new regional autonomous government through
future and uncertain event but of a term. It is not a amendment or repeal of R.A. No. 6734, which was then
question of whether the necessary changes to the legal the Organic Act of the ARMM.
framework will be effected, but when. That there is no
uncertainty being contemplated is plain from what The stipulations on Phase II consisted of specific
follows, for the paragraph goes on to state that the agreements on the structure of the expanded autonomous
contemplated changes shall be with due regard to non region envisioned by the parties. To that extent, they are
derogation of prior agreements and within the stipulated similar to the provisions of the MOA-AD. There is,
timeframe to be contained in the Comprehensive however, a crucial difference between the two
Compact. 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] Among the stipulations of the Lom Accord was a
shall be recommended by the GRP to Congress for provision for the full pardon of the members of the RUF
incorporation in the amendatory or repealing law. with respect to anything done by them in pursuit of their
objectives as members of that organization since the
Concerns have been raised that the MOA-AD would conflict began.
have given rise to a binding international law obligation
on the part of the Philippines to change its Constitution In the Lom Accord case, the Defence argued that the
in conformity thereto, on the ground that it may be Accord created an internationally binding obligation not
considered either as a binding agreement under to prosecute the beneficiaries of the amnesty provided
international law, or a unilateral declaration of the therein, citing, among other things, the participation of
Philippine government to the international community foreign dignitaries and international organizations in the
that it would grant to the Bangsamoro people all the finalization of that agreement. The Special Court,
concessions therein stated. Neither ground finds however, rejected this argument, ruling that the Lome
sufficient support in international law, however. Accord is not a treaty and that it can only create binding
obligations and rights between the parties in municipal
The MOA-AD, as earlier mentioned in the overview law, not in international law. Hence, the Special Court
thereof, would have included foreign dignitaries as held, it is ineffective in depriving an international court
signatories. In addition, representatives of other nations like it of jurisdiction.
were invited to witness its signing in Kuala Lumpur.
These circumstances readily lead one to surmise that the 37. In regard to the nature of a negotiated settlement of
MOA-AD would have had the status of a binding an internal armed conflict it is easy to assume and to
international agreement had it been signed. An argue with some degree of plausibility, as Defence
examination of the prevailing principles in international counsel for the defendants seem to have done, that the
law, however, leads to the contrary conclusion. mere fact that in addition to the parties to the conflict,
the document formalizing the settlement is signed by
The Decision on CHALLENGE TO JURISDICTION: foreign heads of state or their representatives and
LOM ACCORD AMNESTY[180] (the Lom Accord case) representatives of international organizations, means the
of the Special Court of Sierra Leone is enlightening. The agreement of the parties is internationalized so as to
Lom Accord was a peace agreement signed on July 7, create obligations in international law.
1999 between the Government of Sierra Leone and the
Revolutionary United Front (RUF), a rebel group with xxxx
which the Sierra Leone Government had been in armed
conflict for around eight years at the time of signing. 40. Almost every conflict resolution will involve the
There were non-contracting signatories to the agreement, parties to the conflict and the mediator or facilitator of
among which were the Government of the Togolese the settlement, or persons or bodies under whose
Republic, the Economic Community of West African auspices the settlement took place but who are not at all
States, and the UN. parties to the conflict, are not contracting parties and
who do not claim any obligation from the contracting
On January 16, 2002, after a successful negotiation parties or incur any obligation from the settlement.
between the UN Secretary-General and the Sierra Leone
Government, another agreement was entered into by the 41. In this case, the parties to the conflict are the lawful
UN and that Government whereby the Special Court of authority of the State and the RUF which has no status
Sierra Leone was established. The sole purpose of the of statehood and is to all intents and purposes a faction
Special Court, an international court, was to try persons within the state. The non-contracting signatories of the
who bore the greatest responsibility for serious Lom Agreement were moral guarantors of the principle
violations of international humanitarian law and Sierra that, in the terms of Article XXXIV of the Agreement,
Leonean law committed in the territory of Sierra Leone this peace agreement is implemented with integrity and
since November 30, 1996. 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 France,[181] also known as the Nuclear Tests Case,
doubt, an understanding of the extent of the agreement to decided by the International Court of Justice (ICJ).
be implemented as not including certain international
crimes. In the Nuclear Tests Case, Australia challenged before
the ICJ the legality of Frances nuclear tests in the South
42. An international agreement in the nature of a treaty Pacific. France refused to appear in the case, but public
must create rights and obligations regulated by statements from its President, and similar statements
international law so that a breach of its terms will be a from other French officials including its Minister of
breach determined under international law which will Defence, that its 1974 series of atmospheric tests would
also provide principle means of enforcement. The Lom be its last, persuaded the ICJ to dismiss the case. [182]
Agreement created neither rights nor obligations capable Those statements, the ICJ held, amounted to a legal
of being regulated by international law. An agreement undertaking addressed to the international community,
such as the Lom Agreement which brings to an end an which required no acceptance from other States for it to
internal armed conflict no doubt creates a factual become effective.
situation of restoration of peace that the international
community acting through the Security Council may Essential to the ICJ ruling is its finding that the French
take note of. That, however, will not convert it to an government intended to be bound to the international
international agreement which creates an obligation community in issuing its public statements, viz:
enforceable in international, as distinguished from
municipal, law. A breach of the terms of such a peace 43. It is well recognized that declarations made by way
agreement resulting in resumption of internal armed of unilateral acts, concerning legal or factual situations,
conflict or creating a threat to peace in the determination may have the effect of creating legal obligations.
of the Security Council may indicate a reversal of the Declarations of this kind may be, and often are, very
factual situation of peace to be visited with possible specific. When it is the intention of the State making the
legal consequences arising from the new situation of declaration that it should become bound according to its
conflict created. Such consequences such as action by terms, that intention confers on the declaration the
the Security Council pursuant to Chapter VII arise from character of a legal undertaking, the State being
the situation and not from the agreement, nor from the thenceforth legally required to follow a course of
obligation imposed by it. Such action cannot be regarded conduct consistent with the declaration. An undertaking
as a remedy for the breach. A peace agreement which of this kind, if given publicly, and with an intent to be
settles an internal armed conflict cannot be ascribed the bound, even though not made within the context of
same status as one which settles an international armed international negotiations, is binding. In these
conflict which, essentially, must be between two or more circumstances, nothing in the nature of a quid pro quo
warring States. The Lom Agreement cannot be nor any subsequent acceptance of the declaration, nor
characterised as an international instrument. x x x even any reply or reaction from other States, is required
(Emphasis, italics and underscoring supplied) for the declaration to take effect, since such a
requirement would be inconsistent with the strictly
Similarly, that the MOA-AD would have been signed by unilateral nature of the juridical act by which the
representatives of States and international organizations pronouncement by the State was made.
not parties to the Agreement would not have sufficed to
vest in it a binding character under international law. 44. Of course, not all unilateral acts imply obligation;
but a State may choose to take up a certain position in
In another vein, concern has been raised that the MOA- relation to a particular matter with the intention of being
AD would amount to a unilateral declaration of the boundthe intention is to be ascertained by interpretation
Philippine State, binding under international law, that it of the act. When States make statements by which their
would comply with all the stipulations stated therein, freedom of action is to be limited, a restrictive
with the result that it would have to amend its interpretation is called for.
Constitution accordingly regardless of the true will of
the people. Cited as authority for this view is Australia v. xxxx
 Nuclear Tests case rested on the peculiar circumstances
51. In announcing that the 1974 series of atmospheric surrounding the French declaration subject thereof, to
tests would be the last, the French Government wit:
conveyed to the world at large, including the Applicant,
its intention effectively to terminate these tests. It was 40. In order to assess the intentions of the author of a
bound to assume that other States might take note of unilateral act, account must be taken of all the factual
these statements and rely on their being effective. The circumstances in which the act occurred. For example, in
validity of these statements and their legal consequences the Nuclear Tests cases, the Court took the view that
must be considered within the general framework of the since the applicant States were not the only ones
security of international intercourse, and the confidence concerned at the possible continuance of atmospheric
and trust which are so essential in the relations among testing by the French Government, that Government's
States. It is from the actual substance of these unilateral declarations had conveyed to the world at
statements, and from the circumstances attending their large, including the Applicant, its intention effectively to
making, that the legal implications of the unilateral act terminate these tests (I.C.J. Reports 1974, p. 269, para.
must be deduced. The objects of these statements are 51; p. 474, para. 53). In the particular circumstances of
clear and they were addressed to the international those cases, the French Government could not express
community as a whole, and the Court holds that they an intention to be bound otherwise than by unilateral
constitute an undertaking possessing legal effect. The declarations. It is difficult to see how it could have
Court considers *270that the President of the Republic, accepted the terms of a negotiated solution with each of
in deciding upon the effective cessation of atmospheric the applicants without thereby jeopardizing its
tests, gave an undertaking to the international contention that its conduct was lawful. The
community to which his words were addressed. x x x circumstances of the present case are radically different.
(Emphasis and underscoring supplied) 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
As gathered from the above-quoted ruling of the ICJ, Mediation Commission by the normal method: a formal
public statements of a state representative may be agreement on the basis of reciprocity.Since no
construed as a unilateral declaration only when the agreement of this kind was concluded between the
following conditions are present: the statements were Parties, the Chamber finds that there are no grounds to
clearly addressed to the international community, the interpret the declaration made by Mali's head of State on
state intended to be bound to that community by its 11 April 1975 as a unilateral act with legal implications
statements, and that not to give legal effect to those in regard to the present case. (Emphasis and
statements would be detrimental to the security of underscoring supplied)
international intercourse.Plainly, unilateral declarations
arise only in peculiar circumstances.
Assessing the MOA-AD in light of the above criteria, it
The limited applicability of the Nuclear Tests Case would not have amounted to a unilateral declaration on
ruling was recognized in a later case decided by the ICJ the part of the Philippine State to the international
entitled Burkina Faso v. Mali,[183] also known as the Case community. The Philippine panel did not draft the same
Concerning the Frontier Dispute. The public declaration with the clear intention of being bound thereby to the
subject of that case was a statement made by the international community as a whole or to any State, but
President of Mali, in an interview by a foreign press only to the MILF. While there were States and
agency, that Mali would abide by the decision to be international organizations involved, one way or another,
issued by a commission of the Organization of African in the negotiation and projected signing of the MOA-
Unity on a frontier dispute then pending between Mali AD, they participated merely as witnesses or, in the case
and Burkina Faso. of Malaysia, as facilitator. As held in the Lom Accord
Unlike in the Nuclear Tests Case, the ICJ held that the case, the mere fact that in addition to the parties to the
statement of Malis President was not a unilateral act conflict, the peace settlement is signed by
with legal implications. It clarified that its ruling in the representatives of states and international organizations
does not mean that the agreement is internationalized so amendment process is through an undue influence or
as to create obligations in international law. interference with that process.

Since the commitments in the MOA-AD were not The sovereign people may, if it so desired, go to the
addressed to States, not to give legal effect to such extent of giving up a portion of its own territory to the
commitments would not be detrimental to the security of Moros for the sake of peace, for it can change the
international intercourse to the trust and confidence Constitution in any it wants, so long as the change is not
essential in the relations among States. inconsistent with what, in international law, is known as
Jus Cogens.[184]Respondents, however, may not preempt
In one important respect, the circumstances surrounding it in that decision.
the MOA-AD are closer to that of Burkina Faso wherein,
as already discussed, the Mali Presidents statement was
not held to be a binding unilateral declaration by the ICJ. SUMMARY
As in that case, there was also nothing to hinder the
Philippine panel, had it really been its intention to be The petitions are ripe for adjudication. The failure of
bound to other States, to manifest that intention by respondents to consult the local government units or
formal agreement. Here, that formal agreement would communities affected constitutes a departure by
have come about by the inclusion in the MOA-AD of a respondents from their mandate under E.O. No. 3.
clear commitment to be legally bound to the Moreover, respondents exceeded their authority by the
international community, not just the MILF, and by an mere act of guaranteeing amendments to the
equally clear indication that the signatures of the Constitution. Any alleged violation of the Constitution
participating states-representatives would constitute an by any branch of government is a proper matter for
acceptance of that commitment. Entering into such a judicial review.
formal agreement would not have resulted in a loss of
face for the Philippine government before the As the petitions involve constitutional issues which are
international community, which was one of the of paramount public interest or of transcendental
difficulties that prevented the French Government from importance, the Court grants the petitioners, petitioners-
entering into a formal agreement with other countries. in-intervention and intervening respondents the requisite
That the Philippine panel did not enter into such a formal locus standi in keeping with the liberal stance adopted in
agreement suggests that it had no intention to be bound David v. Macapagal-Arroyo.
to the international community. On that ground, the
MOA-AD may not be considered a unilateral declaration Contrary to the assertion of respondents that the non-
under international law. signing of the MOA-AD and the eventual dissolution of
the GRP Peace Panel mooted the present petitions, the
The MOA-AD not being a document that can bind the Court finds that the present petitions provide an
Philippines under international law notwithstanding, exception to the moot and academic principle in view of
respondents almost consummated act of guaranteeing (a) the grave violation of the Constitution involved; (b)
amendments to the legal framework is, by itself, the exceptional character of the situation and paramount
sufficient to constitute grave abuse of discretion. The public interest; (c) the need to formulate controlling
grave abuse lies not in the fact that they considered, as a principles to guide the bench, the bar, and the public;
solution to the Moro Problem, the creation of a state and (d) the fact that the case is capable of repetition yet
within a state, but in their brazen willingness to evading review.
guarantee that Congress and the sovereign Filipino
people would give their imprimatur to their solution. The MOA-AD is a significant part of a series of
Upholding such an act would amount to authorizing a agreements necessary to carry out the GRP-MILF
usurpation of the constituent powers vested only in Tripoli Agreement on Peace signed by the government
Congress, a Constitutional Convention, or the people and the MILF back in June 2001. Hence, the present
themselves through the process of initiative, for the only MOA-AD can be renegotiated or another one drawn up
way that the Executive can ensure the outcome of the
that could contain similar or significantly dissimilar
provisions compared to the original. Two, Republic Act No. 7160 or the Local Government
The Court, however, finds that the prayers for Code of 1991 requires all national offices to conduct
mandamus have been rendered moot in view of the consultations before any project or program critical to
respondents action in providing the Court and the the environment and human ecology including those that
petitioners with the official copy of the final draft of the may call for the eviction of a particular group of people
MOA-AD and its annexes. residing in such locality, is implemented therein. The
MOA-AD is one peculiar program that unequivocally
The peoples right to information on matters of public and unilaterally vests ownership of a vast territory to the
concern under Sec. 7, Article III of the Constitution is in Bangsamoro people, which could pervasively and
splendid symmetry with the state policy of full public drastically result to the diaspora or displacement of a
disclosure of all its transactions involving public interest great number of inhabitants from their total environment.
under Sec. 28, Article II of the Constitution. The right to
information guarantees the right of the people to demand Three, Republic Act No. 8371 or the Indigenous Peoples
information, while Section 28 recognizes the duty of Rights Act of 1997 provides for clear-cut procedure for
officialdom to give information even if nobody the recognition and delineation of ancestral domain,
demands. The complete and effective exercise of the which entails, among other things, the observance of the
right to information necessitates that its complementary free and prior informed consent of the Indigenous
provision on public disclosure derive the same self- Cultural Communities/Indigenous Peoples. Notably, the
executory nature, subject only to reasonable safeguards statute does not grant the Executive Department or any
or limitations as may be provided by law. government agency the power to delineate and recognize
an ancestral domain claim by mere agreement or
The contents of the MOA-AD is a matter of paramount compromise.
public concern involving public interest in the highest
order. In declaring that the right to information The invocation of the doctrine of executive privilege as a
contemplates steps and negotiations leading to the defense to the general right to information or the specific
consummation of the contract, jurisprudence finds no right to consultation is untenable.The various explicit
distinction as to the executory nature or commercial legal provisions fly in the face of executive secrecy. In
character of the agreement. any event, respondents effectively waived such defense
An essential element of these twin freedoms is to keep a after it unconditionally disclosed the official copies of
continuing dialogue or process of communication the final draft of the MOA-AD, for judicial compliance
between the government and the people. Corollary to and public scrutiny.
these twin rights is the design for feedback
mechanisms.The right to public consultation was IN SUM, the Presidential Adviser on the Peace Process
envisioned to be a species of these public rights. committed grave abuse of discretion when he failed to
carry out the pertinent consultation process, as mandated
At least three pertinent laws animate these constitutional by E.O. No. 3, Republic Act No. 7160, and Republic Act
imperatives and justify the exercise of the peoples right No. 8371. The furtive process by which the MOA-AD
to be consulted on relevant matters relating to the peace was designed and crafted runs contrary to and in excess
agenda. of the legal authority, and amounts to a whimsical,
capricious, oppressive, arbitrary and despotic exercise
One, E.O. No. 3 itself is replete with mechanics for thereof. It illustrates a gross evasion of positive duty and
continuing consultations on both national and local a virtual refusal to perform the duty enjoined.
levels and for a principal forum for consensus-building.
In fact, it is the duty of the Presidential Adviser on the The MOA-AD cannot be reconciled with the present
Peace Process to conduct regular dialogues to seek Constitution and laws.Not only its specific provisions
relevant information, comments, advice, and but the very concept underlying them, namely, the
recommendations from peace partners and concerned associative relationship envisioned between the GRP and
sectors of society. the BJE, are unconstitutional, for the concept
presupposes that the associated entity is a state and
implies that the same is on its way to independence.

While there is a clause in the MOA-AD stating that the

provisions thereof inconsistent with the present legal
framework will not be effective until that framework is
amended, the same does not cure its defect. The
inclusion of provisions in the MOA-AD establishing an
associative relationship between the BJE and the Central
Government is, itself, a violation of the Memorandum of
Instructions From The President dated March 1, 2001,
addressed to the government peace panel. Moreover, as
the clause is worded, it virtually guarantees that the
necessary amendments to the Constitution and the laws
will eventually be put in place. Neither the GRP Peace
Panel nor the President herself is authorized to make
such a guarantee. Upholding such an act would amount
to authorizing a usurpation of the constituent powers
vested only in Congress, a Constitutional Convention, or
the people themselves through the process of initiative,
for the only way that the Executive can ensure the
outcome of the amendment process is through an undue
influence or interference with that process.

While the MOA-AD would not amount to an

international agreement or unilateral declaration binding
on the Philippines under international law, respondents
act of guaranteeing amendments is, by itself, already a
constitutional violation that renders the MOA-AD fatally
defective.

WHEREFORE, respondents motion to dismiss is

DENIED. The main and intervening petitions are
GIVEN DUE COURSE and hereby GRANTED.

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.
 In March 2009, Congress amended RA 3046 by enacting
RA 9522, the statute now under scrutiny. The change
was prompted by the need to make RA 3046 compliant
with the terms of the United Nations Convention on the
Law of the Sea (UNCLOS III),5 which the Philippines
ratified on 27 February 1984.6 Among others, UNCLOS
III prescribes the water-land ratio, length, and contour of
baselines of archipelagic States like the Philippines 7 and
sets the deadline for the filing of application for the
extended continental shelf.8Complying with these
requirements, RA 9522 shortened one baseline,
optimized the location of some basepoints around the
Philippine archipelago and classified adjacent territories,
namely, the Kalayaan Island Group (KIG) and the
Scarborough Shoal, as regimes of islands whose islands
generate their own applicable maritime zones.
MAGALONA VS. ERMITA
655 SCRA 476 (2011)
Petitioners, professors of law, law students and a
DECISION
CARPIO, J.: legislator, in their respective capacities as citizens,
taxpayers or x x x legislators,9 as the case may be, assail
the constitutionality of RA 9522 on two principal
The Case grounds, namely: (1) RA 9522 reduces Philippine
maritime territory, and logically, the reach of the
This original action for the writs of certiorari and Philippine states sovereign power, in violation of Article
prohibition assails the constitutionality of Republic Act 1 of the 1987 Constitution,10embodying the terms of the
No. 95221 (RA 9522) adjusting the countrys archipelagic Treaty of Paris11 and ancillary treaties,12 and (2) RA
baselines and classifying the baseline regime of nearby 9522 opens the countrys waters landward of the
territories. baselines to maritime passage by all vessels and
aircrafts, undermining Philippine sovereignty and
national security, contravening the countrys nuclear-free
The Antecedents policy, and damaging marine resources, in violation of
relevant constitutional provisions.13
In 1961, Congress passed Republic Act No. 3046 (RA
3046)2 demarcating the maritime baselines of the In addition, petitioners contend that RA 9522s treatment
Philippines as an archipelagic State.3 This law followed of the KIG as regime of islands not only results in the
the framing of the Convention on the Territorial Sea and loss of a large maritime area but also prejudices the
the Contiguous Zone in 1958 (UNCLOS I),4codifying, livelihood of subsistence fishermen.14 To buttress their
among others, the sovereign right of States parties over argument of territorial diminution, petitioners facially
their territorial sea, the breadth of which, however, was attack RA 9522 for what it excluded and included its
left undetermined. Attempts to fill this void during the failure to reference either the Treaty of Paris or Sabah
second round of negotiations in Geneva in 1960 and its use of UNCLOS IIIs framework of regime of
(UNCLOS II) proved futile. Thus, domestically, RA islands to determine the maritime zones of the KIG and
3046 remained unchanged for nearly five decades, save the Scarborough Shoal.
for legislation passed in 1968 (Republic Act No. 5446
[RA 5446]) correcting typographical errors and Commenting on the petition, respondent officials raised
reserving the drawing of baselines around Sabah in threshold issues questioning (1) the petitions compliance
North Borneo. with the case or controversy requirement for judicial
review grounded on petitioners alleged lack of locus
standi and (2) the propriety of the writs of certiorari and
prohibition to assail the constitutionality of RA 9522. On nor misuse of public funds,16 occasioned by the passage
the merits, respondents defended RA 9522 as the and implementation of RA 9522. Nonetheless, we
countrys compliance with the terms of UNCLOS III, recognize petitioners locus standi as citizens with
preserving Philippine territory over the KIG or constitutionally sufficient interest in the resolution of the
Scarborough Shoal. Respondents add that RA 9522 does merits of the case which undoubtedly raises issues of
not undermine the countrys security, environment and national significance necessitating urgent resolution.
economic interests or relinquish the Philippines claim Indeed, owing to the peculiar nature of RA 9522, it is
over Sabah. understandably difficult to find other litigants possessing
a more direct and specific interest to bring the suit, thus
Respondents also question the normative force, under satisfying one of the requirements for granting
international law, of petitioners assertion that what Spain citizenship standing.17
ceded to the United States under the Treaty of Paris were
the islands and all the waters found within the
boundaries of the rectangular area drawn under the The Writs of Certiorari and Prohibition
Treaty of Paris. Are Proper Remedies to Test
the Constitutionality of Statutes
We left unacted petitioners prayer for an injunctive writ.

The Issues In praying for the dismissal of the petition on

preliminary grounds, respondents seek a strict
The petition raises the following issues: observance of the offices of the writs of certiorari and
prohibition, noting that the writs cannot issue absent any
1. Preliminarily showing of grave abuse of discretion in the exercise of
judicial, quasi-judicial or ministerial powers on the part
1. Whether petitioners possess locus standi to bring of respondents and resulting prejudice on the part of
this suit; and petitioners.18
2. Whether the writs of certiorari and prohibition are
the proper remedies to assail the constitutionality of RA Respondents submission holds true in ordinary civil
9522. proceedings. When this Court exercises its constitutional
power of judicial review, however, we have, by
2. On the merits, whether RA 9522 is unconstitutional. tradition, viewed the writs of certiorari and prohibition
as proper remedial vehicles to test the constitutionality
of statutes,19 and indeed, of acts of other branches of
The Ruling of the Court government.20 Issues of constitutional import are
On the threshold issues, we hold that (1) petitioners sometimes crafted out of statutes which, while having no
possess locus standi to bring this suit as citizens and (2) bearing on the personal interests of the petitioners, carry
the writs of certiorari and prohibition are proper such relevance in the life of this nation that the Court
remedies to test the constitutionality of RA 9522. On the inevitably finds itself constrained to take cognizance of
merits, we find no basis to declare RA 9522 the case and pass upon the issues raised, non-compliance
unconstitutional. with the letter of procedural rules notwithstanding. The
statute sought to be reviewed here is one such law.
On the Threshold Issues RA 9522 is Not Unconstitutional

Petitioners Possess Locus

Standi as Citizens RA 9522 is a Statutory Tool
to Demarcate the Countrys
Petitioners themselves undermine their assertion of locus Maritime Zones and Continental
standi as legislators and taxpayers because the petition Shelf Under UNCLOS III, not to
alleges neither infringement of legislative prerogative 15 Delineate Philippine Territory
 and the continental shelf shall be measured from
archipelagic baselines drawn in accordance with article
Petitioners submit that RA 9522 dismembers a large 47. (Emphasis supplied)
portion of the national territory21 because it discards the Thus, baselines laws are nothing but statutory
pre-UNCLOS III demarcation of Philippine territory mechanisms for UNCLOS III States parties to delimit
under the Treaty of Paris and related treaties, with precision the extent of their maritime zones and
successively encoded in the definition of national continental shelves. In turn, this gives notice to the rest
territory under the 1935, 1973 and 1987 Constitutions. of the international community of the scope of the
Petitioners theorize that this constitutional definition maritime space and submarine areas within which States
trumps any treaty or statutory provision denying the parties exercise treaty-based rights, namely, the exercise
Philippines sovereign control over waters, beyond the of sovereignty over territorial waters (Article 2), the
territorial sea recognized at the time of the Treaty of jurisdiction to enforce customs, fiscal, immigration, and
Paris, that Spain supposedly ceded to the United States. sanitation laws in the contiguous zone (Article 33), and
Petitioners argue that from the Treaty of Paris technical the right to exploit the living and non-living resources in
description, Philippine sovereignty over territorial waters the exclusive economic zone (Article 56) and continental
extends hundreds of nautical miles around the Philippine shelf (Article 77).
archipelago, embracing the rectangular area delineated
in the Treaty of Paris.22 Even under petitioners theory that the Philippine
territory embraces the islands and all the waters within
Petitioners theory fails to persuade us. the rectangular area delimited in the Treaty of Paris, the
baselines of the Philippines would still have to be drawn
UNCLOS III has nothing to do with the acquisition (or in accordance with RA 9522 because this is the only way
loss) of territory. It is a multilateral treaty regulating, to draw the baselines in conformity with UNCLOS III.
among others, sea-use rights over maritime zones (i.e., The baselines cannot be drawn from the boundaries or
the territorial waters [12 nautical miles from the other portions of the rectangular area delineated in the
baselines], contiguous zone [24 nautical miles from the Treaty of Paris, but from the outermost islands and
baselines], exclusive economic zone [200 nautical miles drying reefs of the archipelago.24
from the baselines]), and continental shelves that
UNCLOS III delimits.23 UNCLOS III was the UNCLOS III and its ancillary baselines laws play no
culmination of decades-long negotiations among United role in the acquisition, enlargement or, as petitioners
Nations members to codify norms regulating the conduct claim, diminution of territory. Under traditional
of States in the worlds oceans and submarine areas, international law typology, States acquire (or conversely,
recognizing coastal and archipelagic States graduated lose) territory through occupation, accretion, cession and
authority over a limited span of waters and submarine prescription,25 not by executing multilateral treaties on
lands along their coasts. the regulations of sea-use rights or enacting statutes to
comply with the treatys terms to delimit maritime zones
On the other hand, baselines laws such as RA 9522 are and continental shelves. Territorial claims to land
enacted by UNCLOS III States parties to mark-out features are outside UNCLOS III, and are instead
specific basepoints along their coasts from which governed by the rules on general international law. 26
baselines are drawn, either straight or contoured, to serve
as geographic starting points to measure the breadth of RA 9522s Use of the Framework
the maritime zones and continental shelf. Article 48 of of Regime of Islands to Determine the
UNCLOS III on archipelagic States like ours could not Maritime Zones of the KIG and the
be any clearer: Scarborough Shoal, not Inconsistent
with the Philippines Claim of Sovereignty
Article 48. Measurement of the breadth of the territorial Over these Areas
sea, the contiguous zone, the exclusive economic zone
and the continental shelf. The breadth of the territorial
sea, the contiguous zone, the exclusive economic zone
Petitioners next submit that RA 9522s use of UNCLOS
Extent of maritime Extent of
IIIs regime of islands framework to draw the baselines, area using RA maritime area
and to measure the breadth of the applicable maritime 3046, as amended, using RA
zones of the KIG, weakens our territorial claim over that taking into account 9522, taking
area.27 Petitioners add that the KIGs (and Scarborough the Treaty of Paris into account
Shoals) exclusion from the Philippine archipelagic delimitation (in UNCLOS III
baselines results in the loss of about 15,000 square square nautical (in square
miles) nautical
nautical miles of territorial waters, prejudicing the
miles)
livelihood of subsistence fishermen.28 A comparison of
the configuration of the baselines drawn under RA 3046
and RA 9522 and the extent of maritime space
encompassed by each law, coupled with a reading of the Internal
text of RA 9522 and its congressional deliberations, vis-- or 166,858 171,435
vis the Philippines obligations under UNCLOS III, belie archipel
this view. agic
waters
The configuration of the baselines drawn under RA 3046
and RA 9522 shows that RA 9522 merely followed the
basepoints mapped by RA 3046, save for at least nine Territor 274,136 32,106
basepoints that RA 9522 skipped to optimize the ial Sea
location of basepoints and adjust the length of one
baseline (and thus comply with UNCLOS IIIs limitation
on the maximum length of baselines). Under RA 3046,
as under RA 9522, the KIG and the Scarborough Shoal
lie outside of the baselines drawn around the Philippine
Exclusi
archipelago. This undeniable cartographic fact takes the ve 382,669
wind out of petitioners argument branding RA 9522 as a Econo
statutory renunciation of the Philippines claim over the mic
KIG, assuming that baselines are relevant for this Zone
purpose.

Petitioners assertion of loss of about 15,000 square

nautical miles of territorial waters under RA 9522 is TOTA 440,994 586,210
similarly unfounded both in fact and law. On the L
contrary, RA 9522, by optimizing the location of
basepoints, increased the Philippines total maritime Thus, as the map below shows, the reach of the
space (covering its internal waters, territorial sea and exclusive economic zone drawn under RA 9522 even
exclusive economic zone) by 145,216 square nautical extends way beyond the waters covered by the
miles, as shown in the table below:29 rectangular demarcation under the Treaty of Paris. Of
course, where there are overlapping exclusive economic
zones of opposite or adjacent States, there will have to
be a delineation of maritime boundaries in accordance
with UNCLOS III.30
 Although the Philippines has consistently claimed
sovereignty over the KIG32 and the Scarborough Shoal
for several decades, these outlying areas are located at an
appreciable distance from the nearest shoreline of the
Philippine archipelago,33 such that any straight baseline
loped around them from the nearest basepoint will
inevitably depart to an appreciable extent from the
general configuration of the archipelago.

The principal sponsor of RA 9522 in the Senate, Senator

Miriam Defensor-Santiago, took pains to emphasize the
foregoing during the Senate deliberations:

What we call the Kalayaan Island Group or what the rest

of the world call[] the Spratlys and the Scarborough
Shoal are outside our archipelagic baseline because if we
put them inside our baselines we might be accused of
Further, petitioners argument that the KIG now lies violating the provision of international law which states:
outside Philippine territory because the baselines that The drawing of such baseline shall not depart to any
RA 9522 draws do not enclose the KIG is negated by appreciable extent from the general configuration of the
RA 9522 itself. Section 2 of the law commits to text the archipelago. So sa loob ng ating baseline, dapat
Philippines continued claim of sovereignty and magkalapit ang mga islands. Dahil malayo ang
jurisdiction over the KIG and the Scarborough Shoal: Scarborough Shoal, hindi natin masasabing malapit sila
sa atin although we are still allowed by international law
SEC. 2. The baselines in the following areas over which to claim them as our own.
the Philippines likewise exercises sovereignty and
jurisdiction shall be determined as Regime of Islands This is called contested islands outside our
under the Republic of the Philippines consistent with configuration. We see that our archipelago is defined by
Article 121 of the United Nations Convention on the the orange line which [we] call[] archipelagic baseline.
Law of the Sea (UNCLOS): Ngayon, tingnan ninyo ang maliit na circle doon sa itaas,
a) The Kalayaan Island Group as constituted under that is Scarborough Shoal, itong malaking circle sa
Presidential Decree No. 1596 and ibaba, that is Kalayaan Group or the Spratlys. Malayo na
b) Bajo de Masinloc, also known as Scarborough Shoal. sila sa ating archipelago kaya kung ilihis pa natin ang
(Emphasis supplied) dating archipelagic baselines para lamang masama itong
dalawang circles, hindi na sila magkalapit at baka hindi
na tatanggapin ng United Nations because of the rule
Had Congress in RA 9522 enclosed the KIG and the that it should follow the natural configuration of the
Scarborough Shoal as part of the Philippine archipelago, archipelago.34 (Emphasis supplied)
adverse legal effects would have ensued. The Philippines
would have committed a breach of two provisions of
UNCLOS III. First, Article 47 (3) of UNCLOS III Similarly, the length of one baseline that RA 3046 drew
requires that [t]he drawing of such baselines shall not exceeded UNCLOS IIIs limits. The need to shorten this
depart to any appreciable extent from the general baseline, and in addition, to optimize the location of
configuration of the archipelago. Second, Article 47 (2) basepoints using current maps, became imperative as
of UNCLOS III requires that the length of the baselines discussed by respondents:
shall not exceed 100 nautical miles, save for three per
cent (3%) of the total number of baselines which can [T]he amendment of the baselines law was necessary to
reach up to 125 nautical miles.31 enable the Philippines to draw the outer limits of its
maritime zones including the extended continental shelf
in the manner provided by Article 47 of [UNCLOS III]. North Borneo is also untenable. Section 2 of RA 5446,
As defined by R.A. 3046, as amended by R.A. 5446, the which RA 9522 did not repeal, keeps open the door for
baselines suffer from some technical deficiencies, to wit: drawing the baselines of Sabah:

1. The length of the baseline across Moro Gulf (from Section 2. The definition of the baselines of the
Middle of 3 Rock Awash to Tongquil Point) is 140.06 territorial sea of the Philippine Archipelago as provided
nautical miles x x x. This exceeds the maximum length in this Act is without prejudice to the delineation of the
allowed under Article 47(2) of the [UNCLOS III], which baselines of the territorial sea around the territory of
states that The length of such baselines shall not exceed Sabah, situated in North Borneo, over which the
100 nautical miles, except that up to 3 per cent of the Republic of the Philippines has acquired dominion and
total number of baselines enclosing any archipelago may sovereignty. (Emphasis supplied)
exceed that length, up to a maximum length of 125
nautical miles.
2. The selection of basepoints is not optimal. At least 9
basepoints can be skipped or deleted from the baselines UNCLOS III and RA 9522 not
system. This will enclose an additional 2,195 nautical Incompatible with the Constitutions
miles of water. Delineation of Internal Waters
3. Finally, the basepoints were drawn from maps
existing in 1968, and not established by geodetic survey As their final argument against the validity of RA 9522,
methods. Accordingly, some of the points, particularly petitioners contend that the law unconstitutionally
along the west coasts of Luzon down to Palawan were converts internal waters into archipelagic waters, hence
later found to be located either inland or on water, not on subjecting these waters to the right of innocent and sea
low-water line and drying reefs as prescribed by Article lanes passage under UNCLOS III, including overflight.
47.35 Petitioners extrapolate that these passage rights
indubitably expose Philippine internal waters to nuclear
and maritime pollution hazards, in violation of the
Hence, far from surrendering the Philippines claim over Constitution.38
the KIG and the Scarborough Shoal, Congress decision
to classify the KIG and the Scarborough Shoal as Whether referred to as Philippine internal waters under
Regime[s] of Islands under the Republic of the Article I of the Constitution39 or as archipelagic waters
Philippines consistent with Article 12136 of UNCLOS III under UNCLOS III (Article 49 [1]), the Philippines
manifests the Philippine States responsible observance exercises sovereignty over the body of water lying
of its pacta sunt servanda obligation under UNCLOS III. landward of the baselines, including the air space over it
Under Article 121 of UNCLOS III, any naturally formed and the submarine areas underneath. UNCLOS III
area of land, surrounded by water, which is above water affirms this:
at high tide, such as portions of the KIG, qualifies under
the category of regime of islands, whose islands generate Article 49. Legal status of archipelagic waters, of the air
their own applicable maritime zones.37 space over archipelagic waters and of their bed and
subsoil.

1. The sovereignty of an archipelagic State extends to

the waters enclosed by the archipelagic baselines drawn
in accordance with article 47, described as archipelagic
Statutory Claim Over Sabah under waters, regardless of their depth or distance from the
RA 5446 Retained coast.
2. This sovereignty extends to the air space over the
archipelagic waters, as well as to their bed and subsoil,
Petitioners argument for the invalidity of RA 9522 for its and the resources contained therein.
failure to textualize the Philippines claim over Sabah in xxxx
 by their baselines as one cohesive entity prevents the
4. The regime of archipelagic sea lanes passage treatment of their islands as separate islands under
established in this Part shall not in other respects affect UNCLOS III.46 Separate islands generate their own
the status of the archipelagic waters, including the sea maritime zones, placing the waters between islands
lanes, or the exercise by the archipelagic State of its separated by more than 24 nautical miles beyond the
sovereignty over such waters and their air space, bed and States territorial sovereignty, subjecting these waters to
subsoil, and the resources contained therein. (Emphasis the rights of other States under UNCLOS III.47
supplied)

The fact of sovereignty, however, does not preclude the Petitioners invocation of non-executory constitutional
operation of municipal and international law norms provisions in Article II (Declaration of Principles and
subjecting the territorial sea or archipelagic waters to State Policies)48must also fail. Our present state of
necessary, if not marginal, burdens in the interest of jurisprudence considers the provisions in Article II as
maintaining unimpeded, expeditious international mere legislative guides, which, absent enabling
navigation, consistent with the international law legislation, do not embody judicially enforceable
principle of freedom of navigation. Thus, domestically, constitutional rights x x x.49 Article II provisions serve as
the political branches of the Philippine government, in guides in formulating and interpreting implementing
the competent discharge of their constitutional powers, legislation, as well as in interpreting executory
may pass legislation designating routes within the provisions of the Constitution. Although Oposa v.
archipelagic waters to regulate innocent and sea lanes Factoran50 treated the right to a healthful and balanced
passage.40 Indeed, bills drawing nautical highways for ecology under Section 16 of Article II as an exception,
sea lanes passage are now pending in Congress. 41 the present petition lacks factual basis to substantiate the
claimed constitutional violation. The other provisions
In the absence of municipal legislation, international law petitioners cite, relating to the protection of marine
norms, now codified in UNCLOS III, operate to grant wealth (Article XII, Section 2, paragraph 251) and
innocent passage rights over the territorial sea or subsistence fishermen (Article XIII, Section 752), are not
archipelagic waters, subject to the treatys limitations and violated by RA 9522.
conditions for their exercise.42 Significantly, the right of
innocent passage is a customary international law, 43 thus In fact, the demarcation of the baselines enables the
automatically incorporated in the corpus of Philippine Philippines to delimit its exclusive economic zone,
law.44 No modern State can validly invoke its reserving solely to the Philippines the exploitation of all
sovereignty to absolutely forbid innocent passage that is living and non-living resources within such zone. Such a
exercised in accordance with customary international maritime delineation binds the international community
law without risking retaliatory measures from the since the delineation is in strict observance of UNCLOS
international community. III. If the maritime delineation is contrary to UNCLOS
The fact that for archipelagic States, their archipelagic III, the international community will of course reject it
waters are subject to both the right of innocent passage and will refuse to be bound by it.
and sea lanes passage45 does not place them in lesser
footing vis--vis continental coastal States which are UNCLOS III favors States with a long coastline like the
subject, in their territorial sea, to the right of innocent Philippines. UNCLOS III creates a sui generis maritime
passage and the right of transit passage through space the exclusive economic zone in waters previously
international straits. The imposition of these passage part of the high seas. UNCLOS III grants new rights to
rights through archipelagic waters under UNCLOS III coastal States to exclusively exploit the resources found
was a concession by archipelagic States, in exchange for within this zone up to 200 nautical miles.53 UNCLOS III,
their right to claim all the waters landward of their however, preserves the traditional freedom of navigation
baselines, regardless of their depth or distance from the of other States that attached to this zone beyond the
coast, as archipelagic waters subject to their territorial territorial sea before UNCLOS III.
sovereignty. More importantly, the recognition of
archipelagic States archipelago and the waters enclosed
RA 9522 and the Philippines Maritime Zones

Petitioners hold the view that, based on the permissive

text of UNCLOS III, Congress was not bound to pass
RA 9522.54 We have looked at the relevant provision of
UNCLOS III55 and we find petitioners reading plausible.
Nevertheless, the prerogative of choosing this option
belongs to Congress, not to this Court. Moreover, the
luxury of choosing this option comes at a very steep
price. Absent an UNCLOS III compliant baselines law,
an archipelagic State like the Philippines will find itself
devoid of internationally acceptable baselines from
where the breadth of its maritime zones and continental
shelf is measured. This is recipe for a two-fronted
disaster: first, it sends an open invitation to the seafaring
powers to freely enter and exploit the resources in the
waters and submarine areas around our archipelago; and
second, it weakens the countrys case in any international
dispute over Philippine maritime space. These are
consequences Congress wisely avoided. SECOND DIVISION
[G.R. No. 9959. December 13, 1916. ]
The enactment of UNCLOS III compliant baselines law THE GOVERNMENT OF THE PHILIPPINE
ISLANDS, represented by the Treasurer of the
for the Philippine archipelago and adjacent areas, as
Philippine Islands, Plaintiff-Appellee, v. EL MONTE
embodied in RA 9522, allows an internationally- DE PIEDAD Y CAJA DE AHORROS DE MANILA,
recognized delimitation of the breadth of the Philippines Defendant-Appellant.
maritime zones and continental shelf. RA 9522 is
therefore a most vital step on the part of the Philippines
in safeguarding its maritime zones, consistent with the SYLLABUS
Constitution and our national interest.
1. CHARITIES; EARTHQUAKE RELIEF FUND. —
WHEREFORE, we DISMISS the petition. Funds collected as a result of a national subscription for
the relief of those damaged by an earthquake constitute,
SO ORDERED. under article 1 of the Law of June 20, 1849, and article 2
of the instructions of April 27, 1875, a special charity of
a temporary nature as distinguished from a permanent
public charitable institution.

2. ID.; SUPERVISION AND CONTROL BY THE

GOVERNMENT. — The law of June 20, 1849, the
royal order of April 27, 1875, and the instructions
promulgated on the latter date conferred upon the former
sovereign authority to supervise and control certain
private or special charities of a temporary nature.

3. ID.; TRANSFER OF SOVEREIGNTY; EFFECT ON

THE LAWS. — While there is a total abrogation of the
former political relations of the inhabitants of ceded
territory, and an abrogation of laws in conflict with the
political character of the substituted sovereign, the great
body of municipal law regulating private and domestic mentioned allotments, the sum of $40,299.65, leaving a
rights continues in force until abrogated or changed by balance of #365,403.85 for distribution. Upon the
the new ruler. Laws conferring upon the Government petition of the governing body of the Monte de Piedad,
power to supervise and control special charities are not dated February 1, 1833, the Philippine Government, by
in conflict with the political character, constitution or order dated the 1st of that month, directed its treasurer to
institutions of the United States. turn over to the Monte de Piedad the sum of $80,000 of
the relief fund in installments of $20,000 each. These
4. ID.; RECOVERY OF TRUST FUNDS LOANED BY amounts were received on the following dates: February
FORMER SOVEREIGN; LIMITATION OF ACTIONS. 15, March 12, April 14, and June 2, 1883, and are still in
— The statute of limitations does not run against the the possession of the Monte de Piedad. On account of
right of action of the Philippine Government to recover various petitions of the persons and heirs of others to
trust funds loaned by the former sovereign. whom the above-mentioned allotments were made by
the central relief board for the payment of those
5. ID.; ID.; FACTS. — In 1863 the inhabitants of the amounts, the Philippine Legislature passed Act No.
Spanish dominions contributed funds for the relief of 2109, effective January 30, 1912, empowering and
those damages by an earthquake in the Philippine Islands directing the Treasurer of the Philippine Islands to bring
and the money was remitted to the Philippines to be suit against the Monte de Piedad to recover, "through the
distributed by a central relief board. Part of the funds Attorney-General and in representation of the
contributed were turned over to the board. Part of the Government of the Philippine Islands," the $80,000,
funds contributed were turned over to the "Monte de together with interest, for the benefit of those persons or
Piedad" to be held at the disposal of the relief board. their heirs appearing in the list of names published in the
Held: That the Philippine Government is the proper Official Gazette under date of April 7, 1912, by the
party to maintain an action to recover the funds thus Government of the Philippine Islands, represented by the
loaned or deposited for the purpose of carrying out the Insular Treasurer, and after due trial, judgment was
intention of the contributors. entered in favor of the plaintiff for the sum of $80,000
gold or its equivalent in Philippine currency, together
with legal interest from February 28, 1912, and the costs
DECISION of the cause. The defendant appealed and makes the
following assignment of errors:jgc:chanrobles.com.ph

TRENT, J. : "1. The court erred in not finding that the eighty
thousand dollars ($80,000), given to the Monte de
Piedad y Caja de Ahorros, were so given as a donation
About $400,000 were subscribed and paid into the subject to one condition, to wit: the return of such sum
Treasury of the Philippine Islands by the inhabitants of of money to the Spanish Government of these Islands,
the Spanish Dominions for the relief of those damages within eight days following the day when claimed, in
by the earthquake which took place in the Philippine case the Supreme Government of Spain should not
Islands on June 3, 1863. Subsequent thereto and on approve the action taken by the former government.
October 6 of that year, a central relief board was
appointed, by authority of the King of Spain, to "2. The court erred in not having decreed that this
distribute the moneys thus voluntarily contributed. After donation had been cleared; said eighty thousand dollars
a thorough investigation and consideration, the relief ($80,000) being at present the exclusive property of the
board allotted #365,703.50 to the various sufferers appellant the Monte de Piedad y Caja de Ahorros.
named in its resolution, dated September 22, 1866, and,
by order of the Governor-General of the Philippine "3. That the court erred in stating that the Government of
Islands, a list of these allotments, together with the the Philippine Islands has subrogated the Spanish
names of those entitled thereto, was published in the Government in its rights, as regards an important sum of
Official Gazette of Manila dated April 7, 1870. There money resulting from a national subscription opened by
was later distributed, in accordance with the above-
reason of the earthquake of June 3, 1863, in these funds held in the treasury derived from the national
Islands. subscription for the relief of the distress caused by the
earthquake of 1863. Fourth: That in the public treasury
"4. That the court erred in not declaring that Act there is held at the disposal of the central earthquake
Numbered 2109, passed by the Philippine Legislature on relief board over $100,000, which was deposited in the
January 30, 1912, is unconstitutional. said treasury by order of your general Government, it
having been transferred thereto from the Spanish-
"5. That the court erred in holding in its decision that Filipino Bank where it had been held. Fifth: That in the
there is no title for the prescription of this suit brought straightened circumstances of the moment, your
by the Insular Government against the Monte de Piedad Excellency can, to avert impending disaster to the Monte
y Caja de Ahorros for the reimbursement of the eighty de Piedad, order that, out of that sum of one hundred
thousand dollars ($80,000) given to it by the late Spanish thousand pesos held in the Treasury at the disposal of the
Government of these Islands. central relief board, there be transferred to the Monte de
Piedad the sum of $80,000, there to be held under the
"6. That the court erred in sentencing the Monte de same conditions as at present in the Treasury, to wit, at
Piedad y Caja de Ahorros to reimburse the Philippine the disposal of the Relief Board. Sixth: That should this
Government in the sum of eighty thousand dollars transfer not be approved for any reason, either because
($80,000), gold coin, or the equivalent thereof in the of the failure of His Majesty’s Government to approve
present legal tender currency in circulation, with legal the proposal made by your Excellency relative to the
interest thereon from February 28th, 1912, and the costs application to the needs of the Monte de Piedad of a part
of this suit."cralaw virtua1aw library of the subscription intended to relieve the distress caused
by the earthquake of 1863, or for any other reason, the
In the royal order of June 29, 1879, the governor- board of directors of the Monte de Piedad obligates itself
General of the Philippine Islands was directed to inform to return any sums which it may have received on
the home Government in what manner the indemnity account of the eighty thousand pesos, or the whole
might board, the persons who suffered damage by the thereof, should it have received the same, by securing a
earthquake might be entitled, in order to perform the loan from whichever bank or banks may lend it the
sacred obligation which the Government of Spain had money at the cheapest rate upon the security of pawned
assumed toward the donors. jewelry. — This present crisis and the board of directors
trusts to secure your Excellency’s entire cooperation and
The next pertinent document in order is the defendant’s that of the other officials who have to take part in the
petition, dated February 1, 1883, addressed to the transaction."cralaw virtua1aw library
Governor-General of the Philippine Islands, which
reads:jgc:chanrobles.com.ph The Governor-General’s resolution on the foregoing
petition is as follows:jgc:chanrobles.com.ph
"Board of Directors of the Monte de Piedad of Manila.
Presidencia. "GENERAL GOVERNMENT OF THE PHILIPPINES.

"Excellency: The Board of Directors of the Monte de "MANILA, February 1, 1883.

Piedad y Caja de Ahorros of Manila informs your
Excellency, First: That the funds which it has up to the "In view of the foregoing petition addressed to me by the
present been able to dispose of have been exhausted in board of directors of the Monte de Piedad of this city, in
loans on jewelry, and there only remains the sum of one which it is stated that the funds which the said institution
thousand and odd pesos, which will be expended counted upon are nearly all invested in loans on jewelry
between to-day and day after establishment, which and that the small amount remaining will scarcely
would be greatly injured were its operations suspended, suffice to cover the transactions of the next two days, for
it is necessary to procure money. Third: That your which reason it entreats the general Government that, in
Excellency has proposed to His Majesty’s Government pursuance of its telegraphic advice to H. M.
to apply to the funds of the Monte de Piedad a part of the Government, the latter direct that there be turned over to
said Monte de Piedad $80,000 out of the funds in the the exercise of the extraordinary powers conferred upon
public treasury obtained from the national subscription it and in conformity with the report of the Intendencia de
for the relief of the distress caused by the earthquake of Hacienda, resolves as follows:jgc:chanrobles.com.ph
1863, said board obligating itself to return this sum
should H. M. Government, for any reason, not approve "First. Authority is hereby given to deliver to the Monte
the said proposal, and for this purpose it will procure de Piedad, out of the sum held in the public treasury of
funds by means of loans raised on pawned jewelry; it these Islands obtained from the national subscription
stated further that if the aid so solicited is not furnished, opened by reason of the earthquakes of 1863, amounts
it will be compelled to suspend operations, which would up to the sum of $80,000, as its needs may require, in
seriously injure the credit of so beneficent an institution; installments of $20,000.
and in view of the report upon the matter made by the
Intendencia General de Hacienda; and considering the "Second. The board of directors of the Monte de Piedad
fact that the public treasury has on hand a much greater is solemnly bound to return, within eight days after
sum from the source mentioned than that solicited; and demand, the sums it may have so received, if H. M.
considering that this general Government has submitted Government does not approve this resolution.
for the determination of H. M. Government that the
balance which, after strictly applying the proceeds "Third. The Intendencia General de Hacienda shall
obtained from the subscription referred to, may remain forthwith, and in preference to all other work, proceed to
as a surplus should be delivered to the Monte de Piedad, prepare the necessary papers so that with the least
either as a donation, or as a loan upon the security of the possible delay the payment referred to may be made and
credit of the institution, believing that in so doing the the danger that menaces the Monte de Piedad of having
wishes of the donors would be faithfully interpreted to suspend its operations may be averted.
inasmuch as those wishes were no other than to relieve
distress, an act of charity which is exercised in the "H. M. Government shall be advised hereof.
highest degree by the Monte de Piedad, for it liberates
needy persons from the pernicious effects of usury; and (Signed) "P. DE RIVERA."cralaw virtua1aw library

"Considering that the lofty purposes that brought about By the royal order of December 3, 1892, the Governor-
the creation of the pious institution referred to would be General of the Philippine Islands was ordered to "inform
frustrated, and that the great and laudable work of its this ministerio what is the total sum available at the
establishment would be immediately lost and wiped out present time, taking into consideration the sums
if the aid it urgently seeks is not granted, since the delivered to the Monte de Piedad pursuant to the decree
suspension of its operations would seriously and issued by your general Government on February 1,
regrettably damage the ever-growing credit of the Monte 1883," and after the rights of the claimants, whose
de Piedad; and names were published in the Official Gazette of Manila
on April 7, 1870, and their heirs had been established, as
"Considering that if such a thing would at any time cause therein provided, as such persons "have an
deep distress in the public mind, it might be said that at unquestionable right to be paid the donations assigned to
the present juncture it would assume the nature of a them therein, your general Government shall convoke
disturbance of public order because of the extreme them all within a reasonable period and shall pay their
poverty of the poorer classes resulting from the later shares to such as shall identify themselves, without
calamities, and because it is the only institution which regard to their financial status," and finally "that when
can mitigate the effects of such poverty; and all the proceedings and operations herein mentioned
have been concluded and the Government can consider
"Considering that no reasonable objection can be made itself free from all kinds of claims on the part of those
to granting the request herein contained, for the funds in interested in the distribution of the funds deposited in the
question are sufficiently secured in the unlikely event vaults of the Treasury, such action may be taken as the
that H. M. Government does not approve the circumstances shall require, after first consulting the
recommendation mentioned, this general Government, in relief board and your general Government and taking
account of what sums have been delivered to the Monte no objection to its return would be made by the Monte
de Piedad and those that were expended in 1888 to de Piedad for, when it received the loan, it formally
relieve public calamities," and "in order that all the engaged itself to return it; and, besides, it was
points in connection with the proceedings had as a result indisputable that the moment to do so had arrived,
of the earthquake be clearly understood, it is inasmuch as H. M. Government, in ordering that the
indispensable that the offices hereinbefore mentioned assets of the earthquake relief fund should be collected,
comply with the provisions contained in paragraphs 2 makes express mention of the 80,000 pesos loaned to the
and 3 of the royal order of June 25, 1879." On receipt of Monte de Piedad, without doubt considering as sufficient
this royal order by the Governor-General, the the period of ten years during which it has been using
Department of Finance was called upon for a report in this large sum which lawfully belongs to other persons.
reference to the $80,000 turned over to the defendant, This Intendencia also supposed that the Monte de Piedad
and that Department’s report to the Governor-General no longer needed the amount of that loan, inasmuch as,
dated June 28, 1893, reads:jgc:chanrobles.com.ph far from investing it in beneficent transactions, it had
turned the whole amount into the voluntary deposit
"Intendencia General de Hacienda de Filipinas (General funds bearing 5 per cent interests, the result of this
Treasury of the Philippines) — Excellency. — By Royal operation being that the debtor loaned to the creditor on
Order No. 1044 of December 3, last, it is provided that interest what the former had gratuitously received. But
the persons who sustained losses by the earthquakes that the Monte de Piedad, instead of fulfilling the promise it
occurred in your capital in the year 1863 shall be paid made on receiving the sum, after repeated demands
the amounts allotted to them out of the sums sent from refused to return the money on the ground that only your
Spain for this purpose, with observance of the rules Excellency, and not the Intendencia (Treasury), is
specified in the said royal order, one of them being that entitled to order the reimbursement, taking no account of
before making the payments to the interested parties the the fact that this Intendencia was acting in the discharge
assets shall be reduced to money. These assets, during of a sovereign command, the fulfillment of which your
the long period of time that has elapsed since they were Excellency was pleased to order; and on the further
turned over to the Treasury of the Philippine Islands, ground that the sum of P80,000 pesos which it received
were used to cover the general needs of the from the fund intended for the earthquake victims was
appropriation, a part besides being invested in the relief not received as a loan, but as a donation, thus in the
of charitable institutions and another part to meet opinion of this Intendencia, erroneously interpreting
pressing needs occasioned by public calamities. On both the last royal order which directed the
January 30, last, your Excellency was pleased to order apportionment of the amount of the subscription raised
the fulfillment of that sovereign mandate and referred in the year 1863 and the superior decree which granted
the same to this Intendencia for its information and the the loan, inasmuch as in this letter no donation is made
purposes desired (that is, for compliance with its to the Monte de Piedad to reimburse within the period of
directions and, as aforesaid, one of these being the eight days the 80,000 which it owes, and that you give
liquidation, recovery, and deposit with the Treasury of this Intendencia power to carry out the provisions of the
the sums paid out of that fund and which were expended said royal order. I must call to the attention of your
in a different way from that intended by the donors) and Excellency that the said pious establishment, during the
this Intendencia believed the moment had arrived to last few days and after demand was made upon it, has
claim from the board of directors of the Monte de Piedad endorsed to the Spanish-Filipino Bank nearly the whole
y Caja de Ahorros the sum of 80,000 pesos which, by of the sum which it had on deposit in the general deposit
decree of your general Government of the date of funds."cralaw virtua1aw library
February 1, 1883, was loaned to it out of the said funds,
the (Monte de Piedad) obligating itself to return the The record in the case under consideration fails to
same within the period of eight days if H. M. disclose any further definite action taken by either the
Government did not approve the delivery. On this Philippine Government of the Spanish Government in
Intendencia’s demanding from the Monte de Piedad the regard to the $80,000 turned over to the Monte de
eighty thousand pesos, thus complying with the Piedad.
provisions of the Royal Order, it was to be supposed that
In the defendant’s general ledger the following entries "I hereby certify that the foregoing is a literal copy of
appear: "Public Treasury: February 15, 1883, $20,000; that found in the letter book No. 2 of those Pious
March 12, 1883, $20,000; April 14, 1883, $20,000; June Institutions.
2, 1883; $20,000, total $80,000." The book entry for this
total is as follows: "To the public Treasury derived from "Manila, November 19, 1913.
the subscription for the earthquake of 1863, $80,000
received from the general Treasury as a returnable loan, (Sgd.) "EMILIO LAZCANOTEGUI,
and without interest." The account was carried in this
manner until January 1, 1899, when it was closed by "Secretary.
transferring the amount to an account called "Sagrada
Mitra," which latter account was a loan of $15,000 made (Sgd.) "O. K. EMILIO MORETA,
to the defendant by the Archbishop of Manila, without
interest, thereby placing the "Sagrada Mitra" account at "Managing Director."cralaw virtua1aw library
$95,000 instead of $15,000. The above-mentioned
journal entry for January 1, 1899, reads: "Sagrada Mitra The foregoing documentary evidence shows the nature
and subscription, balance of these two accounts which of the transactions which took place between the
on this date are united in accordance with an order of the Government of Spain and the Philippine Government on
Exmo. Sr. Presidente of the Council transmitted verbally the one side and the Monte de Piedad on the other,
to the Presidente Gerente of these institutions, concerning the $80,000. The Monte de Piedad, after
$95,000."cralaw virtua1aw library setting forth in its petition to the Governor-General its
financial condition and its absolute necessity for more
On March 16, 1902, the Philippine Government called working capital, asked that out of the sum of $100,000
upon the defendant for information concerning the status held in the Treasury of the Philippine Islands, at the
of the $80,000 and received the following disposal of the central relief board, there be transferred
reply:jgc:chanrobles.com.ph to it the sum of $80,000 to be held under the same
conditions, to wit, "at the disposal of the relief board."
"MANILA, March 31, 1902. The Monte de Piedad agreed that if the transfer of these
funds should not be approved by the Government of
"To the Attorney-General of the Department of Justice Spain, the same would be returned forthwith. It did not
of the Philippine Islands. ask that the $80,000 be given to its as a donation. The
Governor-General, after reciting the substance of the
"SIR: In reply to your courteous letter of the 16th inst., petition, stated that "this general Government has
in which you request information from this office as to submitted for the determination of H. M. Government
when and for what purpose the Spanish Government that the balance which, after strictly applying the
delivered to the Monte de Piedad eighty thousand pesos proceeds obtained from the subscription referred to, may
obtained from the subscription opened in connection remain as a surplus, should be delivered to the Monte de
with the earthquake of 1863, as well as any other Piedad, either as a donation, or as a loan upon the
information that might be useful for the report which security of the credit of the institution," and "considering
your office is called upon to furnish, I must state to your that no reasonable objection can be made to granting the
department that the books kept in these Pious, show that request herein contained," directed the transfer of
on the 15th of February, 1883, they received as a $80,000 to be made with the understanding that "the
reimbursable loan and without interest, twenty thousand Board of Directors of the Monte de Piedad is solemnly
pesos, which they deposited with their own funds. On bound to return, within eight days after demand, the
the same account and on each of the dates of March 12, sums it may have so received, if H. M. Government does
April 14 and June 2 of the said year, 1883, they also not approve this resolution." It will be noted that the first
received and turned into their funds a like sum of twenty and only time the word "donation" was used in
thousand pesos, making a total of eighty thousand pesos. connection with the $80,000 appears in this resolution of
— (Signed) Emilio Moreta. the Governor-General. It may be inferred from the royal
orders that the Madrid Government did tacitly approve
of the transfer of the $80,000 to the Monte de Piedad as national subscription in question was a kind of
a loan without interest, but that Government certainly foundation or pious work, for a charitable purpose in
did not approve such transfer as a donation for the these Islands; and the entire subscription not being
reason that the Governor-General was directed by the needed for its original purpose, the royal vice-patron,
royal order of December 3, 1892, to inform the Madrid with the consent of the King, gave the surplus thereof to
Government of the total available sum of the earthquake an analogous purpose the fulfillment of all these things
fund, "taking into consideration the sums delivered to involved, in the majority, if not in all cases, faithful
the Monte de Piedad pursuant to the decree issued by compliance with the duty imposed upon him by the Holy
your general Government on February 1, 1883." This See, when it conferred upon him the royal patronage of
language, nothing else appearing, might admit of the the Indies, a thing that touched him very closely in his
interpretation that the Madrid Government did not intent conscience and religion; the cessionary Government,
that the Governor-General of the Philippine Islands though Christian, was not Roman Catholic and prided
should include the $80,000 in the total available sum, itself on its policy of non-interference in religious
but when considered in connection with the report of the matters, and inveterately maintained a complete
Department of Finance, acting under the orders of the separation between the ecclesiastical and civil powers.
Governor-General, understood that the $80,000 was
transferred to the Monte de Piedad well knew that it "In view of these circumstances it must be quite clear
received this sum as a loan, for it appears in its books that, even without the express provisions of the Treaty of
that it received the amount from the general treasury "as Paris, which apparently expressly exclude such an idea,
a returnable loan, and without interest." The amount was it did not befit the honor of either of the contracting
thus carried in its books until January, 1899, when it was parties to subrogate to the American Government in lieu
transferred to the account of the "Sagrada Mitra" and of the Spanish Government anything respecting the
was thereafter known as the "Sagrada Mitra and disposition of the funds delivered by the latter to the
subscription account." Furthermore, the Monte de Piedad Monte de Piedad. the same reasons that induced the
recognized and considered as late as March 31, 1902, Spanish government to take over such things would
that it received the $80,000 "as a returnable loan, and result in great inconvenience to the American
without interest." Therefore, there cannot be the slightest Government in attempting to do so. The question was
doubt about the fact that the Monte de Piedad received such a delicate one, for the reason that it affected the
the $80,000 as a mere loan or deposit and not as a conscience, deeply religious, of the King of Spain, that it
donation. Consequently, the first alleged error is entirely cannot be believed that it was ever his intention to
without foundation. confide the exercise thereof to a Government like the
American. (U.S. v. Arredondo, 6 Pet. [U. S. ], 711.)
Counsel for the defendant, in support of their third
assignment of error, say in their principal brief "It is thus seen that the American Government did not
that:jgc:chanrobles.com.ph subrogate the Spanish Government or rather, the King of
Spain, in this regard; and as the condition annexed to the
"The Spanish nation was professedly Roman Catholic donation was lawful and possible of fulfillment at the
and its King enjoyed the distinction of being deputy ex time the contract was made, but became impossible of
officio of the Holy See and Apostolic Vicar-General of fulfillment by the cession made by the Spanish
the Indies, and as such it was this duty to protect all Government in these Islands, compliance therewith is
pious works and charitable institutions in his kingdoms, excused and the contract has been cleared
especially those of the Indies; among the latter was the thereof."cralaw virtua1aw library
Monte de Piedad of the Philippines, of which said King
and his deputy the Governor-General of the Philippines, The contention of counsel, as thus stated, is untenable
as royal vice-patron, were, in a special and peculiar for two reasons, (1) because such contention is based
manner, the protectors; the latter, as a result of the upon the erroneous theory that the sum in question was a
cession of the Philippine Islands, implicitly renounced donation to the Monte de Piedad and not a loan, and (2)
this high office and tacitly returned it to the Holy See, because sufferers is not and never was intended to be an
now represented by the Archbishop of Manila; the ecclesiastical pious work. The first proposition has
already been decided adversely to the defendant’s It follows further that this Government is not a proper
contention. As to the second, the record shows clearly party to the action. The only persons who could claim to
that the fund was given by the donors for a specific and be damages by this payment to the Monte, if it was
definite purpose — the relief of the earthquake sufferers unlawful, are the donors or the cestuis que trustent, and
— and for no other purpose. The money was turned over this Government is neither."cralaw virtua1aw library
to the Spanish government to be devoted to that purpose.
The Spanish government remitted the money to the If "the whole matter is one of trusteeship," and it being
Philippine Government to be distributed among the true that the Spanish Government could not, as counsel
sufferers. All officials, including the King lands, who say, transfer the ownership of the fund to the Monte de
took part in the disposal of the fund, acted in might have Piedad, the question arises, who may sue to recover this
belonged to a certain church had nothing to do with their loan? It needs no argument to show that the Spanish or
acts in this matter. The church, as such, had nothing to Philippine Government, as trustee, could maintain an
do with their acts in this matter. The church, as such, had action for this purpose had there been no change of
nothing to do with the fund in any way whatever until sovereignty and if the right of action has not prescribed.
the $80,000 reached the coffers of the Monte de Piedad But those governments were something more than mere
(an institution under the control of the church) as a loan common law trustees of the fund. In order to determine
or deposit. If the charity in question has been founded as their exact status with reference to this fund, it is
an ecclesiastical pious work, the King of Spain and the necessary to examine the law in force at the time these
Governor-General, in their capacities as vicar-general of transactions took place, which are the law of June 20,
the Indies and as royal vice-patron, respectively, would 1849, the royal decree of April 27, 1875, and the
have disposed of the fund as such and not in their civil instructions promulgated on the latter date. These legal
capacities, and such functions could not have been provisions were applicable to the Philippine Islands
transferred to the present Philippine Government, (Benedicto v. De la Rama, 3 Phil. Rep., 34).
because the right to so act would have arisen out of the
special agreement between the Government of Spain and The funds collected as a result of the national
the Holy See, based on the union of the church and state subscription opened in Spain by royal order of the
which was completely separated with the change of Spanish Government and which were remitted to the
sovereignty. Philippine government to be distributed among the
earthquake sufferers by the Central Relief Board
And in their supplemental brief counsel constituted, under article 1 of the law of June 20, 1849,
say:jgc:chanrobles.com.ph and article 2 of the instructions of April 27, 1875, a
special charity of a temporary nature as distinguished
"By the conceded facts the money in question is part of a from a permanent public charitable institution. As the
charitable subscription. The donors were persons in Spanish Government initiated the creation of the fund
Spain, the trustee was the Spanish Government, the and as the donors turned their contributions over to that
donees, the certuis que trustent, were certain persons in Government, it became the duty of the latter, under
the Philippine Islands. The whole matter is one of article 7 of the instructions, to exercise supervisions and
trusteeship. This is undisputed and indisputable. It control over the monies thus collected to the end that the
follows that the Spanish Government at no time was the will of the donors should be carried out. The relief board
owner of the fund. Not being the owner of the fund it had no power whatever to dispose of the funds confided
could not transfer the ownership. Whether or not it could to its charge for other purposes than to distribute them
transfer its trusteeship it certainly never has expressly among the sufferers, because paragraph 3 of article 11 of
done so and the general terms of property transfer in the the instructions conferred the power upon the secretary
Treaty of Paris are wholly insufficient for such a purpose of the interior of Spain, and no other, to dispose of the
even could Spain have transferred its trusteeship without surplus funds, should there be any, by assigning them to
the consent of the donors and even could the United some other charitable purpose or institution. The
States, as a Government, have accepted such a trust secretary could not dispose of any of the funds in this
under any power granted to it by the thirteen original manner so long as they were necessary for the specific
States in the Constitution, which is more than doubtful. purpose for which they were contributed. The secretary
had the power, under the law above mentioned to the law of June 20, 1849, the royal decree of April 27,
appoint and totally or partially change the personnel of 1875, and the instructions promulgated on the latter date.
the relief board and to authorize the board to defend the In Vilas v. Manila (220 U. S., 345), the court
rights of the charity in the courts. The authority of the said:jgc:chanrobles.com.ph
board consisted only in carrying out the will of the
donors as directed by the Government whose duty it was "That there is a total abrogation of the former political
to watch over the acts of the board and to see that the relations of the inhabitants of the ceded region is
funds wee applied to the purposes for which they were obvious. That all laws theretofore in force which are in
contributed. The secretary of the interior, as the conflict with the political character, constitution, or
representative of His Majesty’s Government, exercised institutions of the substituted sovereign, lose their force,
these powers and duties through the Governor-General is also plain. (Alvarez y Sanchez v. United States, 216
of the Philippine Islands. The Governments of Spain and U.S., 167.) But it is equally settled in the same public
of the Philippine Islands in complying with their duties law that great body of municipal law which regulates
conferred upon them by law, acted in their governmental private and domestic rights continues in force until
capacities in attempting to carry out the intention of the abrogated or changed by the new ruler."cralaw
contributors. It will thus be seen that those governments virtua1aw library
were something more, as we have said, than mere
trustees of the fund. If the above-mentioned legal provisions are in conflict
with the political character, constitution or institutions of
It is further contended that the obligation on the part of the new sovereign, they became inoperative or lost their
the Monte de Piedad to return the $80,000 to the United States, but if they are among "that great body of
Government, even considering it a loan, was wiped out municipal law which regulates private and domestic
on the change of sovereignty, or in other words, the rights," they continued in force and are still in force
present Philippine Government cannot maintain this unless they have been repealed by the present
action for that reason. This contention, if true, "must Government. That they fall within the latter class is clear
result from settled principles of rigid law," as it cannot from their very nature and character. They are laws
rest upon any title to the fund in the Monte de Piedad which are not political in any sense of the word. They
acquired prior to such change. While the obligation to conferred upon the Spanish Government the right and
return the $80,000 to the Spanish Government was still duty to supervise, regulate, and to some extent control
pending, war between the United States and Spain charities and charitable institutions. The present
ensued. Under the Treaty of the Philippine Islands, was sovereign, in exempting "provident institutions, savings
ceded to the United the Treaty of Paris of December 10, banks, etc.," all of which are in the nature of charitable
1898, the Archipelago, known as the Philippine Islands, institutions, from taxation, placed such institutions, in so
was ceded to the United States, the latter agreeing to pay far as the investment in securities are concerned, under
Spain the sum of $20,000,000. Under the first paragraph the general supervisions of the Insular Treasurer
of the eighth article, Spain relinquished to the United (paragraph 4 of section 111 of Act No. 1189; see also
States "all buildings, wharves, barracks, forts, structures, Act No. 701).
public highways, and other immovable property which,
in conformity with law, belonged to the public domain, Furthermore, upon the cession of the Philippine Islands
and as such belonged to the crown of Spain." As the the prerogatives of the crown of Spain devolved upon
$80,000 were not included therein, it is said that the right the United States. In Magill v. Brown (16 Fed. Cas.,
to recover this amount did not, therefore, pass to the 408), quoted with approval in Mormon Church v. United
present sovereign. This, in our opinion, does not follow States (136 U.S., 1, 57), the court
as a necessary consequence, as the right to recover does said:jgc:chanrobles.com.ph
not rest upon the proposition that the $80,000 must be
"other immovable property" mentioned in article 8 of the "The Revolution devolved on the State all the
treaty, but upon contractual obligations incurred before transcendent power of Parliament, and the prerogative of
the Philippine Islands were ceded to the United States. the crown, and gave their Acts the same force and
We will now inquire what effect this cession had upon effect."cralaw virtua1aw library
 the sovereign authority, acting as parens partiae. They
In Fontain v. Ravenel (17 How., 369, 384), Mr. Justice show that this beneficent function has not ceased to exist
McLean, delivering the opinion of the court in a charity under the change of government from a monarchy to a
case, said:jgc:chanrobles.com.ph republic; but that it now resides in the legislative
department, ready to be called into exercise whenever
"When this country achieved its independence, the required for the purposes of justice and right, and is as
prerogatives of the crown devolved upon the people of clearly capable of being exercised in cases of charities as
the States. And this power still remains with them except in any other cases whatever."cralaw virtua1aw library
so far as they have delegated a portion of it to the
Federal Government. The sovereign will is made known In People v. Cogswell (113 Cal. 129, 130), it was urged
to us by legislative enactment. The State as a sovereign, that the plaintiff was not the real party in interest; that
is the parens partiae."cralaw virtua1aw library the Attorney-General had no power to institute the
action; and that there must be an allegation and proof of
Chancelor Kent says:jgc:chanrobles.com.ph a distinct right of the people as a whole, as distinguished
from the rights of individuals, before an action could be
"In this country, the legislature or government of the brought by the Attorney-General in the name of the
State, as parens partiae, has the right to enforce all people. The court, in overruling these contentions, held
charities of a public nature, by virtue of its general that it was not only the right but the duty of the
superintending authority over the public interests, where Attorney-General to prosecute the action, which related
no other person is entrusted with it." (4 Kent Com., 508, to charities, and approved the following quotation from
note.) Attorney-General v. Compton (1 Young & C. C.,
417):jgc:chanrobles.com.ph
The Supreme Court of the United States in Mormon
Church v. United States, supra, after approving also the "Where property affected by a trust for public purposes
last quotations, said:jgc:chanrobles.com.ph is in the hands of those who hold it devoted to that trust,
it is the privilege of the public that the crown should be
"This prerogative of parens partiae is inherent in the entitled to intervene by its officers for the purpose of
supreme power of every State, whether that power is asserting, on behalf on the public generally, the public
lodged in a royal person or in the legislature, and has no interest and the public right, which, probably, no
affinity to those arbitrary powers which are sometimes individual could be found effectually to assert, even if
exerted by irresponsible monarch to the great detriment the interest were such as to allow it." (2 Kent’s
of the people and the destruction of their liberties. On Commentaries, 10th ed., 359; Lewin on Trusts, sec. 665;
the contrary, it is a most beneficent function, and often 1 Daniell’s Chancery Practice, sec. 13; Perry on Trusts,
necessary to be exercised in the interest of humanity, and sec. 732.)
for the prevention of injury to those who cannot protect
themselves."cralaw virtua1aw library It is further urged, as above indicated, that "the only
persons who could claim to be damages by this payment
The court in the same case, after quoting from Sohier v. to the Monte, if it was unlawful, are the donor or the
Mass. General Hospital (3 Cush., 483, 497), wherein the cestuis que trustent, and this Government is neither.
latter court held that it is deemed indispensible that there Consequently, the plaintiff is not the proper party to
should be a power in the legislature to authorize the sale bring the action." The earthquake fund was the result or
of the estates of infants, idiots, insane persons, and the accumulation of a great number of small
persons not known, or not in being, who cannot act for contributions. The names of the contributors do not
themselves, said:jgc:chanrobles.com.ph appear in the record. Their whereabouts are unknown.
They parted with the title to their respective
"These remarks in reference to infants, insane persons contributions. The beneficiaries, consisting of the
and persons not known, or not in being, apply to the original sufferers and their heirs, could have been
beneficiaries of charities, who are often incapable of ascertained. They are quite numerous also. And no doubt
vindicating their rights, and justly look for protection to a large number of the original sufferers have died,
leaving various heirs. It would be impracticable for them and in holding the city liable for the old debt,
to institute an action or actions either individually or said:jgc:chanrobles.com.ph
collectively to recover the $80,000. The only course that
can be satisfactorily pursued is for the Government to "The juristic identity of the corporation has been in no
against assume control of the fund and devote it to the wise affected, and, in law, the present city is, in every
object for which it was originally destined. legal sense, the successor of the old. As such it is
entitled to the property and property rights of the
The impracticability of pursuing a different course, predecessor corporation, and is, in law, subject to all of
however, is not the true ground upon which the right of its liabilities."cralaw virtua1aw library
the Government to maintain the action rests. The true
ground is that the money being given to a charity In support of the fifth assignment of error counsel for the
became, in a measure, public property, only applicable, defendant argue that as the Monte de Piedad declined to
it is true, to the specific purposes to which it was return the $80,000 when ordered to do so by the
intended to be devoted, but within those limits Department of Finance in June, 1893, the plaintiff’s right
consecrated to the public use, and became part of the of action had prescribed at the time this suit was
public resources for promoting the happiness and instituted on May 3, 1912, citing and relying upon
welfare of the Philippine Government. (Mormon Church articles 1961, 1964 and 1969 and of the Civil Code.
v. U. S., supra.) To deny the Government’s right to While on the other hand, the Attorney-General contends
maintain this action would be contrary to sound public that the right of action had not prescribed (a) because the
policy, as tending to discourage the prompt exercise of defense off prescription cannot be set up against the
similar acts of humanity and Christian benevolences in Philippine Government, (b) because the right of action to
like instances in the future. recover a deposit or trust funds does not prescribe, and
(c) even if the defense of prescription could be
As to the question raised in the court assignment of error interposed against the Government and if the action had,
relating to the constitutionality of Act No. 2109, little in fact, prescribed, the same was revived by Act No.
need be said for the reason that we have just held the 2109.
present Philippine Government is the proper party to the
action. The Act is only a manifestation on the part of the The material facts relating to this question are these: The
Philippine Government to exercise the power or right Monte de Piedad received the $80,000 in 1883 "to be
which it undoubtedly had. The Act is not, as contended held under the same conditions as at present in the
by counsel, in conflict with the fifth section of the Act of treasury, to wit, at the disposal of the relief board." In
Congress of July 1, 1902, because it does not take compliance with the provisions of the royal order of
property without due process of law. In fact, the December 3, 1892, the Department of Finance called
defendant is not the owner of the $80,000, but holds it as upon the Monte de Piedad in June, 1893, to return the
a loan subject to the disposal of the central relief board. $80,000. The Monte declined to comply with this order
Therefore, there can be nothing in the Act which upon the ground that only the Governor-General of the
transcends the power of the Philippine Legislature. Philippine Islands and not the Department of Finance
had the right to order the reimbursement. The amount
In Vilas v. Manila, supra, the plaintiff was a creditor of was carried on the books of the Monte as a returnable
the city of Manila as it existed before the cession of the loan until January 1, 1899, when it was transferred to the
Philippine Islands to the United States by the Treaty of account of the "Sagrada Mitra." On March 31, 1902, the
Paris of December 10, 1898. The action was brought Monte, through its legal representative, stated in writing
upon the theory that the city, under its present charter that the amount in question was received as a
from the Government of the Philippine Islands, was the reimbursable loan, without interest. Act No. 2109
same juristic person, and liable upon the obligations of became effective January 30, 1912, and the action was
the old city. This court held that the present municipality instituted on May 3rd of that year.
is a totally different corporate entity and in no way liable
for the debts of the Spanish municipality. The Supreme Counsel for the defendant treat the question of
Court of the United States, in reversing this judgment prescription as if the action was one between individuals
or corporations wherein the plaintiff is seeking to State itself, unless it is expressly designated or the
recover an ordinary loan. Upon this theory June, 1893, mischiefs to be remedies are of such a nature that it must
cannot be taken as the date when the statute of necessarily be included. As legislation of a State can
limitations began to run, for the reason that the only apply to persons and things over which the State
defendant acknowledged in writing on March 31, 1902, has jurisdiction, the United States are also necessarily
that the $80,000 were received as a loan, thereby in excluded from the operation of such statutes.
effect admitting that it still owed the amount. (Section
50, Code of Civil Procedure.) But if counsels’ theory is In 25 Cyc., 1006, the rule, supported by numerous
the correct one the action may have prescribed on May authorities, is stated as follows:jgc:chanrobles.com.ph
3, 1912, because more than ten full years had elapsed
after March 31, 1902. (Sections 38 and 43, Code of Civil "In the absence of express statutory provision to the
Procedure.) contrary, statutes of limitations do not as a general rule
run against the sovereign or government, whether state
Is the Philippine Government bound by the statute of or federal. But the rule is otherwise where the mischiefs
limitations? The Supreme Court of the United States in to be remedies are of such a nature that the state must
U.S. v. Nashville, Chattanooga & St. Louis Railway Co. necessarily be included, where the state goes into
(118 U.S., 120, 125), said:jgc:chanrobles.com.ph business in concert or in competition with her citizens,
or where a party seeks to enforce his private rights by
"It is settled beyond doubt or controversy — upon the suit in the name of the state or government, so that the
foundation of the great principle of public policy, latter is only a nominal party."cralaw virtua1aw library
applicable to all governments alike, which forbids that
the public interests should be prejudiced by the In the instant case the Philippine Government is not a
negligence of the officers or agents to whose care they mere nominal party because it, in bringing and
are confided — that the United States, asserting rights prosecuting this action, is exercising its sovereign
vested in it as a sovereign government, is not bound by functions or powers and is seeking to carry out a trust
any statute of limitations, unless Congress has clearly devolved upon it when the Philippine Islands were ceded
manifested its intention that it should be so bound." to the United States. The United States having in 1852,
(Lindsey v. Miller, 6 Pet. 666; U.S. v. Knight, 14 Pet. purchased as trustee for the Chickasaw Indians under
301, 315; Gibson v. Chouteau, 13 Wall., 92; U.S. v. treaty with that tribe, certain bonds of the State of
Thompson, 98 U. S., 486; Fink v. O’Neil, 106 U.S., 272, Tennessee, the right of action of the Government on the
281.) coupons of such bonds could not be barred by the statute
of limitations of Tennessee, either while it held them in
In Gibson v. Chouteau, supra, the court trust for the Indians, or since it became the owner of
said:jgc:chanrobles.com.ph such coupons. (U. S. v. Nashville, etc., R. Co., supra.)
So where lands are held in trust by the state and the
"It is a matter of common knowledge that statutes of beneficiaries have no right to sue, a statute does not run
limitation do not run against the State. That no laches against the State’s right of action for trespass on the trust
can be imputed to the King, and that no time can bar his lands. (Greene Tp. v. Campbell, 16 Ohio St., 11; see also
rights, was the maxim of the common law, and was Atty. Gen. v. Midland R. Co., 3 Ont., 511 [following
founded on the was the maxim of the common law, and Reg. v. Williams, 39 U.C.Q.B., 397].)
was founded on the principle of public policy, that as he
was occupied with the cares of government he ought not These principles being based "upon the foundation of the
to suffer from the negligence of his officers and servants. great principle of public policy" are, in the very nature of
The principle is applicable to all governments, which things, applicable to the Philippine Government.
must necessarily act through numerous agents, and is
essential to a preservation of the interests and property Counsel in their argument in support of the sixth and last
of the public. It is upon this principle that in this country assignments of error do not question the amount of the
the statutes of a State prescribing periods within which judgment nor do they question the correctness of the
rights must be prosecuted are not held to embrace the judgment in so far as it allows interest, and directs its
payment in gold coin or in the equivalent in Philippine
currency.

For the foregoing reasons the judgment appealed from is

affirmed, with costs against the Appellant. So ordered.