THE PROVINCE OF NORTH COTABATO, et al . v .

THE GOVERNMENT OF THE

REPUBLIC OF THE PHILIPPINES, et al .

President Gloria Macapagal-Arroyo, in line with the government‘s policy of pursuing peace
negotiations with the Moro Islamic Liberation Front (MILF), asked Prime Minister Mahathir
Mohammad to convince the MILF to continue negotiating with the government. MILF, thereafter,
convened its Central Committee and decided to meet with the Government of the Republic of the
Philippines (GRP). Formal peace talks were held in Libya which resulted to the crafting of the
GRP-MILF Tripoli Agreement on Peace (Tripoli Agreement 2001) which consists of three (3)
aspects: a.) security aspect; b.) rehabilitation aspect; and c.) ancestral domain aspect. Various
negotiations were held which led to the finalization of the Memorandum of Agreement on the
Ancestral Domain (MOA-AD). The said memorandum was set to be signed last August 5, 2008.
In its body, it grants ―the authority and jurisdiction over the Ancestral Domain and Ancestral
Lands of the Bangsamoro to the Bangsamoro Juridical Entity (BJE). The latter, in addition, has
the freedom to enter into any economic cooperation and trade relation with foreign countries.
―The sharing between the Central Government and the BJE of total production pertaining to
natural resources is to be 75:25 in favor of the BJE. The MOA-AD further provides for the extent
of the territory of the Bangsamoro. It describes it as ―the land mass as well as the maritime,
terrestrial, fluvial and alluvial domains, including the aerial domain and the atmospheric space
above it, embracing the Mindanao-Sulu-Palawan geographic region. With regard to governance,
on the other hand, a shared responsibility and authority between the Central Government and
BJE was provided. The relationship was described as ―associative. With the formulation of the
MOA-AD, petitioners aver that the negotiation and finalization of the MOA-AD
violates constitutional and statutory provisions on public consultation, as mandated by Executive
Order No. 3, and right to information. They further contend that it violates the Constitution and
laws. Hence, the filing of the petition.

ISSUES:

1) Whether or not the MOA-AD violates constitutional and statutory provisions on public
consultation and right to information 2) Whether or not the MOA-AD violates the Constitution
and the laws.

HELD:

The MOA-AD subject of the present cases is of public concern, involving as it does the sovereignty
and territorial integrity of the State, which directly affects the lives of the public at large. Intended
as a ―splendid symmetry to the right to information under the Bill of Rights is the policy of public
disclosure under Section 28, Article II of the Constitution which provides that subject to
reasonable conditions prescribed by law, the State adopts and implements a policy of full public
disclosure of all its transactions involving public interest. Moreover, the policy of full public
disclosure enunciated in above-quoted Section 28 complements the right of access to
information on matters of public concern found in the Bill of Rights. The right to information
guarantees the right of the people to demand information, while Section 28 recognizes the duty
of officialdom to give information even if nobody demands. The policy of public disclosure
establishes a concrete ethical principle for the conduct of public affairs in a genuinely open
democracy, with the people‘s right to know as the centerpiece. It is a mandate of the State to be
accountable by following such policy. These provisions are vital to the exercise of the freedom of
expression and essential to hold public officials at all times accountable to the people. Indubitably,
the effectivity of the policy of public disclosure need not await the passing of a statute. As Congress
cannot revoke this principle, it is merely directed to provide for ―reasonable safeguards.‖ The
complete and effective exercise of the right to information necessitates that its complementary
provision on public disclosure derive the same self-executory nature. Since both provisions go
hand-in-hand, it is absurd to say that the broader right to information on matters of public
concern is already enforceable while the correlative duty of the State to disclose its transactions
involving public interest is not enforceable until there is an enabling law. Respondents cannot
thus point to the absence of an implementing legislation as an excuse in not effecting such
policy. An essential element of these freedoms is to keep open a continuing dialogue or process of
communication between the government and the people. It is in the interest of the State that the
channels for free political discussion be maintained to the end that the government may perceive
and be responsive to the people‘s will. Envisioned to be corollary to the twin rights to information
and disclosure is the design for feedback mechanisms. The imperative of a public consultation, as
a species of the right to information, is evident in the ―marching orders‖ to respondents. The
mechanics for the duty to disclose information and to conduct public consultation regarding the
peace agenda and process is manifestly provided by E.O. No. 3. The preambulatory clause of E.O.
No. 3 declares that there is a need to further enhance the contribution of civil society to
the comprehensive peace process by institutionalizing the people‘s participation. One of the three
underlying principles of the comprehensive peace process is that it ―should be community-
based, reflecting the sentiments, values and principles important to all Filipinos and ―shall be
defined not by the government alone, nor by the different contending groups only, but by all
Filipinos as one community. Included as a component of the comprehensivepeace process
is consensus-building and empowerment for peace, which includes ―continuing consultations on
both national and local levels to build consensus for a peace agenda and process, and the
mobilization and facilitation of people‘s participation in the peace process.Clearly, E.O. No. 3
contemplates not just the conduct of a plebiscite to effectuate “continuing” consultations, contrary
to respondents’ position that plebiscite is “more than sufficient consultation.Further, E.O. No. 3
enumerates the functions and responsibilities of the PAPP, one of which is to ―conduct regular
dialogues with the National Peace Forum (NPF) and other peace partners to seek relevant
information, comments, recommendations as well as to render appropriate and timely reports on
the progress of the comprehensive peace process. E.O. No. 3 mandates the establishment of the
NPF to be ―the principal forum for the Presidential Adviser on Peace Progress (PAPP) to consult
with and seek advi[c]e from the peace advocates, peace partners and concerned sectors of society
on both national and local levels, on the implementation of the comprehensivepeace process, as
well as for government[-]civil society dialogue and consensus-building on peace agenda and
initiatives. In fine, E.O. No. 3 establishes petitioners’ right to be consulted on the peace agenda,
as a corollary to the constitutional right to information and disclosure. In general, the objections
against the MOA-AD center on the extent of the powers conceded therein to the BJE.
Petitioners assert that the powers granted to the BJE exceed those granted to any local
government under present laws, and even go beyond those of the present ARMM. Before assessing
some of the specific powers that would have been vested in the BJE, however, it would be useful
to turn first to a general idea that serves as a unifying link to the different provisions of the MOA-
AD, namely, the international law concept of association. Significantly, the MOA-AD explicitly
alludes to this concept, indicating that the Parties actually framed its provisions with it in
mind. Association is referred to in paragraph 3 on TERRITORY, paragraph 11 on RESOURCES,
and paragraph 4 on GOVERNANCE. It is in the last mentioned provision, however, that the MOA-
AD most clearly uses it to describe the envisioned relationship between the BJE and the Central
Government.

4. The relationship between the Central Government and the Bangsamoro juridical entity shall be
associative characterized by shared authority and responsibility with a structure of governance
based on executive, legislative, judicial and administrative institutions with defined powers and
functions in the comprehensive compact. A period of transition shall be established in a
comprehensive peace compact specifying the relationship between the Central Government and
the BJE. The nature of the ―associative relationship may have been intended to be defined more
precisely in the still to be forged Comprehensive Compact. Nonetheless, given that there is a
concept of ―association in international law, and the MOA-AD – by its inclusion of international
law instruments in its TOR– placed itself in an international legal context, that concept of
association may be brought to bear in understanding the use of the term ―associative in the MOA-
AD. The MOA-AD contains many provisions which are consistent with the international legal
concept of association, specifically the following: the BJE‘s capacity to enter into economic and
trade relations with foreign countries, the commitment of the Central Government to ensure the
BJE‘s participation in meetings and events in the ASEAN and the specialized UN agencies, and
the continuing responsibility of the Central Government over external defense. Moreover, the
BJE‘s right to participate in Philippine official missions bearing on negotiation of border
agreements, environmental protection, and sharing of revenues pertaining to the bodies of water
adjacent to or between the islands forming part of the ancestral domain, resembles the right of
the governments of FSM and the Marshall Islands to be consulted by the U.S. government on any
foreign affairs matter affecting them. These provisions of the MOA indicate, among other things,
that the Parties aimed to vest in the BJE the status of an associated state or, at any rate, a status
closely approximating it. The concept of association is not recognized under the present
Constitution. No province, city, or municipality, not even the ARMM, is recognized under our laws
as having an ―associative‖ relationship with the national government. Indeed, the concept implies
powers that go beyond anything ever granted by the Constitution to any local or regional
government. It also implies the recognition of the associated entity as a state. The Constitution,
however, does not contemplate any state in this jurisdiction other than the Philippine State, much
less does it provide for a transitory status that aims to prepare any part of Philippine territory for
independence.
Even the mere concept animating many of the MOA-AD‘s provisions, therefore, already requires
for its validity the amendment of constitutional provisions, specifically the following provisions
of Article X:
SECTION 1. The territorial and political subdivisions of the Republic of the Philippines are the
provinces, cities, municipalities, and barangays. There shall be autonomous regions in Muslim
Mindanao and the Cordilleras as hereinafter provided. SECTION 15. There shall be created
autonomous regions in Muslim Mindanao and in the Cordilleras consisting of provinces, cities,
municipalities, and geographical areas sharing common and distinctive historical and cultural
heritage, economic and social structures, and other relevant characteristics within the framework
of this Constitution and the national sovereignty as well as territorial integrity of the Republic of
the Philippines.
It is not merely an expanded version of the ARMM, the status of its relationship with the national
government being fundamentally different from that of the ARMM. Indeed, BJE is a state in all
but name as it meets the criteria of a state laid down in the Montevideo Convention, namely, a
permanent population, a defined territory, a government, and a capacity to enter into relations
with other states.
The defining concept underlying the relationship between the national government and the BJE
being itself contrary to the present Constitution, it is not surprising that many of the specific
provisions of the M OA-AD on the formation and powers of the BJE are in conflict with the
Constitution and the laws. Article X, Section 18 of the Constitution provides that ―[t]he creation
of the autonomous region shall be effective when approved by a majority of the votes cast by the
constituent units in a plebiscite called for the purpose, provided that only provinces, cities, and
geographic areas voting favorably in such plebiscite shall be included in the autonomous region.
The BJE is more of a state than an autonomous region. But even assuming that it is covered by
the term ―autonomous region in the constitutional provision just quoted, the MOA-AD would
still be in conflict with it. Under paragraph 2(c) on TERRITORY in relation to 2(d) and 2(e), the
present geographic area of the ARMM and, in addition, the municipalities of Lanao del Norte
which voted for inclusion in the ARMM during the 2001 plebiscite – Baloi, Munai, Nunungan,
Pantar, Tagoloan and Tangkal – are automatically part of the BJE without need of another
plebiscite, in contrast to the areas under Categories A and B mentioned earlier in the overview.
That the present components of the ARMM and the above-mentioned municipalities voted for
inclusion therein in 2001, however, does not render another plebiscite unnecessary under the
Constitution, precisely because what these areas voted for then was their inclusion in the ARMM,
not the BJE.
Article II, Section 22 of the Constitution must also be amended if the scheme envisioned in the
MOA-AD is to be effected. That constitutional provision states: ―The State recognizes and
promotes the rights of indigenous cultural communities within the framework of national unity
and development. An associative arrangement does not uphold national unity. While there may
be a semblance of unity because of the associative ties between the BJE and the national
government, the act of placing a portion of Philippine territory in a status which, in international
practice, has generally been a preparation for independence, is certainly not conducive to national
unity.
The MOA-AD cannot be reconciled with the present Constitution and laws. Not only its specific
provisions but the very concept underlying them, namely, the associative relationship envisioned
between the GRP and the BJE, are unconstitutional, for the concept presupposes that the
associated entity is a state and implies that the same is on its way to independence.
While there is a clause in the MOA-AD stating that the provisions thereof inconsistent with the
present legal framework will not be effective until that framework is amended, the same does not
cure its defect. The inclusion of provisions in the MOA-AD establishing an associative relationship
between the BJE and the Central Government is, itself, a violation of the Memorandum of
Instructions from the President dated March 1, 2001, addressed to the government peace panel.
Moreover, as the clause is worded, it virtually guarantees that the necessary amendments to the
Constitution and the laws will eventually be put in place. Neither the GRP Peace Panel nor the
President herself is authorized to make such a guarantee. Upholding such an act would amount
to authorizing a usurpation of the constituent powers vested only in Congress, a Constitutional
Convention, or the people themselves through the process of initiative, for the only way that the
Executive can ensure the outcome of the amendment process is through an undue influence or
interference with that process.
MAGALONA VS ERMITA

G.R. No. 187167 16Aug2011

Prof. Merlin Magalona, et al., Petitioners,

vs

Hon. Eduardo Ermita in his capacityas Executive Secretary, et al., Respondents.

Facts:

In March 2009, R.A. 9522 was enacted by the Congress to comply with the terms of the United Nations
Convention on the Law of the Sea (UNCLOS III), which the Philippines ratified on February 27, 1984.

Professor Merlin Magallona et al questioned the validity of RA 9522 as they contend, among others, that
the law decreased the national territory of the Philippines. Some of their particular arguments are as
follows:

RA 9522 reduces Philippine maritime territory, and logically, the reach of the Philippine state’s sovereign
power, in violation of Article 1 of the 1987 Constitution, embodying the terms of the Treaty of Paris and
ancillary treaties.

RA 9522 opens the country’s waters landward of the baselines to maritime passage by all vessels and
aircrafts, undermining Philippine sovereignty and national security, contravening the country’s nuclear-
free policy, and damaging marine resources, in violation of relevant constitutional provisions.

RA 9522’s treatmentof the KIG as “regime of islands” not only results in the loss of a large maritime area
but also prejudices the livelihood of subsistence fishermen.

Hence, petitioners files action for the writs of certiorari and prohibition assails the constitutionality of
Republic Act No. 95221 (RA 9522) adjusting the country’s archipelagic baselines and classifying the
baseline regime of nearby territories.

Issues:

Whether or not RA 9522, the amendatory Philippine Baseline Law is unconstitutional.

Discussions:

The provision of Art I 198 Constitution clearly affirms the archipelagic doctrine, which we connect the
outermost points of our archipelago with straight baselines and consider all the waters enclosed thereby
as internal waters. RA 9522, as a Statutory Tool to Demarcate the Country’s Maritime Zones and
Continental Shelf Under UNCLOS III, gave nothing less than an explicit definition in congruent with the
archipelagic doctrine.
Rulings:

No. The Court finds R.A. 9522 constitutional. It is a Statutory Tool to Demarcate the Country’s Maritime
Zones and Continental Shelf Under UNCLOS III, not to Delineate Philippine Territory. It is a vital step in
safeguarding the country’s maritime zones. It also allows an internationally-recognized delimitation of
the breadth of the Philippine’s maritime zones and continental shelf.

Additionally, The Court finds that the conversion of internal waters into archipelagic waters will not risk
the Philippines as affirmed in the Article 49 of the UNCLOS III, an archipelagic State has sovereign power
that extends to the waters enclosed by the archipelagic baselines, regardless of their depth or distance
from the coast. It is further stated that the regime of archipelagic sea lanes passage will not affect the
status of its archipelagic waters or the exercise of sovereignty over waters and air space, bed and subsoil
and the resources therein.

The Court further stressed that the baseline laws are mere mechanisms for the UNCLOS III to precisely
describe the delimitations. It serves as a notice to the international family of states and it is in no way
affecting or producing any effect like enlargement or diminution of territories.

MAGALLONA v. ERMITA, G.R. 187167, August 16, 2011

Facts:

In 1961, Congress passed R.A. 3046 demarcating the maritime

baselines of the Philippines as an Archepelagic State pursuant to
UNCLOS I of 9158, codifying the sovereignty of State parties over their
territorial sea. Then in 1968, it was amended by R.A. 5446, correcting
some errors in R.A. 3046 reserving the drawing of baselines around
Sabah.

In 2009, it was again amended by R.A. 9522, to be compliant with the

UNCLOS III of 1984. The requirements complied with are: to shorten
one baseline, to optimize the location of some basepoints and classify
KIG and Scarborough Shoal as ‘regime of islands’.

Petitioner now assails the constitutionality of the law for three main
reasons:

1. it reduces the Philippine maritime territory under Article 1;

2. it opens the country’s waters to innocent and sea lanes passages

hence undermining our sovereignty and security; and
3. treating KIG and Scarborough as ‘regime of islands’ would weaken
our claim over those territories.

Issue: Whether R.A. 9522 is constitutional?

Ruling:

1. UNCLOS III has nothing to do with acquisition or loss of territory. it is

just a codified norm that regulates conduct of States. On the other hand,
RA 9522 is a baseline law to mark out basepoints along coasts, serving
as geographic starting points to measure. it merely notices the
international community of the scope of our maritime space.

2. If passages is the issue, domestically, the legislature can enact

legislation designating routes within the archipelagic waters to regulate
innocent and sea lanes passages. but in the absence of such,
international law norms operate.

the fact that for archipelagic states, their waters are subject to both
passages does not place them in lesser footing vis a vis continental
coastal states. Moreover, RIOP is a customary international law, no
modern state can invoke its sovereignty to forbid such passage.

3. On the KIG issue, RA 9522 merely followed the basepoints mapped

by RA 3046 and in fact, it increased the Phils.’ total maritime space.
Moreover, the itself commits the Phils.’ continues claim of sovereignty
and jurisdiction over KIG.

If not, it would be a breach to 2 provisions of the UNCLOS III:

Art. 47 (3): ‘drawing of basepoints shall not depart to any appreciable

extent from the general configuration of the archipelago’.

Art 47 (2): the length of baselines shall not exceed 100 mm.

KIG and SS are far from our baselines, if we draw to include them, we’ll
breach the rules: that it should follow the natural configuration of the
archipelago.
In March 2009, Republic Act 9522, an act defining the archipelagic baselines of the Philippines was
enacted – the law is also known as the Baselines Law. This law was meant to comply with the terms of
the third United Nations Convention on the Law of the Sea (UNCLOS III), ratified by the Philippines in
February 1984.

Professor Merlin Magallona et al questioned the validity of RA 9522 as they contend, among others, that
the law decreased the national territory of the Philippines hence the law is unconstitutional. Some of
their particular arguments are as follows:

a. the law abandoned the demarcation set by the Treaty of Paris and other ancillary treaties – this also
resulted to the exclusion of our claim over Sabah;

b. the law, as well as UNCLOS itself, describes the Philippine waters as “archipelagic” waters which, in
international law, opens our waters landward of the baselines to maritime passage by all vessels
(innocent passage) and aircrafts (overflight), undermining Philippine sovereignty and national security,
contravening the country’s nuclear-free policy, and damaging marine resources, in violation of relevant
constitutional provisions;

c. the classification of the Kalayaan Island Group (KIG), as well as the Scarborough Shoal (bajo de
masinloc), as a “regime of islands” pursuant to UNCLOS results in the loss of a large maritime area but
also prejudices the livelihood of subsistence fishermen.

ISSUE: Whether or not the contentions of Magallona et al are tenable.

HELD: No. The Supreme Court emphasized that RA 9522, or UNCLOS, itself is not a means to acquire, or
lose, territory. The treaty and the baseline law has nothing to do with the acquisition, enlargement, or
diminution of the Philippine territory. What controls when it comes to acquisition or loss of territory is
the international law principle on occupation, accretion, cession and prescription and NOT the execution
of multilateral treaties on the regulations of sea-use rights or enacting statutes to comply with the
treaty’s terms to delimit maritime zones and continental shelves.

The law did not decrease the demarcation of our territory. In fact it increased it. Under the old law
amended by RA 9522 (RA 3046), we adhered with the rectangular lines enclosing the Philippines. The
area that it covered was 440,994 square nautical miles (sq. na. mi.). But under 9522, and with the
inclusion of the exclusive economic zone, the extent of our maritime was increased to 586,210 sq. na.
mi. (See image below for comparison)

If any, the baselines law is a notice to the international community of the scope of the maritime space
and submarine areas within which States parties exercise treaty-based rights.
PHAP VS SEC OF HEALTH

FACTS: On October 28, 1986, Executive Order No. 51 (Milk Code) was issued by President Corazon
Aquino by virtue of the legislative powers granted to the president under the Freedom Constitution. The
Milk Code states that the law seeks to give effect to Article 112 of the International Code of Marketing
of Breastmilk Substitutes (ICMBS), a code adopted by the World Health Assembly (WHA) in 1981. From
1982 to 2006, the WHA adopted several Resolutions to the effect that breastfeeding should be
supported, promoted and protected, hence, it should be ensured that nutrition and health claims are
not permitted for breastmilk substitutes. the Philippines ratified the International Convention on the
Rights of the Child. Article 24 of said instrument provides that State Parties should take appropriate
measures to diminish infant and child mortality, and ensure that all segments of society, specially
parents and children, are informed of the advantages of breastfeeding. the DOH issued RIRR which was
to take effect on July 7, 2006. a petition for certiorari under Rule 65 of the Rules of Court, seeking to
nullify Revised Implementing Rules and Regulations of The “Milk Code,” assailing that the RIRR was
going beyond the provisions of the Milk Code, thereby amending and expanding the coverage of said
law.

ISSUE: Whether or not respondents officers of the DOH acted without or in excess of jurisdiction, or with
grave abuse of discretion amounting to lack or excess of jurisdiction, and in violation of the provisions of
the Constitution in promulgating the RIRR

RULING:

The Supreme Court PARTIALLY GRANTED the petition. Sections 4(f), 11 and 46 of Administrative Order
No. 2006-0012 dated May 12, 2006 are declared NULL and VOID for being ultra vires. The Department of
Health and respondents are PROHIBITED from implementing said provisions. The international
instruments pointed out by the respondents, UNRC, ICESR, CEDAW, are deemed part of the law of the
land and therefore the DOH may implement them through the RIRR. Customary international law is
deemed incorporated into our domestic system. Custom or customary international law means “a
general and consistent practice of states followed by them from a sense of legal obligation (opinio juris).
Under the 1987 Constitution, international law can become part of the sphere of domestic law either by
transformation or incorporation. The transformation method requires that an international law be
transformed into a domestic law through a constitutional mechanism such as local legislation.
“Generally accepted principles of international law” refers to norms of general or customary
international law which are binding on all states. The Milk Code is a verbatim reproduction of the
(ICMBS), but it did not prohibit advertising or other forms of promotion to the general public of
products. Instead, the Milk Code expressly provides that advertising, promotion, or other marketing
materials may be allowed if such materials are duly authorized and approved by the Inter-Agency
Committee (IAC). In this regard, the WHA Resolutions adopting the ICMBS are merely recommendatory
and legally non-binding. This may constitute “soft law” or non-binding norms, principles and practices
that influence state behavior. Respondents have not presented any evidence to prove that the WHA
Resolutions, although signed by most of the member states, were in fact enforced or practiced by at
least a majority of the member states and obligatory in nature. The provisions of the WHA Resolutions
cannot be considered as part of the law of the land that can be implemented by executive agencies
without the need of a law enacted by the legislature. On the other hand, the petitioners also failed to
explain and prove by competent evidence just exactly how such protective regulation would result in
the restraint of trade. Since all the regulatory provisions under the Milk Code apply equally to both
manufacturers and distributors, the Court sees no harm in the RIRR. Except Sections 4(f), 11 and 46, the
rest of the provisions of the RIRR are in consonance with the objective, purpose and intent of the Milk
Code.

********************************

This case concerns a petition challenging the validity of a Department of Health (DOH) Administrative
Order (RIRR), claiming that it contained provisions, including a ban on the advertising of breastmilk
substitutes, that were not constitutional and went beyond the scope of the law it was supposed to
implement (Milk Code). The Milk Code gave effect to the International Code of Marketing of Breastmilk
Substitutes (ICMBS), a code adopted by the World Health Assembly (WHA). The WHA had since adopted
several Resolutions to the effect that breastfeeding should be supported, promoted and protected.

Issue and resolution:

Constitutionality of the provisions of the RIRR. The Court partially granted the petition, declaring certain
provisions of the RIRR that prohibited the advertising and promotion of breastmilk substitutes and
provided for administrative sanctions not found in the Milk Code in contravention of the Milk Code, and
therefore null and void.

Court reasoning:

The Court considered whether certain international instruments are part of the law of the Philippines.
The Court noted that the CRC does not contain specific provisions regarding the use or marketing of
breastmilk substitutes. Instead, the relevant provisions are contained in the ICMBS and various WHA
Resolutions. The ICMBS had been transformed into domestic law through local legislation, the Milk
Code, and consequently it is the Milk Code that has the force and effect of law in the Philippines, and
not the ICMBS per se. However, the Milk Code did not adopt the provision in the ICMBS absolutely
prohibiting advertising of breastmilk substitutes, but instead created the Inter-Agency Committee to
regulate such advertising. By contrast, the subsequent WHA Resolutions specifically prohibiting
advertisements and promotions of breastmilk substitutes have not been adopted as domestic law.
Moreover, such Resolutions do not form part of customary international law. Instead, they may
constitute “soft law” or non-binding norms, principles and practices that influence state behavior (such
as the Universal Declaration of Human Rights).
On the issue of whether the the RIRR is in accordance with the Milk Code, the Court found that sections
4(f) and 11 (prohibition on the advertising and promotion of breastmilk substitutes) and 46 (providing
for administrative sanctions that are not found in the Milk Code) went beyond the DOH’s authority and
contravened the Milk Code, and were therefore null and avoid. The Court found that the rest of the
provisions of the RIRR are consistent with the Milk Code. Finally, the Court dismissed the petitioner’s
argument that the RIRR is unnecessary and oppressive, and offensive to the due process clause of the
Constitution insofar as it amounts to a restraint of trade, because trade must be subjected to some form
of regulation for the public good and public interests must trump business interests.

Excerpts citing CRC and other relevant human rights instruments:

In 1990, the Philippines ratified the International Convention on the Rights of the Child. Article 24 of said
instrument provides that State Parties should take appropriate measures to diminish infant and child
mortality, and ensure that all segments of society, specially parents and children, are informed of the
advantages of breastfeeding. [...]

First, the Court will determine if pertinent international instruments adverted to by respondents are
part of the law of the land.

Petitioner assails the RIRR for allegedly going beyond the provisions of the Milk Code, thereby amending
and expanding the coverage of said law. The defense of the DOH is that the RIRR implements not only
the Milk Code but also various international instruments regarding infant and young child nutrition. It is
respondents' position that said international instruments are deemed part of the law of the land and
therefore the DOH may implement them through the RIRR.

The Court notes that the following international instruments invoked by respondents, namely: (1) The
United Nations Convention on the Rights of the Child; (2) The International Covenant on Economic,
Social and Cultural Rights; and (3) the Convention on the Elimination of All Forms of Discrimination
Against Women, only provide in general terms that steps must be taken by State Parties to diminish
infant and child mortality and inform society of the advantages of breastfeeding, ensure the health and
well-being of families, and ensure that women are provided with services and nutrition in connection
with pregnancy and lactation. Said instruments do not contain specific provisions regarding the use or
marketing of breastmilk substitutes. [...]

“Soft law” does not fall into any of the categories of international law set forth in Article 38, Chapter III
of the 1946 Statute of the International Court of Justice. It is, however, an expression of non-binding
norms, principles, and practices that influence state behavior. Certain declarations and resolutions of
the UN General Assembly fall under this category. The most notable is the UN Declaration of Human
Rights, which this Court has enforced in various cases, specifically, Government of Hongkong Special
Administrative Region v. Olalia, Mejoff v. Director of Prisons, Mijares v. Rañadaand Shangri-la
International Hotel Management, Ltd. v. Developers Group of Companies, Inc. [...]

CRIN Comments:

CRIN believes that this decision is consistent with the CRC. Although the CRC was found to be not
directly relevant to this case as the Convention does not specifically address the use or marketing of
breastmilk substitutes, CRIN emphasises children’s right to health under Article 24, which includes the
obligation of the state to ensure that all segments of society, in particular parents and children, are
informed of the advantages of breastfeeding.

GUDANI VS SENGA
FACTS:
The Senate invited Gen. Gudani and Lt. Col. Balutan to clarify allegations of 2004 election fraud and the
surfacing of the “Hello Garci” tapes. PGMA issued EO 464 enjoining officials of the executive department
including the military establishment from appearing in any legislative inquiry without her consent. AFP
Chief of Staff Gen. Senga issued a Memorandum, prohibiting Gen. Gudani, Col. Balutan et al from
appearing before the Senate Committee without Presidential approval. However, the two appeared before
the Senate in spite the fact that a directive has been given to them. As a result, the two were relieved of
their assignments for allegedly violating the Articles of War and the time honoured principle of the “Chain
of Command.” Gen. Senga ordered them to be subjected before the General Court Martial proceedings
for willfuly violating an order of a superior officer.

ISSUE:
Whether or not the President has the authority to issue an order to the members of the AFP preventing
them from testifying before a legislative inquiry.

RULING:
Yes. The SC hold that President has constitutional authority to do so, by virtue of her power as
commander-in-chief, and that as a consequence a military officer who defies such injunction is liable
under military justice. At the same time, any chamber of Congress which seeks the appearance before it
of a military officer against the consent of the President has adequate remedies under law to compel such
attendance. Any military official whom Congress summons to testify before it may be compelled to do so
by the President. If the President is not so inclined, the President may be commanded by judicial order to
compel the attendance of the military officer. Final judicial orders have the force of the law of the land
which the President has the duty to faithfully execute.
SC ruled in Senate v. Ermita that the President may not issue a blanket requirement of prior consent on
executive officials summoned by the legislature to attend a congressional hearing. In doing so, the Court
recognized the considerable limitations on executive privilege, and affirmed that the privilege must be
formally invoked on specified grounds. However, the ability of the President to prevent military officers
from testifying before Congress does not turn on executive privilege, but on the Chief Executive’s power
as commander-in-chief to control the actions and speech of members of the armed forces. The
President’s prerogatives as commander-in-chief are not hampered by the same limitations as in executive
privilege.

At the same time, the refusal of the President to allow members of the military to appear before Congress
is still subject to judicial relief. The Constitution itself recognizes as one of the legislature’s functions is the
conduct of inquiries in aid of legislation. Inasmuch as it is ill-advised for Congress to interfere with the
President’s power as commander-in-chief, it is similarly detrimental for the President to unduly interfere
with Congress’s right to conduct legislative inquiries. The impasse did not come to pass in this petition,
since petitioners testified anyway despite the presidential prohibition. Yet the Court is aware that with its
pronouncement today that the President has the right to require prior consent from members of the armed
forces, the clash may soon loom or actualize.

The duty falls on the shoulders of the President, as commander-in-chief, to authorize the appearance of
the military officers before Congress. Even if the President has earlier disagreed with the notion of
officers appearing before the legislature to testify, the Chief Executive is nonetheless obliged to comply
with the final orders of the courts.

Facts of the Case:

Senator Biazon invited senior officers of the Armed Forces of the Philippines (AFP) including General
Gudani to appear before a public hearing in the Senate Committee on National Defense and Security
wherein Hello Garci controversy of President Gloria Macapagal Arroyo emerged. Upon the discretion
of the President, AFP Chief of Staff Senga issued a memorandum prohibiting General Gudani and
company from appearing before the Senate Committee without Presidential approval. However,
General Gudani and Colonel Batulan still attended the said committee in compliance with Senator
Biazon.

Issue:

Can the President can prevent military officers from testifying a legislative inquiry?

Court Ruling:

YES. By virtue of her power as a commander-in-chief of the Armed Forces of the Philippines,
President Gloria Macapagal Arroyo has the constitutional authority to prohibit members of the AFP
from attending a Senate hearing.

This is also under her prerogative as the highest official of the AFP. Note that it is not an invocation
of her executive privilege, but on the Chief Executive's power to control the actions and speech of the
members of the AFP. Non-compliance of the military subordinates would violate the principle that
'the civilian authority is supreme over the military authority'.
Bayan vs exe sec

THE FACTS

The Republic of the Philippines and the United States of America entered into an agreement
called the Visiting Forces Agreement (VFA). The agreement was treated as a treaty by the Philippine
government and was ratified by then-President Joseph Estrada with the concurrence of 2/3 of the total
membership of the Philippine Senate.

The VFA defines the treatment of U.S. troops and personnel visiting the Philippines. It provides
for the guidelines to govern such visits, and further defines the rights of the U.S. and the Philippine
governments in the matter of criminal jurisdiction, movement of vessel and aircraft, importation and
exportation of equipment, materials and supplies.

Petitioners argued, inter alia, that the VFA violates §25, Article XVIII of the 1987 Constitution,
which provides that “foreign military bases, troops, or facilities shall not be allowed in the Philippines
except under a treaty duly concurred in by the Senate . . . and recognized as a treaty by the other
contracting State.”

II. THE ISSUE

Was the VFA unconstitutional?

III. THE RULING

[The Court DISMISSED the consolidated petitions, held that the petitioners did not commit
grave abuse of discretion, and sustained the constitutionality of the VFA.]

NO, the VFA is not unconstitutional.

Section 25, Article XVIII disallows foreign military bases, troops, or facilities in the country,
unless the following conditions are sufficiently met, viz: (a) it must be under a treaty; (b) the treaty
must be duly concurred in by the Senate and, when so required by congress, ratified by a majority
of the votes cast by the people in a national referendum; and (c) recognized as a treaty by the other
contracting state.

There is no dispute as to the presence of the first two requisites in the case of the VFA. The
concurrence handed by the Senate through Resolution No. 18 is in accordance with the provisions of
the Constitution . . . the provision in [in §25, Article XVIII] requiring ratification by a majority of the votes
cast in a national referendum being unnecessary since Congress has not required it.

xxx xxx xxx

This Court is of the firm view that the phrase “recognized as a treaty” means that the other
contracting party accepts or acknowledges the agreement as a treaty. To require the other
contracting state, the United States of America in this case, to submit the VFA to the United States
Senate for concurrence pursuant to its Constitution, is to accord strict meaning to the phrase.

Well-entrenched is the principle that the words used in the Constitution are to be given their
ordinary meaning except where technical terms are employed, in which case the significance thus
attached to them prevails. Its language should be understood in the sense they have in common use.
 Moreover, it is inconsequential whether the United States treats the VFA only as an executive
agreement because, under international law, an executive agreement is as binding as a treaty. To be
sure, as long as the VFA possesses the elements of an agreement under international law, the said
agreement is to be taken equally as a treaty.

xxx xxx xxx

The records reveal that the United States Government, through Ambassador Thomas C.
Hubbard, has stated that the United States government has fully committed to living up to the terms
of the VFA. For as long as the United States of America accepts or acknowledges the VFA as a treaty,
and binds itself further to comply with its obligations under the treaty, there is indeed marked
compliance with the mandate of the Constitution.
Lim v. Executive Secretary

Lessons Applicable: Locus Standi, International Law v. Muncipal Law, Certiorari, Incorporation
Clause, Treaties

Laws Applicable: Constitution

FACTS:

Pursuant to the Visiting Forces Agreement (VFA) signed in 1999, personnel from the armed
forces of the United States of America started arriving in Mindanao to take partin "Balikatan 02-1” on
January 2002. The Balikatan 02-1 exercises involves the simulation of joint military maneuvers
pursuant to the Mutual Defense Treaty, a bilateral defense agreement entered into by the Philippines
and the United States in 1951. The exercise is rooted from the international anti-terrorism campaign
declared by President George W. Bush in reaction to the 3 commercial aircrafts hijacking that
smashed into twin towers of the World Trade Center in New York City and the Pentagon building in
Washington, D.C. allegedly by the al-Qaeda headed by the Osama bin Laden that occurred on
September 11, 2001. Arthur D. Lim and Paulino P. Ersando as citizens, lawyers and taxpayers filed
a petition for certiorari and prohibition attacking the constitutionality of the joint exercise. Partylists
Sanlakas and Partido Ng Manggagawa as residents of Zamboanga and Sulu directly affected by the
operations filed a petition-in-intervention.

The Solicitor General commented the prematurity of the action as it is based only on a fear of
future violation of the Terms of Reference and impropriety of availing of certiorari to ascertain a
question of fact specifically interpretation of the VFA whether it is covers "Balikatan 02-1” and no
question of constitutionality is involved. Moreover, there is lack of locus standi since it does not
involve tax spending and there is no proof of direct personal injury.

ISSUE: W/N the petition and the petition-in-intervention should prosper.

HELD: NO. Petition and the petition-in-intervention are hereby DISMISSED without prejudice to the
filing of a new petition sufficient in form and substance in the proper Regional Trial Court - Supreme
Court is not a trier of facts

Doctrine of Importance to the Public

Considering however the importance to the public of the case at bar, and in keeping with the Court's
duty, under the 1987 Constitution, to determine whether or not the other branches of the government
have kept themselves within the limits of the Constitution and the laws that they have not abused the
discretion given to them, the Court has brushed aside technicalities of procedure and has taken
cognizance of this petition.

Although courts generally avoid having to decide a constitutional question based on the doctrine of
separation of powers, which enjoins upon the department of the government a becoming respect for
each other's act, this Court nevertheless resolves to take cognizance of the instant petition.
Interpretation of Treaty
The VFA permits United States personnel to engage, on an impermanent basis, in "activities," the
exact meaning of which was left undefined. The expression is ambiguous, permitting a wide scope of
undertakings subject only to the approval of the Philippine government. The sole encumbrance
placed on its definition is couched in the negative, in that United States personnel must "abstain from
any activity inconsistent with the spirit of this agreement, and in particular, from any political activity."
All other activities, in other words, are fair game.
To aid in this, the Vienna Convention on the Law of Treaties Article 31 SECTION 3 and Article 32
contains provisos governing interpretations of international agreements. It is clear from the
foregoing that the cardinal rule of interpretation must involve an examination of the text, which is
presumed to verbalize the parties' intentions. The Convention likewise dictates what may be used as
aids to deduce the meaning of terms, which it refers to as the context of the treaty, as well as other
elements may be taken into account alongside the aforesaid context. According to Professor Briggs,
writer on the Convention, the distinction between the general rule of interpretation and the
supplementary means of interpretation is intended rather to ensure that the supplementary means
do not constitute an alternative, autonomous method of interpretation divorced from the general rule.
The meaning of the word “activities" was deliberately made that way to give both parties a certain
leeway in negotiation. Thus, the VFA gives legitimacy to the current Balikatan exercises. Both the
history and intent of the Mutual Defense Treaty and the VFA support the conclusion that combat-
related activities -as opposed to combat itself -such as the one subject of the instant petition, are
indeed authorized.
The Terms of Reference are explicit enough. Paragraph 8 of section I stipulates that US exercise
participants may not engage in combat "except in self-defense." ." The indirect violation is actually
petitioners' worry, that in reality, "Balikatan 02-1" is actually a war principally conducted by the
United States government, and that the provision on self-defense serves only as camouflage to
conceal the true nature of the exercise. A clear pronouncement on this matter thereby becomes
crucial. In our considered opinion, neither the MDT nor the VFA allow foreign troops to engage in an
offensive war on Philippine territory. Under the salutary proscription stated in Article 2 of the Charter
of the United Nations.
Both the Mutual Defense Treaty and the Visiting Forces Agreement, as in all other treaties and
international agreements to which the Philippines is a party, must be read in the context of the 1987
Constitution especially Sec. 2, 7 and 8 of Article 2: Declaration of Principles and State Policies in this
case. The Constitution also regulates the foreign relations powers of the Chief Executive when it
provides that "[n]o treaty or international agreement shall be valid and effective unless concurred in
by at least two-thirds of all the members of the Senate." Even more pointedly Sec. 25 on Transitory
Provisions which shows antipathy towards foreign military presence in the country, or of foreign
influence in general. Hence, foreign troops are allowed entry into the Philippines only by way of
direct exception.
International Law vs. Fundamental Law and Municipal Laws
Conflict arises then between the fundamental law and our obligations arising from international
agreements.
Philip Morris, Inc. v. Court of Appeals: “Withal, the fact that international law has been made part of
the law of the land does not by any means imply the primacy of international law over national law in
the municipal sphere. Under the doctrine of incorporation as applied in most countries, rules of
international law are given a standing equal, not superior, to national legislation.”
From the perspective of public international law, a treaty is favored over municipal law pursuant to
the principle of pacta sunt servanda. Hence, "[e]very treaty in force is binding upon the parties to it
and must be performed by them in good faith." Further, a party to a treaty is not allowed to "invoke
the provisions of its internal law as justification for its failure to perform a treaty."
Our Constitution espouses the opposing view as stated in section 5 of Article VIII: “The Supreme
Court shall have the following powers: xxx
(2) Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the Rules of Court
may provide, final judgments and order of lower courts in:
(A) All cases in which the constitutionality or validity of any treaty, international or executive
agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation is in
question.”
Ichong v. Hernandez: “provisions of a treaty are always subject to qualification or amendment by a
subsequent law, or that it is subject to the police power of the State”
Gonzales v. Hechanova: “our Constitution authorizes the nullification of a treaty, not only when it
conflicts with the fundamental law, but, also, when it runs counter to an act of Congress.”
The foregoing premises leave us no doubt that US forces are prohibited / from engaging in an
offensive war on Philippine territory.