NORTH SEA CONTINENTAL SHELF

CASES (SUMMARY)
International Court of Justice Contentious Case: The North Sea Continental Shelf Cases (Germany/Denmark;
Germany/Netherlands).

Year of Decision: 1969.

Note: This post discusses only aspects of the case related to treaty and customary international law.

Overview: The jurisprudence of the North Sea Continental Shelf Cases sets out the dual requirement for the
formation of customary international law: (1) State practice (the objective element) and (2) opinio juris (the
subjective element). In these cases, the Court explained the criteria necessary to establish State practice –
widespread and representative participation. It highlighted that the practices of those States whose interests were
specially affected by the custom were especially relevant in the formation of customary law. It also held that uniform
and consistent practice was necessary to demonstrate opinio juris – opinio juris is the belief that State practice
amounts to a legal obligation. The North Sea Continental Self Cases also dispelled the myth that duration of
the practice (i.e. the number of years) was an essential factor in forming customary international law.

The case involved the delimitation of the continental shelf areas in the North Sea between Germany and Denmark
and Germany and Netherlands beyond the partial boundaries previously agreed upon by these States. The parties
requested the Court to decide the principles and rules of international law that are applicable to the above
delimitation because the parties disagreed on the applicable principles or rules of delimitation. Netherlands and
Denmark relied on the principle of equidistance (the method of determining the boundaries in such a way that every
point in the boundary is equidistant from the nearest points of the baselines from which the breath of the territorial
sea of each State is measured). Germany sought to get a decision in favour of the notion that the delimitation of the
relevant continental shelf was governed by the principle that each coastal state is entitled to a just and equitable
share (hereinafter called just and equitable principle/method). Contrary to Denmark and Netherlands, Germany
argued that the principle of equidistance was neither a mandatory rule in delimitation of the continental shelf nor a
rule of customary international law that was binding on Germany. The Court was not asked to delimit because the
parties had already agreed to delimit the continental shelf as between their countries, by agreement, after the
determination of the Court on the applicable principles.

Facts of the Case:

Netherlands and Denmark had drawn partial boundary lines based on the equidistance principle (A-B and C-D). An
agreement on further prolongation of the boundary proved difficult because Denmark and Netherlands wanted this
prolongation to take place based on the equidistance principle (B-E and D-E) where as Germany was of the view
that, together, these two boundaries would produce an inequitable result for her. Germany stated that due to its
concave coastline, such a line would result in her loosing out on her share of the continental shelf based on
proportionality to the length of its North Sea coastline. The Court had to decide the principles and rules of
international law applicable to this delimitation. In doing so, the Court had to decide if the principles espoused by
the parties were binding on the parties either through treaty law or customary international law.
North Sea Continental Shelf Cases (commons.wikimedia.org)

Questions before the Court (as relevant to this post):

Is Germany under a legal obligation to accept the equidistance-special circumstances principle, contained in Article
6 of the Geneva Convention on the Continental Shelf of 1958, either as a customary international law rule or on the
basis of the Geneva Convention?

The Court’s Decision:

The use of the equidistance method had not crystallised into customary law and the method was not obligatory for
the delimitation of the areas in the North Sea related to the present proceedings.

Relevant Findings of the Court:

1. Nature of the treaty obligation: Is the 1958 Geneva Convention, and in particular Article 6, binding on Germany?

1. Article 6 of the Geneva Convention stated that unless the parties had already agreed on a method for delimitation
or unless special circumstances exist, the equidistance method would apply. Germany had signed, but not ratified,
the Geneva Convention, while Netherlands and Denmark were parties to the Convention. The latter two States
argued that while Germany is not a party to the Convention (not having ratified it), she was still bound by Article 6
of the Convention because:

“…(1) by conduct, by public statements and proclamations, and in other ways, the Republic has unilaterally
assumed the obligations of the Convention; or has manifested its acceptance of the conventional regime; or has
recognized it as being generally applicable to the delimitation of continental shelf areas…

(2) the Federal Republic had held itself out as so assuming, accepting or recognizing, in such a manner as to cause
other States, and in particular Denmark and the Netherlands, to rely on the attitude thus taken up” (the latter is
called the principle of estoppel).

2. The Court rejected the first argument. It said that only a ‘very definite very consistent course of conduct on the
part of a State would allow the Court to presume that the State had somehow become bound by a treaty (by a means
other than in the formal manner: i.e. ratification) when the State was ‘at all times fully able and entitled to…’ accept
the treaty commitments in a formal manner. The Court held that Germany had not unilaterally assumed obligations
under the Convention. The court also took notice of the fact that even if Germany ratified the treaty, she had the
option of entering into a reservation on Article 6, following which that particular article would no longer be
applicable to Germany (in other words, even if one were to assume that Germany had intended to become a party to
the Convention, it does not presuppose that it would have also undertaken those obligations contained in Article 6).

3. Note: The Vienna Convention on the Law of Treaties of 1969 (VCLT), which came into force in 1980,
discusses in more detail treaty obligations of third States (those States who are not parties to the treaty). It clearly
stipulates that obligations arise for third States from a provision of a treaty only if (1) the actual parties to the treaty
intended the provision to create obligations for third States; and (2) third State expressly accept those obligations in
writing (Article 35 of the VCLT). The VCLT was not in force when the Court deliberated on this case. However, as
seen above, the Court’s position is consistent the VCLT. (See the relevant provisions of the Vienna Convention on
the Law of Treaties).

4. The Court held that the existence of a situation of estoppel would have allowed Article 6 to become binding on
Germany – but held that Germany’s action did not support an argument for estoppel. The Court also held that the
mere fact that Germany may not have specifically objected to the equidistance principle as contained in Article 6, is
not sufficient to state that the principle is now binding upon it.

5. In conclusion, the Court held that Germany had not acted in any manner so as to incur obligations contained in
Article 6 of the Geneva Convention. The equidistance–special circumstances rule was not binding on Germany by
way of treaty law.

2. Nature of the customary international law obligation: Is Germany bound by the provisions of Article 6 of the
Geneva Convention in so far as they reflect customary international law?

6. Netherlands and Denmark argued that Article 6 also reflected ‘the accepted rule of general international law on
the subject of continental shelf delimitation’ and that it existed independently of the Convention. Therefore, they
argued, Germany is bound by the subject matter of Article 6 by way of customary international law.

7. To decide if the equidistance principle bound Germany by way of customary international law, the Court
examined (1) the status of the principle contained in Article 6 as it stood when the Convention was being drawn up;
and (2) its status after the Convention came into force.

(a) What was the customary law status of Article 6 at the time of drafting the Convention?

8. The Court held that the principle of equidistance, as contained in Article 6 did not form a part of existing or
emerging customary international law at the time of drafting the Convention. The Court supported this finding based
on (1) the hesitation expressed by the drafters of the Convention, the International Law Commission, on the
inclusion of Article 6 into the Convention and (2) the fact that reservations to Article 6 was permissible under the
Convention. The Court held:

“… Article 6 is one of those in respect of which, under the reservations article of the Convention (Article 12)
reservations may be made by any State on signing, ratifying or acceding, – for speaking generally, it is a
characteristic of purely conventional rules and obligations that, in regard to them, some faculty of making unilateral
reservations may, within certain limits, be admitted; whereas this cannot be so in the case of general or customary
law rules and obligations which, by their very nature, must have equal force for all members of the international
community, and cannot therefore be the subject of any right of unilateral exclusion exercisable at will by any one of
them in its own favor…. The normal inference would therefore be that any articles that do not figure among those
excluded from the faculty of reservation under Article 12, were not regarded as declaratory of previously existing or
emergent rules of law …” (see para 65 for a counter argument and the Court’s careful differentiation)

(b) Did the provisions in Article 6 on the equidistance principle attain the customary law status after the Convention
came into force?

9. The Court then examined whether the rule contained in Article 6 had become customary international law after
the Convention entered into force – either due the Convention itself (i.e., if enough States had ratified the
Convention in a manner so as to fulfil the criteria specified below), or because of subsequent State practice (i.e. even
if an adequate number of States had not ratified the Convention, one could find sufficient State practice to meet the
criteria below). The Court held that Article 6 of the Convention had not attained a customary law status. (Compare
the 1958 Geneva Convention with the four Geneva Conventions on 1949 relating to international humanitarian law
in terms of the latter’s authority as a pronouncement of customary international law).

10. For a customary rule to emerge the Court held that it needed: (1) very widespread and representative
participation in the Convention, including States whose interests were specially affected (in this case, they were
coastal States) (i.e. generality); and (2) virtually uniform practice (i.e. consistent and uniform usage) undertaken in a
manner that demonstrates (3) a general recognition of the rule of law or legal obligation (i.e. opinio juries). In the
North Sea Continental Shelf cases the court held that the passage of a considerable period of time was unnecessary
(i.e. duration) for the formation of a customary law.

Widespread and representative participation

11. The Court held that the first criteria was not met. The number of ratifications and accessions to the Convention
(39 States) were not adequately representative or widespread.

Duration

12. The Court held that the duration taken for a customary law rule to emerge is not as important as widespread and
representative participation, uniform usage, and the existence of an opinio juris. It held that:

“Although the passage of only a short period of time (in this case, 3 – 5 years) is not necessarily, or of itself, a bar
to the formation of a new rule of customary international law on the basis of what was originally a purely
conventional rule, an indispensable requirement would be that within the period in question, short though it might
be, State practice, including that of States whose interests are specially affected, should have been both extensive
and virtually uniform in the sense of the provision invoked and should moreover have occurred in such a way as to
show a general recognition that a rule of law or legal obligation is involved.”

Opinio juris
13. Opinio juris is reflected in acts of States (Nicaragua Case) or in omissions (Lotus case), in so far as those acts or
omissions were done following a belief that the said State is obligated by law to act or refrain from acting in a
particular way. (For more on opinio juris click here).

14. The Court examined 15 cases where States had delimited their boundaries using the equidistance method, after
the Convention came into force (paras. 75 -77). The Court concluded that even if there were some State practice in
favour of the equidistance principle, the Court could not deduct the necessary opinio juris from this State
practice. The North Sea Continental Shelf Cases confirmed that both State practice (the objective element)
and opinio juris (the subjective element) are essential pre-requisites for the formation of a customary law rule. This
is consistent with Article 38 (1) (b) of the Statute of the ICJ. The Court explained the concept of opinio jurisand the
difference between customs (i.e. habits) and customary law:

“Not only must the acts concerned amount to a settled practice, but they must also be such, or be carried out in
such a way, as to be evidence of a belief that this practice is rendered obligatory by the existence of a rule of law
requiring it. The need for such a belief, i.e, the existence of a subjective element, is implicit in the very notion of the
opinio juris sive necessitatis. The States concerned must therefore feel that they are conforming to what amounts to
a legal obligation. The frequency, or even habitual character of the acts is not in itself enough. There are many
international acts, e.g., in the field of ceremonial and protocol, which are performed almost invariably, but which
are motivated only by considerations of courtesy, convenience or tradition, and not by any sense of legal duty.”
(Para 77).

15. The Court concluded that the equidistance principle was not binding on Germany by way of treaty or customary
international law. In the case of the latter, the principle had not attained a customary international law status at
the time of the entry into force of the Geneva Convention or thereafter. As such, the Court held that the use of the
equidistance method is not obligatory for the delimitation of the areas concerned in the present proceedings.

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Citation. I.C.J., 1994 I.C.J. 112

Brief Fact Summary. A claim to settle a dispute involving sovereignty over certain
islands, sovereign rights over certain shoals and delimitation of a maritime boundary
was filed by Qatar (P) in the International Court of Justice against Bahrain (D). The
Court’s jurisdiction was however disputed by Bahrain (D).

Synopsis of Rule of Law. An international agreement creating rights and obligations

can be constituted by the signatories to the minutes of meetings and letters exchanged.

Facts. A dispute concerning sovereignty over certain islands and shoals, including the
delimitation of a maritime boundary were issues upon which Qatar (P) and Bahrain (D)
sought to resolve for 20 years. During this period of time, letters were exchanged and
acknowledged by both parties heads of state. A Tripartite Committee “for the purpose of
approaching the International Court of Justice”�..”� was formed by representatives of
Qatar (P), Bahrain (D) and Saudi Arabia. Though the committee met several time, it
failed to produce an agreement on the specific terms for submitting the dispute to the
Court. Eventually, the meetings culminated in “Minutes”�, which reaffirmed the process
and stipulated that the parties “may”� submit the dispute to the I.C.J. after giving the
Saudi King six months to resolve the dispute. The Court’s jurisdiction was disputed by
Bahrain (D) when Qatar (P) filed a claim in the I.C.J.

Issue. Yes. An international agreement creating rights and obligations can be

constituted by the signatories to the minutes of meetings and letters exchanged.
Though Bahrain (D) argued that the Minutes were only a record of negotiation and could
not serve as a basis for the I.C.J.’s jurisdiction, both parties agreed that the letters
constituted an international agreement with binding force.
International agreements do not take a single form under the Vienna Convention on the
Law of Treaties, and the Court has enforced this rule in the past. In this case, the
Minutes not only contain the record of the meetings between the parties, it also
contained the reaffirmation of obligations previously agreed to and agreement to allow
the King of Saudi Arabia to try to find a solution to the dispute during a six-month period,
and indicated the possibility of the involvement of the I.C.J. The Minutes stipulated
commitments to which the parties agreed, thereby creating rights and obligations in
international law. This is the basis therefore of the existence of international agreement.
On the part of the Bahrain’s (D) Foreign Minister, he argued that no agreement existed
because he never intended to enter an agreement fails on the grounds that he signed
documents creating rights and obligations for his country. Also, Qatar’s (P) delay in
applying to the United Nations Secretariat does not indicate that Qatar (P) never
considered the Minutes to be an international agreement as Bahrain (D) argued.
However, the registration and non-registration with the Secretariat does not have any
effect on the validity of the agreement.
Held. Yes. An international agreement creating rights and obligations can be constituted
by the signatories to the minutes of meetings and letters exchanged. Though Bahrain
(D) argued that the Minutes were only a record of negotiation and could not serve as a
basis for the I.C.J.’s jurisdiction, both parties agreed that the letters constituted an
international agreement with binding force.

Discussion. There is no doubt that language plays a vital role in influencing a court’s
decision as to whether an agreement has been entered into and in this particular case,
the language was the main focus of the I.C.J and it was the contents of the Minutes that
persuaded the I.C.J. to reject the Bahrain foreign minister’s (D) claim that he did not
intend to enter into an agreement. Where this is compared to general U.S. contract law,
where a claim by one of the parties that no contract existed because there was no
meeting of the minds might be the ground upon which a U.S. court would consider
whether a contract did exist with more care and thought than the I.C.J. gave the foreign
minister of Bahrain’s (D) claims.
Citation. I.C.J. 1984 I.C.J. 39

Brief Fact Summary. Nicaragua (P) brought a suit against the United States (D) on the
ground that the United States (D) was responsible for illegal military and paramilitary
activities in and against Nicaragua. The jurisdiction of the International Court of Justice
to entertain the case as well as the admissibility of Nicaragua’s (P) application to the
I.C.J. was challenged by the United States (D).

Synopsis of Rule of Law. Nicaragua (P) brought a suit against the United States (D)
on the ground that the United States (D) was responsible for illegal military and
paramilitary activities in and against Nicaragua. The jurisdiction of the International
Court of Justice to entertain the case as well as the admissibility of Nicaragua’s (P)
application to the I.C.J. was challenged by the United States (D).

Facts. The United States (D) challenged the jurisdiction of the I.C.J when it was held
responsible for illegal military and paramilitary activities in and against Nicaragua (P) in
the suit the plaintiff brought against the defendant in 1984. Though a declaration
accepting the mandatory jurisdiction of the Court was deposited by the United States
(D) in a 1946, it tried to justify the declaration in a 1984 notification by referring to the
1946 declaration and stating in part that the declaration “shall not apply to disputes with
any Central American State”�.”�
Apart from maintaining the ground that the I.C.J lacked jurisdiction, the States (D) also
argued that Nicaragua (P) failed to deposit a similar declaration to the Court. On the
other hand, Nicaragua (P) based its argument on its reliance on the 1946 declaration
made by the United states (D) due to the fact that it was a “state accepting the same
obligation”� as the United States (D) when it filed charges in the I.C.J. against the
United States (D).
Also, the plaintiff intent to submit to the compulsory jurisdiction of the I.C.J. was pointed
out by the valid declaration it made in 1929 with the I.C.J’s predecessor, which was the
Permanent Court of International Justice, even though Nicaragua had failed to deposit it
with that court. The admissibility of Nicaragua’s (P) application to the I.C.J. was also
challenged by the United States (D).

Issue. (1) Is the jurisdiction to entertain a dispute between two states, if they both
accept the Court’s jurisdiction, within the jurisdiction of the International Court of
Justice?
(2) Where no grounds exist to exclude the application of a state, is the application of
such a state to the International Court of Justice admissible?

Held. (1) Yes. The jurisdiction of the Court to entertain a dispute between two states if
each of the States accepted the Court’s jurisdiction is within the jurisdiction of the
International Court of Justice. Even though Nicaragua (P) declaration of 1929 was not
deposited with the Permanent Court, because of the potential effect it had that it would
last for many years, it was valid.
Thus, it maintained its effect when Nicaragua became a party to the Statute of the I.C.J
because the declaration was made unconditionally and was valid for an unlimited
period. The intention of the current drafters of the current Statute was to maintain the
greatest possible continuity between it and the Permanent Court. Thus, when Nicaragua
(P) accepted the Statute, this would have been deemed that the plaintiff had given its
consent to the transfer of its declaration to the I.C.J.
(2) Yes. When no grounds exist to exclude the application of a state, the application of
such a state to the International Court of Justice is admissible. The five grounds upon
which the United States (D) challenged the admissibility of Nicaragua’s (P) application
were that the plaintiff failed because there is no “indispensable parties”� rule when it
could not bring forth necessary parties, Nicaragua’s (P) request of the Court to consider
the possibility of a threat to peace which is the exclusive province of the Security
Council, failed due to the fact that I.C.J. can exercise jurisdiction which is concurrent
with that of the Security Council, that the I.C.J. is unable to deal with situations involving
ongoing armed conflict and that there is nothing compelling the I.C.J. to decline to
consider one aspect of a dispute just because the dispute has other aspects due to the
fact that the case is incompatible with the Contadora process to which Nicaragua (P) is
a party.

Discussion. Although the questions of jurisdiction and admissibility are primarily based on the
principle that the I.C.J. has only as much power as that agreed to by the parties, these can be
quite complicated. The 1946 declaration of the United States and the 1929 declaration of
Nicaragua was the main focus of the case on declaration and each of these declarations
pointed out the respective parties’ intent as it related to the I.C.J’s jurisdiction.
G.R. No. 183591 October 14, 2008

THE PROVINCE OF NORTH COTABATO, duly represented by GOVERNOR JESUS SACDALAN

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

x--------------------------------------------x

G.R. No. 183752 October 14, 2008

CITY GOVERNMENT OF ZAMBOANGA, as represented by HON. CELSO L. LOBREGAT, City

Mayor of Zamboanga, and in his personal capacity as resident of the City of Zamboanga,
Rep. MA. ISABELLE G. CLIMACO, District 1, and Rep. ERICO BASILIO A. FABIAN, District 2,
City of Zamboanga, petitioners,
vs.
THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE NEGOTIATING PANEL
(GRP), as represented by RODOLFO C. GARCIA, LEAH ARMAMENTO, SEDFREY
CANDELARIA, MARK RYAN SULLIVAN and HERMOGENES ESPERON, in his capacity as the
Presidential Adviser on Peace Process,respondents.

x--------------------------------------------x

G.R. No. 183893 October 14, 2008

THE CITY OF ILIGAN, duly represented by CITY MAYOR LAWRENCE LLUCH CRUZ, petitioner,
vs.
THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON
ANCESTRAL DOMAIN (GRP), represented by SEC. RODOLFO GARCIA, ATTY. LEAH
ARMAMENTO, ATTY. SEDFREY CANDELARIA, MARK RYAN SULLIVAN; GEN. HERMOGENES
ESPERON, JR., in his capacity as the present and duly appointed Presidential Adviser on the
Peace Process; and/or SEC. EDUARDO ERMITA, in his capacity as Executive
Secretary. respondents.

x--------------------------------------------x

G.R. No. 183951 October 14, 2008

THE PROVINCIAL GOVERNMENT OF ZAMBOANGA DEL NORTE, as represented by HON.

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

x--------------------------------------------x

G.R. No. 183962 October 14, 2008

ERNESTO M. MACEDA, JEJOMAR C. BINAY, and AQUILINO L. PIMENTEL III, petitioners,

vs.
THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE NEGOTIATING PANEL,
represented by its Chairman RODOLFO C. GARCIA, and the MORO ISLAMIC LIBERATION
FRONT PEACE NEGOTIATING PANEL, represented by its Chairman MOHAGHER
IQBAL, respondents.

x--------------------------------------------x

FRANKLIN M. DRILON and ADEL ABBAS TAMANO, petitioners-in-intervention.

x--------------------------------------------x

SEN. MANUEL A. ROXAS, petitioners-in-intervention.

x--------------------------------------------x

MUNICIPALITY OF LINAMON duly represented by its Municipal Mayor NOEL N.

DEANO, petitioners-in-intervention,

x--------------------------------------------x

THE CITY OF ISABELA, BASILAN PROVINCE, represented by MAYOR CHERRYLYN P.

SANTOS-AKBAR,petitioners-in-intervention.

x--------------------------------------------x

THE PROVINCE OF SULTAN KUDARAT, rep. by HON. SUHARTO T. MANGUDADATU, in his

capacity as Provincial Governor and a resident of the Province of Sultan Kudarat, petitioner-in-
intervention.

x-------------------------------------------x

RUY ELIAS LOPEZ, for and in his own behalf and on behalf of Indigenous Peoples in
Mindanao Not Belonging to the MILF, petitioner-in-intervention.

x--------------------------------------------x
CARLO B. GOMEZ, GERARDO S. DILIG, NESARIO G. AWAT, JOSELITO C. ALISUAG and
RICHALEX G. JAGMIS, as citizens and residents of Palawan, petitioners-in-intervention.

x--------------------------------------------x

MARINO RIDAO and KISIN BUXANI, petitioners-in-intervention.

x--------------------------------------------x

MUSLIM LEGAL ASSISTANCE FOUNDATION, INC (MUSLAF), respondent-in-intervention.

x--------------------------------------------x

MUSLIM MULTI-SECTORAL MOVEMENT FOR PEACE & DEVELOPMENT

(MMMPD), respondent-in-intervention.

x--------------------------------------------x

DECISION

CARPIO MORALES, J.:

Subject of these consolidated cases is the extent of the powers of the President in pursuing the
peace process.While the facts surrounding this controversy center on the armed conflict in Mindanao
between the government and the Moro Islamic Liberation Front (MILF), the legal issue involved has
a bearing on all areas in the country where there has been a long-standing armed conflict. Yet again,
the Court is tasked to perform a delicate balancing act. It must uncompromisingly delineate the
bounds within which the President may lawfully exercise her discretion, but it must do so in strict
adherence to the Constitution, lest its ruling unduly restricts the freedom of action vested by that
same Constitution in the Chief Executive precisely to enable her to pursue the peace process
effectively.

I. FACTUAL ANTECEDENTS OF THE PETITIONS

On August 5, 2008, the Government of the Republic of the Philippines (GRP) and the MILF, through
the Chairpersons of their respective peace negotiating panels, were scheduled to sign a
Memorandum of Agreement on the Ancestral Domain (MOA-AD) Aspect of the GRP-MILF Tripoli
Agreement on Peace of 2001 in Kuala Lumpur, Malaysia.

The MILF is a rebel group which was established in March 1984 when, under the leadership of the
late Salamat Hashim, it splintered from the Moro National Liberation Front (MNLF) then headed by
Nur Misuari, on the ground, among others, of what Salamat perceived to be the manipulation of the
MNLF away from an Islamic basis towards Marxist-Maoist orientations.1

The signing of the MOA-AD between the GRP and the MILF was not to materialize, however, for
upon motion of petitioners, specifically those who filed their cases before the scheduled signing of
the MOA-AD, this Court issued a Temporary Restraining Order enjoining the GRP from signing the
same.

The MOA-AD was preceded by a long process of negotiation and the concluding of several prior
agreements between the two parties beginning in 1996, when the GRP-MILF peace negotiations
began. On July 18, 1997, the GRP and MILF Peace Panels signed the Agreement on General
Cessation of Hostilities. The following year, they signed the General Framework of Agreement of
Intent on August 27, 1998.

The Solicitor General, who represents respondents, summarizes the MOA-AD by stating that the
same contained, among others, the commitment of the parties to pursue peace negotiations, protect
and respect human rights, negotiate with sincerity in the resolution and pacific settlement of the
conflict, and refrain from the use of threat or force to attain undue advantage while the peace
negotiations on the substantive agenda are on-going.2

Early on, however, it was evident that there was not going to be any smooth sailing in the GRP-MILF
peace process. Towards the end of 1999 up to early 2000, the MILF attacked a number of
municipalities in Central Mindanao and, in March 2000, it took control of the town hall of Kauswagan,
Lanao del Norte.3 In response, then President Joseph Estrada declared and carried out an "all-out-
war" against the MILF.

When President Gloria Macapagal-Arroyo assumed office, the military offensive against the MILF
was suspended and the government sought a resumption of the peace talks. The MILF, according to
a leading MILF member, initially responded with deep reservation, but when President Arroyo asked
the Government of Malaysia through Prime Minister Mahathir Mohammad to help convince the MILF
to return to the negotiating table, the MILF convened its Central Committee to seriously discuss the
matter and, eventually, decided to meet with the GRP. 4

The parties met in Kuala Lumpur on March 24, 2001, with the talks being facilitated by the Malaysian
government, the parties signing on the same date the Agreement on the General Framework for the
Resumption of Peace Talks Between the GRP and the MILF. The MILF thereafter suspended all its
military actions.5

Formal peace talks between the parties were held in Tripoli, Libya from June 20-22, 2001, the
outcome of which was the GRP-MILF Tripoli Agreement on Peace (Tripoli Agreement 2001)
containing the basic principles and agenda on the following aspects of the
negotiation: Security Aspect, Rehabilitation Aspect, and Ancestral Domain Aspect. With regard to
the Ancestral Domain Aspect, the parties in Tripoli Agreement 2001 simply agreed "that the same be
discussed further by the Parties in their next meeting."

A second round of peace talks was held in Cyberjaya, Malaysia on August 5-7, 2001 which ended
with the signing of the Implementing Guidelines on the Security Aspect of the Tripoli Agreement 2001
leading to a ceasefire status between the parties. This was followed by the Implementing Guidelines
on the Humanitarian Rehabilitation and Development Aspects of the Tripoli Agreement 2001, which
was signed on May 7, 2002 at Putrajaya, Malaysia. Nonetheless, there were many incidence of
violence between government forces and the MILF from 2002 to 2003.

Meanwhile, then MILF Chairman Salamat Hashim passed away on July 13, 2003 and he was
replaced by Al Haj Murad, who was then the chief peace negotiator of the MILF. Murad's position as
chief peace negotiator was taken over by Mohagher Iqbal. 6

In 2005, several exploratory talks were held between the parties in Kuala Lumpur, eventually leading
to the crafting of the draft MOA-AD in its final form, which, as mentioned, was set to be signed last
August 5, 2008.

II. STATEMENT OF THE PROCEEDINGS

Before the Court is what is perhaps the most contentious "consensus" ever embodied in an
instrument - the MOA-AD which is assailed principally by the present petitions bearing docket
numbers 183591, 183752, 183893, 183951 and 183962.

Commonly impleaded as respondents are the GRP Peace Panel on Ancestral Domain 7 and the
Presidential Adviser on the Peace Process (PAPP) Hermogenes Esperon, Jr.

On July 23, 2008, the Province of North Cotabato8 and Vice-Governor Emmanuel Piñol filed a
petition, docketed as G.R. No. 183591, for Mandamus and Prohibition with Prayer for the Issuance
of Writ of Preliminary Injunction and Temporary Restraining Order. 9 Invoking the right to information
on matters of public concern, petitioners seek to compel respondents to disclose and furnish them
the complete and official copies of the MOA-AD including its attachments, and to prohibit the slated
signing of the MOA-AD, pending the disclosure of the contents of the MOA-AD and the holding of a
public consultation thereon. Supplementarily, petitioners pray that the MOA-AD be declared
unconstitutional.10

This initial petition was followed by another one, docketed as G.R. No. 183752, also for Mandamus
and Prohibition11 filed by the City of Zamboanga,12 Mayor Celso Lobregat, Rep. Ma. Isabelle Climaco
and Rep. Erico Basilio Fabian who likewise pray for similar injunctive reliefs. Petitioners herein
moreover pray that the City of Zamboanga be excluded from the Bangsamoro Homeland and/or
Bangsamoro Juridical Entity and, in the alternative, that the MOA-AD be declared null and void.

By Resolution of August 4, 2008, the Court issued a Temporary Restraining Order commanding and
directing public respondents and their agents to cease and desist from formally signing the MOA-
AD.13 The Court also required the Solicitor General to submit to the Court and petitioners the official
copy of the final draft of the MOA-AD,14 to which she complied.15

Meanwhile, the City of Iligan16 filed a petition for Injunction and/or Declaratory Relief, docketed
as G.R. No. 183893, praying that respondents be enjoined from signing the MOA-AD or, if the same
had already been signed, from implementing the same, and that the MOA-AD be declared
unconstitutional. Petitioners herein additionally implead Executive Secretary Eduardo Ermita as
respondent.

The Province of Zamboanga del Norte,17 Governor Rolando Yebes, Vice-Governor Francis Olvis,
Rep. Cecilia Jalosjos-Carreon, Rep. Cesar Jalosjos, and the members 18 of the Sangguniang
Panlalawigan of Zamboanga del Norte filed on August 15, 2008 a petition for Certiorari, Mandamus
and Prohibition,19 docketed as G.R. No. 183951. They pray, inter alia, that the MOA-AD be declared
null and void and without operative effect, and that respondents be enjoined from executing the
MOA-AD.

On August 19, 2008, Ernesto Maceda, Jejomar Binay, and Aquilino Pimentel III filed a petition for
Prohibition,20docketed as G.R. No. 183962, praying for a judgment prohibiting and permanently
enjoining respondents from formally signing and executing the MOA-AD and or any other agreement
derived therefrom or similar thereto, and nullifying the MOA-AD for being unconstitutional and illegal.
Petitioners herein additionally implead as respondent the MILF Peace Negotiating Panel
represented by its Chairman Mohagher Iqbal.

Various parties moved to intervene and were granted leave of court to file their petitions-/comments-
in-intervention. Petitioners-in-Intervention include Senator Manuel A. Roxas, former Senate
President Franklin Drilon and Atty. Adel Tamano, the City of Isabela21 and Mayor Cherrylyn Santos-
Akbar, the Province of Sultan Kudarat22 and Gov. Suharto Mangudadatu, the Municipality of Linamon
in Lanao del Norte,23 Ruy Elias Lopez of Davao City and of the Bagobo tribe, Sangguniang
Panlungsod member Marino Ridao and businessman Kisin Buxani, both of Cotabato City; and
lawyers Carlo Gomez, Gerardo Dilig, Nesario Awat, Joselito Alisuag, Richalex Jagmis, all of Palawan
City. The Muslim Legal Assistance Foundation, Inc. (Muslaf) and the Muslim Multi-Sectoral
Movement for Peace and Development (MMMPD) filed their respective Comments-in-Intervention.

By subsequent Resolutions, the Court ordered the consolidation of the petitions. Respondents filed
Comments on the petitions, while some of petitioners submitted their respective Replies.

Respondents, by Manifestation and Motion of August 19, 2008, stated that the Executive
Department shall thoroughly review the MOA-AD and pursue further negotiations to address the
issues hurled against it, and thus moved to dismiss the cases. In the succeeding exchange of
pleadings, respondents' motion was met with vigorous opposition from petitioners.

The cases were heard on oral argument on August 15, 22 and 29, 2008 that tackled the following
principal issues:

1. Whether the petitions have become moot and academic

(i) insofar as the mandamus aspect is concerned, in view of the disclosure of official
copies of the final draft of the Memorandum of Agreement (MOA); and

(ii) insofar as the prohibition aspect involving the Local Government Units is
concerned, if it is considered that consultation has become fait accompli with the
finalization of the draft;

2. Whether the constitutionality and the legality of the MOA is ripe for adjudication;

3. Whether respondent Government of the Republic of the Philippines Peace Panel

committed grave abuse of discretion amounting to lack or excess of jurisdiction when it
negotiated and initiated the MOA vis-à-vis ISSUES Nos. 4 and 5;

4. Whether there is a violation of the people's right to information on matters of public

concern (1987 Constitution, Article III, Sec. 7) under a state policy of full disclosure of all its
transactions involving public interest (1987 Constitution, Article II, Sec. 28) including public
consultation under Republic Act No. 7160 (LOCAL GOVERNMENT CODE OF 1991)[;]

If it is in the affirmative, whether prohibition under Rule 65 of the 1997 Rules of Civil
Procedure is an appropriate remedy;

5. Whether by signing the MOA, the Government of the Republic of the Philippines would be
BINDING itself

a) to create and recognize the Bangsamoro Juridical Entity (BJE) as a separate

state, or a juridical, territorial or political subdivision not recognized by law;

b) to revise or amend the Constitution and existing laws to conform to the MOA;

c) to concede to or recognize the claim of the Moro Islamic Liberation Front for
ancestral domain in violation of Republic Act No. 8371 (THE INDIGENOUS
PEOPLES RIGHTS ACT OF 1997), particularly Section 3(g) & Chapter VII
(DELINEATION, RECOGNITION OF ANCESTRAL DOMAINS)[;]
 If in the affirmative, whether the Executive Branch has the authority to so bind the
Government of the Republic of the Philippines;

6. Whether the inclusion/exclusion of the Province of North Cotabato, Cities of Zamboanga,

Iligan and Isabela, and the Municipality of Linamon, Lanao del Norte in/from the areas
covered by the projected Bangsamoro Homeland is a justiciable question; and

7. Whether desistance from signing the MOA derogates any prior valid commitments of the
Government of the Republic of the Philippines.24

The Court, thereafter, ordered the parties to submit their respective Memoranda. Most of the parties
submitted their memoranda on time.

III. OVERVIEW OF THE MOA-AD

As a necessary backdrop to the consideration of the objections raised in the subject five petitions
and six petitions-in-intervention against the MOA-AD, as well as the two comments-in-intervention in
favor of the MOA-AD, the Court takes an overview of the MOA.

The MOA-AD identifies the Parties to it as the GRP and the MILF.

Under the heading "Terms of Reference" (TOR), the MOA-AD includes not only four earlier
agreements between the GRP and MILF, but also two agreements between the GRP and the MNLF:
the 1976 Tripoli Agreement, and the Final Peace Agreement on the Implementation of the 1976
Tripoli Agreement, signed on September 2, 1996 during the administration of President Fidel Ramos.

The MOA-AD also identifies as TOR two local statutes - the organic act for the Autonomous Region
in Muslim Mindanao (ARMM)25 and the Indigenous Peoples Rights Act (IPRA),26 and several
international law instruments - the ILO Convention No. 169 Concerning Indigenous and Tribal
Peoples in Independent Countries in relation to the UN Declaration on the Rights of the Indigenous
Peoples, and the UN Charter, among others.

The MOA-AD includes as a final TOR the generic category of "compact rights entrenchment
emanating from the regime of dar-ul-mua'hada (or territory under compact) and dar-ul-sulh (or
territory under peace agreement) that partakes the nature of a treaty device."

During the height of the Muslim Empire, early Muslim jurists tended to see the world through a
simple dichotomy: there was the dar-ul-Islam (the Abode of Islam) and dar-ul-harb (the Abode
of War). The first referred to those lands where Islamic laws held sway, while the second denoted
those lands where Muslims were persecuted or where Muslim laws were outlawed or
ineffective.27 This way of viewing the world, however, became more complex through the centuries as
the Islamic world became part of the international community of nations.

As Muslim States entered into treaties with their neighbors, even with distant States and inter-
governmental organizations, the classical division of the world into dar-ul-Islam and dar-ul-
harb eventually lost its meaning. New terms were drawn up to describe novel ways of perceiving
non-Muslim territories. For instance, areas like dar-ul-mua'hada (land of compact) and dar-ul-
sulh (land of treaty) referred to countries which, though under a secular regime, maintained peaceful
and cooperative relations with Muslim States, having been bound to each other by treaty or
agreement. Dar-ul-aman (land of order), on the other hand, referred to countries which, though not
bound by treaty with Muslim States, maintained freedom of religion for Muslims. 28
It thus appears that the "compact rights entrenchment" emanating from the regime of dar-ul-
mua'hada and dar-ul-sulh simply refers to all other agreements between the MILF and the Philippine
government - the Philippines being the land of compact and peace agreement - that partake of the
nature of a treaty device, "treaty" being broadly defined as "any solemn agreement in writing that
sets out understandings, obligations, and benefits for both parties which provides for a framework
that elaborates the principles declared in the [MOA-AD]."29

The MOA-AD states that the Parties "HAVE AGREED AND ACKNOWLEDGED AS FOLLOWS," and
starts with its main body.

The main body of the MOA-AD is divided into four strands, namely, Concepts and Principles,
Territory, Resources, and Governance.

A. CONCEPTS AND PRINCIPLES

This strand begins with the statement that it is "the birthright of all Moros and all Indigenous peoples
of Mindanao to identify themselves and be accepted as ‘Bangsamoros.'" It defines "Bangsamoro
people" as the natives or original inhabitants of Mindanao and its adjacent islands including
Palawan and the Sulu archipelago at the time of conquest or colonization, and their
descendants whether mixed or of full blood, including their spouses.30

Thus, the concept of "Bangsamoro," as defined in this strand of the MOA-AD, includes not only
"Moros" as traditionally understood even by Muslims,31 but all indigenous peoples of Mindanao and
its adjacent islands. The MOA-AD adds that the freedom of choice of indigenous peoples shall be
respected. What this freedom of choice consists in has not been specifically defined.

The MOA-AD proceeds to refer to the "Bangsamoro homeland," the ownership of which is vested
exclusively in the Bangsamoro people by virtue of their prior rights of occupation.32 Both parties to
the MOA-AD acknowledge that ancestral domain does not form part of the public domain.33

The Bangsamoro people are acknowledged as having the right to self-governance, which right is
said to be rooted on ancestral territoriality exercised originally under the suzerain authority of their
sultanates and the Pat a Pangampong ku Ranaw. The sultanates were described as states or
"karajaan/kadatuan" resembling a body politic endowed with all the elements of a nation-state in the
modern sense.34

The MOA-AD thus grounds the right to self-governance of the Bangsamoro people on the past
suzerain authority of the sultanates. As gathered, the territory defined as the Bangsamoro homeland
was ruled by several sultanates and, specifically in the case of the Maranao, by the Pat a
Pangampong ku Ranaw, a confederation of independent principalities (pangampong) each ruled by
datus and sultans, none of whom was supreme over the others.35

The MOA-AD goes on to describe the Bangsamoro people as "the ‘First Nation' with defined territory
and with a system of government having entered into treaties of amity and commerce with foreign
nations."

The term "First Nation" is of Canadian origin referring to the indigenous peoples of that territory,
particularly those known as Indians. In Canada, each of these indigenous peoples is equally entitled
to be called "First Nation," hence, all of them are usually described collectively by the plural "First
Nations."36 To that extent, the MOA-AD, by identifying the Bangsamoro people as "the First Nation" -
suggesting its exclusive entitlement to that designation - departs from the Canadian usage of the
term.

The MOA-AD then mentions for the first time the "Bangsamoro Juridical Entity" (BJE) to which it
grants the authority and jurisdiction over the Ancestral Domain and Ancestral Lands of the
Bangsamoro.37

B. TERRITORY

The territory of the Bangsamoro homeland is described as the land mass as well as the maritime,
terrestrial, fluvial and alluvial domains, including the aerial domain and the atmospheric space above
it, embracing the Mindanao-Sulu-Palawan geographic region.38

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

Outside of this core, the BJE is to cover other provinces, cities, municipalities and barangays, which
are grouped into two categories, Category A and Category B. Each of these areas is to be subjected
to a plebiscite to be held on different dates, years apart from each other. Thus, Category A areas are
to be subjected to a plebiscite not later than twelve (12) months following the signing of the MOA-
AD.40 Category B areas, also called "Special Intervention Areas," on the other hand, are to be
subjected to a plebiscite twenty-five (25) years from the signing of a separate agreement - the
Comprehensive Compact.41

The Parties to the MOA-AD stipulate that the BJE shall have jurisdiction over all natural resources
within its "internalwaters," defined as extending fifteen (15) kilometers from the coastline of the BJE
area;42 that the BJE shall also have "territorial waters," which shall stretch beyond the BJE internal
waters up to the baselines of the Republic of the Philippines (RP) south east and south west of
mainland Mindanao; and that within these territorial waters, the BJE and the "Central
Government" (used interchangeably with RP) shall exercise joint jurisdiction, authority and
management over all natural resources.43 Notably, the jurisdiction over the internal waters is not
similarly described as "joint."

The MOA-AD further provides for the sharing of minerals on the territorial waters between the
Central Government and the BJE, in favor of the latter, through production sharing and economic
cooperation agreement.44 The activities which the Parties are allowed to conduct on
the territorial waters are enumerated, among which are the exploration and utilization of natural
resources, regulation of shipping and fishing activities, and the enforcement of police and safety
measures.45 There is no similar provision on the sharing of minerals and allowed activities with
respect to the internal waters of the BJE.

C. RESOURCES

The MOA-AD states that the BJE is free to enter into any economic cooperation and trade relations
with foreign countries and shall have the option to establish trade missions in those countries. Such
relationships and understandings, however, are not to include aggression against the GRP. The BJE
may also enter into environmental cooperation agreements. 46
The external defense of the BJE is to remain the duty and obligation of the Central Government. The
Central Government is also bound to "take necessary steps to ensure the BJE's participation in
international meetings and events" like those of the ASEAN and the specialized agencies of the UN.
The BJE is to be entitled to participate in Philippine official missions and delegations for the
negotiation of border agreements or protocols for environmental protection and equitable sharing of
incomes and revenues involving the bodies of water adjacent to or between the islands forming part
of the ancestral domain.47

With regard to the right of exploring for, producing, and obtaining all potential sources of energy,
petroleum, fossil fuel, mineral oil and natural gas, the jurisdiction and control thereon is to be vested
in the BJE "as the party having control within its territorial jurisdiction." This right carries
the proviso that, "in times of national emergency, when public interest so requires," the Central
Government may, for a fixed period and under reasonable terms as may be agreed upon by both
Parties, assume or direct the operation of such resources.48

The sharing between the Central Government and the BJE of total production pertaining to natural
resources is to be 75:25 in favor of the BJE.49

The MOA-AD provides that legitimate grievances of the Bangsamoro people arising from any unjust
dispossession of their territorial and proprietary rights, customary land tenures, or their
marginalization shall be acknowledged. Whenever restoration is no longer possible, reparation is to
be in such form as mutually determined by the Parties.50

The BJE may modify or cancel the forest concessions, timber licenses, contracts or agreements,
mining concessions, Mineral Production and Sharing Agreements (MPSA), Industrial Forest
Management Agreements (IFMA), and other land tenure instruments granted by the Philippine
Government, including those issued by the present ARMM.51

D. GOVERNANCE

The MOA-AD binds the Parties to invite a multinational third-party to observe and monitor the
implementation of the Comprehensive Compact. This compact is to embody the "details for the
effective enforcement" and "the mechanisms and modalities for the actual implementation" of the
MOA-AD. The MOA-AD explicitly provides that the participation of the third party shall not in any way
affect the status of the relationship between the Central Government and the BJE. 52

The "associative" relationship

between the Central Government
and the BJE

The MOA-AD describes the relationship of the Central Government and the BJE as "associative,"
characterized by shared authority and responsibility. And it states that the structure of governance is
to be based on executive, legislative, judicial, and administrative institutions with defined powers and
functions in the Comprehensive Compact.

The MOA-AD provides that its provisions requiring "amendments to the existing legal framework"
shall take effect upon signing of the Comprehensive Compact and upon effecting the aforesaid
amendments, with due regard to the non-derogation of prior agreements and within the stipulated
timeframe to be contained in the Comprehensive Compact. As will be discussed later, much of
the present controversy hangs on the legality of this provision.
The BJE is granted the power to build, develop and maintain its own institutions inclusive of civil
service, electoral, financial and banking, education, legislation, legal, economic, police and internal
security force, judicial system and correctional institutions, the details of which shall be discussed in
the negotiation of the comprehensive compact.

As stated early on, the MOA-AD was set to be signed on August 5, 2008 by Rodolfo Garcia and
Mohagher Iqbal, Chairpersons of the Peace Negotiating Panels of the GRP and the MILF,
respectively. Notably, the penultimate paragraph of the MOA-AD identifies the signatories as "the
representatives of the Parties," meaning the GRP and MILF themselves, and not merely of the
negotiating panels.53 In addition, the signature page of the MOA-AD states that it is "WITNESSED
BY" Datuk Othman Bin Abd Razak, Special Adviser to the Prime Minister of Malaysia, "ENDORSED
BY" Ambassador Sayed Elmasry, Adviser to Organization of the Islamic Conference (OIC) Secretary
General and Special Envoy for Peace Process in Southern Philippines, and SIGNED "IN THE
PRESENCE OF" Dr. Albert G. Romulo, Secretary of Foreign Affairs of RP and Dato' Seri Utama Dr.
Rais Bin Yatim, Minister of Foreign Affairs, Malaysia, all of whom were scheduled to sign the
Agreement last August 5, 2008.

Annexed to the MOA-AD are two documents containing the respective lists cum maps of the
provinces, municipalities, and barangays under Categories A and B earlier mentioned in the
discussion on the strand on TERRITORY.

IV. PROCEDURAL ISSUES

A. RIPENESS

The power of judicial review is limited to actual cases or controversies.54 Courts decline to issue
advisory opinions or to resolve hypothetical or feigned problems, or mere academic questions. 55 The
limitation of the power of judicial review to actual cases and controversies defines the role assigned
to the judiciary in a tripartite allocation of power, to assure that the courts will not intrude into areas
committed to the other branches of government.56

An actual case or controversy involves a conflict of legal rights, an assertion of opposite legal claims,
susceptible of judicial resolution as distinguished from a hypothetical or abstract difference or
dispute. There must be a contrariety of legal rights that can be interpreted and enforced on the basis
of existing law and jurisprudence.57 The Court can decide the constitutionality of an act or treaty only
when a proper case between opposing parties is submitted for judicial determination. 58

Related to the requirement of an actual case or controversy is the requirement of ripeness. A

question is ripe for adjudication when the act being challenged has had a direct adverse effect on
the individual challenging it.59 For a case to be considered ripe for adjudication, it is a prerequisite
that something had then been accomplished or performed by either branch before a court may come
into the picture,60 and the petitioner must allege the existence of an immediate or threatened injury to
itself as a result of the challenged action.61 He must show that he has sustained or is immediately in
danger of sustaining some direct injury as a result of the act complained of. 62

The Solicitor General argues that there is no justiciable controversy that is ripe for judicial review in
the present petitions, reasoning that

The unsigned MOA-AD is simply a list of consensus points subject to further negotiations
and legislative enactments as well as constitutional processes aimed at attaining a final
peaceful agreement. Simply put, the MOA-AD remains to be a proposal that does not
 automatically create legally demandable rights and obligations until the list of operative acts
required have been duly complied with. x x x

xxxx

In the cases at bar, it is respectfully submitted that this Honorable Court has no authority to
pass upon issues based on hypothetical or feigned constitutional problems or interests
with no concrete bases. Considering the preliminary character of the MOA-AD, there are no
concrete acts that could possibly violate petitioners' and intervenors' rights since the acts
complained of are mere contemplated steps toward the formulation of a final peace
agreement. Plainly, petitioners and intervenors' perceived injury, if at all, is merely imaginary
and illusory apart from being unfounded and based on mere conjectures. (Underscoring
supplied)

The Solicitor General cites63 the following provisions of the MOA-AD:

TERRITORY

xxxx

2. Toward this end, the Parties enter into the following stipulations:

xxxx

d. Without derogating from the requirements of prior agreements, the Government stipulates
to conduct and deliver, using all possible legal measures, within twelve (12) months following
the signing of the MOA-AD, a plebiscite covering the areas as enumerated in the list and
depicted in the map as Category A attached herein (the "Annex"). The Annex constitutes an
integral part of this framework agreement. Toward this end, the Parties shall endeavor to
complete the negotiations and resolve all outstanding issues on the Comprehensive
Compact within fifteen (15) months from the signing of the MOA-AD.

xxxx

GOVERNANCE

xxxx

7. The Parties agree that mechanisms and modalities for the actual implementation of this
MOA-AD shall be spelt out in the Comprehensive Compact to mutually take such steps to
enable it to occur effectively.

Any provisions of the MOA-AD requiring amendments to the existing legal framework shall
come into force upon the signing of a Comprehensive Compact and upon effecting the
necessary changes to the legal framework with due regard to non-derogation of prior
agreements and within the stipulated timeframe to be contained in the Comprehensive
Compact.64 (Underscoring supplied)

The Solicitor General's arguments fail to persuade.

Concrete acts under the MOA-AD are not necessary to render the present controversy ripe.
In Pimentel, Jr. v. Aguirre,65 this Court held:

x x x [B]y the mere enactment of the questioned law or the approval of the challenged action,
the dispute is said to have ripened into a judicial controversy even without any other overt
act. Indeed, even a singular violation of the Constitution and/or the law is enough to awaken
judicial duty.

xxxx

By the same token, when an act of the President, who in our constitutional scheme is a
coequal of Congress, is seriously alleged to have infringed the Constitution and the laws x x
x settling the dispute becomes the duty and the responsibility of the courts. 66

In Santa Fe Independent School District v. Doe,67 the United States Supreme Court held that the
challenge to the constitutionality of the school's policy allowing student-led prayers and speeches
before games was ripe for adjudication, even if no public prayer had yet been led under the policy,
because the policy was being challenged as unconstitutional on its face. 68

That the law or act in question is not yet effective does not negate ripeness. For example, in New
York v. United States,69 decided in 1992, the United States Supreme Court held that the action by the
State of New York challenging the provisions of the Low-Level Radioactive Waste Policy Act was ripe
for adjudication even if the questioned provision was not to take effect until January 1, 1996,
because the parties agreed that New York had to take immediate action to avoid the provision's
consequences.70

The present petitions pray for Certiorari,71 Prohibition, and Mandamus. Certiorari and Prohibition are
remedies granted by law when any tribunal, board or officer has acted, in the case of certiorari, or is
proceeding, in the case of prohibition, without or in excess of its jurisdiction or with grave abuse of
discretion amounting to lack or excess of jurisdiction. 72 Mandamus is a remedy granted by law when
any tribunal, corporation, board, officer or person unlawfully neglects the performance of an act
which the law specifically enjoins as a duty resulting from an office, trust, or station, or unlawfully
excludes another from the use or enjoyment of a right or office to which such other is
entitled.73 Certiorari, Mandamus and Prohibition are appropriate remedies to raise constitutional
issues and to review and/or prohibit/nullify, when proper, acts of legislative and executive officials. 74

The authority of the GRP Negotiating Panel is defined by Executive Order No. 3 (E.O. No. 3), issued
on February 28, 2001.75 The said executive order requires that "[t]he government's policy framework
for peace, including the systematic approach and the administrative structure for carrying out the
comprehensive peace process x x x be governed by this Executive Order." 76

The present petitions allege that respondents GRP Panel and PAPP Esperon drafted the terms of
the MOA-AD without consulting the local government units or communities affected, nor informing
them of the proceedings. As will be discussed in greater detail later, such omission, by itself,
constitutes a departure by respondents from their mandate under E.O. No. 3.

Furthermore, the petitions allege that the provisions of the MOA-AD violate the Constitution. The
MOA-AD provides that "any provisions of the MOA-AD requiring amendments to the existing legal
framework shall come into force upon the signing of a Comprehensive Compact and upon effecting
the necessary changes to the legal framework," implying an amendment of the Constitution to
accommodate the MOA-AD. This stipulation, in effect, guaranteed to the MILF the amendment of
the Constitution. Such act constitutes another violation of its authority. Again, these points will be
discussed in more detail later.

As the petitions allege acts or omissions on the part of respondent that exceed their authority, by
violating their duties under E.O. No. 3 and the provisions of the Constitution and statutes, the
petitions make a prima facie case for Certiorari, Prohibition, and Mandamus, and an actual case or
controversy ripe for adjudication exists. When an act of a branch of government is seriously
alleged to have infringed the Constitution, it becomes not only the right but in fact the duty of
the judiciary to settle the dispute.77

B. LOCUS STANDI

For a party to have locus standi, one must allege "such a personal stake in the outcome of the
controversy as to assure that concrete adverseness which sharpens the presentation of issues upon
which the court so largely depends for illumination of difficult constitutional questions." 78

Because constitutional cases are often public actions in which the relief sought is likely to affect
other persons, a preliminary question frequently arises as to this interest in the constitutional
question raised.79

When suing as a citizen, the person complaining must allege that he has been or is about to be
denied some right or privilege to which he is lawfully entitled or that he is about to be subjected to
some burdens or penalties by reason of the statute or act complained of. 80 When the issue concerns
a public right, it is sufficient that the petitioner is a citizen and has an interest in the execution of the
laws.81

For a taxpayer, one is allowed to sue where there is an assertion that public funds are illegally
disbursed or deflected to an illegal purpose, or that there is a wastage of public funds through the
enforcement of an invalid or unconstitutional law.82 The Court retains discretion whether or not to
allow a taxpayer's suit.83

In the case of a legislator or member of Congress, an act of the Executive that injures the institution
of Congress causes a derivative but nonetheless substantial injury that can be questioned by
legislators. A member of the House of Representatives has standing to maintain inviolate the
prerogatives, powers and privileges vested by the Constitution in his office. 84

An organization may be granted standing to assert the rights of its members,85 but the mere
invocation by the Integrated Bar of the Philippines or any member of the legal profession of the duty
to preserve the rule of law does not suffice to clothe it with standing. 86

As regards a local government unit (LGU), it can seek relief in order to protect or vindicate an
interest of its own, and of the other LGUs.87

Intervenors, meanwhile, may be given legal standing upon showing of facts that satisfy the
requirements of the law authorizing intervention,88 such as a legal interest in the matter in litigation,
or in the success of either of the parties.

In any case, the Court has discretion to relax the procedural technicality on locus standi, given the
liberal attitude it has exercised, highlighted in the case of David v. Macapagal-Arroyo,89 where
technicalities of procedure were brushed aside, the constitutional issues raised being of paramount
public interest or of transcendental importance deserving the attention of the Court in view of their
seriousness, novelty and weight as precedents.90 The Court's forbearing stance on locus standi on
issues involving constitutional issues has for its purpose the protection of fundamental rights.

In not a few cases, the Court, in keeping with its duty under the Constitution to determine whether
the other branches of government have kept themselves within the limits of the Constitution and the
laws and have not abused the discretion given them, has brushed aside technical rules of
procedure.91

In the petitions at bar, petitioners Province of North Cotabato (G.R. No. 183591) Province of
Zamboanga del Norte (G.R. No. 183951), City of Iligan (G.R. No. 183893) and City of
Zamboanga (G.R. No. 183752) and petitioners-in-intervention Province of Sultan Kudarat, City of
Isabela and Municipality of Linamon have locus standi in view of the direct and substantial injury
that they, as LGUs, would suffer as their territories, whether in whole or in part, are to be included in
the intended domain of the BJE. These petitioners allege that they did not vote for their inclusion in
the ARMM which would be expanded to form the BJE territory. Petitioners' legal standing is thus
beyond doubt.

In G.R. No. 183962, petitioners Ernesto Maceda, Jejomar Binay and Aquilino Pimentel III would
have no standing as citizens and taxpayers for their failure to specify that they would be denied
some right or privilege or there would be wastage of public funds. The fact that they are a former
Senator, an incumbent mayor of Makati City, and a resident of Cagayan de Oro, respectively, is of no
consequence. Considering their invocation of the transcendental importance of the issues at hand,
however, the Court grants them standing.

Intervenors Franklin Drilon and Adel Tamano, in alleging their standing as taxpayers, assert that
government funds would be expended for the conduct of an illegal and unconstitutional plebiscite to
delineate the BJE territory. On that score alone, they can be given legal standing. Their allegation
that the issues involved in these petitions are of "undeniable transcendental importance" clothes
them with added basis for their personality to intervene in these petitions.

With regard to Senator Manuel Roxas, his standing is premised on his being a member of the
Senate and a citizen to enforce compliance by respondents of the public's constitutional right to be
informed of the MOA-AD, as well as on a genuine legal interest in the matter in litigation, or in the
success or failure of either of the parties. He thus possesses the requisite standing as an intervenor.

With respect to Intervenors Ruy Elias Lopez, as a former congressman of the 3rd district of Davao
City, a taxpayer and a member of the Bagobo tribe; Carlo B. Gomez, et al., as members of the IBP
Palawan chapter, citizens and taxpayers; Marino Ridao, as taxpayer, resident and member of
the Sangguniang Panlungsod of Cotabato City; and Kisin Buxani, as taxpayer, they failed to allege
any proper legal interest in the present petitions. Just the same, the Court exercises its discretion to
relax the procedural technicality on locus standi given the paramount public interest in the issues at
hand.

Intervening respondents Muslim Multi-Sectoral Movement for Peace and Development, an

advocacy group for justice and the attainment of peace and prosperity in Muslim Mindanao;
and Muslim Legal Assistance Foundation Inc., a non-government organization of Muslim lawyers,
allege that they stand to be benefited or prejudiced, as the case may be, in the resolution of the
petitions concerning the MOA-AD, and prays for the denial of the petitions on the grounds therein
stated. Such legal interest suffices to clothe them with standing.

B. MOOTNESS
Respondents insist that the present petitions have been rendered moot with the satisfaction of all the
reliefs prayed for by petitioners and the subsequent pronouncement of the Executive Secretary that
"[n]o matter what the Supreme Court ultimately decides[,] the government will not sign the MOA." 92

In lending credence to this policy decision, the Solicitor General points out that the President had
already disbanded the GRP Peace Panel.93

In David v. Macapagal-Arroyo,94 this Court held that the "moot and academic" principle not being a
magical formula that automatically dissuades courts in resolving a case, it will decide cases,
otherwise moot and academic, if it finds that (a) there is a grave violation of the Constitution; 95 (b) the
situation is of exceptional character and paramount public interest is involved; 96 (c) the constitutional
issue raised requires formulation of controlling principles to guide the bench, the bar, and the
public;97 and (d) the case is capable of repetition yet evading review.98

Another exclusionary circumstance that may be considered is where there is a voluntary cessation of
the activity complained of by the defendant or doer. Thus, once a suit is filed and the doer voluntarily
ceases the challenged conduct, it does not automatically deprive the tribunal of power to hear and
determine the case and does not render the case moot especially when the plaintiff seeks damages
or prays for injunctive relief against the possible recurrence of the violation. 99

The present petitions fall squarely into these exceptions to thus thrust them into the domain of
judicial review. The grounds cited above in David are just as applicable in the present cases as they
were, not only in David, but also in Province of Batangas v. Romulo100 and Manalo v.
Calderon101 where the Court similarly decided them on the merits, supervening events that would
ordinarily have rendered the same moot notwithstanding.

Petitions not mooted

Contrary then to the asseverations of respondents, the non-signing of the MOA-AD and the eventual
dissolution of the GRP Peace Panel did not moot the present petitions. It bears emphasis that the
signing of the MOA-AD did not push through due to the Court's issuance of a Temporary Restraining
Order.

Contrary too to respondents' position, the MOA-AD cannot be considered a mere "list of consensus
points," especially given its nomenclature, the need to have it signed or initialed by all the parties
concerned on August 5, 2008, and the far-reaching Constitutional implications of these
"consensus points," foremost of which is the creation of the BJE.

In fact, as what will, in the main, be discussed, there is a commitment on the part of respondents
to amend and effect necessary changes to the existing legal framework for certain provisions
of the MOA-AD to take effect. Consequently, the present petitions are not confined to the terms
and provisions of the MOA-AD, but to other on-going and future negotiations and agreements
necessary for its realization. The petitions have not, therefore, been rendered moot and academic
simply by the public disclosure of the MOA-AD,102 the manifestation that it will not be signed as well
as the disbanding of the GRP Panel not withstanding.

Petitions are imbued with paramount public interest

There is no gainsaying that the petitions are imbued with paramount public interest, involving a
significant part of the country's territory and the wide-ranging political modifications of affected LGUs.
The assertion that the MOA-AD is subject to further legal enactments including possible
Constitutional amendments more than ever provides impetus for the Court to formulate
controlling principles to guide the bench, the bar, the public and, in this case, the government
and its negotiating entity.

Respondents cite Suplico v. NEDA, et al.103 where the Court did not "pontificat[e] on issues which no
longer legitimately constitute an actual case or controversy [as this] will do more harm than good to
the nation as a whole."

The present petitions must be differentiated from Suplico. Primarily, in Suplico, what was assailed
and eventually cancelled was a stand-alone government procurement contract for a national
broadband network involving a one-time contractual relation between two parties-the government
and a private foreign corporation. As the issues therein involved specific government procurement
policies and standard principles on contracts, the majority opinion in Suplico found nothing
exceptional therein, the factual circumstances being peculiar only to the transactions and parties
involved in the controversy.

The MOA-AD is part of a series of agreements

In the present controversy, the MOA-AD is a significant part of a series of agreements necessary
to carry out the Tripoli Agreement 2001. The MOA-AD which dwells on the Ancestral Domain
Aspect of said Tripoli Agreement is the third such component to be undertaken following the
implementation of the Security Aspect in August 2001 and the Humanitarian, Rehabilitation and
Development Aspect in May 2002.

Accordingly, even if the Executive Secretary, in his Memorandum of August 28, 2008 to the Solicitor
General, has stated that "no matter what the Supreme Court ultimately decides[,] the government
will not sign the MOA[-AD]," mootness will not set in in light of the terms of the Tripoli Agreement
2001.

Need to formulate principles-guidelines

Surely, the present MOA-AD can be renegotiated or another one will be drawn up to carry out the
Ancestral Domain Aspect of the Tripoli Agreement 2001, in another or in any form, which could
contain similar or significantly drastic provisions. While the Court notes the word of the Executive
Secretary that the government "is committed to securing an agreement that is both constitutional and
equitable because that is the only way that long-lasting peace can be assured," it is minded to
render a decision on the merits in the present petitions to formulate controlling principles to
guide the bench, the bar, the public and, most especially, the government in negotiating with
the MILF regarding Ancestral Domain.

Respondents invite the Court's attention to the separate opinion of then Chief Justice Artemio
Panganiban in Sanlakas v. Reyes104 in which he stated that the doctrine of "capable of repetition yet
evading review" can override mootness, "provided the party raising it in a proper case has been
and/or continue to be prejudiced or damaged as a direct result of their issuance." They contend that
the Court must have jurisdiction over the subject matter for the doctrine to be invoked.

The present petitions all contain prayers for Prohibition over which this Court exercises original
jurisdiction. While G.R. No. 183893 (City of Iligan v. GRP) is a petition for Injunction and Declaratory
Relief, the Court will treat it as one for Prohibition as it has far reaching implications and raises
questions that need to be resolved.105 At all events, the Court has jurisdiction over most if not the rest
of the petitions.
Indeed, the present petitions afford a proper venue for the Court to again apply the doctrine
immediately referred to as what it had done in a number of landmark cases. 106 There is
a reasonable expectation that petitioners, particularly the Provinces of North Cotabato, Zamboanga
del Norte and Sultan Kudarat, the Cities of Zamboanga, Iligan and Isabela, and the Municipality of
Linamon, will again be subjected to the same problem in the future as respondents' actions are
capable of repetition, in another or any form.

It is with respect to the prayers for Mandamus that the petitions have become moot, respondents
having, by Compliance of August 7, 2008, provided this Court and petitioners with official copies of
the final draft of the MOA-AD and its annexes. Too, intervenors have been furnished, or have
procured for themselves, copies of the MOA-AD.

V. SUBSTANTIVE ISSUES

As culled from the Petitions and Petitions-in-Intervention, there are basically two SUBSTANTIVE
issues to be resolved, one relating to the manner in which the MOA-AD was negotiated and
finalized, the other relating to its provisions, viz:

1. Did respondents violate constitutional and statutory provisions on public consultation and the right
to information when they negotiated and later initialed the MOA-AD?

2. Do the contents of the MOA-AD violate the Constitution and the laws?

ON THE FIRST SUBSTANTIVE ISSUE

Petitioners invoke their constitutional right to information on matters of public concern, as

provided in Section 7, Article III on the Bill of Rights:

Sec. 7. The right of the people to information on matters of public concern shall be
recognized. Access to official records, and to documents, and papers pertaining to official
acts, transactions, or decisions, as well as to government research data used as basis for
policy development, shall be afforded the citizen, subject to such limitations as may be
provided by law.107

As early as 1948, in Subido v. Ozaeta,108 the Court has recognized the statutory right to examine and
inspect public records, a right which was eventually accorded constitutional status.

The right of access to public documents, as enshrined in both the 1973 Constitution and the 1987
Constitution, has been recognized as a self-executory constitutional right. 109

In the 1976 case of Baldoza v. Hon. Judge Dimaano,110 the Court ruled that access to public records
is predicated on the right of the people to acquire information on matters of public concern since,
undoubtedly, in a democracy, the pubic has a legitimate interest in matters of social and political
significance.

x x x The incorporation of this right in the Constitution is a recognition of the fundamental role of free
exchange of information in a democracy. There can be no realistic perception by the public of the
nation's problems, nor a meaningful democratic decision-making if they are denied access to
information of general interest. Information is needed to enable the members of society to cope with
the exigencies of the times. As has been aptly observed: "Maintaining the flow of such information
depends on protection for both its acquisition and its dissemination since, if either process is
interrupted, the flow inevitably ceases." x x x111

In the same way that free discussion enables members of society to cope with the exigencies of
their time, access to information of general interest aids the people in democratic decision-making
by giving them a better perspective of the vital issues confronting the nation112 so that they may be
able to criticize and participate in the affairs of the government in a responsible, reasonable and
effective manner. It is by ensuring an unfettered and uninhibited exchange of ideas among a well-
informed public that a government remains responsive to the changes desired by the people. 113

The MOA-AD is a matter of public concern

That the subject of the information sought in the present cases is a matter of public concern 114 faces
no serious challenge. In fact, respondents admit that the MOA-AD is indeed of public concern.115 In
previous cases, the Court found that the regularity of real estate transactions entered in the Register
of Deeds,116 the need for adequate notice to the public of the various laws, 117 the civil service eligibility
of a public employee,118 the proper management of GSIS funds allegedly used to grant loans to
public officials,119 the recovery of the Marcoses' alleged ill-gotten wealth, 120 and the identity of party-
list nominees,121 among others, are matters of public concern. Undoubtedly, the MOA-AD subject of
the present cases is of public concern, involving as it does the sovereignty and territorial
integrity of the State, which directly affects the lives of the public at large.

Matters of public concern covered by the right to information include steps and negotiations leading
to the consummation of the contract. In not distinguishing as to the executory nature or commercial
character of agreements, the Court has categorically ruled:

x x x [T]he right to information "contemplates inclusion of negotiations leading to the

consummation of the transaction." Certainly, a consummated contract is not a
requirement for the exercise of the right to information. Otherwise, the people can never
exercise the right if no contract is consummated, and if one is consummated, it may be too
late for the public to expose its defects.

Requiring a consummated contract will keep the public in the dark until the contract, which
may be grossly disadvantageous to the government or even illegal, becomes fait accompli.
This negates the State policy of full transparency on matters of public concern, a situation
which the framers of the Constitution could not have intended. Such a requirement will
prevent the citizenry from participating in the public discussion of any proposed contract,
effectively truncating a basic right enshrined in the Bill of Rights. We can allow neither an
emasculation of a constitutional right, nor a retreat by the State of its avowed "policy of full
disclosure of all its transactions involving public interest."122 (Emphasis and italics in the
original)

Intended as a "splendid symmetry"123 to the right to information under the Bill of Rights is the policy of
public disclosure under Section 28, Article II of the Constitution reading:

Sec. 28. Subject to reasonable conditions prescribed by law, the State adopts and
implements a policy of full public disclosure of all its transactions involving public interest. 124

The policy of full public disclosure enunciated in above-quoted Section 28 complements the right of
access to information on matters of public concern found in the Bill of Rights. The right to information
guarantees the right of the people to demand information, while Section 28 recognizes the duty of
officialdom to give information even if nobody demands.125
The policy of public disclosure establishes a concrete ethical principle for the conduct of public
affairs in a genuinely open democracy, with the people's right to know as the centerpiece. It is a
mandate of the State to be accountable by following such policy. 126 These provisions are vital to the
exercise of the freedom of expression and essential to hold public officials at all times accountable to
the people.127

Whether Section 28 is self-executory, the records of the deliberations of the Constitutional

Commission so disclose:

MR. SUAREZ. And since this is not self-executory, this policy will not be enunciated or will
not be in force and effect until after Congress shall have provided it.

MR. OPLE. I expect it to influence the climate of public ethics immediately but, of course, the
implementing law will have to be enacted by Congress, Mr. Presiding Officer. 128

The following discourse, after Commissioner Hilario Davide, Jr., sought clarification on the issue, is
enlightening.

MR. DAVIDE. I would like to get some clarifications on this. Mr. Presiding Officer, did I get the
Gentleman correctly as having said that this is not a self-executing provision? It would
require a legislation by Congress to implement?

MR. OPLE. Yes. Originally, it was going to be self-executing, but I accepted an amendment
from Commissioner Regalado, so that the safeguards on national interest are modified by
the clause "as may be provided by law"

MR. DAVIDE. But as worded, does it not mean that this will immediately take effect and
Congress may provide for reasonable safeguards on the sole ground national interest?

MR. OPLE. Yes. I think so, Mr. Presiding Officer, I said earlier that it should
immediately influence the climate of the conduct of public affairs but, of course,
Congress here may no longer pass a law revoking it, or if this is approved, revoking this
principle, which is inconsistent with this policy.129 (Emphasis supplied)

Indubitably, the effectivity of the policy of public disclosure need not await the passing of a
statute. As Congress cannot revoke this principle, it is merely directed to provide for "reasonable
safeguards." The complete and effective exercise of the right to information necessitates that its
complementary provision on public disclosure derive the same self-executory nature. Since both
provisions go hand-in-hand, it is absurd to say that the broader 130 right to information on matters of
public concern is already enforceable while the correlative duty of the State to disclose its
transactions involving public interest is not enforceable until there is an enabling law. Respondents
cannot thus point to the absence of an implementing legislation as an excuse in not effecting such
policy.

An essential element of these freedoms is to keep open a continuing dialogue or process of

communication between the government and the people. It is in the interest of the State that the
channels for free political discussion be maintained to the end that the government may perceive
and be responsive to the people's will.131Envisioned to be corollary to the twin rights to information
and disclosure is the design for feedback mechanisms.
 MS. ROSARIO BRAID. Yes. And lastly, Mr. Presiding Officer, will the people be able to
participate? Will the government provide feedback mechanisms so that the people
can participate and can react where the existing media facilities are not able to
provide full feedback mechanisms to the government? I suppose this will be part of
the government implementing operational mechanisms.

MR. OPLE. Yes. I think through their elected representatives and that is how these courses
take place. There is a message and a feedback, both ways.

xxxx

MS. ROSARIO BRAID. Mr. Presiding Officer, may I just make one last sentence?

I think when we talk about the feedback network, we are not talking about public
officials but also network of private business o[r] community-based organizations that
will be reacting. As a matter of fact, we will put more credence or credibility on the private
network of volunteers and voluntary community-based organizations. So I do not think we
are afraid that there will be another OMA in the making. 132(Emphasis supplied)

The imperative of a public consultation, as a species of the right to information, is evident in the
"marching orders" to respondents. The mechanics for the duty to disclose information and to conduct
public consultation regarding the peace agenda and process is manifestly provided by E.O. No.
3.133 The preambulatory clause of E.O. No. 3 declares that there is a need to further enhance the
contribution of civil society to the comprehensive peace process by institutionalizing the people's
participation.

One of the three underlying principles of the comprehensive peace process is that it "should be
community-based, reflecting the sentiments, values and principles important to all Filipinos" and
"shall be defined not by the government alone, nor by the different contending groups only, but by all
Filipinos as one community."134 Included as a component of the comprehensive peace process is
consensus-building and empowerment for peace, which includes "continuing consultations on both
national and local levels to build consensus for a peace agenda and process, and the mobilization
and facilitation of people's participation in the peace process."135

Clearly, E.O. No. 3 contemplates not just the conduct of a plebiscite to effectuate
"continuing" consultations, contrary to respondents' position that plebiscite is "more than
sufficient consultation."136

Further, E.O. No. 3 enumerates the functions and responsibilities of the PAPP, one of which is to
"[c]onduct regular dialogues with the National Peace Forum (NPF) and other peace partners to seek
relevant information, comments, recommendations as well as to render appropriate and timely
reports on the progress of the comprehensive peace process."137 E.O. No. 3 mandates the
establishment of the NPF to be "the principal forum for the PAPP to consult with and seek advi[c]e
from the peace advocates, peace partners and concerned sectors of society on both national and
local levels, on the implementation of the comprehensive peace process, as well as for
government[-]civil society dialogue and consensus-building on peace agenda and initiatives." 138

In fine, E.O. No. 3 establishes petitioners' right to be consulted on the peace agenda, as a
corollary to the constitutional right to information and disclosure.

PAPP Esperon committed grave abuse of discretion

The PAPP committed grave abuse of discretion when he failed to carry out the pertinent
consultation. The furtive process by which the MOA-AD was designed and crafted runs contrary to
and in excess of the legal authority, and amounts to a whimsical, capricious, oppressive, arbitrary
and despotic exercise thereof.

The Court may not, of course, require the PAPP to conduct the consultation in a particular way or
manner. It may, however, require him to comply with the law and discharge the functions within the
authority granted by the President.139

Petitioners are not claiming a seat at the negotiating table, contrary to respondents' retort in justifying
the denial of petitioners' right to be consulted. Respondents' stance manifests the manner by which
they treat the salient provisions of E.O. No. 3 on people's participation. Such disregard of the
express mandate of the President is not much different from superficial conduct toward token
provisos that border on classic lip service.140 It illustrates a gross evasion of positive duty and a
virtual refusal to perform the duty enjoined.

As for respondents' invocation of the doctrine of executive privilege, it is not tenable under the
premises. The argument defies sound reason when contrasted with E.O. No. 3's explicit provisions
on continuing consultation and dialogue on both national and local levels. The executive order
even recognizes the exercise of the public's right even before the GRP makes its official
recommendations or before the government proffers its definite propositions.141 It bear emphasis that
E.O. No. 3 seeks to elicit relevant advice, information, comments and recommendations from the
people through dialogue.

AT ALL EVENTS, respondents effectively waived the defense of executive privilege in view of their
unqualified disclosure of the official copies of the final draft of the MOA-AD. By unconditionally
complying with the Court's August 4, 2008 Resolution, without a prayer for the document's
disclosure in camera, or without a manifestation that it was complying therewith ex abundante ad
cautelam.

Petitioners' assertion that the Local Government Code (LGC) of 1991 declares it a State policy to
"require all national agencies and offices to conduct periodic consultations with appropriate local
government units, non-governmental and people's organizations, and other concerned sectors of the
community before any project or program is implemented in their respective jurisdictions" 142 is well-
taken. The LGC chapter on intergovernmental relations puts flesh into this avowed policy:

Prior Consultations Required. - No project or program shall be implemented by government

authorities unlessthe consultations mentioned in Sections 2 (c) and 26 hereof are complied
with, and prior approval of the sanggunian concerned is obtained: Provided, That occupants
in areas where such projects are to be implemented shall not be evicted unless appropriate
relocation sites have been provided, in accordance with the provisions of the
Constitution.143 (Italics and underscoring supplied)

In Lina, Jr. v. Hon. Paño,144 the Court held that the above-stated policy and above-quoted provision of
the LGU apply only to national programs or projects which are to be implemented in a particular local
community. Among the programs and projects covered are those that are critical to the environment
and human ecology including those that may call for the eviction of a particular group of people
residing in the locality where these will be implemented.145 The MOA-AD is one peculiar program
that unequivocally and unilaterally vests ownership of a vast territory to the Bangsamoro
people,146 which could pervasively and drastically result to the diaspora or displacement of a
great number of inhabitants from their total environment.
With respect to the indigenous cultural communities/indigenous peoples (ICCs/IPs), whose interests
are represented herein by petitioner Lopez and are adversely affected by the MOA-AD, the ICCs/IPs
have, under the IPRA, the right to participate fully at all levels of decision-making in matters which
may affect their rights, lives and destinies.147 The MOA-AD, an instrument recognizing ancestral
domain, failed to justify its non-compliance with the clear-cut mechanisms ordained in said
Act,148 which entails, among other things, the observance of the free and prior informed consent of
the ICCs/IPs.

Notably, the IPRA does not grant the Executive Department or any government agency the power to
delineate and recognize an ancestral domain claim by mere agreement or compromise. The
recognition of the ancestral domain is the raison d'etre of the MOA-AD, without which all other
stipulations or "consensus points" necessarily must fail. In proceeding to make a sweeping
declaration on ancestral domain, without complying with the IPRA, which is cited as one of the TOR
of the MOA-AD, respondents clearly transcended the boundaries of their authority. As it
seems, even the heart of the MOA-AD is still subject to necessary changes to the legal framework.
While paragraph 7 on Governance suspends the effectivity of all provisions requiring changes to the
legal framework, such clause is itself invalid, as will be discussed in the following section.

Indeed, ours is an open society, with all the acts of the government subject to public scrutiny and
available always to public cognizance. This has to be so if the country is to remain democratic, with
sovereignty residing in the people and all government authority emanating from them. 149

ON THE SECOND SUBSTANTIVE ISSUE

With regard to the provisions of the MOA-AD, there can be no question that they cannot all be
accommodated under the present Constitution and laws. Respondents have admitted as much in the
oral arguments before this Court, and the MOA-AD itself recognizes the need to amend the existing
legal framework to render effective at least some of its provisions. Respondents, nonetheless,
counter that the MOA-AD is free of any legal infirmity because any provisions therein which are
inconsistent with the present legal framework will not be effective until the necessary changes to that
framework are made. The validity of this argument will be considered later. For now, the Court shall
pass upon how

The MOA-AD is inconsistent with the Constitution and laws as presently worded.

In general, the objections against the MOA-AD center on the extent of the powers conceded therein
to the BJE. Petitioners assert that the powers granted to the BJE exceed those granted to any local
government under present laws, and even go beyond those of the present ARMM. Before assessing
some of the specific powers that would have been vested in the BJE, however, it would be useful to
turn first to a general idea that serves as a unifying link to the different provisions of the MOA-AD,
namely, the international law concept of association. Significantly, the MOA-AD explicitly alludes to
this concept, indicating that the Parties actually framed its provisions with it in mind.

Association is referred to in paragraph 3 on TERRITORY, paragraph 11 on RESOURCES, and

paragraph 4 on GOVERNANCE. It is in the last mentioned provision, however, that the MOA-AD
most clearly uses it to describe the envisioned relationship between the BJE and the Central
Government.

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

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

Keitner and Reisman state that

[a]n association is formed when two states of unequal power voluntarily establish durable
links. In the basic model, one state, the associate, delegates certain responsibilities to
the other, the principal, while maintaining its international status as a state. Free
associations represent a middle ground between integration and independence. x x
x150 (Emphasis and underscoring supplied)

For purposes of illustration, the Republic of the Marshall Islands and the Federated States of
Micronesia (FSM), formerly part of the U.S.-administered Trust Territory of the Pacific Islands, 151 are
associated states of the U.S. pursuant to a Compact of Free Association. The currency in these
countries is the U.S. dollar, indicating their very close ties with the U.S., yet they issue their own
travel documents, which is a mark of their statehood. Their international legal status as states was
confirmed by the UN Security Council and by their admission to UN membership.

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

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

It bears noting that in U.S. constitutional and international practice, free association is understood as
an international association between sovereigns. The Compact of Free Association is a treaty which
is subordinate to the associated nation's national constitution, and each party may terminate the
association consistent with the right of independence. It has been said that, with the admission of the
U.S.-associated states to the UN in 1990, the UN recognized that the American model of free
association is actually based on an underlying status of independence. 152

In international practice, the "associated state" arrangement has usually been used as a transitional
device of former colonies on their way to full independence. Examples of states that have passed
through the status of associated states as a transitional phase are Antigua, St. Kitts-Nevis-Anguilla,
Dominica, St. Lucia, St. Vincent and Grenada. All have since become independent states. 153

Back to the MOA-AD, it contains many provisions which are consistent with the international legal
concept of association, specifically the following: the BJE's capacity to enter into economic and trade
relations with foreign countries, the commitment of the Central Government to ensure the BJE's
participation in meetings and events in the ASEAN and the specialized UN agencies, and the
continuing responsibility of the Central Government over external defense. Moreover, 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.

The BJE is a far more powerful

entity than the autonomous region
recognized in the Constitution

It is not merely an expanded version of the ARMM, the status of its relationship with the national
government being fundamentally different from that of the ARMM. Indeed, BJE is a state in all but
name as it meets the criteria of a state laid down in the Montevideo Convention,154 namely,
a permanent population, a defined territory, a government, and a capacity to enter into relations with
other states.

Even assuming arguendo that the MOA-AD would not necessarily sever any portion of Philippine
territory, the spirit animating it - which has betrayed itself by its use of the concept of association
- runs counter to the national sovereignty and territorial integrity of the Republic.

The defining concept underlying the relationship between the national government and the
BJE being itself contrary to the present Constitution, it is not surprising that many of the
specific provisions of the MOA-AD on the formation and powers of the BJE are in conflict
with the Constitution and the laws.

Article X, Section 18 of the Constitution provides that "[t]he creation of the autonomous region shall
be effective when approved by a majority of the votes cast by the constituent units in a plebiscite
called for the purpose, provided that only provinces, cities, and geographic areas voting
favorably in such plebiscite shall be included in the autonomous region." (Emphasis supplied)

As reflected above, the BJE is more of a state than an autonomous region. But even assuming that it
is covered by the term "autonomous region" in the constitutional provision just quoted, the MOA-AD
would still be in conflict with it. Under paragraph 2(c) on TERRITORY in relation to 2(d) and 2(e), the
present geographic area of the ARMM and, in addition, the municipalities of Lanao del Norte which
voted for inclusion in the ARMM during the 2001 plebiscite - Baloi, Munai, Nunungan, Pantar,
Tagoloan and Tangkal - are automatically part of the BJE without need of another plebiscite, in
contrast to the areas under Categories A and B mentioned earlier in the overview. That the present
components of the ARMM and the above-mentioned municipalities voted for inclusion therein in
2001, however, does not render another plebiscite unnecessary under the Constitution, precisely
because what these areas voted for then was their inclusion in the ARMM, not the BJE.

The MOA-AD, moreover, would not

comply with Article X, Section 20 of
the Constitution

since that provision defines the powers of autonomous regions as follows:

SECTION 20. Within its territorial jurisdiction and subject to the provisions of this Constitution
and national laws, the organic act of autonomous regions shall provide for legislative powers
over:

(1) Administrative organization;

(2) Creation of sources of revenues;

(3) Ancestral domain and natural resources;

(4) Personal, family, and property relations;

(5) Regional urban and rural planning development;

(6) Economic, social, and tourism development;

(7) Educational policies;

(8) Preservation and development of the cultural heritage; and

(9) Such other matters as may be authorized by law for the promotion of the general welfare
of the people of the region. (Underscoring supplied)

Again on the premise that the BJE may be regarded as an autonomous region, the MOA-AD would
require an amendment that would expand the above-quoted provision. The mere passage of new
legislation pursuant to sub-paragraph No. 9 of said constitutional provision would not suffice, since
any new law that might vest in the BJE the powers found in the MOA-AD must, itself, comply with
other provisions of the Constitution. It would not do, for instance, to merely pass legislation vesting
the BJE with treaty-making power in order to accommodate paragraph 4 of the strand on
RESOURCES which states: "The BJE is free to enter into any economic cooperation and trade
relations with foreign countries: provided, however, that such relationships and understandings do
not include aggression against the Government of the Republic of the Philippines x x x." Under our
constitutional system, it is only the President who has that power. Pimentel v. Executive
Secretary155 instructs:

In our system of government, the President, being the head of state, is regarded as the sole
organ and authority in external relations and is the country's sole representative with
foreign nations. As the chief architect of foreign policy, the President acts as the country's
mouthpiece with respect to international affairs. Hence, the President is vested with the
authority to deal with foreign states and governments, extend or withhold
recognition, maintain diplomatic relations, enter into treaties, and otherwise transact
the business of foreign relations. In the realm of treaty-making, the President has the
sole authority to negotiate with other states. (Emphasis and underscoring supplied)

Article II, Section 22 of the Constitution must also be amended if the scheme envisioned in
the MOA-AD is to be effected. That constitutional provision states: "The State recognizes and
promotes the rights of indigenous cultural communities within the framework of national unity and
development." (Underscoring supplied) An associative arrangement does not uphold national unity.
While there may be a semblance of unity because of the associative ties between the BJE and the
national government, the act of placing a portion of Philippine territory in a status which, in
international practice, has generally been a preparation for independence, is certainly not conducive
to national unity.

Besides being irreconcilable with the Constitution, the MOA-AD is also inconsistent with prevailing
statutory law, among which are R.A. No. 9054156 or the Organic Act of the ARMM, and the IPRA.157

Article X, Section 3 of the Organic Act of the ARMM is a bar to the adoption of the definition
of "Bangsamoro people" used in the MOA-AD. Paragraph 1 on Concepts and Principles states:

1. It is the birthright of all Moros and all Indigenous peoples of Mindanao to identify
themselves and be accepted as "Bangsamoros". The Bangsamoro people refers to those
who are natives or original inhabitants of Mindanao and its adjacent islands including
Palawan and the Sulu archipelago at the time of conquest or colonization of its descendants
whether mixed or of full blood. Spouses and their descendants are classified as
Bangsamoro. The freedom of choice of the Indigenous people shall be respected. (Emphasis
and underscoring supplied)

This use of the term Bangsamoro sharply contrasts with that found in the Article X, Section 3 of the
Organic Act, which, rather than lumping together the identities of the Bangsamoro and other
indigenous peoples living in Mindanao, clearly distinguishes between Bangsamoro people and
Tribal peoples, as follows:

"As used in this Organic Act, the phrase "indigenous cultural community" refers to Filipino
citizens residing in the autonomous region who are:

(a) Tribal peoples. These are citizens whose social, cultural and economic conditions
distinguish them from other sectors of the national community; and
 (b) Bangsa Moro people. These are citizens who are believers in Islam and who have
retained some or all of their own social, economic, cultural, and political institutions."

Respecting the IPRA, it lays down the prevailing procedure for the delineation and recognition of
ancestral domains. The MOA-AD's manner of delineating the ancestral domain of the Bangsamoro
people is a clear departure from that procedure. By paragraph 1 of Territory, the Parties simply agree
that, subject to the delimitations in the agreed Schedules, "[t]he Bangsamoro homeland and historic
territory refer to the land mass as well as the maritime, terrestrial, fluvial and alluvial domains, and
the aerial domain, the atmospheric space above it, embracing the Mindanao-Sulu-Palawan
geographic region."

Chapter VIII of the IPRA, on the other hand, lays down a detailed procedure, as illustrated in the
following provisions thereof:

SECTION 52. Delineation Process. - The identification and delineation of ancestral domains
shall be done in accordance with the following procedures:

xxxx

b) Petition for Delineation. - The process of delineating a specific perimeter may be initiated
by the NCIP with the consent of the ICC/IP concerned, or through a Petition for Delineation
filed with the NCIP, by a majority of the members of the ICCs/IPs;

c) Delineation Proper. - The official delineation of ancestral domain boundaries including

census of all community members therein, shall be immediately undertaken by the Ancestral
Domains Office upon filing of the application by the ICCs/IPs concerned. Delineation will be
done in coordination with the community concerned and shall at all times include genuine
involvement and participation by the members of the communities concerned;

d) Proof Required. - Proof of Ancestral Domain Claims shall include the testimony of elders
or community under oath, and other documents directly or indirectly attesting to the
possession or occupation of the area since time immemorial by such ICCs/IPs in the concept
of owners which shall be any one (1) of the following authentic documents:

1) Written accounts of the ICCs/IPs customs and traditions;

2) Written accounts of the ICCs/IPs political structure and institution;

3) Pictures showing long term occupation such as those of old improvements, burial
grounds, sacred places and old villages;

4) Historical accounts, including pacts and agreements concerning boundaries

entered into by the ICCs/IPs concerned with other ICCs/IPs;

5) Survey plans and sketch maps;

6) Anthropological data;

7) Genealogical surveys;
 8) Pictures and descriptive histories of traditional communal forests and hunting
grounds;

9) Pictures and descriptive histories of traditional landmarks such as mountains,

rivers, creeks, ridges, hills, terraces and the like; and

10) Write-ups of names and places derived from the native dialect of the community.

e) Preparation of Maps. - On the basis of such investigation and the findings of fact based
thereon, the Ancestral Domains Office of the NCIP shall prepare a perimeter map, complete
with technical descriptions, and a description of the natural features and landmarks
embraced therein;

f) Report of Investigation and Other Documents. - A complete copy of the preliminary census
and a report of investigation, shall be prepared by the Ancestral Domains Office of the NCIP;

g) Notice and Publication. - A copy of each document, including a translation in the native
language of the ICCs/IPs concerned shall be posted in a prominent place therein for at least
fifteen (15) days. A copy of the document shall also be posted at the local, provincial and
regional offices of the NCIP, and shall be published in a newspaper of general circulation
once a week for two (2) consecutive weeks to allow other claimants to file opposition thereto
within fifteen (15) days from date of such publication: Provided, That in areas where no such
newspaper exists, broadcasting in a radio station will be a valid substitute: Provided, further,
That mere posting shall be deemed sufficient if both newspaper and radio station are not
available;

h) Endorsement to NCIP. - Within fifteen (15) days from publication, and of the inspection
process, the Ancestral Domains Office shall prepare a report to the NCIP endorsing a
favorable action upon a claim that is deemed to have sufficient proof. However, if the proof is
deemed insufficient, the Ancestral Domains Office shall require the submission of additional
evidence: Provided, That the Ancestral Domains Office shall reject any claim that is deemed
patently false or fraudulent after inspection and verification: Provided, further, That in case of
rejection, the Ancestral Domains Office shall give the applicant due notice, copy furnished all
concerned, containing the grounds for denial. The denial shall be appealable to the NCIP:
Provided, furthermore, That in cases where there are conflicting claims among ICCs/IPs on
the boundaries of ancestral domain claims, the Ancestral Domains Office shall cause the
contending parties to meet and assist them in coming up with a preliminary resolution of the
conflict, without prejudice to its full adjudication according to the section below.

xxxx

To remove all doubts about the irreconcilability of the MOA-AD with the present legal system, a
discussion of not only the Constitution and domestic statutes, but also of international law is in order,
for

Article II, Section 2 of the Constitution states that the Philippines "adopts the generally
accepted principles of international law as part of the law of the land."

Applying this provision of the Constitution, the Court, in Mejoff v. Director of Prisons,158 held that the
Universal Declaration of Human Rights is part of the law of the land on account of which it ordered
the release on bail of a detained alien of Russian descent whose deportation order had not been
executed even after two years. Similarly, the Court in Agustin v. Edu159 applied the aforesaid
constitutional provision to the 1968 Vienna Convention on Road Signs and Signals.

International law has long recognized the right to self-determination of "peoples," understood not
merely as the entire population of a State but also a portion thereof. In considering the question of
whether the people of Quebec had a right to unilaterally secede from Canada, the Canadian
Supreme Court in REFERENCE RE SECESSION OF QUEBEC160 had occasion to acknowledge that
"the right of a people to self-determination is now so widely recognized in international conventions
that the principle has acquired a status beyond ‘convention' and is considered a general principle of
international law."

Among the conventions referred to are the International Covenant on Civil and Political Rights 161 and
the International Covenant on Economic, Social and Cultural Rights 162 which state, in Article 1 of both
covenants, that all peoples, by virtue of the right of self-determination, "freely determine their political
status and freely pursue their economic, social, and cultural development."

The people's right to self-determination should not, however, be understood as extending to a

unilateral right of secession. A distinction should be made between the right of internal and external
self-determination. REFERENCE RE SECESSION OF QUEBEC is again instructive:

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

126. The recognized sources of international law establish that the right to self-
determination of a people is normally fulfilled through internal self-determination - a
people's pursuit of its political, economic, social and cultural development within the
framework of an existing state. A right to external self-determination (which in this
case potentially takes the form of the assertion of a right to unilateral secession)
arises in only the most extreme of cases and, even then, under carefully defined
circumstances. x x x

External self-determination can be defined as in the following statement from

the Declaration on Friendly Relations, supra, as

The establishment of a sovereign and independent State, the free association or

integration with an independent State or the emergence into any other political status
freely determined by a peopleconstitute modes of implementing the right of self-
determination by that people. (Emphasis added)

127. The international law principle of self-determination has evolved within a

framework of respect for the territorial integrity of existing states. The various
international documents that support the existence of a people's right to self-determination
also contain parallel statements supportive of the conclusion that the exercise of such a right
must be sufficiently limited to prevent threats to an existing state's territorial integrity or the
stability of relations between sovereign states.

x x x x (Emphasis, italics and underscoring supplied)

The Canadian Court went on to discuss the exceptional cases in which the right to external self-
determination can arise, namely, where a people is under colonial rule, is subject to foreign
domination or exploitation outside a colonial context, and - less definitely but asserted by a number
of commentators - is blocked from the meaningful exercise of its right to internal self-determination.
The Court ultimately held that the population of Quebec had no right to secession, as the same is
not under colonial rule or foreign domination, nor is it being deprived of the freedom to make political
choices and pursue economic, social and cultural development, citing that Quebec is equitably
represented in legislative, executive and judicial institutions within Canada, even occupying
prominent positions therein.

The exceptional nature of the right of secession is further exemplified in the REPORT OF THE
INTERNATIONAL COMMITTEE OF JURISTS ON THE LEGAL ASPECTS OF THE AALAND
ISLANDS QUESTION.163 There, Sweden presented to the Council of the League of Nations the
question of whether the inhabitants of the Aaland Islands should be authorized to determine by
plebiscite if the archipelago should remain under Finnish sovereignty or be incorporated in the
kingdom of Sweden. The Council, before resolving the question, appointed an International
Committee composed of three jurists to submit an opinion on the preliminary issue of whether the
dispute should, based on international law, be entirely left to the domestic jurisdiction of Finland. The
Committee stated the rule as follows:

x x x [I]n the absence of express provisions in international treaties, the right of disposing
of national territory is essentially an attribute of the sovereignty of every State.
Positive International Law does not recognize the right of national groups, as such, to
separate themselves from the State of which they form part by the simple expression
of a wish, any more than it recognizes the right of other States to claim such a
separation. Generally speaking, the grant or refusal of the right to a portion of its
population of determining its own political fate by plebiscite or by some other method,
is, exclusively, an attribute of the sovereignty of every State which is definitively
constituted. A dispute between two States concerning such a question, under normal
conditions therefore, bears upon a question which International Law leaves entirely to the
domestic jurisdiction of one of the States concerned. Any other solution would amount to an
infringement of sovereign rights of a State and would involve the risk of creating difficulties
and a lack of stability which would not only be contrary to the very idea embodied in term
"State," but would also endanger the interests of the international community. If this right is
not possessed by a large or small section of a nation, neither can it be held by the State to
which the national group wishes to be attached, nor by any other State. (Emphasis and
underscoring supplied)

The Committee held that the dispute concerning the Aaland Islands did not refer to a question which
is left by international law to the domestic jurisdiction of Finland, thereby applying the exception
rather than the rule elucidated above. Its ground for departing from the general rule, however, was a
very narrow one, namely, the Aaland Islands agitation originated at a time when Finland was
undergoing drastic political transformation. The internal situation of Finland was, according to the
Committee, so abnormal that, for a considerable time, the conditions required for the formation of a
sovereign State did not exist. In the midst of revolution, anarchy, and civil war, the legitimacy of the
Finnish national government was disputed by a large section of the people, and it had, in fact, been
chased from the capital and forcibly prevented from carrying out its duties. The armed camps and
the police were divided into two opposing forces. In light of these circumstances, Finland was not,
during the relevant time period, a "definitively constituted" sovereign state. The Committee,
therefore, found that Finland did not possess the right to withhold from a portion of its population the
option to separate itself - a right which sovereign nations generally have with respect to their own
populations.

Turning now to the more specific category of indigenous peoples, this term has been used, in
scholarship as well as international, regional, and state practices, to refer to groups with distinct
cultures, histories, and connections to land (spiritual and otherwise) that have been forcibly
incorporated into a larger governing society. These groups are regarded as "indigenous" since they
are the living descendants of pre-invasion inhabitants of lands now dominated by others. Otherwise
stated, indigenous peoples, nations, or communities are culturally distinctive groups that find
themselves engulfed by settler societies born of the forces of empire and conquest. 164 Examples of
groups who have been regarded as indigenous peoples are the Maori of New Zealand and the
aboriginal peoples of Canada.

As with the broader category of "peoples," indigenous peoples situated within states do not have a
general right to independence or secession from those states under international law, 165 but they do
have rights amounting to what was discussed above as the right to internal self-determination.

In a historic development last September 13, 2007, the UN General Assembly adopted the United
Nations Declaration on the Rights of Indigenous Peoples (UN DRIP) through General Assembly
Resolution 61/295. The vote was 143 to 4, the Philippines being included among those in favor,
and the four voting against being Australia, Canada, New Zealand, and the U.S. The Declaration
clearly recognized the right of indigenous peoples to self-determination, encompassing the
right to autonomy or self-government, to wit:

Article 3

Indigenous peoples have the right to self-determination. By virtue of that right they freely
determine their political status and freely pursue their economic, social and cultural
development.

Article 4

Indigenous peoples, in exercising their right to self-determination, have the right

to autonomy or self-government in matters relating to their internal and local affairs,
as well as ways and means for financing their autonomous functions.

Article 5

Indigenous peoples have the right to maintain and strengthen their distinct political, legal,
economic, social and cultural institutions, while retaining their right to participate fully, if they
so choose, in the political, economic, social and cultural life of the State.

Self-government, as used in international legal discourse pertaining to indigenous peoples, has been
understood as equivalent to "internal self-determination."166 The extent of self-determination provided
for in the UN DRIP is more particularly defined in its subsequent articles, some of which are quoted
hereunder:

Article 8

1. Indigenous peoples and individuals have the right not to be subjected to forced
assimilation or destruction of their culture.

2. States shall provide effective mechanisms for prevention of, and redress for:

(a) Any action which has the aim or effect of depriving them of their integrity as
distinct peoples, or of their cultural values or ethnic identities;
(b) Any action which has the aim or effect of dispossessing them of their lands,
territories or resources;

(c) Any form of forced population transfer which has the aim or effect of violating or
undermining any of their rights;

(d) Any form of forced assimilation or integration;

(e) Any form of propaganda designed to promote or incite racial or ethnic

discrimination directed against them.

Article 21

1. Indigenous peoples have the right, without discrimination, to the improvement of their
economic and social conditions, including, inter alia, in the areas of education, employment,
vocational training and retraining, housing, sanitation, health and social security.

2. States shall take effective measures and, where appropriate, special measures to ensure
continuing improvement of their economic and social conditions. Particular attention shall be
paid to the rights and special needs of indigenous elders, women, youth, children and
persons with disabilities.

Article 26

1. Indigenous peoples have the right to the lands, territories and resources which they
have traditionally owned, occupied or otherwise used or acquired.

2. Indigenous peoples have the right to own, use, develop and control the lands, territories
and resources that they possess by reason of traditional ownership or other traditional
occupation or use, as well as those which they have otherwise acquired.

3. States shall give legal recognition and protection to these lands, territories and resources.
Such recognition shall be conducted with due respect to the customs, traditions and land
tenure systems of the indigenous peoples concerned.

Article 30

1. Military activities shall not take place in the lands or territories of indigenous peoples,
unless justified by a relevant public interest or otherwise freely agreed with or requested by
the indigenous peoples concerned.

2. States shall undertake effective consultations with the indigenous peoples concerned,
through appropriate procedures and in particular through their representative institutions,
prior to using their lands or territories for military activities.

Article 32

1. Indigenous peoples have the right to determine and develop priorities and strategies for
the development or use of their lands or territories and other resources.
 2. States shall consult and cooperate in good faith with the indigenous peoples concerned
through their own representative institutions in order to obtain their free and informed
consent prior to the approval of any project affecting their lands or territories and other
resources, particularly in connection with the development, utilization or exploitation of
mineral, water or other resources.

3. States shall provide effective mechanisms for just and fair redress for any such activities,
and appropriate measures shall be taken to mitigate adverse environmental, economic,
social, cultural or spiritual impact.

Article 37

1. Indigenous peoples have the right to the recognition, observance and enforcement of
treaties, agreements and other constructive arrangements concluded with States or their
successors and to have States honour and respect such treaties, agreements and other
constructive arrangements.

2. Nothing in this Declaration may be interpreted as diminishing or eliminating the rights of

indigenous peoples contained in treaties, agreements and other constructive arrangements.

Article 38

States in consultation and cooperation with indigenous peoples, shall take the appropriate
measures, including legislative measures, to achieve the ends of this Declaration.

Assuming that the UN DRIP, like the Universal Declaration on Human Rights, must now be regarded
as embodying customary international law - a question which the Court need not definitively resolve
here - the obligations enumerated therein do not strictly require the Republic to grant the
Bangsamoro people, through the instrumentality of the BJE, the particular rights and powers
provided for in the MOA-AD. Even the more specific provisions of the UN DRIP are general in scope,
allowing for flexibility in its application by the different States.

There is, for instance, no requirement in the UN DRIP that States now guarantee indigenous
peoples their own police and internal security force. Indeed, Article 8 presupposes that it is the State
which will provide protection for indigenous peoples against acts like the forced dispossession of
their lands - a function that is normally performed by police officers. If the protection of a right so
essential to indigenous people's identity is acknowledged to be the responsibility of the State, then
surely the protection of rights less significant to them as such peoples would also be the duty of
States. Nor is there in the UN DRIP an acknowledgement of the right of indigenous peoples to the
aerial domain and atmospheric space. What it upholds, in Article 26 thereof, is the right of
indigenous peoples to the lands, territories and resources which they have traditionally owned,
occupied or otherwise used or acquired.

Moreover, the UN DRIP, while upholding the right of indigenous peoples to autonomy, does not
obligate States to grant indigenous peoples the near-independent status of an associated state. All
the rights recognized in that document are qualified in Article 46 as follows:

1. Nothing in this Declaration may be interpreted as implying for any State, people, group
or person any right to engage in any activity or to perform any act contrary to the Charter of
the United Nations or construed as authorizing or encouraging any action which would
 dismember or impair, totally or in part, the territorial integrity or political unity of
sovereign and independent States.

Even if the UN DRIP were considered as part of the law of the land pursuant to Article II, Section 2 of
the Constitution, it would not suffice to uphold the validity of the MOA-AD so as to render its
compliance with other laws unnecessary.

It is, therefore, clear that the MOA-AD contains numerous provisions that cannot be
reconciled with the Constitution and the laws as presently worded. Respondents proffer,
however, that the signing of the MOA-AD alone would not have entailed any violation of law or grave
abuse of discretion on their part, precisely because it stipulates that the provisions thereof
inconsistent with the laws shall not take effect until these laws are amended. They cite paragraph 7
of the MOA-AD strand on GOVERNANCE quoted earlier, but which is reproduced below for
convenience:

7. The Parties agree that the mechanisms and modalities for the actual implementation of
this MOA-AD shall be spelt out in the Comprehensive Compact to mutually take such steps
to enable it to occur effectively.

Any provisions of the MOA-AD requiring amendments to the existing legal framework shall
come into force upon signing of a Comprehensive Compact and upon effecting the
necessary changes to the legal framework with due regard to non derogation of prior
agreements and within the stipulated timeframe to be contained in the Comprehensive
Compact.

Indeed, the foregoing stipulation keeps many controversial provisions of the MOA-AD from coming
into force until the necessary changes to the legal framework are effected. While the word
"Constitution" is not mentioned in the provision now under consideration or anywhere else
in the MOA-AD, the term "legal framework" is certainly broad enough to include the
Constitution.

Notwithstanding the suspensive clause, however, respondents, by their mere act of incorporating in
the MOA-AD the provisions thereof regarding the associative relationship between the BJE and the
Central Government, have already violated the Memorandum of Instructions From The President
dated March 1, 2001, which states that the "negotiations shall be conducted in accordance with x x x
the principles of the sovereignty and territorial integrityof the Republic of the Philippines."
(Emphasis supplied) Establishing an associative relationship between the BJE and the Central
Government is, for the reasons already discussed, a preparation for independence, or worse, an
implicit acknowledgment of an independent status already prevailing.

Even apart from the above-mentioned Memorandum, however, the MOA-AD is defective because
the suspensive clause is invalid, as discussed below.

The authority of the GRP Peace Negotiating Panel to negotiate with the MILF is founded on E.O. No.
3, Section 5(c), which states that there shall be established Government Peace Negotiating Panels
for negotiations with different rebel groups to be "appointed by the President as her official
emissaries to conduct negotiations, dialogues, and face-to-face discussions with rebel groups."
These negotiating panels are to report to the President, through the PAPP on the conduct and
progress of the negotiations.

It bears noting that the GRP Peace Panel, in exploring lasting solutions to the Moro Problem through
its negotiations with the MILF, was not restricted by E.O. No. 3 only to those options available under
the laws as they presently stand. One of the components of a comprehensive peace process, which
E.O. No. 3 collectively refers to as the "Paths to Peace," is the pursuit of social, economic, and
political reforms which may require new legislation or even constitutional amendments. Sec. 4(a) of
E.O. No. 3, which reiterates Section 3(a), of E.O. No. 125, 167 states:

SECTION 4. The Six Paths to Peace. - The components of the comprehensive peace
process comprise the processes known as the "Paths to Peace". These component
processes are interrelated and not mutually exclusive, and must therefore be pursued
simultaneously in a coordinated and integrated fashion. They shall include, but may not be
limited to, the following:

a. PURSUIT OF SOCIAL, ECONOMIC AND POLITICAL REFORMS. This component

involves the vigorous implementation of various policies, reforms, programs and
projects aimed at addressing the root causes of internal armed conflicts and social
unrest. This may require administrative action, new legislation or even constitutional
amendments.

x x x x (Emphasis supplied)

The MOA-AD, therefore, may reasonably be perceived as an attempt of respondents to address,

pursuant to this provision of E.O. No. 3, the root causes of the armed conflict in Mindanao. The E.O.
authorized them to "think outside the box," so to speak. Hence, they negotiated and were set on
signing the MOA-AD that included various social, economic, and political reforms which cannot,
however, all be accommodated within the present legal framework, and which thus would require
new legislation and constitutional amendments.

The inquiry on the legality of the "suspensive clause," however, cannot stop here, because it must
be asked whether the President herself may exercise the power delegated to the GRP Peace
Panel under E.O. No. 3, Sec. 4(a).

The President cannot delegate a power that she herself does not possess. May the President, in the
course of peace negotiations, agree to pursue reforms that would require new legislation and
constitutional amendments, or should the reforms be restricted only to those solutions which the
present laws allow? The answer to this question requires a discussion of the extent of the
President's power to conduct peace negotiations.

That the authority of the President to conduct peace negotiations with rebel groups is not explicitly
mentioned in the Constitution does not mean that she has no such authority. In Sanlakas v.
Executive Secretary,168 in issue was the authority of the President to declare a state of rebellion - an
authority which is not expressly provided for in the Constitution. The Court held thus:

"In her ponencia in Marcos v. Manglapus, Justice Cortes put her thesis into jurisprudence.
There, the Court, by a slim 8-7 margin, upheld the President's power to forbid the return of
her exiled predecessor. The rationale for the majority's ruling rested on the President's

. . . unstated residual powers which are implied from the grant of executive
power and which are necessary for her to comply with her duties under the
Constitution. The powers of the President are not limited to what are expressly
enumerated in the article on the Executive Department and in scattered
provisions of the Constitution. This is so, notwithstanding the avowed intent of the
members of the Constitutional Commission of 1986 to limit the powers of the
President as a reaction to the abuses under the regime of Mr. Marcos, for the result
 was a limitation of specific powers of the President, particularly those relating to the
commander-in-chief clause, but not a diminution of the general grant of executive
power.

Thus, the President's authority to declare a state of rebellion springs in the main from
her powers as chief executive and, at the same time, draws strength from her
Commander-in-Chief powers. x x x (Emphasis and underscoring supplied)

Similarly, the President's power to conduct peace negotiations is implicitly included in her powers as
Chief Executive and Commander-in-Chief. As Chief Executive, the President has the general
responsibility to promote public peace, and as Commander-in-Chief, she has the more specific duty
to prevent and suppress rebellion and lawless violence. 169

As the experience of nations which have similarly gone through internal armed conflict will show,
however, peace is rarely attained by simply pursuing a military solution. Oftentimes, changes as far-
reaching as a fundamental reconfiguration of the nation's constitutional structure is required. The
observations of Dr. Kirsti Samuels are enlightening, to wit:

x x x [T]he fact remains that a successful political and governance transition must form the
core of any post-conflict peace-building mission. As we have observed in Liberia and Haiti
over the last ten years, conflict cessation without modification of the political environment,
even where state-building is undertaken through technical electoral assistance and
institution- or capacity-building, is unlikely to succeed. On average, more than 50 percent of
states emerging from conflict return to conflict. Moreover, a substantial proportion of
transitions have resulted in weak or limited democracies.

The design of a constitution and its constitution-making process can play an important role in
the political and governance transition. Constitution-making after conflict is an opportunity to
create a common vision of the future of a state and a road map on how to get there. The
constitution can be partly a peace agreement and partly a framework setting up the rules by
which the new democracy will operate.170

In the same vein, Professor Christine Bell, in her article on the nature and legal status of peace
agreements, observed that the typical way that peace agreements establish or confirm mechanisms
for demilitarization and demobilization is by linking them to new constitutional
structures addressing governance, elections, and legal and human rights institutions. 171

In the Philippine experience, the link between peace agreements and constitution-making has been
recognized by no less than the framers of the Constitution. Behind the provisions of the Constitution
on autonomous regions172 is the framers' intention to implement a particular peace agreement,
namely, the Tripoli Agreement of 1976 between the GRP and the MNLF, signed by then
Undersecretary of National Defense Carmelo Z. Barbero and then MNLF Chairman Nur Misuari.

MR. ROMULO. There are other speakers; so, although I have some more questions, I will
reserve my right to ask them if they are not covered by the other speakers. I have only two
questions.

I heard one of the Commissioners say that local autonomy already exists in the
Muslim region; it is working very well; it has, in fact, diminished a great deal of the
problems. So, my question is: since that already exists, why do we have to go into
something new?
 MR. OPLE. May I answer that on behalf of Chairman Nolledo. Commissioner Yusup
Abubakar is right that certain definite steps have been taken to implement the
provisions of the Tripoli Agreement with respect to an autonomous region in
Mindanao. This is a good first step, but there is no question that this is merely a
partial response to the Tripoli Agreement itself and to the fuller standard of regional
autonomy contemplated in that agreement, and now by state policy.173(Emphasis
supplied)

The constitutional provisions on autonomy and the statutes enacted pursuant to them have, to the
credit of their drafters, been partly successful. Nonetheless, the Filipino people are still faced with
the reality of an on-going conflict between the Government and the MILF. If the President is to be
expected to find means for bringing this conflict to an end and to achieve lasting peace in Mindanao,
then she must be given the leeway to explore, in the course of peace negotiations, solutions that
may require changes to the Constitution for their implementation. Being uniquely vested with the
power to conduct peace negotiations with rebel groups, the President is in a singular position to
know the precise nature of their grievances which, if resolved, may bring an end to hostilities.

The President may not, of course, unilaterally implement the solutions that she considers viable, but
she may not be prevented from submitting them as recommendations to Congress, which could
then, if it is minded, act upon them pursuant to the legal procedures for constitutional amendment
and revision. In particular, Congress would have the option, pursuant to Article XVII, Sections 1 and
3 of the Constitution, to propose the recommended amendments or revision to the people, call a
constitutional convention, or submit to the electorate the question of calling such a convention.

While the President does not possess constituent powers - as those powers may be exercised only
by Congress, a Constitutional Convention, or the people through initiative and referendum - she may
submit proposals for constitutional change to Congress in a manner that does not involve the
arrogation of constituent powers.

In Sanidad v. COMELEC,174 in issue was the legality of then President Marcos' act of directly
submitting proposals for constitutional amendments to a referendum, bypassing the interim National
Assembly which was the body vested by the 1973 Constitution with the power to propose such
amendments. President Marcos, it will be recalled, never convened the interim National Assembly.
The majority upheld the President's act, holding that "the urges of absolute necessity" compelled the
President as the agent of the people to act as he did, there being no interim National Assembly to
propose constitutional amendments. Against this ruling, Justices Teehankee and Muñoz Palma
vigorously dissented. The Court's concern at present, however, is not with regard to the point on
which it was then divided in that controversial case, but on that which was not disputed by either
side.

Justice Teehankee's dissent,175 in particular, bears noting. While he disagreed that the President may
directly submit proposed constitutional amendments to a referendum, implicit in his opinion is a
recognition that he would have upheld the President's action along with the majority had the
President convened the interim National Assembly and coursed his proposals through it. Thus
Justice Teehankee opined:

"Since the Constitution provides for the organization of the essential departments of
government, defines and delimits the powers of each and prescribes the manner of the
exercise of such powers, and the constituent power has not been granted to but has been
withheld from the President or Prime Minister, it follows that the President's questioned
decrees proposing and submitting constitutional amendments directly to the people (without
 the intervention of the interim National Assembly in whom the power is expressly
vested) are devoid of constitutional and legal basis."176 (Emphasis supplied)

From the foregoing discussion, the principle may be inferred that the President - in the course of
conducting peace negotiations - may validly consider implementing even those policies that require
changes to the Constitution, but she may not unilaterally implement them without the intervention
of Congress, or act in any way as if the assent of that body were assumed as a certainty.

Since, under the present Constitution, the people also have the power to directly propose
amendments through initiative and referendum, the President may also submit her
recommendations to the people, not as a formal proposal to be voted on in a plebiscite similar to
what President Marcos did in Sanidad, but for their independent consideration of whether these
recommendations merit being formally proposed through initiative.

These recommendations, however, may amount to nothing more than the President's suggestions to
the people, for any further involvement in the process of initiative by the Chief Executive may vitiate
its character as a genuine "people's initiative." The only initiative recognized by the Constitution is
that which truly proceeds from the people. As the Court stated in Lambino v. COMELEC:177

"The Lambino Group claims that their initiative is the ‘people's voice.' However, the Lambino
Group unabashedly states in ULAP Resolution No. 2006-02, in the verification of their
petition with the COMELEC, that ‘ULAP maintains its unqualified support to the agenda of
Her Excellency President Gloria Macapagal-Arroyo for constitutional reforms.' The Lambino
Group thus admits that their ‘people's' initiative is an ‘unqualified support to the
agenda' of the incumbent President to change the Constitution. This forewarns the Court to
be wary of incantations of ‘people's voice' or ‘sovereign will' in the present initiative."

It will be observed that the President has authority, as stated in her oath of office, 178 only to preserve
and defend the Constitution. Such presidential power does not, however, extend to allowing her to
change the Constitution, but simply to recommend proposed amendments or revision. As long as
she limits herself to recommending these changes and submits to the proper procedure for
constitutional amendments and revision, her mere recommendation need not be construed as an
unconstitutional act.

The foregoing discussion focused on the President's authority to

propose constitutional amendments, since her authority to propose new legislation is not in
controversy. It has been an accepted practice for Presidents in this jurisdiction to propose new
legislation. One of the more prominent instances the practice is usually done is in the yearly State of
the Nation Address of the President to Congress. Moreover, the annual general appropriations bill
has always been based on the budget prepared by the President, which - for all intents and
purposes - is a proposal for new legislation coming from the President.179

The "suspensive clause" in the MOA-AD viewed in light of the above-discussed standards

Given the limited nature of the President's authority to propose constitutional amendments,
she cannot guaranteeto any third party that the required amendments will eventually be put in
place, nor even be submitted to a plebiscite. The most she could do is submit these proposals as
recommendations either to Congress or the people, in whom constituent powers are vested.

Paragraph 7 on Governance of the MOA-AD states, however, that all provisions thereof which
cannot be reconciled with the present Constitution and laws "shall come into force upon signing of a
Comprehensive Compact and upon effecting the necessary changes to the legal framework." This
stipulation does not bear the marks of a suspensive condition - defined in civil law as a future
and uncertain event - but of a term. It is not a question of whether the necessary changes to the
legal framework will be effected, but when. That there is no uncertainty being contemplated is plain
from what follows, for the paragraph goes on to state that the contemplated changes shall be "with
due regard to non derogation of prior agreements and within the stipulated timeframe to be
contained in the Comprehensive Compact."

Pursuant to this stipulation, therefore, it is mandatory for the GRP to effect the changes to the legal
framework contemplated in the MOA-AD - which changes would include constitutional amendments,
as discussed earlier. It bears noting that,

By the time these changes are put in place, the MOA-AD itself would be counted among the
"prior agreements" from which there could be no derogation.

What remains for discussion in the Comprehensive Compact would merely be the implementing
details for these "consensus points" and, notably, the deadline for effecting the contemplated
changes to the legal framework.

Plainly, stipulation-paragraph 7 on GOVERNANCE is inconsistent with the limits of the

President's authority to propose constitutional amendments, it being a virtual guarantee that
the Constitution and the laws of the Republic of the Philippines will certainly be adjusted to conform
to all the "consensus points" found in the MOA-AD. Hence, it must be struck down
as unconstitutional.

A comparison between the "suspensive clause" of the MOA-AD with a similar provision appearing in
the 1996 final peace agreement between the MNLF and the GRP is most instructive.

As a backdrop, the parties to the 1996 Agreement stipulated that it would be implemented in two
phases. Phase Icovered a three-year transitional period involving the putting up of new
administrative structures through Executive Order, such as the Special Zone of Peace and
Development (SZOPAD) and the Southern Philippines Council for Peace and Development
(SPCPD), while Phase II covered the establishment of the new regional autonomous
government through amendment or repeal of R.A. No. 6734, which was then the Organic Act of the
ARMM.

The stipulations on Phase II consisted of specific agreements on the structure of the expanded
autonomous region envisioned by the parties. To that extent, they are similar to the provisions of the
MOA-AD. There is, however, a crucial difference between the two agreements. While the MOA-
AD virtually guarantees that the "necessary changes to the legal framework" will be put in
place, the GRP-MNLF final peace agreement states thus: "Accordingly, these provisions [on Phase
II] shall be recommended by the GRP to Congress for incorporation in the amendatory or repealing
law."

Concerns have been raised that the MOA-AD would have given rise to a binding international law
obligation on the part of the Philippines to change its Constitution in conformity thereto, on the
ground that it may be considered either as a binding agreement under international law, or a
unilateral declaration of the Philippine government to the international community that it would grant
to the Bangsamoro people all the concessions therein stated. Neither ground finds sufficient support
in international law, however.

The MOA-AD, as earlier mentioned in the overview thereof, would have included foreign dignitaries
as signatories. In addition, representatives of other nations were invited to witness its signing in
Kuala Lumpur. These circumstances readily lead one to surmise that the MOA-AD would have had
the status of a binding international agreement had it been signed. An examination of the prevailing
principles in international law, however, leads to the contrary conclusion.

The Decision on Challenge to Jurisdiction: Lomé Accord Amnesty 180 (the Lomé Accord case) of the
Special Court of Sierra Leone is enlightening. The Lomé Accord was a peace agreement signed on
July 7, 1999 between the Government of Sierra Leone and the Revolutionary United Front (RUF), a
rebel group with which the Sierra Leone Government had been in armed conflict for around eight
years at the time of signing. There were non-contracting signatories to the agreement, among which
were the Government of the Togolese Republic, the Economic Community of West African States,
and the UN.

On January 16, 2002, after a successful negotiation between the UN Secretary-General and the
Sierra Leone Government, another agreement was entered into by the UN and that Government
whereby the Special Court of Sierra Leone was established. The sole purpose of the Special Court,
an international court, was to try persons who bore the greatest responsibility for serious violations of
international humanitarian law and Sierra Leonean law committed in the territory of Sierra Leone
since November 30, 1996.

Among the stipulations of the Lomé Accord was a provision for the full pardon of the members of the
RUF with respect to anything done by them in pursuit of their objectives as members of that
organization since the conflict began.

In the Lomé Accord case, the Defence argued that the Accord created an internationally
binding obligation not to prosecute the beneficiaries of the amnesty provided therein, citing, among
other things, the participation of foreign dignitaries and international organizations in the finalization
of that agreement. The Special Court, however, rejected this argument, ruling that the Lome Accord
is not a treaty and that it can only create binding obligations and rights between the parties in
municipal law, not in international law. Hence, the Special Court held, it is ineffective in depriving an
international court like it of jurisdiction.

"37. In regard to the nature of a negotiated settlement of an internal armed conflict it is easy
to assume and to argue with some degree of plausibility, as Defence counsel for the
defendants seem to have done, that the mere fact that in addition to the parties to the
conflict, the document formalizing the settlement is signed by foreign heads of state
or their representatives and representatives of international organizations, means the
agreement of the parties is internationalized so as to create obligations in
international law.

xxxx

40. Almost every conflict resolution will involve the parties to the conflict and the mediator or
facilitator of the settlement, or persons or bodies under whose auspices the settlement took
place but who are not at all parties to the conflict, are not contracting parties and who do not
claim any obligation from the contracting parties or incur any obligation from the settlement.

41. In this case, the parties to the conflict are the lawful authority of the State and the
RUF which has no status of statehood and is to all intents and purposes a faction
within the state. The non-contracting signatories of the Lomé Agreement were moral
guarantors of the principle that, in the terms of Article XXXIV of the Agreement, "this
peace agreement is implemented with integrity and in good faith by both parties". The
moral guarantors assumed no legal obligation. It is recalled that the UN by its
 representative appended, presumably for avoidance of doubt, an understanding of the extent
of the agreement to be implemented as not including certain international crimes.

42. An international agreement in the nature of a treaty must create rights and obligations
regulated by international law so that a breach of its terms will be a breach determined under
international law which will also provide principle means of enforcement. The Lomé
Agreement created neither rights nor obligations capable of being regulated by
international law. An agreement such as the Lomé Agreement which brings to an end
an internal armed conflict no doubt creates a factual situation of restoration of peace
that the international community acting through the Security Council may take note
of. That, however, will not convert it to an international agreement which creates an
obligation enforceable in international, as distinguished from municipal, law. A breach
of the terms of such a peace agreement resulting in resumption of internal armed conflict or
creating a threat to peace in the determination of the Security Council may indicate a
reversal of the factual situation of peace to be visited with possible legal consequences
arising from the new situation of conflict created. Such consequences such as action by the
Security Council pursuant to Chapter VII arise from the situation and not from the agreement,
nor from the obligation imposed by it. Such action cannot be regarded as a remedy for the
breach. A peace agreement which settles an internal armed conflict cannot be
ascribed the same status as one which settles an international armed conflict which,
essentially, must be between two or more warring States. The Lomé Agreement
cannot be characterised as an international instrument. x x x" (Emphasis, italics and
underscoring supplied)

Similarly, that the MOA-AD would have been signed by representatives of States and international
organizations not parties to the Agreement would not have sufficed to vest in it a binding character
under international law.

In another vein, concern has been raised that the MOA-AD would amount to a unilateral declaration
of the Philippine State, binding under international law, that it would comply with all the stipulations
stated therein, with the result that it would have to amend its Constitution accordingly regardless of
the true will of the people. Cited as authority for this view is Australia v. France,181 also known as
the Nuclear Tests Case, decided by the International Court of Justice (ICJ).

In the Nuclear Tests Case, Australia challenged before the ICJ the legality of France's nuclear tests
in the South Pacific. France refused to appear in the case, but public statements from its President,
and similar statements from other French officials including its Minister of Defence, that its 1974
series of atmospheric tests would be its last, persuaded the ICJ to dismiss the case. 182 Those
statements, the ICJ held, amounted to a legal undertaking addressed to the international community,
which required no acceptance from other States for it to become effective.

Essential to the ICJ ruling is its finding that the French government intended to be bound to the
international community in issuing its public statements, viz:

43. It is well recognized that declarations made by way of unilateral acts, concerning legal or
factual situations, may have the effect of creating legal obligations. Declarations of this kind
may be, and often are, very specific. When it is the intention of the State making the
declaration that it should become bound according to its terms, that intention confers
on the declaration the character of a legal undertaking, the State being thenceforth
legally required to follow a course of conduct consistent with the declaration. An
undertaking of this kind, if given publicly, and with an intent to be bound, even though not
made within the context of international negotiations, is binding. In these circumstances,
 nothing in the nature of a quid pro quo nor any subsequent acceptance of the declaration,
nor even any reply or reaction from other States, is required for the declaration to take effect,
since such a requirement would be inconsistent with the strictly unilateral nature of the
juridical act by which the pronouncement by the State was made.

44. Of course, not all unilateral acts imply obligation; but a State may choose to take
up a certain position in relation to a particular matter with the intention of being
bound-the intention is to be ascertained by interpretation of the act. When States make
statements by which their freedom of action is to be limited, a restrictive interpretation is
called for.

xxxx

51. In announcing that the 1974 series of atmospheric tests would be the last, the
French Government conveyed to the world at large, including the Applicant, its
intention effectively to terminate these tests. It was bound to assume that other States
might take note of these statements and rely on their being effective. The validity of
these statements and their legal consequences must be considered within the general
framework of the security of international intercourse, and the confidence and trust
which are so essential in the relations among States. It is from the actual substance of
these statements, and from the circumstances attending their making, that the legal
implications of the unilateral act must be deduced. The objects of these statements
are clear and they were addressed to the international community as a whole, and the
Court holds that they constitute an undertaking possessing legal effect. The Court
considers *270 that the President of the Republic, in deciding upon the effective cessation of
atmospheric tests, gave an undertaking to the international community to which his words
were addressed. x x x (Emphasis and underscoring supplied)

As gathered from the above-quoted ruling of the ICJ, public statements of a state representative may
be construed as a unilateral declaration only when the following conditions are present: the
statements were clearly addressed to the international community, the state intended to be bound to
that community by its statements, and that not to give legal effect to those statements would be
detrimental to the security of international intercourse. Plainly, unilateral declarations arise only in
peculiar circumstances.

The limited applicability of the Nuclear Tests Case ruling was recognized in a later case decided by
the ICJ entitled Burkina Faso v. Mali,183 also known as the Case Concerning the Frontier Dispute.
The public declaration subject of that case was a statement made by the President of Mali, in an
interview by a foreign press agency, that Mali would abide by the decision to be issued by a
commission of the Organization of African Unity on a frontier dispute then pending between Mali and
Burkina Faso.

Unlike in the Nuclear Tests Case, the ICJ held that the statement of Mali's President was not a
unilateral act with legal implications. It clarified that its ruling in the Nuclear Tests case rested on the
peculiar circumstances surrounding the French declaration subject thereof, to wit:

40. In order to assess the intentions of the author of a unilateral act, account must be taken
of all the factual circumstances in which the act occurred. For example, in the Nuclear Tests
cases, the Court took the view that since the applicant States were not the only ones
concerned at the possible continuance of atmospheric testing by the French
Government, that Government's unilateral declarations had ‘conveyed to the world at
large, including the Applicant, its intention effectively to terminate these tests‘ (I.C.J.
 Reports 1974, p. 269, para. 51; p. 474, para. 53). In the particular circumstances of those
cases, the French Government could not express an intention to be bound otherwise
than by unilateral declarations. It is difficult to see how it could have accepted the
terms of a negotiated solution with each of the applicants without thereby
jeopardizing its contention that its conduct was lawful. The circumstances of the
present case are radically different. Here, there was nothing to hinder the Parties from
manifesting an intention to accept the binding character of the conclusions of the
Organization of African Unity Mediation Commission by the normal method: a formal
agreement on the basis of reciprocity. Since no agreement of this kind was concluded
between the Parties, the Chamber finds that there are no grounds to interpret the declaration
made by Mali's head of State on 11 April 1975 as a unilateral act with legal implications in
regard to the present case. (Emphasis and underscoring supplied)

Assessing the MOA-AD in light of the above criteria, it would not have amounted to a unilateral
declaration on the part of the Philippine State to the international community. The Philippine panel
did not draft the same with the clear intention of being bound thereby to the international community
as a whole or to any State, but only to the MILF. While there were States and international
organizations involved, one way or another, in the negotiation and projected signing of the MOA-AD,
they participated merely as witnesses or, in the case of Malaysia, as facilitator. As held in the Lomé
Accord case, the mere fact that in addition to the parties to the conflict, the peace settlement is
signed by representatives of states and international organizations does not mean that the
agreement is internationalized so as to create obligations in international law.

Since the commitments in the MOA-AD were not addressed to States, not to give legal effect to such
commitments would not be detrimental to the security of international intercourse - to the trust and
confidence essential in the relations among States.

In one important respect, the circumstances surrounding the MOA-AD are closer to that of Burkina
Faso wherein, as already discussed, the Mali President's statement was not held to be a binding
unilateral declaration by the ICJ. As in that case, there was also nothing to hinder the Philippine
panel, had it really been its intention to be bound to other States, to manifest that intention by formal
agreement. Here, that formal agreement would have come about by the inclusion in the MOA-AD of
a clear commitment to be legally bound to the international community, not just the MILF, and by an
equally clear indication that the signatures of the participating states-representatives would
constitute an acceptance of that commitment. Entering into such a formal agreement would not have
resulted in a loss of face for the Philippine government before the international community, which
was one of the difficulties that prevented the French Government from entering into a formal
agreement with other countries. That the Philippine panel did not enter into such a formal agreement
suggests that it had no intention to be bound to the international community. On that ground, the
MOA-AD may not be considered a unilateral declaration under international law.

The MOA-AD not being a document that can bind the Philippines under international law
notwithstanding, respondents' almost consummated act of guaranteeing amendments to the legal
framework is, by itself, sufficient to constitute grave abuse of discretion. The grave abuse lies
not in the fact that they considered, as a solution to the Moro Problem, the creation of a state within
a state, but in their brazen willingness to guarantee that Congress and the sovereign Filipino
people would give their imprimatur to their solution. Upholding such an act would amount to
authorizing a usurpation of the constituent powers vested only in Congress, a Constitutional
Convention, or the people themselves through the process of initiative, for the only way that the
Executive can ensure the outcome of the amendment process is through an undue influence or
interference with that process.
The sovereign people may, if it so desired, go to the extent of giving up a portion of its own territory
to the Moros for the sake of peace, for it can change the Constitution in any it wants, so long as the
change is not inconsistent with what, in international law, is known as Jus Cogens.184 Respondents,
however, may not preempt it in that decision.

SUMMARY

The petitions are ripe for adjudication. The failure of respondents to consult the local government
units or communities affected constitutes a departure by respondents from their mandate under E.O.
No. 3. Moreover, respondents exceeded their authority by the mere act of guaranteeing
amendments to the Constitution. Any alleged violation of the Constitution by any branch of
government is a proper matter for judicial review.

As the petitions involve constitutional issues which are of paramount public interest or of
transcendental importance, the Court grants the petitioners, petitioners-in-intervention and
intervening respondents the requisite locus standi in keeping with the liberal stance adopted in David
v. Macapagal-Arroyo.

Contrary to the assertion of respondents that the non-signing of the MOA-AD and the eventual
dissolution of the GRP Peace Panel mooted the present petitions, the Court finds that the present
petitions provide an exception to the "moot and academic" principle in view of (a) the grave violation
of the Constitution involved; (b) the exceptional character of the situation and paramount public
interest; (c) the need to formulate controlling principles to guide the bench, the bar, and the public;
and (d) the fact that the case is capable of repetition yet evading review.

The MOA-AD is a significant part of a series of agreements necessary to carry out the GRP-MILF
Tripoli Agreement on Peace signed by the government and the MILF back in June 2001. Hence, the
present MOA-AD can be renegotiated or another one drawn up that could contain similar or
significantly dissimilar provisions compared to the original.

The Court, however, finds that the prayers for mandamus have been rendered moot in view of the
respondents' action in providing the Court and the petitioners with the official copy of the final draft of
the MOA-AD and its annexes.

The people's right to information on matters of public concern under Sec. 7, Article III of the
Constitution is in splendid symmetry with the state policy of full public disclosure of all its
transactions involving public interest under Sec. 28, Article II of the Constitution. The right to
information guarantees the right of the people to demand information, while Section 28 recognizes
the duty of officialdom to give information even if nobody demands. The complete and effective
exercise of the right to information necessitates that its complementary provision on public
disclosure derive the same self-executory nature, subject only to reasonable safeguards or
limitations as may be provided by law.

The contents of the MOA-AD is a matter of paramount public concern involving public interest in the
highest order. In declaring that the right to information contemplates steps and negotiations leading
to the consummation of the contract, jurisprudence finds no distinction as to the executory nature or
commercial character of the agreement.

An essential element of these twin freedoms is to keep a continuing dialogue or process of

communication between the government and the people. Corollary to these twin rights is the design
for feedback mechanisms. The right to public consultation was envisioned to be a species of these
public rights.
At least three pertinent laws animate these constitutional imperatives and justify the exercise of the
people's right to be consulted on relevant matters relating to the peace agenda.

One, E.O. No. 3 itself is replete with mechanics for continuing consultations on both national and
local levels and for a principal forum for consensus-building. In fact, it is the duty of the Presidential
Adviser on the Peace Process to conduct regular dialogues to seek relevant information, comments,
advice, and recommendations from peace partners and concerned sectors of society.

Two, Republic Act No. 7160 or the Local Government Code of 1991 requires all national offices to
conduct consultations before any project or program critical to the environment and human ecology
including those that may call for the eviction of a particular group of people residing in such locality,
is implemented therein. The MOA-AD is one peculiar program that unequivocally and unilaterally
vests ownership of a vast territory to the Bangsamoro people, which could pervasively and
drastically result to the diaspora or displacement of a great number of inhabitants from their total
environment.

Three, Republic Act No. 8371 or the Indigenous Peoples Rights Act of 1997 provides for clear-cut
procedure for the recognition and delineation of ancestral domain, which entails, among other things,
the observance of the free and prior informed consent of the Indigenous Cultural
Communities/Indigenous Peoples. Notably, the statute does not grant the Executive Department or
any government agency the power to delineate and recognize an ancestral domain claim by mere
agreement or compromise.

The invocation of the doctrine of executive privilege as a defense to the general right to information
or the specific right to consultation is untenable. The various explicit legal provisions fly in the face of
executive secrecy. In any event, respondents effectively waived such defense after it unconditionally
disclosed the official copies of the final draft of the MOA-AD, for judicial compliance and public
scrutiny.

In sum, the Presidential Adviser on the Peace Process committed grave abuse of discretion when he
failed to carry out the pertinent consultation process, as mandated by E.O. No. 3, Republic Act No.
7160, and Republic Act No. 8371. The furtive process by which the MOA-AD was designed and
crafted runs contrary to and in excess of the legal authority, and amounts to a whimsical, capricious,
oppressive, arbitrary and despotic exercise thereof. It illustrates a gross evasion of positive duty and
a virtual refusal to perform the duty enjoined.

The MOA-AD cannot be reconciled with the present Constitution and laws. Not only its specific
provisions but the very concept underlying them, namely, the associative relationship envisioned
between the GRP and the BJE, are unconstitutional, for the concept presupposes that the
associated entity is a state and implies that the same is on its way to independence.

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

While the MOA-AD would not amount to an international agreement or unilateral declaration binding
on the Philippines under international law, respondents' act of guaranteeing amendments is, by itself,
already a constitutional violation that renders the MOA-AD fatally defective.

WHEREFORE, respondents' motion to dismiss is DENIED. The main and intervening petitions are
GIVEN DUE COURSE and hereby GRANTED.

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.

CONCHITA CARPIO MORALES

Associate Justice

WE CONCUR:

REYNATO S. PUNO
Chief Justice

LEONARDO A. QUISUMBING CONSUELO YNARES-SANTIAGO

Associate Justice Associate Justice

ANTONIO T. CARPIO MA. ALICIA AUSTRIA-MARTINEZ

Associate Justice Associate Justice

RENATO C. CORONA ADOLFO S. AZCUNA

Associate Justice Associate Justice

DANTE O. TINGA MINITA V. CHICO-NAZARIO

Associate Justice Associate Justice

PRESBITERO J. VELASCO, JR. ANTONIO EDUARDO B. NACHURA

 Associate Justice Associate Justice

RUBEN T. REYES TERESITA J. LEONARDO-DE CASTRO

Associate Justice Associate Justice

ARTURO D. BRION
Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in the
above Decision were reached in consultation before the case was assigned to the writer of the
opinion of the Court.

REYNATO S. PUNO
Chief Justice

Separate Concurring Opinion - C.J. Puno, J. Ynares-Santiago, J. Carpio

Separate Concurring and Dissenting Opinion - J. Leonardo-De Castro, J. Brion
Separate Opinion - J. Azcuna, J. Tinga, J. Chico-Nazario, J. Reyes
Dissenting Opinion - J. Velasco, Jr., J. Nachura

Footnotes

1
Eric Gutierrez and Abdulwahab Guialal, The Unfinished Jihad: The Moro Islamic Liberation
Front and Peace in Mindanao in Rebels, Warlords and Ulama: A Reader on Muslim
Separatism and the War in Southern Philippines 275 (1999).

2
Memorandum of Respondents dated September 24, 2008, p. 10.

3
Memorandum of Respondents dated September 24, 2008, pp. 10-11.

4
Vide Salah Jubair, The Long Road to Peace: Inside the GRP-MILF Peace Process 35-36
(2007).
5
Memorandum of Respondents dated September 24, 2008, p. 12.

6
Vide Salah Jubair, The Long Road to Peace: Inside the GRP-MILF Peace Process 40-41
(2007).

7
Composed of its Chairperson, Sec. Rodolfo Garcia, and members, Atty. Leah Armamento,
Atty. Sedfrey Candelaria, with Mark Ryan Sullivan as Secretariat head.

8
Represented by Governor Jesus Sacdalan and/or Vice-Governor Emmanuel Piñol.

9
Rollo (G.R. No. 183591), pp. 3-33.

Supplement to Petition (with motion for leave) of August 11, 2008, rollo (G.R. No. 183591),
10

pp. 143-162.

11
Rollo (G.R. No. 183752), pp. 3-28.

12
Represented by Mayor Celso L. Lobregat.

13
Rollo (G.R. No. 183591), pp. 132-135; rollo (G.R. No. 183752), pp. 68-71.

14
Rollo (G.R. No. 183591), pp. 130-131; rollo (G.R. No. 183752), pp. 66-67.

15
Rollo (G.R. No. 183752), pp. 173-246.

16
Represented by Mayor Lawrence Lluch Cruz.

17
Represented by Governor Rolando Yebes.

Namely, Seth Frederick Jaloslos, Fernando Cabigon, Jr., Uldarico Mejorada II, Edionar
18

Zamoras, Edgar Baguio, Cedric Adriatico, Felixberto Bolando, Joseph Brendo Ajero,
Norbideiri Edding, Anecito Darunday, Angelica Carreon, and Luzviminda Torrino.

19
Rollo (G.R. No. 183951), pp. 3-33.

20
Rollo (G.R. No. 183962), pp. 3- 20.

21
Represented by Mayor Cherrylyn Santos-Akbar.

22
Represented by Gov. Suharto Mangudadatu.

23
Represented by Mayor Noel Deano.

24
Rollo (G.R. No. 183591), pp. 451-453.

25
R.A. No. 6734, as amended by R.A. 9054 entitled An Act to Strengthen and Expand the
organic act for the Autonomous Region in Muslim Mindanao, Amending for the purpose
republic act no. 6734, entitled an act of providing for the autonomous region in muslim
mindanao, as amended.
26
R.A. No. 8371, An act to recognize, protect and promote the rights of indigenous cultural
communities/indigenous peoples, creating a national commission on indigenous peoples,
establishing implementing mechanisms, appropriating funds therefor, and for other purposes,
October 29, 1997.

27
Cesar Adib Majul, The General Nature of Islamic Law and its Application in the Philippines,
lecture delivered as part of the Ricardo Paras Lectures, a series jointly sponsored by the
Commission on Bar Integration of the Supreme Court, the Integrated Bar of the Philippines
and the U.P. Law Center, September 24, 1977.

Ibid., vide M.A. Muqtedar Khan Ph.D., immigrant American Muslims and the Moral
28

Dilemmas of Citizenship, http://www.islamfortoday.com/khan04.htm, visited on September

18, 2008, and Syed Shahabuddin, Muslim World and the contemporary Ijma' on rules of
governance - ii, http://www.milligazette.com/Archives/2004/01-15May04-Print-
Edition/0105200471.htm, visited on September 18, 2008.

29
MOA-AD Terms of Reference.

30
MOA-AD, Concepts and Principles, par. 1.

31
A traditional Muslim historical account of the acts of Shariff Kabungsuwan is quoted by
historian Cesar Adib Majul in his book, Muslims in the Philippines (1973):

After a time it came to pass that Mamalu, who was the chief man next to
Kabungsuwan, journeyed to Cotabato. He found there that many of the people had
ceased to regard the teachings of the Koran and had fallen into evil ways. Mamamlu
sent to Kabungsuwan word of these things.

Kabungsuwan with a portion of his warriors went from Malabang to Cotabato and
found that the word sent to him by Mamamlu was true. Then he assembled together
all the people. Those of them, who had done evilly and disregarded the teachings of
the Koran thenceforth, he drove out of the town into the hills, with their wives and
children.

Those wicked one who were thus cast out were the beginnings of the tribes of the
Tirurais and Manobos, who live to the east of Cotabato in the country into which their
evil forefathers were driven. And even to this day they worship not God; neither do
they obey the teachings of the Koran . . . But the people of Kabungsuwan, who
regarded the teachings of the Koran and lived in fear of God, prospered and
increased, and we Moros of today are their descendants. (Citation omitted, emphasis
supplied).

32
Id., par. 2.

33
Id., par. 3.

34
Id., par. 4.

Francisco L. Gonzales, Sultans of a Violent Land, in Rebels, Warlords and Ulama: A

35

Reader on Muslim Separatism and the War in Southern Philippines 99, 103 (1999).
36
The Charter of the Assembly of First Nations, the leading advocacy group for the
indigenous peoples of Canada, adopted in 1985, begins thus:

"WE THE CHIEFS OF THE INDIAN FIRST NATIONS IN CANADA HAVING

DECLARED:
THAT our peoples are the original peoples of this land having been put here by the
Creator; x x x."

37
Id., par. 6.

38
MOA-AD, Territory, par. 1.

39
Id., par. 2(c).

40
Id., par. 2(d).

41
Id., par. 2(e).

42
Id., par. 2(f).

43
Id., par, 2(g)(1).

44
Id., par. 2(h).

45
Id., par. 2(i).

46
MOA-AD, Resources, par. 4.

47
Ibid.

48
Id., par. 5.

49
Id., par. 6.

50
Id., par. 7.

51
Id., par. 9.

52
MOA-AD, Governance, par. 3.

"IN WITNESS WHEREOF, the undersigned, being the representatives of the Parties[,]
53

hereby affix their signatures."

54
Vide 1987 Constitution, Article VIII, Section 1.

55
Vide Muskrat v. US, 219 US 346 (1911).

56
Flast v. Cohen, 88 S.Ct. 1942, 1950 (1968).
 Didipio Earth Savers' Multi-Purpose Association, Incorporated (DESAMA) v. Gozun, G.R.
57

No. 157882, March 30, 2006, 485 SCRA 286.

58
Vide U.S. v. Muskrat, 219 U.S. 346, 357 (1902).

59
Guingona, Jr. v. Court of Appeals, 354 Phil. 415, 427-428 (1998).

Francisco, Jr. v. House of Representatives, 460 Phil. 830, 901-902 (2003) (citation
60

omitted).

61
Vide Warth v. Seldin, 422 US 490, 511 (1975).

62
Vide id. at 526.

63
Solicitor General's Comment to G.R. No. 183752, pp. 9-11.

64
MOA-AD, pp. 3-7, 10.

65
391 Phil. 43 (2000).

66
Id. at 107-108.

67
530 US 290 (2000).

68
Id. at 292.

69
505 U.S. 144 (1992).

70
Id. at 175.

71
Although only one petition is denominated a petition for certiorari, most petitions pray that
the MOA-AD be declared unconstitutional/null and void.

72
Vide Rules of Court, Rule 65, Secs. 1 and 2.

73
Vide Rules of Court, Rule 65, Sec. 3.

74
Tañada v. Angara, 338 Phil. 546, 575 (1997).

75
Entitled Defining Policy and Administrative Structure for Government's Peace Efforts which
reaffirms and reiterates Executive Order No. 125 of September 15, 1993.

76
E.O. No. 3, (2001), Sec. 1.

77
Vide Tañada v. Angara, supra note 74.

78
Baker v. Carr, 369 U.S. 186 (1962).

79
Vicente V. Mendoza , Judicial Review of Constitutional Questions 137 (2004).
80
Francisco, Jr. v. The House of Representatives, 460 Phil. 830, 896 (2003).

81
David v. Macapagal-Arroyo, G.R. No. 171396, May 3, 2006, 489 SCRA 160, 223.

82
Kilosbayan, Inc. v. Morato, 320 Phil. 171 (1995).

83
Macasiano v. NHA, G.R. No. 107921, July 1, 1993, 224 SCRA 236.

Del Mar v. Phil. Amusement and Gaming Corp., 400 Phil. 307, 328-329 (2000) citing Phil.
84

Constitution Ass'n., Inc. v. Mathay, et al., 124 Phil. 890 (1966).

85
Vide NAACP v. Alabama, 357 U.S. 449 (1958).

86
Francisco, Jr. v. The House of Representatives, supra note 80.

87
Province of Batangas v. Romulo, G.R. No. 152774, May 27, 2004, 429 SCRA 736.

Firestone Ceramics, Inc. v. Court of Appeals, 372 Phil. 401 (1999) citing Gibson v. Judge
88

Revilla, 180 Phil. 645 (1979).

89
Supra note 81.

90
Integrated Bar of the Phils. v. Hon. Zamora, 392 Phil. 618 (2000).

91
Tatad v. Secretary of Energy, 346 Phil. 321 (1997).

92
Vide Compliance of September 1, 2008 of respondents.

93
Vide Manifestation of September 4, 2008 of respondents.

94
Supra note 81.

95
Id. citing Province of Batangas v. Romulo, supra note 87.

96
Id. citing Lacson v. Perez, 410 Phil. 78 (2001).

97
Id. citing Province of Batangas v. Romulo, supra note 87.

Id. citing Albaña v. Comelec, 478 Phil. 941 (2004); Chief Supt. Acop v. Guingona Jr., 433
98

Phil. 62 (2002); SANLAKAS v. Executive Secretary Reyes, 466 Phil. 482 (2004).

US v. W.T. Grant Co., 345 U.S. 629 (1953); US v. Trans-Missouri Freight Assn, 166 U.S.
99

290, 308-310 (1897); Walling v. Helmerich & Payne, Inc., 323 U.S. 37, 43 (1944); Gray v.
Sanders, 372 U.S. 368, 376 (1963); Defunis v. Odegaard, 416 U.S. 312 (1974).

100
Supra note 87.

101
G.R. No. 178920, October 15, 2007, 536 SCRA 290.

102
Chavez v. PCGG, 366 Phil. 863, 871 (1999).
103
G.R. No. 178830, July 14, 2008.

104
Supra note 98.

Ortega v. Quezon City Government, G.R. No. 161400, September 2, 2005, 469 SCRA
105

388.

Alunan III v. Mirasol, 342 Phil. 476 (1997); Viola v. Alunan III, 343 Phil. 184 (1997); Chief
106

Superintendent Acop v. Guingona, Jr., supra note 98; Roble Arrastre, Inc. v. Villaflor, G.R.
No. 128509, August 22, 2006, 499 SCRA 434, 447.

107
Constitution, Article III, Sec. 7.

108
80 Phil. 383 (1948).

109
Legaspi v. Civil Service Commission, G.R. No. L-72119, May 29, 1987, 150 SCRA 530.

110
162 Phil. 868 (1976).

111
Baldoza v. Dimaano, supra at 876.

112
Legaspi v. Civil Service Commission, supra note 109.

113
Chavez v. PCGG, 360 Phil 133, 164 (1998).

114
In Legaspi v. Civil Service Commission, supra note 109 at 541, it was held that:

In determining whether or not a particular information is of public concern there is no rigid

test which can be applied. `Public concern' like `public interest' is a term that eludes exact
definition. Both terms embrace a broad spectrum of subjects which the public may want to
know, either because these directly affect their lives, or simply because such matters
naturally arouse the interest of an ordinary citizen. In the final analysis, it is for the courts to
determine on a case by case basis whether the matter at issue is of interest or importance,
as it relates to or affects the public.

115
Respondents' Comment of August 4, 2008, p. 9.

116
Subido v. Ozaeta, supra note 108.

Tañada, et al. v. Hon. Tuvera, et al., 220 Phil. 422 (1985); Tañada, v. Hon. Tuvera, 230
117

Phil. 528 (1986).

118
Legaspi v. Civil Service Commission, supra note 109.

119
Valmonte v. Belmonte, Jr., G.R. No. 74930, February 13, 1989, 170 SCRA 256.

120
Chavez v. PCGG, supra note 113; Chavez v. PCGG, supra note 102.

Bantay Republic Act or BA-RA 7941 v. Commission on Elections, G.R. 177271, May 4,
121

2007, 523 SCRA 1.

122
Chavez v. Public Estates Authority, 433 Phil. 506, 532-533 (2002).

123
Vide V Record, Constitutional Commission 26-28 (September 24, 1986) which is replete
with such descriptive phrase used by Commissioner Blas Ople.

124
Constitution, Article II, Sec. 28.

Bernas, Joaquin, The 1987 Constitution of the Republic of the Philippines: A Commentary
125

100 (2003).

126
Vide Bernas, Joaquin, The Intent of the 1986 Constitution Writers 155 (1995).

127
Vide Chavez v. Public Estates Authority, supra note 122.

128
V Record, Constitutional Commission 25 (September 24, 1986).

129
V Record, Constitutional Commission 28-29 (September 24, 1986). The phrase
"safeguards on national interest" that may be provided by law was subsequently replaced by
"reasonable conditions," as proposed by Commissioner Davide [vide V Record,
Constitutional Commission 30 (September 24, 1986)].

In Chavez v. National Housing Authority, G.R. No. 164527, August 15, 2007, 530 SCRA
130

235, 331, the Court stated:

x x x The duty to disclose covers only transactions involving public interest, while the
duty to allow access has a broader scope of information which embraces not only
transactions involving public interest, but any matter contained in official
communications and public documents of the government agency. (Underscoring
supplied)

131
Valmonte v. Belmonte, Jr., supra note 119.

132
V Record, Constitutional Commission 28, 30 (September 24, 1986).

133
Supra note 55.

134
Executive Order No. 3 (2001), Sec. 3 (a).

135
Executive Order No. 3 (2001), Sec. 4 (b).

136
Respondents' Memorandum of September 24, 2008, p. 44.

137
Executive Order No. 3 (2001), Sec. 5 (b), par. 6.

138
Executive Order No. 3 (2001), Sec. 8, see also Sec. 10.

139
Cf. Garcia v. Board of Investments, G.R. No. 88637, September 7, 1989, 177 SCRA 374,
382-384 where it was held that the Omnibus Investment Code of 1987 mandates the holding
of consultations with affected communities, whenever necessary, on the acceptability of
locating the registered enterprise within the community.
 In their Memorandum, respondents made allegations purporting to show that consultations
140

were conducted on August 30, 2001 in Marawi City and Iligan City, on September 20, 2001 in
Midsayap, Cotabato, and on January 18-19, 2002 in Metro Manila. (Memorandum of
September 24, 2008, p. 13)

141
Cf. Chavez v. Public Estates Authority, supra note 120.

142
Republic Act No. 7160, Sec. 2(c).

143
Republic Act No. 7160, Sec. 27.

144
416 Phil. 438 (2001).

Id.; vide Alvarez v. PICOP Resources, Inc., G.R. No. 162243, November 29, 2006, 508
145

SCRA 498; Cf. Bangus Fry Fisherfolk v. Lanzanas, 453 Phil. 479 (2002).

Vide MOA-AD "Concepts and Principles," pars. 2 & 7 in relation to "Resources," par. 9
146

where vested property rights are made subject to the cancellation, modification and review
by the Bangsamoro Juridical Entity.

147
Republic Act No. 8371 or "The Indigenous Peoples Rights Act of 1997," Sec. 16.

148
Id., Sec. 3 (g), Chapter VIII, inter alia.

149
Tañada v. Tuvera, No. L-63915, December 29, 1986, 146 SCRA 446, 456.

150
C.I. Keitner and W.M. Reisman, Free Association: The United States Experience, 39 Tex.
Int'l L.J. 1 (2003).

"The former Trust Territory of the Pacific Islands is made up of the Caroline Islands, the
151

Marshall Islands, and the Northern Mariana Islands, which extend east of the Philippines and
northeast of Indonesia in the North Pacific Ocean." (Ibid.)

H. Hills, Free Association for Micronesia and the Marshall islands: A Political Status Model,
152

27 U. Haw. L. Rev. 1 (2004).

153
Henkin, et al., International Law: Cases and Materials, 2nd ed., 274 (1987).

154
Convention on Rights and Duties of States, Dec. 26, 1933, 49 Stat. 3097, 165 L.N.T.S. 19.

155
G.R. No. 158088, July 6, 2005, 462 SCRA 622, 632.

An Act to Strengthen and Expand the Organic Act for the Autonomous Region in Muslim
156

Mindanao, Amending for the purpose Republic Act No. 6734, Entitled ‘An Act Providing for
the Autonomous Region in Muslim Mindanao,' as Amended, March 31, 2001.

An Act To Recognize, Protect And Promote The Rights Of Indigenous Cultural

157

Communities/Indigenous Peoples, Creating A National Commission On Indigenous Peoples,

Establishing Implementing Mechanisms, Appropriating Funds Therefor, And For Other
Purposes, October 29, 1997.
158
90 Phil. 70, 73-74 (1951).

159
177 Phil. 160, 178-179 (1979).

160
2 S.C.R. 217 (1998).

161
999 U.N.T.S. 171 (March 23, 1976).

162
993 U.N.T.S. 3 (January 3, 1976).

163
League of Nations Official Journal, Special Supp. No. 3 (October 1920).

164
Lorie M. Graham, Resolving Indigenous Claims To Self-Determination, 10 ILSA J. Int'l &
Comp. L. 385 (2004). Vide S. James Anaya, Superpower Attitudes Toward Indigenous
Peoples And Group Rights, 93 Am. Soc'y Int'l L. Proc. 251 (1999): "In general, the term
indigenous is used in association with groups that maintain a continuity of cultural identity
with historical communities that suffered some form of colonial invasion, and that by virtue of
that continuity of cultural identity continue to distinguish themselves from others."

Catherine J. Iorns, Indigenous Peoples And Self Determination: Challenging State

165

Sovereignty, 24 Case W. Res. J. Int'l L. 199 (1992).

166
Federico Lenzerini, "Sovereignty Revisited: International Law And Parallel Sovereignty Of
Indigenous Peoples," 42 Tex. Int'l L.J. 155 (2006). Vide Christopher J. Fromherz, Indigenous
Peoples' Courts: Egalitarian Juridical Pluralism, Self-Determination, And The United Nations
Declaration On The Rights Of Indigenous Peoples, 156 U. Pa. L. Rev. 1341 (2008): "While
Australia and the United States made much of the distinction between ‘self-government' and
‘self-determination' on September 13, 2007, the U.S. statement to the UN on May 17, 2004,
seems to use these two concepts interchangeably. And, indeed, under the DRIP [Declaration
on the Rights of Indigenous Peoples], all three terms should be considered virtually
synonymous. Self-determination under the DRIP means ‘internal self-determination' when
read in conjunction with Article 46, and ‘self-government,' articulated in Article 4, is the core
of the ‘self-determination.'"

Defining The Approach And Administrative Structure For Government's Comprehensive

167

Peace Efforts, September 15, 1993.

168
466 Phil. 482, 519-520 (2004).

169
Constitution, Article VII, Sec. 18.

Kirsti Samuels, Post-Conflict Peace-Building And Constitution-Making, 6 Chi. J. Int'l L. 663

170

(2006).

Christine Bell, Peace Agreements: Their Nature And Legal Status, 100 Am. J. Int'l L. 373
171

(2006).

172
Constitution, Article X, Sections 15-21.

173
III Record, Constitutional Commission, 180 (August 11, 1986).
174
165 Phil. 303 (1976).

175
Id. at 412.

176
Id. at 413.

177
G.R. No. 174153, October 25, 2006, 505 SCRA 160, 264-265.

178
Constitution, Art. VII, Sec. 5.

179
Article VI, Section 25 (1) of the Constitution states as follows: "The Congress may not
increase the appropriations recommended by the President for the operation of the
Government as specified in the budget. The form, content, and manner of preparation of the
budget shall be prescribed by law."

Prosecutor v. Kallon and Kamara [Case No. SCSL-2004-15-AR72(E), SCSL-2004-16-

180

AR72(E), March 13, 2004].

181
1974 I.C.J. 253, 1974 WL 3 (I.C.J.).

182
M. Janis and J. Noyes, International Law, Cases and Commentary, 3rd ed. 280 (2006).

183
1986 I.C.J. 554, 1986 WL 15621 (I.C.J.), December 22, 1986.

184
Planas v. COMELEC, 151 Phil. 217, 249 (1973).
G.R. No. 138570 October 10, 2000

BAYAN (Bagong Alyansang Makabayan), a JUNK VFA MOVEMENT, BISHOP TOMAS

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

x-----------------------x

G.R. No. 138572 October 10, 2000

PHILIPPINE CONSTITUTION ASSOCIATION, INC.(PHILCONSA), EXEQUIEL B. GARCIA,

AMADOGAT INCIONG, CAMILO L. SABIO, AND RAMON A. GONZALES, petitioners,
vs.
HON. RONALDO B. ZAMORA, as Executive Secretary, HON. ORLANDO MERCADO, as
Secretary of National Defense, and HON. DOMINGO L. SIAZON, JR., as Secretary of Foreign
Affairs, respondents.

x-----------------------x

G.R. No. 138587 October 10, 2000

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

x-----------------------x

G.R. No. 138680 October 10, 2000

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

x-----------------------x

G.R. No. 138698 October 10, 2000

JOVITO R. SALONGA, WIGBERTO TAÑADA, ZENAIDA QUEZON-AVENCEÑA, ROLANDO

SIMBULAN, PABLITO V. SANIDAD, MA. SOCORRO I. DIOKNO, AGAPITO A. AQUINO, JOKER
P. ARROYO, FRANCISCO C. RIVERA JR., RENE A.V. SAGUISAG, KILOSBAYAN, MOVEMENT
OF ATTORNEYS FOR BROTHERHOOD, INTEGRITY AND NATIONALISM, INC.
(MABINI), petitioners,
vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF FOREIGN AFFAIRS, THE SECRETARY
OF NATIONAL DEFENSE, SENATE PRESIDENT MARCELO B. FERNAN, SENATOR BLAS F.
OPLE, SENATOR RODOLFO G. BIAZON, AND ALL OTHER PERSONS ACTING THEIR
CONTROL, SUPERVISION, DIRECTION, AND INSTRUCTION IN RELATION TO THE VISITING
FORCES AGREEMENT (VFA), respondents.

DECISION

BUENA, J.:

Confronting the Court for resolution in the instant consolidated petitions for certiorari and prohibition
are issues relating to, and borne by, an agreement forged in the turn of the last century between the
Republic of the Philippines and the United States of America -the Visiting Forces Agreement.

The antecedents unfold.

On March 14, 1947, the Philippines and the United States of America forged a Military Bases
Agreement which formalized, among others, the use of installations in the Philippine territory by
United States military personnel. To further strengthen their defense and security relationship, the
Philippines and the United States entered into a Mutual Defense Treaty on August 30, 1951. Under
the treaty, the parties agreed to respond to any external armed attack on their territory, armed forces,
public vessels, and aircraft.
1

In view of the impending expiration of the RP-US Military Bases Agreement in 1991, the Philippines
and the United States negotiated for a possible extension of the military bases agreement. On
September 16, 1991, the Philippine Senate rejected the proposed RP-US Treaty of Friendship,
Cooperation and Security which, in effect, would have extended the presence of US military bases in
the Philippines. With the expiration of the RP-US Military Bases Agreement, the periodic military
2
exercises conducted between the two countries were held in abeyance. Notwithstanding, the
defense and security relationship between the Philippines and the United States of America
continued pursuant to the Mutual Defense Treaty.

On July 18, 1997, the United States panel, headed by US Defense Deputy Assistant Secretary for
Asia Pacific Kurt Campbell, met with the Philippine panel, headed by Foreign Affairs Undersecretary
Rodolfo Severino Jr., to exchange notes on "the complementing strategic interests of the United
States and the Philippines in the Asia-Pacific region." Both sides discussed, among other things, the
possible elements of the Visiting Forces Agreement (VFA for brevity). Negotiations by both panels on
the VFA led to a consolidated draft text, which in turn resulted to a final series of conferences and
negotiations that culminated in Manila on January 12 and 13, 1998. Thereafter, then President Fidel
3

V. Ramos approved the VFA, which was respectively signed by public respondent Secretary Siazon
and Unites States Ambassador Thomas Hubbard on February 10, 1998.

On October 5, 1998, President Joseph E. Estrada, through respondent Secretary of Foreign Affairs,
ratified the VFA.4

On October 6, 1998, the President, acting through respondent Executive Secretary Ronaldo
Zamora, officially transmitted to the Senate of the Philippines, the Instrument of Ratification, the
5

letter of the President and the VFA, for concurrence pursuant to Section 21, Article VII of the 1987
6

Constitution. The Senate, in turn, referred the VFA to its Committee on Foreign Relations, chaired by
Senator Blas F. Ople, and its Committee on National Defense and Security, chaired by Senator
Rodolfo G. Biazon, for their joint consideration and recommendation. Thereafter, joint public
hearings were held by the two Committees. 7

On May 3, 1999, the Committees submitted Proposed Senate Resolution No. 443 recommending
8

the concurrence of the Senate to the VFA and the creation of a Legislative Oversight Committee to
oversee its implementation. Debates then ensued.

On May 27, 1999, Proposed Senate Resolution No. 443 was approved by the Senate, by a two-
thirds (2/3) vote of its members. Senate Resolution No. 443 was then re-numbered as Senate
9

Resolution No. 18. 10

On June 1, 1999, the VFA officially entered into force after an Exchange of Notes between
respondent Secretary Siazon and United States Ambassador Hubbard.

The VFA, which consists of a Preamble and nine (9) Articles, provides for the mechanism for
regulating the circumstances and conditions under which US Armed Forces and defense personnel
may be present in the Philippines, and is quoted in its full text, hereunder:

"Article I
Definitions

"As used in this Agreement, ‘United States personnel’ means United States military and civilian
personnel temporarily in the Philippines in connection with activities approved by the Philippine
Government.

"Within this definition:

"1. The term ‘military personnel’ refers to military members of the United States Army,
Navy, Marine Corps, Air Force, and Coast Guard.
 "2. The term ‘civilian personnel’ refers to individuals who are neither nationals of, nor
ordinary residents in the Philippines and who are employed by the United States
armed forces or who are accompanying the United States armed forces, such as
employees of the American Red Cross and the United Services Organization.

"Article II
Respect for Law

"It is the duty of the United States personnel to respect the laws of the Republic of the Philippines
and to abstain from any activity inconsistent with the spirit of this agreement, and, in particular, from
any political activity in the Philippines. The Government of the United States shall take all measures
within its authority to ensure that this is done.

"Article III
Entry and Departure

"1. The Government of the Philippines shall facilitate the admission of United States
personnel and their departure from the Philippines in connection with activities
covered by this agreement.

"2. United States military personnel shall be exempt from passport and visa
regulations upon entering and departing the Philippines.

"3. The following documents only, which shall be presented on demand, shall be
required in respect of United States military personnel who enter the Philippines:

"(a) personal identity card issued by the appropriate United States authority
showing full name, date of birth, rank or grade and service number (if any),
branch of service and photograph;

"(b) individual or collective document issued by the appropriate United States

authority, authorizing the travel or visit and identifying the individual or group
as United States military personnel; and

"(c) the commanding officer of a military aircraft or vessel shall present a

declaration of health, and when required by the cognizant representative of
the Government of the Philippines, shall conduct a quarantine inspection and
will certify that the aircraft or vessel is free from quarantinable diseases. Any
quarantine inspection of United States aircraft or United States vessels or
cargoes thereon shall be conducted by the United States commanding officer
in accordance with the international health regulations as promulgated by the
World Health Organization, and mutually agreed procedures.

"4. United States civilian personnel shall be exempt from visa requirements but shall
present, upon demand, valid passports upon entry and departure of the Philippines.

"5. If the Government of the Philippines has requested the removal of any United
States personnel from its territory, the United States authorities shall be responsible
for receiving the person concerned within its own territory or otherwise disposing of
said person outside of the Philippines.
 "Article IV

Driving and Vehicle Registration

"1. Philippine authorities shall accept as valid, without test or fee, a driving permit or
license issued by the appropriate United States authority to United States personnel
for the operation of military or official vehicles.

"2. Vehicles owned by the Government of the United States need not be registered,
but shall have appropriate markings.

"Article V
Criminal Jurisdiction

"1. Subject to the provisions of this article:

(a) Philippine authorities shall have jurisdiction over United States personnel with
respect to offenses committed within the Philippines and punishable under the law of
the Philippines.

(b) United States military authorities shall have the right to exercise within the
Philippines all criminal and disciplinary jurisdiction conferred on them by the military
law of the United States over United States personnel in the Philippines.

"2. (a) Philippine authorities exercise exclusive jurisdiction over United States personnel with respect
to offenses, including offenses relating to the security of the Philippines, punishable under the laws
of the Philippines, but not under the laws of the United States.

(b) United States authorities exercise exclusive jurisdiction over United States
personnel with respect to offenses, including offenses relating to the security of the
United States, punishable under the laws of the United States, but not under the laws
of the Philippines.

(c) For the purposes of this paragraph and paragraph 3 of this article, an offense
relating to security means:

(1) treason;

(2) sabotage, espionage or violation of any law relating to national defense.

"3. In cases where the right to exercise jurisdiction is concurrent, the following rules shall apply:

(a) Philippine authorities shall have the primary right to exercise jurisdiction over all
offenses committed by United States personnel, except in cases provided for in
paragraphs 1(b), 2 (b), and 3 (b) of this Article.

(b) United States military authorities shall have the primary right to exercise
jurisdiction over United States personnel subject to the military law of the United
States in relation to.
 (1) offenses solely against the property or security of the United States or
offenses solely against the property or person of United States personnel;
and

(2) offenses arising out of any act or omission done in performance of official
duty.

(c) The authorities of either government may request the authorities of the
other government to waive their primary right to exercise jurisdiction in a
particular case.

(d) Recognizing the responsibility of the United States military authorities to

maintain good order and discipline among their forces, Philippine authorities
will, upon request by the United States, waive their primary right to exercise
jurisdiction except in cases of particular importance to the Philippines. If the
Government of the Philippines determines that the case is of particular
importance, it shall communicate such determination to the United States
authorities within twenty (20) days after the Philippine authorities receive the
United States request.

(e) When the United States military commander determines that an offense
charged by authorities of the Philippines against United states personnel
arises out of an act or omission done in the performance of official duty, the
commander will issue a certificate setting forth such determination. This
certificate will be transmitted to the appropriate authorities of the Philippines
and will constitute sufficient proof of performance of official duty for the
purposes of paragraph 3(b)(2) of this Article. In those cases where the
Government of the Philippines believes the circumstances of the case require
a review of the duty certificate, United States military authorities and
Philippine authorities shall consult immediately. Philippine authorities at the
highest levels may also present any information bearing on its validity. United
States military authorities shall take full account of the Philippine position.
Where appropriate, United States military authorities will take disciplinary or
other action against offenders in official duty cases, and notify the
Government of the Philippines of the actions taken.

(f) If the government having the primary right does not exercise jurisdiction, it
shall notify the authorities of the other government as soon as possible.

(g) The authorities of the Philippines and the United States shall notify each
other of the disposition of all cases in which both the authorities of the
Philippines and the United States have the right to exercise jurisdiction.

"4. Within the scope of their legal competence, the authorities of the Philippines and United States
shall assist each other in the arrest of United States personnel in the Philippines and in handling
them over to authorities who are to exercise jurisdiction in accordance with the provisions of this
article.

"5. United States military authorities shall promptly notify Philippine authorities of the arrest or
detention of United States personnel who are subject of Philippine primary or exclusive jurisdiction.
Philippine authorities shall promptly notify United States military authorities of the arrest or detention
of any United States personnel.
"6. The custody of any United States personnel over whom the Philippines is to exercise jurisdiction
shall immediately reside with United States military authorities, if they so request, from the
commission of the offense until completion of all judicial proceedings. United States military
authorities shall, upon formal notification by the Philippine authorities and without delay, make such
personnel available to those authorities in time for any investigative or judicial proceedings relating
to the offense with which the person has been charged in extraordinary cases, the Philippine
Government shall present its position to the United States Government regarding custody, which the
United States Government shall take into full account. In the event Philippine judicial proceedings
are not completed within one year, the United States shall be relieved of any obligations under this
paragraph. The one-year period will not include the time necessary to appeal. Also, the one-year
period will not include any time during which scheduled trial procedures are delayed because United
States authorities, after timely notification by Philippine authorities to arrange for the presence of the
accused, fail to do so.

"7. Within the scope of their legal authority, United States and Philippine authorities shall assist each
other in the carrying out of all necessary investigation into offenses and shall cooperate in providing
for the attendance of witnesses and in the collection and production of evidence, including seizure
and, in proper cases, the delivery of objects connected with an offense.

"8. When United States personnel have been tried in accordance with the provisions of this Article
and have been acquitted or have been convicted and are serving, or have served their sentence, or
have had their sentence remitted or suspended, or have been pardoned, they may not be tried again
for the same offense in the Philippines. Nothing in this paragraph, however, shall prevent United
States military authorities from trying United States personnel for any violation of rules of discipline
arising from the act or omission which constituted an offense for which they were tried by Philippine
authorities.

"9. When United States personnel are detained, taken into custody, or prosecuted by Philippine
authorities, they shall be accorded all procedural safeguards established by the law of the
Philippines. At the minimum, United States personnel shall be entitled:

(a) To a prompt and speedy trial;

(b) To be informed in advance of trial of the specific charge or charges made against
them and to have reasonable time to prepare a defense;

(c) To be confronted with witnesses against them and to cross examine such
witnesses;

(d) To present evidence in their defense and to have compulsory process for
obtaining witnesses;

(e) To have free and assisted legal representation of their own choice on the same
basis as nationals of the Philippines;

(f) To have the service of a competent interpreter; and

(g) To communicate promptly with and to be visited regularly by United States

authorities, and to have such authorities present at all judicial proceedings. These
proceedings shall be public unless the court, in accordance with Philippine laws,
excludes persons who have no role in the proceedings.
"10. The confinement or detention by Philippine authorities of United States personnel shall be
carried out in facilities agreed on by appropriate Philippine and United States authorities. United
States Personnel serving sentences in the Philippines shall have the right to visits and material
assistance.

"11. United States personnel shall be subject to trial only in Philippine courts of ordinary jurisdiction,
and shall not be subject to the jurisdiction of Philippine military or religious courts.

"Article VI
Claims

"1. Except for contractual arrangements, including United States foreign military
sales letters of offer and acceptance and leases of military equipment, both
governments waive any and all claims against each other for damage, loss or
destruction to property of each other’s armed forces or for death or injury to their
military and civilian personnel arising from activities to which this agreement applies.

"2. For claims against the United States, other than contractual claims and those to
which paragraph 1 applies, the United States Government, in accordance with United
States law regarding foreign claims, will pay just and reasonable compensation in
settlement of meritorious claims for damage, loss, personal injury or death, caused
by acts or omissions of United States personnel, or otherwise incident to the non-
combat activities of the United States forces.

"Article VII
Importation and Exportation

"1. United States Government equipment, materials, supplies, and other property
imported into or acquired in the Philippines by or on behalf of the United States
armed forces in connection with activities to which this agreement applies, shall be
free of all Philippine duties, taxes and other similar charges. Title to such property
shall remain with the United States, which may remove such property from the
Philippines at any time, free from export duties, taxes, and other similar charges. The
exemptions provided in this paragraph shall also extend to any duty, tax, or other
similar charges which would otherwise be assessed upon such property after
importation into, or acquisition within, the Philippines. Such property may be removed
from the Philippines, or disposed of therein, provided that disposition of such
property in the Philippines to persons or entities not entitled to exemption from
applicable taxes and duties shall be subject to payment of such taxes, and duties
and prior approval of the Philippine Government.

"2. Reasonable quantities of personal baggage, personal effects, and other property
for the personal use of United States personnel may be imported into and used in the
Philippines free of all duties, taxes and other similar charges during the period of
their temporary stay in the Philippines. Transfers to persons or entities in the
Philippines not entitled to import privileges may only be made upon prior approval of
the appropriate Philippine authorities including payment by the recipient of applicable
duties and taxes imposed in accordance with the laws of the Philippines. The
exportation of such property and of property acquired in the Philippines by United
States personnel shall be free of all Philippine duties, taxes, and other similar
charges.
 "Article VIII
Movement of Vessels and Aircraft

"1. Aircraft operated by or for the United States armed forces may enter the
Philippines upon approval of the Government of the Philippines in accordance with
procedures stipulated in implementing arrangements.

"2. Vessels operated by or for the United States armed forces may enter the
Philippines upon approval of the Government of the Philippines. The movement of
vessels shall be in accordance with international custom and practice governing such
vessels, and such agreed implementing arrangements as necessary.

"3. Vehicles, vessels, and aircraft operated by or for the United States armed forces
shall not be subject to the payment of landing or port fees, navigation or over flight
charges, or tolls or other use charges, including light and harbor dues, while in the
Philippines. Aircraft operated by or for the United States armed forces shall observe
local air traffic control regulations while in the Philippines. Vessels owned or operated
by the United States solely on United States Government non-commercial service
shall not be subject to compulsory pilotage at Philippine ports.

"Article IX
Duration and Termination

"This agreement shall enter into force on the date on which the parties have notified each other in
writing through the diplomatic channel that they have completed their constitutional requirements for
entry into force. This agreement shall remain in force until the expiration of 180 days from the date
on which either party gives the other party notice in writing that it desires to terminate the
agreement."

Via these consolidated petitions for certiorari and prohibition, petitioners - as legislators, non-
11

governmental organizations, citizens and taxpayers - assail the constitutionality of the VFA and
impute to herein respondents grave abuse of discretion in ratifying the agreement.

We have simplified the issues raised by the petitioners into the following:

Do petitioners have legal standing as concerned citizens, taxpayers, or legislators to question the
constitutionality of the VFA?

II

Is the VFA governed by the provisions of Section 21, Article VII or of Section 25, Article XVIII of the
Constitution?

III

Does the VFA constitute an abdication of Philippine sovereignty?

a. Are Philippine courts deprived of their jurisdiction to hear and try offenses committed by
US military personnel?
 b. Is the Supreme Court deprived of its jurisdiction over offenses punishable by reclusion
perpetua or higher?

IV

Does the VFA violate:

a. the equal protection clause under Section 1, Article III of the Constitution?

b. the Prohibition against nuclear weapons under Article II, Section 8?

c. Section 28 (4), Article VI of the Constitution granting the exemption from taxes and duties
for the equipment, materials supplies and other properties imported into or acquired in the
Philippines by, or on behalf, of the US Armed Forces?

LOCUS STANDI

At the outset, respondents challenge petitioner’s standing to sue, on the ground that the latter have
not shown any interest in the case, and that petitioners failed to substantiate that they have
sustained, or will sustain direct injury as a result of the operation of the VFA. Petitioners, on the
12

other hand, counter that the validity or invalidity of the VFA is a matter of transcendental importance
which justifies their standing. 13

A party bringing a suit challenging the constitutionality of a law, act, or statute must show "not only
that the law is invalid, but also that he has sustained or in is in immediate, or imminent danger of
sustaining some direct injury as a result of its enforcement, and not merely that he suffers thereby in
some indefinite way." He must show that he has been, or is about to be, denied some right or
privilege to which he is lawfully entitled, or that he is about to be subjected to some burdens or
penalties by reason of the statute complained of. 14

In the case before us, petitioners failed to show, to the satisfaction of this Court, that they have
sustained, or are in danger of sustaining any direct injury as a result of the enforcement of the VFA.
As taxpayers, petitioners have not established that the VFA involves the exercise by Congress of its
taxing or spending powers. On this point, it bears stressing that a taxpayer’s suit refers to a case
15

where the act complained of directly involves the illegal disbursement of public funds derived from
taxation. Thus, in Bugnay Const. & Development Corp. vs. Laron , we held:
16 17

"x x x it is exigent that the taxpayer-plaintiff sufficiently show that he would be benefited or injured by
the judgment or entitled to the avails of the suit as a real party in interest. Before he can invoke the
power of judicial review, he must specifically prove that he has sufficient interest in preventing the
illegal expenditure of money raised by taxation and that he will sustain a direct injury as a result of
the enforcement of the questioned statute or contract. It is not sufficient that he has merely a general
interest common to all members of the public."

Clearly, inasmuch as no public funds raised by taxation are involved in this case, and in the absence
of any allegation by petitioners that public funds are being misspent or illegally expended,
petitioners, as taxpayers, have no legal standing to assail the legality of the VFA.

Similarly, Representatives Wigberto Tañada, Agapito Aquino and Joker Arroyo, as petitioners-
legislators, do not possess the requisite locus standi to maintain the present suit. While this Court,
in Phil. Constitution Association vs. Hon. Salvador Enriquez, sustained the legal standing of a
18
member of the Senate and the House of Representatives to question the validity of a presidential
veto or a condition imposed on an item in an appropriation bull, we cannot, at this instance, similarly
uphold petitioners’ standing as members of Congress, in the absence of a clear showing of any
direct injury to their person or to the institution to which they belong.

Beyond this, the allegations of impairment of legislative power, such as the delegation of the power
of Congress to grant tax exemptions, are more apparent than real. While it may be true that
petitioners pointed to provisions of the VFA which allegedly impair their legislative powers,
petitioners failed however to sufficiently show that they have in fact suffered direct injury.

In the same vein, petitioner Integrated Bar of the Philippines (IBP) is stripped of standing in these
cases. As aptly observed by the Solicitor General, the IBP lacks the legal capacity to bring this suit in
the absence of a board resolution from its Board of Governors authorizing its National President to
commence the present action. 19

Notwithstanding, in view of the paramount importance and the constitutional significance of the
issues raised in the petitions, this Court, in the exercise of its sound discretion, brushes aside the
procedural barrier and takes cognizance of the petitions, as we have done in the early Emergency
Powers Cases, where we had occasion to rule:
20

"x x x ordinary citizens and taxpayers were allowed to question the constitutionality of several
executive orders issued by President Quirino although they were involving only an indirect and
general interest shared in common with the public. The Court dismissed the objection that they were
not proper parties and ruled that ‘transcendental importance to the public of these cases
demands that they be settled promptly and definitely, brushing aside, if we must,
technicalities of procedure.’ We have since then applied the exception in many other cases.
(Association of Small Landowners in the Philippines, Inc. v. Sec. of Agrarian Reform, 175 SCRA
343)." (Underscoring Supplied)

This principle was reiterated in the subsequent cases of Gonzales vs. COMELEC, Daza vs.
21

Singson, and Basco vs. Phil. Amusement and Gaming Corporation, where we emphatically
22 23

held:

"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 and that they have not
abused the discretion given to them, the Court has brushed aside technicalities of procedure and
has taken cognizance of this petition. x x x"

Again, in the more recent case of Kilosbayan vs. Guingona, Jr., thisCourt ruled that in cases of
24

transcendental importance, the Court may relax the standing requirements and allow a suit to
prosper even where there is no direct injury to the party claiming the right of judicial review.

Although courts generally avoid having to decide a constitutional question based on the doctrine of
separation of powers, which enjoins upon the departments of the government a becoming respect
for each others’ acts, this Court nevertheless resolves to take cognizance of the instant petitions.
25

APPLICABLE CONSTITUTIONAL PROVISION

One focal point of inquiry in this controversy is the determination of which provision of the
Constitution applies, with regard to the exercise by the senate of its constitutional power to concur
with the VFA. Petitioners argue that Section 25, Article XVIII is applicable considering that the VFA
has for its subject the presence of foreign military troops in the Philippines. Respondents, on the
contrary, maintain that Section 21, Article VII should apply inasmuch as the VFA is not a basing
arrangement but an agreement which involves merely the temporary visits of United States
personnel engaged in joint military exercises.

The 1987 Philippine Constitution contains two provisions requiring the concurrence of the Senate on
treaties or international agreements. Section 21, Article VII, which herein respondents invoke, reads:

"No treaty or international agreement shall be valid and effective unless concurred in by at least two-
thirds of all the Members of the Senate."

Section 25, Article XVIII, provides:

"After the expiration in 1991 of the Agreement between the Republic of the Philippines and the
United States of America concerning Military Bases, foreign military bases, troops, or facilities shall
not be allowed in the Philippines except under a treaty duly concurred in by the senate and, when
the Congress so requires, ratified by a majority of the votes cast by the people in a national
referendum held for that purpose, and recognized as a treaty by the other contracting State."

Section 21, Article VII deals with treatise or international agreements in general, in which case, the
concurrence of at least two-thirds (2/3) of all the Members of the Senate is required to make the
subject treaty, or international agreement, valid and binding on the part of the Philippines. This
provision lays down the general rule on treatise or international agreements and applies to any form
of treaty with a wide variety of subject matter, such as, but not limited to, extradition or tax treatise or
those economic in nature. All treaties or international agreements entered into by the Philippines,
regardless of subject matter, coverage, or particular designation or appellation, requires the
concurrence of the Senate to be valid and effective.

In contrast, Section 25, Article XVIII is a special provision that applies to treaties which involve the
presence of foreign military bases, troops or facilities in the Philippines. Under this provision, the
concurrence of the Senate is only one of the requisites to render compliance with the constitutional
requirements and to consider the agreement binding on the Philippines. Section 25, Article XVIII
further requires that "foreign military bases, troops, or facilities" may be allowed in the Philippines
only by virtue of a treaty duly concurred in by the Senate, ratified by a majority of the votes cast in a
national referendum held for that purpose if so required by Congress, and recognized as such by the
other contracting state.

It is our considered view that both constitutional provisions, far from contradicting each other,
actually share some common ground. These constitutional provisions both embody phrases in the
negative and thus, are deemed prohibitory in mandate and character. In particular, Section 21 opens
with the clause "No treaty x x x," and Section 25 contains the phrase "shall not be allowed."
Additionally, in both instances, the concurrence of the Senate is indispensable to render the treaty or
international agreement valid and effective.

To our mind, the fact that the President referred the VFA to the Senate under Section 21, Article VII,
and that the Senate extended its concurrence under the same provision, is immaterial. For in either
case, whether under Section 21, Article VII or Section 25, Article XVIII, the fundamental law is
crystalline that the concurrence of the Senate is mandatory to comply with the strict constitutional
requirements.
On the whole, the VFA is an agreement which defines the treatment of United States troops and
personnel visiting the Philippines. It provides for the guidelines to govern such visits of military
personnel, and further defines the rights of the United States and the Philippine government in the
matter of criminal jurisdiction, movement of vessel and aircraft, importation and exportation of
equipment, materials and supplies.

Undoubtedly, Section 25, Article XVIII, which specifically deals with treaties involving foreign military
bases, troops, or facilities, should apply in the instant case. To a certain extent and in a limited
sense, however, the provisions of section 21, Article VII will find applicability with regard to the issue
and for the sole purpose of determining the number of votes required to obtain the valid concurrence
of the Senate, as will be further discussed hereunder.

It is a finely-imbedded principle in statutory construction that a special provision or law prevails over
a general one. Lex specialis derogat generali. Thus, where there is in the same statute a particular
enactment and also a general one which, in its most comprehensive sense, would include what is
embraced in the former, the particular enactment must be operative, and the general enactment
must be taken to affect only such cases within its general language which are not within the
provision of the particular enactment. 26

In Leveriza vs. Intermediate Appellate Court, we enunciated:

27

"x x x that another basic principle of statutory construction mandates that general legislation must
give way to a special legislation on the same subject, and generally be so interpreted as to embrace
only cases in which the special provisions are not applicable (Sto. Domingo vs. de los Angeles, 96
SCRA 139), that a specific statute prevails over a general statute (De Jesus vs. People, 120 SCRA
760) and that where two statutes are of equal theoretical application to a particular case, the one
designed therefor specially should prevail (Wil Wilhensen Inc. vs. Baluyot, 83 SCRA 38)."

Moreover, it is specious to argue that Section 25, Article XVIII is inapplicable to mere transient
agreements for the reason that there is no permanent placing of structure for the establishment of a
military base. On this score, the Constitution makes no distinction between "transient’ and
"permanent". Certainly, we find nothing in Section 25, Article XVIII that requires foreign troops or
facilities to be stationed or placed permanently in the Philippines.

It is a rudiment in legal hermenuetics that when no distinction is made by law, the Court should not
distinguish- Ubi lex non distinguit nec nos distinguire debemos.

In like manner, we do not subscribe to the argument that Section 25, Article XVIII is not controlling
since no foreign military bases, but merely foreign troops and facilities, are involved in the VFA.
Notably, a perusal of said constitutional provision reveals that the proscription covers "foreign
military bases, troops, or facilities." Stated differently, this prohibition is not limited to the entry of
troops and facilities without any foreign bases being established. The clause does not refer to
"foreign military bases, troops, or facilities" collectively but treats them as separate and independent
subjects. The use of comma and the disjunctive word "or" clearly signifies disassociation and
independence of one thing from the others included in the enumeration, such that, the provision
28

contemplates three different situations - a military treaty the subject of which could be either (a)
foreign bases, (b) foreign troops, or (c) foreign facilities - any of the three standing alone places it
under the coverage of Section 25, Article XVIII.

To this end, the intention of the framers of the Charter, as manifested during the deliberations of the
1986 Constitutional Commission, is consistent with this interpretation:
"MR. MAAMBONG. I just want to address a question or two to Commissioner Bernas.

This formulation speaks of three things: foreign military bases, troops or facilities. My first question
is: If the country does enter into such kind of a treaty, must it cover the three-bases, troops or
facilities-or could the treaty entered into cover only one or two?

FR. BERNAS. Definitely, it can cover only one. Whether it covers only one or it covers three,
the requirement will be the same.

MR. MAAMBONG. In other words, the Philippine government can enter into a treaty covering
not bases but merely troops?

FR. BERNAS. Yes.

MR. MAAMBONG. I cannot find any reason why the government can enter into a treaty covering
only troops.

FR. BERNAS. Why not? Probably if we stretch our imagination a little bit more, we will find some.
We just want to cover everything." (Underscoring Supplied)
29

Moreover, military bases established within the territory of another state is no longer viable because
of the alternatives offered by new means and weapons of warfare such as nuclear weapons, guided
missiles as well as huge sea vessels that can stay afloat in the sea even for months and years
without returning to their home country. These military warships are actually used as substitutes for a
land-home base not only of military aircraft but also of military personnel and facilities. Besides,
vessels are mobile as compared to a land-based military headquarters.

At this juncture, we shall then resolve the issue of whether or not the requirements of Section 25
were complied with when the Senate gave its concurrence to the VFA.

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

There is no dispute as to the presence of the first two requisites in the case of the VFA. The
concurrence handed by the Senate through Resolution No. 18 is in accordance with the provisions
of the Constitution, whether under the general requirement in Section 21, Article VII, or the specific
mandate mentioned in Section 25, Article XVIII, the provision in the latter article requiring ratification
by a majority of the votes cast in a national referendum being unnecessary since Congress has not
required it.

As to the matter of voting, Section 21, Article VII particularly requires that a treaty or international
agreement, to be valid and effective, must be concurred in by at least two-thirds of all the
members of the Senate. On the other hand, Section 25, Article XVIII simply provides that the treaty
be "duly concurred in by the Senate."

Applying the foregoing constitutional provisions, a two-thirds vote of all the members of the Senate is
clearly required so that the concurrence contemplated by law may be validly obtained and deemed
present. While it is true that Section 25, Article XVIII requires, among other things, that the treaty-the
VFA, in the instant case-be "duly concurred in by the Senate," it is very true however that said
provision must be related and viewed in light of the clear mandate embodied in Section 21, Article
VII, which in more specific terms, requires that the concurrence of a treaty, or international
agreement, be made by a two -thirds vote of all the members of the Senate. Indeed, Section 25,
Article XVIII must not be treated in isolation to section 21, Article, VII.

As noted, the "concurrence requirement" under Section 25, Article XVIII must be construed in
relation to the provisions of Section 21, Article VII. In a more particular language, the concurrence of
the Senate contemplated under Section 25, Article XVIII means that at least two-thirds of all the
members of the Senate favorably vote to concur with the treaty-the VFA in the instant case.

Under these circumstances, the charter provides that the Senate shall be composed of twenty-four
(24) Senators. Without a tinge of doubt, two-thirds (2/3) of this figure, or not less than sixteen (16)
30

members, favorably acting on the proposal is an unquestionable compliance with the requisite
number of votes mentioned in Section 21 of Article VII. The fact that there were actually twenty-three
(23) incumbent Senators at the time the voting was made, will not alter in any significant way the
31

circumstance that more than two-thirds of the members of the Senate concurred with the proposed
VFA, even if the two-thirds vote requirement is based on this figure of actual members (23). In this
regard, the fundamental law is clear that two-thirds of the 24 Senators, or at least 16 favorable votes,
suffice so as to render compliance with the strict constitutional mandate of giving concurrence to the
subject treaty.

Having resolved that the first two requisites prescribed in Section 25, Article XVIII are present, we
shall now pass upon and delve on the requirement that the VFA should be recognized as a treaty by
the United States of America.

Petitioners content that the phrase "recognized as a treaty," embodied in section 25, Article XVIII,
means that the VFA should have the advice and consent of the United States Senate pursuant to its
own constitutional process, and that it should not be considered merely an executive agreement by
the United States.

In opposition, respondents argue that the letter of United States Ambassador Hubbard stating that
the VFA is binding on the United States Government is conclusive, on the point that the VFA is
recognized as a treaty by the United States of America. According to respondents, the VFA, to be
binding, must only be accepted as a treaty by the United States.

This Court is of the firm view that the phrase "recognized as a treaty" means that the other
contracting party accepts or acknowledges the agreement as a treaty. To require the other
32

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.
33

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. 34

Moreover, it is inconsequential whether the United States treats the VFA only as an executive
agreement because, under international law, an executive agreement is as binding as a treaty. To 35

be sure, as long as the VFA possesses the elements of an agreement under international law, the
said agreement is to be taken equally as a treaty.

A treaty, as defined by the Vienna Convention on the Law of Treaties, is "an international instrument
concluded between States in written form and governed by international law, whether embodied in a
single instrument or in two or more related instruments, and whatever its particular
designation." There are many other terms used for a treaty or international agreement, some of
36

which are: act, protocol, agreement, compromis d’ arbitrage, concordat, convention, declaration,
exchange of notes, pact, statute, charter and modus vivendi. All writers, from Hugo Grotius onward,
have pointed out that the names or titles of international agreements included under the general
term treaty have little or no legal significance. Certain terms are useful, but they furnish little more
than mere description. 37

Article 2(2) of the Vienna Convention provides that "the provisions of paragraph 1 regarding the use
of terms in the present Convention are without prejudice to the use of those terms, or to the
meanings which may be given to them in the internal law of the State."

Thus, in international law, there is no difference between treaties and executive agreements in their
binding effect upon states concerned, as long as the negotiating functionaries have remained within
their powers. International law continues to make no distinction between treaties and executive
38

agreements: they are equally binding obligations upon nations. 39

In our jurisdiction, we have recognized the binding effect of executive agreements even without the
concurrence of the Senate or Congress. In Commissioner of Customs vs. Eastern Sea
Trading, we had occasion to pronounce:
40

"x x x the right of the Executive to enter into binding agreements without the necessity of subsequent
congressional approval has been confirmed by long usage. From the earliest days of our history we
have entered into executive agreements covering such subjects as commercial and consular
relations, most-favored-nation rights, patent rights, trademark and copyright protection, postal and
navigation arrangements and the settlement of claims. The validity of these has never been
seriously questioned by our courts.

"x x x x x x x x x

"Furthermore, the United States Supreme Court has expressly recognized the validity and
constitutionality of executive agreements entered into without Senate approval. (39 Columbia Law
Review, pp. 753-754) (See, also, U.S. vs. Curtis Wright Export Corporation, 299 U.S. 304, 81 L.
ed. 255; U.S. vs. Belmont, 301 U.S. 324, 81 L. ed. 1134; U.S. vs. Pink, 315 U.S. 203, 86 L. ed.
796; Ozanic vs. U.S. 188 F. 2d. 288; Yale Law Journal, Vol. 15 pp. 1905-1906; California Law
Review, Vol. 25, pp. 670-675; Hyde on International Law [revised Edition], Vol. 2, pp. 1405,
1416-1418; willoughby on the U.S. Constitution Law, Vol. I [2d ed.], pp. 537-540; Moore,
International Law Digest, Vol. V, pp. 210-218; Hackworth, International Law Digest, Vol. V, pp.
390-407). (Italics Supplied)" (Emphasis Ours)

The deliberations of the Constitutional Commission which drafted the 1987 Constitution is
enlightening and highly-instructive:

"MR. MAAMBONG. Of course it goes without saying that as far as ratification of the other state is
concerned, that is entirely their concern under their own laws.

FR. BERNAS. Yes, but we will accept whatever they say. If they say that we have done everything to
make it a treaty, then as far as we are concerned, we will accept it as a treaty."41

The records reveal that the United States Government, through Ambassador Thomas C. Hubbard,
has stated that the United States government has fully committed to living up to the terms of the
VFA. For as long as the united States of America accepts or acknowledges the VFA as a treaty, and
42

binds itself further to comply with its obligations under the treaty, there is indeed marked compliance
with the mandate of the Constitution.

Worth stressing too, is that the ratification, by the President, of the VFA and the concurrence of the
Senate should be taken as a clear an unequivocal expression of our nation’s consent to be bound by
said treaty, with the concomitant duty to uphold the obligations and responsibilities embodied
thereunder.

Ratification is generally held to be an executive act, undertaken by the head of the state or of the
government, as the case may be, through which the formal acceptance of the treaty is
proclaimed. A State may provide in its domestic legislation the process of ratification of a treaty. The
43

consent of the State to be bound by a treaty is expressed by ratification when: (a) the treaty provides
for such ratification, (b) it is otherwise established that the negotiating States agreed that ratification
should be required, (c) the representative of the State has signed the treaty subject to ratification, or
(d) the intention of the State to sign the treaty subject to ratification appears from the full powers of
its representative, or was expressed during the negotiation. 44

In our jurisdiction, the power to ratify is vested in the President and not, as commonly believed, in
the legislature. The role of the Senate is limited only to giving or withholding its consent, or
concurrence, to the ratification.
45

With the ratification of the VFA, which is equivalent to final acceptance, and with the exchange of
notes between the Philippines and the United States of America, it now becomes obligatory and
incumbent on our part, under the principles of international law, to be bound by the terms of the
agreement. Thus, no less than Section 2, Article II of the Constitution, declares that the Philippines
46

adopts the generally accepted principles of international law as part of the law of the land and
adheres to the policy of peace, equality, justice, freedom, cooperation and amity with all nations.

As a member of the family of nations, the Philippines agrees to be bound by generally accepted
rules for the conduct of its international relations. While the international obligation devolves upon
the state and not upon any particular branch, institution, or individual member of its government, the
Philippines is nonetheless responsible for violations committed by any branch or subdivision of its
government or any official thereof. As an integral part of the community of nations, we are
responsible to assure that our government, Constitution and laws will carry out our international
obligation. Hence, we cannot readily plead the Constitution as a convenient excuse for non-
47

compliance with our obligations, duties and responsibilities under international law.

Beyond this, Article 13 of the Declaration of Rights and Duties of States adopted by the International
Law Commission in 1949 provides: "Every State has the duty to carry out in good faith its obligations
arising from treaties and other sources of international law, and it may not invoke provisions in its
constitution or its laws as an excuse for failure to perform this duty."
48

Equally important is Article 26 of the convention which provides that "Every treaty in force is binding
upon the parties to it and must be performed by them in good faith." This is known as the principle
of pacta sunt servanda which preserves the sanctity of treaties and have been one of the most
fundamental principles of positive international law, supported by the jurisprudence of international
tribunals.49

NO GRAVE ABUSE OF DISCRETION

In the instant controversy, the President, in effect, is heavily faulted for exercising a power and
performing a task conferred upon him by the Constitution-the power to enter into and ratify treaties.
Through the expediency of Rule 65 of the Rules of Court, petitioners in these consolidated cases
impute grave abuse of discretion on the part of the chief Executive in ratifying the VFA, and
referring the same to the Senate pursuant to the provisions of Section 21, Article VII of the
Constitution.

On this particular matter, grave abuse of discretion implies such capricious and whimsical exercise
of judgment as is equivalent to lack of jurisdiction, or, when the power is exercised in an arbitrary or
despotic manner by reason of passion or personal hostility, and it must be so patent and gross as to
amount to an evasion of positive duty enjoined or to act at all in contemplation of law. 50

By constitutional fiat and by the intrinsic nature of his office, the President, as head of State, is the
sole organ and authority in the external affairs of the country. In many ways, the President is the
chief architect of the nation’s foreign policy; his "dominance in the field of foreign relations is (then)
conceded." Wielding vast powers an influence, his conduct in the external affairs of the nation, as
51

Jefferson describes, is "executive altogether." 52

As regards the power to enter into treaties or international agreements, the Constitution vests the
same in the President, subject only to the concurrence of at least two-thirds vote of all the members
of the Senate. In this light, the negotiation of the VFA and the subsequent ratification of the
agreement are exclusive acts which pertain solely to the President, in the lawful exercise of his vast
executive and diplomatic powers granted him no less than by the fundamental law itself. Into the
field of negotiation the Senate cannot intrude, and Congress itself is powerless to invade
it. Consequently, the acts or judgment calls of the President involving the VFA-specifically the acts
53

of ratification and entering into a treaty and those necessary or incidental to the exercise of such
principal acts - squarely fall within the sphere of his constitutional powers and thus, may not be
validly struck down, much less calibrated by this Court, in the absence of clear showing of grave
abuse of power or discretion.

It is the Court’s considered view that the President, in ratifying the VFA and in submitting the same to
the Senate for concurrence, acted within the confines and limits of the powers vested in him by the
Constitution. It is of no moment that the President, in the exercise of his wide latitude of discretion
and in the honest belief that the VFA falls within the ambit of Section 21, Article VII of the
Constitution, referred the VFA to the Senate for concurrence under the aforementioned provision.
Certainly, no abuse of discretion, much less a grave, patent and whimsical abuse of judgment, may
be imputed to the President in his act of ratifying the VFA and referring the same to the Senate for
the purpose of complying with the concurrence requirement embodied in the fundamental law. In
doing so, the President merely performed a constitutional task and exercised a prerogative that
chiefly pertains to the functions of his office. Even if he erred in submitting the VFA to the Senate for
concurrence under the provisions of Section 21 of Article VII, instead of Section 25 of Article XVIII of
the Constitution, still, the President may not be faulted or scarred, much less be adjudged guilty of
committing an abuse of discretion in some patent, gross, and capricious manner.

For while it is conceded that Article VIII, Section 1, of the Constitution has broadened the scope of
judicial inquiry into areas normally left to the political departments to decide, such as those relating
to national security, it has not altogether done away with political questions such as those which
arise in the field of foreign relations. The High Tribunal’s function, as sanctioned by Article VIII,
54

Section 1, "is merely (to) check whether or not the governmental branch or agency has gone beyond
the constitutional limits of its jurisdiction, not that it erred or has a different view. In the absence of a
showing… (of) grave abuse of discretion amounting to lack of jurisdiction, there is no occasion for
the Court to exercise its corrective power…It has no power to look into what it thinks is apparent
error."
55

As to the power to concur with treaties, the constitution lodges the same with the Senate
alone. Thus, once the Senate performs that power, or exercises its prerogative within the
1âwphi1
56

boundaries prescribed by the Constitution, the concurrence cannot, in like manner, be viewed to
constitute an abuse of power, much less grave abuse thereof. Corollarily, the Senate, in the exercise
of its discretion and acting within the limits of such power, may not be similarly faulted for having
simply performed a task conferred and sanctioned by no less than the fundamental law.

For the role of the Senate in relation to treaties is essentially legislative in character; the Senate, as
57

an independent body possessed of its own erudite mind, has the prerogative to either accept or
reject the proposed agreement, and whatever action it takes in the exercise of its wide latitude of
discretion, pertains to the wisdom rather than the legality of the act. In this sense, the Senate
partakes a principal, yet delicate, role in keeping the principles of separation of powers and
of checks and balances alive and vigilantly ensures that these cherished rudiments remain true to
their form in a democratic government such as ours. The Constitution thus animates, through this
treaty-concurring power of the Senate, a healthy system of checks and balances indispensable
toward our nation’s pursuit of political maturity and growth. True enough, rudimentary is the principle
that matters pertaining to the wisdom of a legislative act are beyond the ambit and province of the
courts to inquire.

In fine, absent any clear showing of grave abuse of discretion on the part of respondents, this Court-
as the final arbiter of legal controversies and staunch sentinel of the rights of the people - is then
without power to conduct an incursion and meddle with such affairs purely executive and legislative
in character and nature. For the Constitution no less, maps out the distinct boundaries and limits the
metes and bounds within which each of the three political branches of government may exercise the
powers exclusively and essentially conferred to it by law.

WHEREFORE, in light of the foregoing disquisitions, the instant petitions are hereby DISMISSED.

SO ORDERED.

Davide, Jr., C.J., Bellosillo, Kapunan, Quisumbing, Purisima, Pardo, Gonzaga-Reyes, Ynares-
Santiago, and De Leon, Jr., JJ., concur.
Melo, and Vitug, JJ., join the dissent of J. Puno.
Puno , J., see dissenting opinion.
Mendoza, J., in the result.
Panganiban, J., no part due to close personal and former professional relations with a petitioner,
Sen. J.R. Salonga.

Footnotes

1
Article V. Any such armed attack and all measures taken as a result thereof shall be
immediately reported to the Security Council of the United Nations. Such measures shall be
terminated when the Security Council has taken the measure necessary to restore and
maintain international peace and security.
Joint Report of the Senate Committee on Foreign Relation and the Committee on National
2

Defense and Security on the Visiting Forces Agreement.

3
Joint Committee Report.

4
Petition, G.R. No. 138698, Annex "B", Rollo, pp. 61-62.

"INSTRUMENT OF RATIFICATION

TO ALL TO WHOM THESE PRESENTS SHALL COME, GREETINGS:

KNOW YE, that whereas, the Agreement between the government of the Republic of
the Philippines and the Government of the United States of America Regarding the
Treatment of the United States Armed Forces Visiting the Philippines, hereinafter
referred to as VFA, was signed in Manila on 10 February 1998;

WHEREAS, the VFA is essentially a framework to promote bilateral defense

cooperation between the Republic of the Philippines and the United States of
America and to give substance to the 1951 RP-US Mutual Defense Treaty (RP-US
MDT). To fulfill the objectives of the RP-US MDT, it is necessary that regular joint
military exercises are conducted between the Republic of the Philippines and the
United States of America;

WHEREAS, the VFA seeks to provide a conducive setting for the successful conduct
of combined military exercises between the Philippines and the United States armed
forces to ensure interoperability of the RP-US MDT;

WHEREAS, in particular, the VFA provides the mechanism for regulating the
circumstances and conditions under which US armed forces and defense personnel
may be present in the Philippines such as the following inter alia:

(a) specific requirements to facilitate the admission of United States

personnel and their departure from the Philippines in connection with
activities covered by the agreement;

(b) clear guidelines on the prosecution of offenses committed by any member

of the United States armed forces while in the Philippines;

(c) precise directive on the importation and exportation of United States

Government equipment, materials, supplies and other property imported into
or acquired in the Philippines by or on behalf of the United States armed
forces in connection with activities covered by the Agreement; and

(d) explicit regulations on the entry of United States vessels, aircraft, and
vehicles;

WHEREAS, Article IX of the Agreement provides that it shall enter into force on the
date on which the Parties have notified each other in writing, through diplomatic
channels, that they have completed their constitutional requirements for its entry into
force. It shall remain in force until the expiration of 180 days from the date on which
either Party gives the other Party written notice to terminate the Agreement.
 NOW, THEREFORE, be it known that I, JOSEPH EJERCITO ESTRADA, President
of the Republic of the Philippines, after having seen and considered the
aforementioned Agreement between the Government of the United States of America
Regarding the Treatment of the United States Armed Forces Visiting the Philippines,
do hereby ratify and confirm the same and each and every Article and Clause
thereof.

IN TESTIMONY WHEREOF, I have hereunto set my hand and caused the seal of the
Republic of the Philippines to be affixed.

GIVEN under my hand at the City of Manila, this 5th day of October, in the year of
Our Lord one thousand nine hundred and ninety-eight.

5
Petition, G.R. No. 138587, Annex "C", Rollo, p. 59.

The Honorable Senate President and

Member of the Senate
Senate of the Philippines
Pasay City

Gentlemen and Ladies of the Senate:

I have the honor to transmit herewith the Instrument of Ratification duly signed by
H.E. President Joseph Ejercito Estrada, his message to the Senate and a draft
Senate Resolution of Concurrence in connection with the ratification of the
AGREEMENT BETWEEN THE GOVERNMENT OF THE REPUBLIC OF THE
PHILIPPINES AND THE GOVERNMENT OF THE UNITED STATES OF AMERICA
REGARDING THE TREATMENT OF THE UNITED STATES ARMED FORCES
VISITING THE PHILIPPINES.

With best wishes.

Very truly yours,

RONALDO B. ZAMORA
Executive Secretary

6
Petition, G.R. No. 138698, Annex "C".

7
Between January 26 and March 11, 1999, the two Committees jointly held six public
hearings-three in Manila and one each in General Santos, Angeles City and Cebu City.

8
Petition , G.R. No. 138570, Annex "C", Rollo, pp. 88-95.

"WHEREAS, the VFA is essentially a framework for promoting the common security
interest of the two countries; and for strengthening their bilateral defense partnership
under the 1951 RP-US Mutual Defense Treaty;

"x x x x x x x x x
"WHEREAS, the VFA does not give unrestricted access or unhampered movement to
US Forces in the Philippines; in fact, it recognizes the Philippine government as the
sole authority to approve the conduct of any visit or activity in the country by US
Forces, hence the VFA is not a derogation of Philippine sovereignty;

"WHEREAS, the VFA is not a basing arrangement; neither does it pave way for the
restoration of the American bases and facilities in the Philippines, in contravention of
the prohibition against foreign bases and permanent stationing of foreign troops
under Article XVIII, Section 25 of the 1987 Constitution-because the agreement
envisions only temporary visits of US personnel engaged in joint military exercises or
other activities as may be approved by the Philippine Government;

"WHEREAS, the VFA gives Philippine courts primary jurisdiction over offenses that
may be committed by US personnel within Philippine territory, with the exception of
those incurred solely against the security or property of the Us or solely against the
person or property of US personnel, and those committed in the performance of
official duty;

"x x x x x x x x x

"WHEREAS, by virtue of Article II of the VFA, the United States commits to respect
the laws of the Republic of the Philippines, including the Constitution, which declares
in Article II, Section 8 thereof, a policy of freedom from nuclear weapons consistent
with the national interest;

"WHEREAS, the VFA shall serve as the legal mechanism to promote defense
cooperation between two countries-enhancing the preparedness of the Armed
Forces of the Philippines against external threats; and enabling the Philippines to
bolster the stability of the Pacific area in a shared effort with its neighbor-states;

"WHEREAS, the VFA will enhance our political, economic and security partnership
and cooperation with the United States-which has helped promote the development
of our country and improved the lives of our people;

"WHEREAS, in accordance with the powers and functions of Senate as mandated by

the Constitution, this Chamber, after holding several public hearings and
deliberations, concurs in the President’s ratification of the VFA, for the following
reasons:

(1) The Agreement will provide the legal mechanism to promote defense
cooperation between the Philippines and the U.S. and thus enhance the
tactical, strategic, and technological capabilities of our armed forces;

(2) The Agreement will govern the treatment of U.S., military and defense
personnel within Philippine territory, while they are engaged in activities
covered by the Mutual Defense Treaty and conducted with the prior approval
of the Philippine government; and

(3) The Agreement will provide the regulatory mechanism for the
circumstances and conditions under which U.S. military forces may visit the
Philippines; x x x
 "x x x x x x x x x

"WHEREAS, in accordance with Article IX of the VFA, the Philippine government

reserves the right to terminate the agreement unilaterally once it no longer redounds
to our national interest: Now, therefore, be it

"Resolved, that the Senate concur, as it hereby concurs, in the Ratification of the
Agreement between the Government of the Republic of the Philippines and the
United States of America Regarding the Treatment of United States Armed Forces
visiting the Philippines. x x x"

9
The following voted for concurrence: (1) Senate President Marcelo Fernan, (2) Senate
President Pro Tempore Blas Ople, (3) Senator Franklin Drilon, (4) Senator Rodolfo Biazon,
(5) Senator Francisco Tatad, (6) Senator Renato Cayetano, (7) Senator Teresa Aquino-
Oreta, (8) Senator Robert Barbers, (9) Senator Robert Jaworski, (10) Senator Ramon
Magsaysay, Jr., (11) Senator John Osmeña, (12) Senator Juan Flavier, (13) Senator Mirriam
Defensor-Santiago, (14) Senator Juan Ponce-Enrile, (15) Senator Vicente Sotto III, (16)
Senator Ramon Revilla, (17) Senator Anna Dominique Coseteng, and (18) Senator Gregorio
Honasan.

Only the following voted to reject the ratification of the VFA: (1) Senator Teofisto
Guingona, Jr., (2) Senator Raul Roco, (3) Senator Sergio Osmena III, (4) Senator
Aquilino Pimentel, Jr., and (5) Senator Loren Legarda-Leviste.

10
See Petition, G.R. No. 138570, Rollo, pp. 105.

11
Minute Resolution dated June 8, 1999.

12
See Consolidated Comment.

13
Reply to Consolidated Comment, G.R. No. 138698; G.R. No. 138587.

Valmonte vs. Philippine Charity Sweepstakes Office, (Res.) G.R. No. 78716, September 22,
14

1987, cited in Telecommunications and Broadcast Attorneys of the Philippines, Inc. vs.
COMELEC, 289 SCRA 337, 343 [1998]; Valley Forge College vs. Americans United, 454 US
464, 70 L. Ed. 2d 700 [1982]; Bugnay Const. And Dev. Corp. vs. Laron, 176 SCRA 240, 251-
252 [1989]; Tatad vs. Garcia, Jr. 243 SCRA 436, 473 [1995].

15
See Article VI, Sections 24, 25 and 29 of the 1987 Constitution.

Pascual vs. Secretary of Public Works, 110 Phil. 331 [1960]; Maceda vs. Macaraig, 197
16

SCRA 771 [1991]; Lozada vs. COMELEC, 120 SCRA 337 [1983]; Dumlao vs. COMELEC, 95
SCRA 392 [1980]; Gonzales vs. Marcos, 65 SCRA 624 [1975].

17
176 SCRA 240, 251-252 [1989].

18
235 SCRA 506 [1994].

19
Consolidated Memorandum, p. 11.
 Araneta vs. Dinglasan, 84 Phil. 368 [1949]; Iloilo Palay & Corn Planters Association vs.
20

Feliciano, 121 Phil. 358 [1965]; Philippine Constitution Association vs. Gimenez, 122 Phil.
894 [1965].

21
21 SCRA 774 [1967].

180 SCRA 496, 502 [1988] cited in Kilosbayan, Inc. vs. Guingona, Jr., 232 SCRA 110
22

[1994].

23
197 SCRA 52, 60 [1991].

24
232 SCRA 110 [1994].

25
J. Santos vs. Northwest Orient Airlines, 210 SCRA 256, 261 [1992].

26
Manila Railroad Co. vs. Collector of Customs, 52 Phil. 950.

27
157 SCRA 282 [1988] cited in Republic vs. Sandiganbayan, 173 SCRA 72, 85 [1989].

28
Castillo-co v. Barbers, 290 SCRA 717, 723 (1998).

29
Records of the Constitutional Commission, September 18, 1986 Deliberation, p. 782.

1987 Constitution, Article VI, Section 2. - the Senate shall be composed of twenty-four
30

Senators who shall be elected at large by the qualified voters of the Philippines, as may be
provided by law.

The 24th member (Gloria Macapagal-Arroyo) of the Senate whose term was to expire in
31

2001 was elected Vice-President in the 1998 national elections.

32
Ballentine’s Legal Dictionary, 1995.

Article 2, Section 2, paragraph 2 of the United States Constitution, speaking of the United
33

States President provides: "He shall have power, by and with the advice and consent of the
Senate to make treaties, provided two-thirds of the senators present concur."

34
J.M. Tuason & Co., Inc. vs. Land Tenure Association, 31 SCRA 413 [1970].

Altman Co. vs. United States, 224 US 263 [1942], cited in Coquia and Defensor-Santiago,
35

International Law, 1998 Ed. P. 497.

36
Vienna Convention, Article 2.

Gerhard von Glahn, Law among Nations, an Introduction to Public International Law, 4th
37

Ed., p. 480.

Hackworth, Digest of International Law, Vol. 5, p. 395, cited in USAFE Veterans Association
38

Inc. vs. Treasurer of the Philippines, 105 Phil. 1030, 1037 [1959].
 Richard J. Erickson, "The Making of Executive Agreements by the United States
39

Department of Defense: An agenda for Progress," 13 Boston U. Intl. L.J. 58 [1995], citing
Restatement [third] of Foreign Relations Law pt. III, introductory note [1987] and Paul Reuter,
Introduction to the Law of Treaties 22 [Jose Mico & Peter Haggemacher trans., 1989] cited in
Consolidated Memorandum, p. 32.

40
3 SCRA 351, 356-357 [1961].

41
4 Record of the Constitutional Commission 782 [Session of September 18, 1986].

42
Letter of Ambassador Hubbard to Senator Miriam Defensor-Santiago:

"Dear Senator Santiago:

I am happy to respond to your letter of April 29, concerning the way the US
Government views the Philippine-US Visiting Forces Agreement in US legal terms.
You raise an important question and I believe this response will help in the Senate
deliberations.

As a matter of both US and international law, an international agreement like the

Visiting Forces Agreement is legally binding on the US Government, In international
legal terms, such an agreement is a ‘treaty.’ However, as a matter of US domestic
law, an agreement like the VFA is an ‘executive agreement,’ because it does not
require the advice and consent of the senate under Article II, section 2 of our
Constitution.

The President’s power to conclude the VFA with the Philippines, and other status of
forces agreements with the other countries, derives from the President’s
responsibilities for the conduct of foreign relations (Art. II, Sec. 1) and his
constitutional powers as Commander in Chief of the Armed Forces. Senate advice
and consent is not needed, inter alia, because the VFA and similar agreements
neither change US domestic nor require congressional appropriation of funds. It is
important to note that only about five percent of the international agreement entered
into by the US Governments require Senate advice and consent. However, in terms
of the US Government’s obligation to adhere to the terms of the VFA, there is no
difference between a treaty concurred in by our Senate and an executive agreement.
Background information on these points can be found in the ‘Restatement 3rd of the
Foreign Relations Law of the United States,’ Sec. 301, et seq. [1986].

I hope you find this answer helpful. As the President’s representative to the
Government of the Philippines, I can assure you that the United States Government
is fully committed to living up to the terms of the VFA.

Sincerely yours,

THOMAS C. HUBBARD
Ambassador"

Gerhard von Glahn, Law Among Nations, An Introduction to Public International Law, 4th
43

Ed., p. 486.
 Article 14 of the Vienna Convention, cited in Coquia and Defensor-Santiago, Intenational
44

Law, 1998 Ed., pp. 506-507.

45
Cruz, Isagani, "International Law", 1985 Ed., p. 175.

Sec. 2. The Philippines renounces war as an instrument of national policy, adopts the
46

generally accepted principles of international law as part of the law of the land and adheres
to the policy of peace, equality, justice, freedom, cooperation, and amity with all nations.

Louis Henkin, Richard C. Pugh, Oscar Schachter, Hans Smit, International Law, Cases and
47

Materials, 2nd Ed American Casebook Series, p. 136.

48
Gerhard von Glah, supra, p. 487.

49
Harris, p. 634 cited in Coquia, International Law, supra, p. 512.

Cuison vs. CA, 289 SCRA 159 [1998]. See also Jardine vs. NLRC, G.R. No. 119268, Feb
50

23, 2000 citing Arroyo vs. De Venecia, 277 SCRA 268 [1997].

51
Cortes, "The Philippine Presidency a study of Executive Power, 2nd Ed.," p. 195.

52
Cruz, Phil. Political Law, 1995 Ed., p. 223.

53
United States vs. Curtis Wright Corp., 299 U.S. 304 (1934), per Justice Sutherland.

54
Arroyo vs. De Venecia, 277 SCRA 269 [1997].

Co vs. Electoral Tribunal of the House of Representatives, 199 SCRA 692, 701 (1991);
55

Llamas vs. Orbos, 202 SCRA 849, 857 (1991); Lansang vs. Garcia, 42 SCRA at 480-481
[1971].

1987 Constitution, Article VI, Section 1. - The legislative power shall be vested in the
56

Congress of the Philippines which shall consist of a Senate and a House of Representatives,
except to the extent reserved to the people by the provision on initiative and referendum.

See Akehurst, Michael: Modern Introduction to International Law, (London: George Allen
57

and Unwin) 5th ed., p. 45; United States vs. Curtiss-Wright Export Corp., 299 U.S. 304, 319
(1936).

The Lawphil Project - Arellano Law Foundation

DISSENTING OPINION

PUNO, J.:

The cases at bar offer a smorgasbord of issues. As summed up by the Solicitor General, they are:
 "I

DO PETITIONERS HAVE STANDING AS CONCERNED CITIZENS, TAXPAYERS, OR

LEGISLATORS?

II

IS THE VFA CONSISTENT WITH THE GENERAL WELFARE CLAUSE OF THE CONSTITUTION?

III

IS THE VFA GOVERNED BY THE PROVISIONS OF SECTION 21, ARTICLE VII OR SECTION 25,
ARTICLE XVIII OF THE CONSTITUTION?

IV

DOES THE VFA CONSTITUTE AN ABDICATION OF PHILIPPINE SOVEREIGNTY?

(a) DOES THE VFA DEPRIVE PHILIPPINE COURTS OF THEIR JURISDICTION TO HEAR AND
TRY OFFENSES COMMITTED BY U.S. MILITARY PERSONNEL?

(b) IS THIS COURT DEPRIVED OF ITS JURISDICTION OVER OFFENSES PUNISHABLE

BY RECLUSIONPERPETUA OR HIGHER?

(c) IS THE GRANT OF TAX EXEMPTIONS UNDER THE VFA UNCONSTITUTIONAL?

DOES THE VFA VIOLATE THE EQUAL PROTECTION CLAUSE UNDER SECTION 1, ARTICLE III
OF THE CONSTITUTION?

VI

IS THE NUCLEAR BAN UNDER SECTION 8, ARTICLE II OF THE CONSITUTION VIOLATED BY

THE VFA?

VII

ARE FILIPINOS DENIED THEIR PERSONAL AND PROPERTY RIGHT TO SUE FOR TORTS AND
DAMAGES?

VIII

WAS THERE UNDUE DELEGATION OF LEGISLATIVE POWER IN THE APPROVAL OF THE VFA?

IX

DOES THE VFA CONTRAVENE THE POLICY OF NEUTRALITY UNDER SECTION 7, ARTICLE II
OF THE CONSTITUTION?
 X

IS THE TERM "ACTIVITIES" UNDER THE COVERAGE OF THE VFA VAGUE, UNQUALIFIED OR
UNCERTAIN?"

I like to think that the most significant issue is whether the Visiting Forces Agreement (VFA) violates
Sec. 25, Art. XVIII of the Constitution. I shall therefore limit my opinion on this jugular issue.

The 1987 Constitution provides in Sec. 25, Art. XVIII, viz:

"After the expiration in 1991 of the Agreement between the Republic of the Philippines and the
United States of America concerning Military Bases, foreign military bases, troops, or facilities shall
not be allowed in the Philippines except under a treaty duly concurred in by the Senate and, when
the Congress so requires, ratified by a majority of the votes cast by the people in a national
referendum held for that purpose, and recognized as a treaty by the other contracting State."

This provision lays down three constitutional requisites that must be complied with before foreign
military bases, troops, or facilities can be allowed in Philippine territory, namely: (1) their presence
should be allowed by a treaty duly concurred in by the Philippine Senate; (2) when Congress so
requires, such treaty should be ratified by a majority of the votes cast by the Filipino people in a
national referendum held for that purpose; and (3) such treaty should be recognized as a treaty
by the other contracting party.

To start with, respondents, with unrelenting resolve, claim that these constitutional requirements are
not applicable to the VFA. They contend that the VFA, as its title implies, contemplates
merely temporary visits of U.S. military troops in Philippine territory, and thus does not come within
the purview of Sec. 25, Art. XVIII of the Constitution. They assert that this constitutional provision
applies only to the stationing or permanent presence of foreign military troops on Philippine soil
since the word "troops" is mentioned along with "bases" and "facilities" which are permanent in
nature.1 This assertion would deserve serious attention if the temporary nature of these visits were
indeed borne out by the provisions of the VFA. If we turn, however, a heedful eye on the provisions
of the VFA as well as the interpretation accorded to it by the government officials charged with its
negotiation and implementation, the temporary nature of the visits would turn out to be a mirage in a
desert of vague provisions of the VFA. Neither the VFA nor the Mutual Defense Treaty between the
Republic of the Philippines and the United States of America2to which the VFA refers in its
preamble,3 provides the slightest suggestion on the duration of visits of U.S. forces in Philippine
territory. The joint public hearings on the VFA conducted by the Senate Committee on Foreign
Relations and the Senate Committee on National Defense and Security give us a keyhole to the time
frame involved in these visits.

Secretary of Foreign Affairs Domingo L. Siazon, the Philippine’s signatory to the VFA, testified before
the said committees that even before the signing of the VFA, Philippine and U.S. troops conducted
joint military exercises in Philippine territory for two days to four weeks at the frequency of ten to
twelve exercises a year. The "Balikatan", the largest combined military exercise involving about
3,000 troops, lasted at an average of three to four weeks and occurred once every year or one and a
half years.4 He further declared that the VFA contemplates the same time line for visits of U.S.
troops, but argued that even if these troops conduct ten to twelve exercises a year with each
exercise lasting for two to three weeks, their stay will not be uninterrupted, hence, not
permanent.5 Secretary of National Defense Orlando S. Mercado further testified that the VFA will
allow joint military exercises between the Philippine and U.S. troops on a larger scale than those we
had been undertaking since 1994.6 As the joint military exercises will be conducted on a larger scale,
it would be reasonable to project an escalation of the duration as well as frequency of past joint
military exercises between Philippine and U.S. troops.

These views on the temporary nature of visits of U.S. troops cannot stand for, clearly, the VFA does
not provide for a specific and limited period of effectivity. It instead provides an open-ended term in
Art. IX, viz: ". . . (t)his agreement shall remain in force until the expiration of 180 days from the date
on which either party gives the other party notice in writing that it desires to terminate the
agreement." No magic of semantics will blur the truth that the VFA could be in force indefinitely.
The following exchange between Senator Aquilino Q. Pimentel, Jr. and Secretary Siazon in the
public hearings on the VFA is apropos to the issue:

"SEN. PIMENTEL. . . . In other words, this kind of activities are not designed to last only within one
year, for example, the various visits, but can cover eternity until the treaty is abrogated?

MR. SIAZON. Well, Your Honor, this is an exercise for the protection of our national security, and
until conditions are such that there is no longer a possible threat to our national security, then you
will have to continue exercising, Your Honor, because we cannot take a chance on it.

SEN. PIMENTEL. So, this will be temporarily permanent, or permanently temporary?

MR. SIAZON. Permanently temporary, Your Honor."7

The worthiest of wordsmiths cannot always manipulate the meaning of words. Black’s Law
Dictionary defines "temporary" as "that which is to last for a limited time only, as distinguished from
that which is perpetual or indefinite in its duration" 8 and states that "permanent" is "generally
opposed to ‘temporary’ but not always meaning perpetual." 9 The definitions of "temporary" and
"permanent" in Bouvier’s Law Dictionary are of similar import: temporary is "that which is to last for a
limited time"10 while permanent "does not always embrace the idea of absolute perpetuity." 11 By these
definitions, even the contingency that the Philippines may abrogate the VFA when there is no longer
any threat to our national security does not make the visits of U.S. troops temporary, nor do short
interruptions in or gaps between joint military exercises carve them out from the definition of
"permanent" as permanence does not necessarily contemplate absolute perpetuity.

It is against this tapestry woven from the realities of the past and a vision of the future joint military
exercises that the Court must draw a line between temporary visits and permanent stay of U.S.
troops. The absence in the VFA of the slightest suggestion as to the duration of visits of U.S.
troops in Philippine territory, coupled with the lack of a limited term of effectivity of the VFA
itself justify the interpretation that the VFA allows permanent, not merely temporary, presence
of U.S. troops on Philippine soil. Following Secretary Siazon’s testimony, if the visits of U.S.
troops could last for four weeks at the most and at the maximum of twelve times a year for an
indefinite number of years, then by no stretch of logic can these visits be characterized as temporary
because in fact, the U.S. troops could be in Philippine territory 365 days a year for 50 years -- longer
than the duration of the 1947 RP-US Military Bases Agreement12 which expired in 1991 and which,
without question, contemplated permanent presence of U.S. bases, facilities, and troops.

To be sure, even former Secretary of Justice, Serafin Cuevas, admitted in the same public hearings
that the subject matter of the VFA, i.e., the visits and activities of U.S. troops in Philippine territory,
partakes of a permanent character. He declared with clarity:

"MR. CUEVAS. . . . Why we considered this as a treaty is because the subject therein treated had
some character of permanence; and secondly, there is a change insofar as some of our laws are
concerned."13
Thus, regardless of whether Sec. 25, Art. XVIII of the Constitution contemplates permanent
presence of foreign military troops alone, or temporary presence as well, the VFA comes within its
purview as it allows the permanent presence of U.S. troops on Philippine soil. Contrary to
respondents’ allegation, the determination of the permanent nature of visits of U.S. troops under the
VFA is an issue ripe for adjudication since Sec. 25 of Art. XVIII speaks of the manner by which U.S.
troops may be allowed to enter Philippine territory. We need not wait and see, therefore, whether the
U.S. troops will actually conduct military exercises on Philippine soil on a permanent basis before
adjudicating this issue. What is at issue is whether the VFA allows such permanent presence of
U.S. troops in Philippine territory.

To determine compliance of the VFA with the requirements of Sec. 25, Art. XVIII of the Constitution, it
is necessary to ascertain the intent of the framers of the Constitution as well as the will of the Filipino
people who ratified the fundamental law. This exercise would inevitably take us back to the period in
our history when U.S. military presence was entrenched in Philippine territory with the establishment
and operation of U.S. Military Bases in several parts of the archipelago under the 1947 R.P.-U.S.
Military Bases Agreement. As articulated by Constitutional Commissioner Blas F. Ople in the 1986
Constitutional Commission deliberations on this provision, the 1947 RP-US Military Bases
Agreement was ratified by the Philippine Senate, but not by the United States Senate. In the eyes
of Philippine law, therefore, the Military Bases Agreement was a treaty, but by the laws of the
United States, it was a mere executive agreement.14 This asymmetry in the legal treatment of the
Military Bases Agreement by the two countries was believed to be a slur to our sovereignty. Thus, in
the debate among the Constitutional Commissioners, the unmistakable intention of the commission
emerged that this anomalous asymmetry must never be repeated.15 To correct this historical
aberration, Sec. 25, Art. XVIII of the Constitution requires that the treaty allowing the presence of
foreign military bases, troops, and facilities should also be "recognized as a treaty by the other
contracting party." In plain language, recognition of the United States as the other contracting
party of the VFA should be by the U.S. President with the advice and consent of the U.S.
Senate.16 The following exchanges manifest this intention:

"MR. OPLE. Will either of the two gentlemen yield to just one question for clarification? Is there
anything in this formulation, whether that of Commissioner Bernas or of Commissioner Romulo, that
will prevent the Philippine government from abrogating the existing bases agreement?

FR. BERNAS. To my understanding, none.

MR. ROMULO. I concur with Commissioner Bernas.

MR. OPLE. I was very keen to put this question because I had taken the position from the beginning
- and this is embodied in a resolution filed by Commissioners Natividad, Maambong and Regalado -
that it is very important that the government of the Republic of the Philippines be in a position to
terminate or abrogate the bases agreement as one of the options. . . . we have acknowledged
starting at the committee level that the bases agreement was ratified by our Senate; it is a treaty
under Philippine law. But as far as the Americans are concerned, the Senate never took
cognizance of this and therefore, it is an executive agreement. That creates a wholly
unacceptable asymmetry between the two countries. Therefore, in my opinion, the right step to take,
if the government of our country will deem it in the national interest to terminate this agreement or
even to renegotiate it, is that we must begin with a clean slate; we should not be burdened by the
flaws of the 1947 Military Bases Agreement. . .

MR. ROMULO. Madam President, I think the two phrases in the Bernas formulation take care of
Commissioner Ople’s concerns.
The first says "EXCEPT UNDER THE TERMS OF A TREATY." That means that if it is to be
renegotiated, it must be under the terms of a new treaty. The second is the concluding phrase which
says: "AND RECOGNIZED AS A TREATY BY THE OTHER CONTRACTING STATE."

xxx

MR. SUAREZ. Is the proposal prospective and not retroactive in character?

FR. BERNAS. Yes, it is prospective because it does not touch the validity of the present agreement.
However, if a decision should be arrived at that the present agreement is invalid, then even prior to
1991, this becomes operative right away.

MR. SUAREZ. In other words, we do not impress the previous agreements with a valid character,
neither do we say that they are null and void ab initio as claimed by many of us here.

FR. BERNAS. The position I hold is that it is not the function of this Commission to pass judgment on
the validity or invalidity of the subsisting agreement.

MR. SUAREZ. . . . the proposal requires recognition of this treaty by the other contracting nation.
How would that recognition be expressed by that other contracting nation? That is in accordance
with their constitutional or legislative process, I assume.

FR. BERNAS. As Commissioner Romulo indicated, since this certainly would refer only to the United
States, because it is only the United States that would have the possibility of being allowed to have
treaties here, then we would have to require that the Senate of the United States concur in the
treaty because under American constitutional law, there must be concurrence on the part of
the Senate of the United States to conclude treaties.

xxx

FR. BERNAS. When I say that the other contracting state must recognize it as a treaty, by that I
mean it must perform all the acts required for the agreement to reach the status of a treaty
under their jurisdiction." (emphasis supplied)17

In ascertaining the VFA’s compliance with the constitutional requirement that it be "recognized as a
treaty by the other contracting state," it is crystal clear from the above exchanges of the
Constitutional Commissioners that the yardstick should be U.S. constitutional law. It is therefore
apropos to make a more in depth study of the U.S. President’s power to enter into executive
agreements under U.S. constitutional law.

Sec. 2, Art. II, Clause 2 of the U.S. Constitution provides that the President "shall have Power, by
and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the
Senators present concur." The U.S. Constitution does not define "treaties". Nevertheless, the
accepted definition of a "treaty" is that of "an agreement between two or more states or international
organizations that is intended to be legally binding and is governed by international law." 18 Although
the United States did not formally ratify the Vienna Convention on the Law of Treaties, its definition
of a treaty has been applied by U.S. courts and the State Department has stated that the Vienna
Convention represents customary international law.19 The Vienna Convention defines a treaty as "an
international agreement concluded between States in written form and governed by international
law."20 It has been observed that this definition is broader than the sense in which "treaty" is used in
the U.S. Constitution. In U.S. practice, a "treaty" is only one of four types of international
agreements, namely: Article II treaties, executive agreements pursuant to a treaty,
congressional-executive agreements, and sole executive agreements.21

The term "executive agreement" is used both colloquially and in scholarly and governmental
writings as a convenient catch-all to subsume all international agreements intended to bind the
United States and another government, other than those which receive consent of two-thirds of the
U.S. Senate.22 The U.S. Constitution does not expressly confer authority to make these
executive agreements, hence the authority to make them, their scope, and legal force have been
the subject of a long-ongoing debate.23 This, notwithstanding, executive agreements have grown
to be a primary instrument of foreign policy in the United States. In 1789-1839, the United
States concluded 60 treaties and only 27 executive agreements. In 1930-1939, the United States
entered into 142 treaties and 144 executive agreements. In 1940-1949, 116 treaties and 919
executive agreements were concluded by the United States. From 1980-1988, the United States
entered into 136 treaties and 3,094 executive agreements. In sum, by 1988, there were 12,778
executive agreements as opposed to 1,476 treaties, accounting for about 90% of the international
agreements concluded by the United States.24

The upsurge in the use of executive agreements in the post World War II period may be attributed to
several factors. President Franklin Roosevelt set a precedent for the more recent presidents by, for
instance, completing the Destroyer-for-Bases deal of 1940 with an executive agreement. President
Harry S. Truman likewise concluded the Potsdam Agreement by executive agreement. The U.S.
Presidents also committed military missions in Honduras and El Salvador in the 1950’s; pledged
security to Turkey, Iran, and Pakistan; acquired permission from the British to use the island of Diego
Garcia for military purposes in the 1960’s; and established a military mission in Iran in 1974, all by
way of executive agreements.25 U.S. Supreme Court decisions affirming the validity of executive
agreements have also contributed to the explosive growth in their usage. 26 Another factor that
accelerated its use was the foreign policy cooperation between Congress and the executive as
expressed in the postwar refrain that "politics must end at the water’s edge." 27 The fourth factor is the
expansion of executive institutions including foreign policy machinery and information. 28 The fifth
factor is the Cold War which put the United States in a "constant state of emergency" which required
expediency in decisions and actions regarding the use of force or diplomacy. Last but not the least,
the nuclear weapons race and instantaneous global communication made centralized foreign policy
machinery under the U.S. President necessary.29

These executive agreements which have grown to be the primary instrument of U.S. foreign
policy may be classified into three types, namely:

(1) Treaty-authorized executive agreements, i.e., agreements made by the President pursuant to
authority conferred in a prior treaty;30

(2) Congressional-executive agreements, i.e., agreements either (a) negotiated by the President
with prior Congressional authorization or enactment or (b) confirmed by both Houses of Congress
after the fact of negotiation;31 and

(3) Presidential or sole executive agreements, i.e., agreements made by the President based
on his exclusive presidential powers, such as the power as commander-in-chief of the armed
forces pursuant to which he conducts military operations with U.S. allies, or his power to
receive ambassadors and recognize foreign governments.32

This classification is important as the different types of executive agreements bear

distinctions in terms of constitutional basis, subject matter, and legal effects in the domestic
arena. For instance, treaty-authorized executive agreements do not pose constitutional
problems as they are generally accepted to have been pre-approved by the Senate when the
Senate consented to the treaty which authorized the executive to enter into executive agreements;
another view supporting its acceptance is that the Senate delegated to the President the authority to
make the executive agreement.33 In comparison, the constitutionality of congressional-executive
agreements has provoked debate among legal scholars. One view, espoused
by interpretivists such as Edwin Borchard, holds that all international agreements must be strictly in
accordance with Sec. 2, Art. II of the U.S. Constitution, and thus congressional-executive
agreements are constitutionally invalid. According to them, allowing congressional-executive
agreements would enhance the power of the President as well as of the House of Representatives,
in utter violation of the intent of the framers of the U.S. Constitution.34 The opposite school of
thought, led by Myer S. McDougal and Asher Lans, holds that congressional-executive agreements
and treaties are interchangeable, thus, such agreements are constitutional. These non-
interpretivists buttress their stance by leaning on the constitutional clause that prohibits States,
without consent of Congress, from "enter(ing) into any Agreement or Compact with another State, or
with a Foreign Power." By making reference to international agreements other than treaties, these
scholars argue that the framers of the Constitution intended international agreements, other than
treaties, to exist. This school of thought generally opposes the "mechanical, filiopietistic theory,
(which) purports to regard the words of the Constitution as timeless absolutes" 35 and gives emphasis
to the necessity and expediency of congressional-executive agreements in modern foreign
affairs.36 Finally, sole executive agreements which account for a relatively small percentage of
executive agreements are the most constitutionally problematic since the system of checks and
balances is inoperative when the President enters into an executive agreement with neither the
Senate’s or Congress’ consent. This last type of executive agreement draws authority upon the
President’s enumerated powers under Article II of the U.S. Constitution, such as the President’s
power as Commander-in-Chief of the U.S. army and navy.37

I respectfully submit that, using these three types of executive agreements as bases for
classification, the VFA would not fall under the category of an executive agreement made by the
president pursuant to authority conferred in a prior treaty because although the VFA makes
reference to the Mutual Defense Treaty in its Preamble, 38 the Mutual Defense Treaty itself does not
confer authority upon the U.S. President to enter into executive agreements in implementation of the
Treaty. Issues have occasionally arisen about whether an executive agreement was entered into
pursuant to a treaty. These issues, however, involved mere treaty interpretation. 39 In Wilson v.
Girard, 354 US 524 (1957), the U.S. Supreme Court had occasion to interpret Art. III of the Security
Treaty Between the United States of America and Japan which stated that, "(t)he conditions which
shall govern the disposition of armed forces of the United States of America in and about Japan shall
be determined by administrative agreements between the two Governments." 40 Pursuant to this
provision in the treaty, the executive entered into an administrative agreement covering, among
other matters, jurisdiction of the United States over offenses committed in Japan by members of the
U.S. armed forces. The U.S. Supreme Court recognized the validity of the Administrative Agreement
as it was concluded by the President pursuant to the authority conferred upon him by Art. III of the
Security Treaty between Japan and the United States to make administrative agreements between
the two governments concerning "(t)he conditions which shall govern the disposition of armed forces
of the United States of America in and about Japan."

Respondents boldly claim that the VFA is authorized by Art. II of the RP-US Mutual Defense Treaty
which provides that, "(i)n order more effectively to achieve the objective of this Treaty, the Parties
separately and jointly by self-help and mutual aid will maintain and develop their individual and
collective capacity to resist armed attack."41 The alleged authorization is not as direct and
unequivocal as Art. III of the Security Treaty Between the U.S. and Japan, hence it would be
precarious to assume that the VFA derives authorization from the Mutual Defense Treaty. The
precariousness is heightened by the fact that when the U.S. Senate ratified the Agreement Between
the Parties to the North Atlantic Treaty Regarding the Status of Their Forces 42 which was concluded
pursuant to the North Atlantic Treaty (NATO),43 the Senate included in its instrument of ratification
statements on matters of jurisdiction over U.S. forces stationed abroad, among which was an
admonition that the Agreement’s provisions on criminal jurisdiction which have similar features as the
VFA, do not constitute a precedent for future agreements. We can reasonably gather from the U.S.
Senate’s statements that criminal jurisdiction over U.S. forces stationed abroad is a matter of Senate
concern, and thus Senate authorization for the President to enter into agreements touching upon
such jurisdictional matters cannot so easily be assumed.

Neither does the VFA fall under the category of a Congressional-Executive Agreement as it
was not concluded by the U.S. President pursuant to Congressional authorization or enactment nor
has it been confirmed by the U.S. Congress.

At best, the VFA would be more akin to a sole or presidential executive agreement which
would be valid if concluded on the basis of the U.S. President’s exclusive power under the
U.S. Constitution. Respondents argue that except for the Status of Forces Agreement (SOFA)
entered into pursuant to the NATO, the United States, by way of executive agreements, has entered
into 78 Status of Forces Agreements (SOFA) which extend privileges and immunities to U.S. forces
stationed abroad,44 similar to the provisions of the VFA. Respondents have failed, however, to qualify
whether these executive agreements are sole executive agreements or were concluded pursuant to
Congressional authorization or were authorized by treaty. This detail is important in view of the
above discussion on the sense of the Senate on criminal jurisdiction over U.S. forces stationed
abroad.

It will contribute to the elucidation of the legal status of the VFA under U.S. law if we compare the
legal force of sole executive agreements and of treaties. Under international law, treaties and
executive agreements equally bind the United States.45 If there is any distinction between treaties
and executive agreements, it must be found in U.S. constitutional law.46 The distinctions, if any,
between the legal force of treaties and executive agreements on the domestic plane may be
treated on three levels, namely, vis-a-vis: (1) state law; (2) acts of Congress and treaties; and
(3) the U.S. Constitution.

The Supremacy Clause of the U.S. Constitution provides:

"This Constitution, and the Law of the United States which shall be made in pursuance thereof; and
all Treaties made, or which shall be made, under the Authority of the United States, shall be the
supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the
Constitution or Laws of any State to the Contrary notwithstanding." 47

It is well-settled that this clause provides the constitutional basis for the superiority of a treaty over
state law. Thus, the Warsaw Convention to which the United States is a signatory preempts the
California law on airline liability.48 The U.S. Supreme Court has ruled in unmistakable terms that a
treaty enjoys supremacy over state law, viz:

"Plainly, the external powers of the United States are to be exercised without regard to state
laws or policies. The supremacy of a treaty in this respect has been recognized from the
beginning. Mr. Madison, in the Virginia Convention, said that if a treaty does not supersede existing
state laws, as far as they contravene its operation, the treaty would be ineffective. "To counter-act it
by the supremacy of the state laws, would bring on the Union the just charge of national perfidy, and
involve us in war." 3 Elliot, Debates, 515. . . . this rule in respect of treaties is established by the
express language of cl. 2, Art. 6, of the Constitution. . . ."(emphasis supplied)49
It is also generally conceded that sole executive agreements are supreme over state law and
policy. Two cases decided by the U.S. Supreme Court support this view.

The first of these two cases, United States v. Belmont,50 involved the Litvinov Assignment, a sole
executive agreement executed between the United States and the Soviet Government. In 1918, the
Soviet government, by laws and decrees, nationalized, among others, a Russian corporation, and
appropriated its assets including a sum of money deposited with Belmont, a private banker doing
business in New York. The sum of money remained Russian property until 1933, at which time the
Soviet government released and assigned to the United States all amounts due the Soviet
government from American nationals, including the deposit account of the Russian corporation with
Belmont. The assignment, better known as the Litvinov Assignment, was effected by an exchange of
diplomatic correspondence between the Soviet government and the United States to bring about a
final settlement of the claims and counter-claims between the Soviet government and the United
States. Coincident with the assignment, the U.S. President recognized the Soviet Government and
normal diplomatic relations were established between the two governments. 51

Upon demand duly made by the United States, the executors of Belmont’s will failed and refused to
pay the sum of money deposited by the Russian corporation with Belmont. The United States thus
filed a suit in a federal district court to recover the sum of money. The court below held that the situs
of the bank deposit was within the State of New York and not within Soviet territory. Thus, the
nationalization decree, if enforced, would amount to an act of confiscation which was contrary to the
controlling public policy of New York. The U.S. Supreme Court, however, held that no state policy
could prevail against the Litvinov Assignment.52 It ruled as follows:

"The assignment and the agreements in connection therewith did not, as in the case of treaties,
as that term is used in the treaty making clause of the Constitution (Sec. 2, Art. 2), require the
advice and consent of the Senate.

A treaty signifies "a compact made between two or more independent nations with a view to the
public welfare." B. Altman & Co. v. United States, 224 U.S. 583, 600, 56 L. ed. 894, 910, 32 S. Ct.
593. But an international compact, as this was, is not always a treaty which requires the
participation of the Senate. There are many such compacts, of which a protocol, a modus vivendi,
a postal convention, and agreements like that now under consideration are illustrations." (emphasis
supplied)53

On the supremacy of executive agreements over state law, it ruled as follows:

"Plainly, the external powers of the United States are to be exercised without regard to state
laws or policies. The supremacy of a treaty in this respect has been recognized from the beginning.
Mr. Madison, in the Virginia Convention, said that if a treaty does not supersede existing state laws,
as far as they contravene its operation, the treaty would be ineffective. "To counter-act it by the
supremacy of the state laws, would bring on the Union the just charge of national perfidy, and
involve us in war." 3 Elliot, Debates, 515. . . And while this rule in respect of treaties is established by
the express language of cl. 2, Art. 6, of the Constitution, the same rule would result in the case of
all international compacts and agreements from the very fact that complete power over
international affairs is in the national government and is not and cannot be subjected to any
curtailment or interference on the part of the several states." (emphasis supplied)54

The other case, United States v. Pink,55 likewise involved the Litvinov Assignment. The U.S.
Supreme Court here reiterated its ruling in the Belmont case and held that the Litvinov Assignment
was an international compact or agreement having similar dignity as a treaty under the supremacy
clause of the U.S. Constitution.56
While adherents of sole executive agreements usually point to these two cases as bearing judicial
imprimatur of sole executive agreements, the validity of sole executive agreements seems to have
been initially dealt with by the U.S. Supreme Court in 1933 in Monaco v. Mississippi wherein Chief
Justice Hughes stated that, "(t)he National Government, by virtue of its control of our foreign
relations is entitled to employ the resources of diplomatic negotiations and to effect such an
international settlement as may be found to be appropriate, through treaty, agreement of
arbitration, or otherwise."57

Subsequent to the Belmont and Pink cases, the U.S. Supreme Court once again upheld the validity
of a sole executive agreement in Dames & Moore v. Regan.58 This case involved the Algiers Accord,
an executive agreement negotiated and concluded by President Carter and confirmed by President
Reagan to resolve the Iran Hostage Crisis in 1981. That agreement provided, among others, that the
United States and Iran agreed to cancel certain claims between them and to establish a special
tribunal to resolve other claims, including those by U.S. nationals against Iran. The United States
also agreed to close its courts to those claims, as well as to suits by U.S. citizens against the
government of Iran for recovery of damages arising from the Hostage Crisis. Although the
agreement was entered into by the President pursuant to Congressional authorization, the Court
found that the President’s action with regard to claims was not so authorized. Nevertheless, the U.S.
Supreme Court, noting the power of presidents in foreign affairs which includes the power to settle
claims, as well as Congressional acquiescence to such practice, upheld the validity of the Algiers
Accord.

Upon the other hand, those opposed to sole executive agreements argue that the pronouncements
of the Court in the Belmont and Pink cases mean that sole executive agreements override state
legislation only when foundedupon the President’s constitutional power to recognize foreign
governments.59

While treaties and sole executive agreements have the same legal effect on state law, sole
executive agreements pale in comparison to treaties when pitted against prior inconsistent
acts of Congress. The U.S. Supreme Court has long ago declared that the Constitution mandates
that a treaty and an act of legislation are both "supreme law of the land." As such, no supreme
efficacy is given to one over the other. If the two relate to the same subject matter and are
inconsistent, the one later in date will prevail, provided the treaty is self-executing, 60 i.e.,"whenever it
operates of itself without aid of legislation."61 In The Cherokee Tobacco (Boudinot v. United
States),62 the U.S. Supreme Court also held that where there is repugnance between a treaty and an
Act of Congress, "(a) treaty may supersede a prior Act of Congress . . . and an Act of Congress may
supersede a prior treaty. . . ."63 Settled is the rule, therefore, that a treaty supersedes an earlier
repugnant Act of Congress, and an Act of Congress supersedes an earlier contradictory treaty. 64 As a
corollary, a treaty, being placed on the same footing as an act of legislation, 65 can repeal or modify a
prior inconsistent treaty.

In the case of sole executive agreements, commentators have been in general agreement that
unlike treaties, sole executive agreements cannot prevail over prior inconsistent federal
legislation. Even proponents of sole executive agreements admit that while a self-executing treaty
can supersede a prior inconsistent statute, it is very doubtful whether a sole executive agreement, in
the absence of appropriate legislation, will be given similar effect.66Wallace McClure, a leading
proponent of the interchangeability of treaties and executive agreements, opined that it would be
contrary to "the entire tenor of the Constitution" for sole executive agreements to supersede federal
law.67The Restatement (Third) of the Foreign Relations Law of the United States postulates that a
sole executive agreement could prevail at least over state law, and (only) possibly federal law
without implementing legislation.68Myer S. McDougal and Asher Lans who are staunch advocates of
executive agreements also concede that sole executive agreements will not ordinarily be valid if
repugnant to existing legislation.69

In United States v. Guy W. Capps, Inc.,70 a leading lower court decision discussing the issue of
supremacy of executive agreements over federal legislation, the Fourth Circuit held that, "the
executive agreement was void because it was not authorized by Congress and contravened
provisions of a statute dealing with the very matter to which it related..."71 The U.S. Supreme Court
itself has "intimated that the President might act in external affairs without congressional authority,
but not that he might act contrary to an Act of Congress."72 The reason for this is that the U.S.
President’s power to enter into international agreements derives from his position as Chief
Executive. By Sec. 7, Art. 1 of the U.S. Constitution, the president does not have power to
repeal existing federal laws. Consequently, he cannot make an indirect repeal by means of a
sole executive agreement.73

On the other side of the coin, it is argued, that when the U.S. President enters into a sole executive
agreement pursuant to his exclusive presidential authority in the field of foreign relations, such
agreement may prevail over prior inconsistent federal legislation. 74 In this situation, the doctrine of
separation of powers may permit the U.S. President to disregard the prior inconsistent Act of
Congress as an "unconstitutional invasion of his power." 75However, aside from lacking firm legal
support, this view has to contend with the problem of determining which powers are exclusively
executive and which powers overlap with the powers of Congress.76

Again, although it is doubtful whether sole executive agreements can supersede prior inconsistent
federal legislation, proponents of sole executive agreements interpret the Pink case to mean that
sole executive agreements are on equal footing with a treaty, having been accorded the status of
"law of the land" under the supremacy clause and the Litvinov Assignment having been recognized
to have similar dignity as a treaty.77 As such, it is opined that a sole executive agreement may
supersede a prior inconsistent treaty. Treaties of the United States have in fact been terminated on
several occasions by the President on his own authority. 78 President Roosevelt terminated at least
two treaties under his independent constitutional powers: the extradition treaty with Greece, in 1933,
and the Treaty of Commerce and Navigation with Japan, in 1939.79 That sole executive agreements
may repeal or terminate a treaty is impliedly recognized in Charlton v. Kelly80 as follows: "The
executive department having thus elected to waive any right to free itself from the obligation [of the
treaty], it is the plain duty of the court to recognize the obligation. 81

As against the U.S. Constitution, treaties and sole executive agreements are in equal footing
as they are subject to the same limitations. As early as 1870, the U.S. Supreme Court declared
that, "a treaty cannot change the Constitution or be held valid if it be in violation of that
instrument."82 In Missouri v. Holland,83 it was held that treaties must not violate the
Constitution.84 The U.S. Supreme Court also discussed the constitutionally implied limitations on the
treaty making power in Reid v. Covert,85 where Justice Black stated that "(n)o agreement with a
foreign nation can confer power on the Congress, or any other branch of Government, which is free
from the restraints of the Constitution."86 He concluded that the U.S. Constitution provides limits to
the acts of the president, the joint action of the president and the Senate, and consequently limits the
treaty making power.87

There is no dispute that the constitutional limitations relating to treaties also apply to sole executive
agreements. It is well-settled that the due process clause of the Fifth Amendment and other
substantive provisions of the U.S. Constitution constitute limitations on both treaties and executive
agreements.88 Numerous decisions have also held that both treaties and sole executive agreements
cannot contravene private rights protected by the U.S. Constitution.89
In conclusion, after a macro view of the landscape of U.S. foreign relations vis-a-vis U.S.
constitutional law, with special attention on the legal status of sole executive agreements, I
respectfully submit that the Court will be standing on unstable ground if it places a sole
executive agreement like the VFA on the same constitutional plateau as a treaty. Questions
remain and the debate continues on the constitutional basis as well as the legal effects of
sole executive agreements under U.S. law. The observation of Louis Henkin, a noted international
and U.S. constitutional law scholar, captures the sentiments of the framers of the Philippine
Constitution and of the Filipinos in crafting Sec. 25, Art. XVIII of the 1987 Constitution -- "(o)ften the
treaty process will be used at the insistence of other parties to an agreement because they believe
that a treaty has greater ‘dignity’ than an executive agreement, because its constitutional
effectiveness is beyond doubt, because a treaty will ‘commit’ the Senate and the people of the
United States and make its subsequent abrogation or violation less likely." 90

With the cloud of uncertainty still hanging on the exact legal force of sole executive
agreements under U.S. constitutional law, this Court must strike a blow for the sovereignty of
our country by drawing a bright line between the dignity and status of a treaty in contrast
with a sole executive agreement. However we may wish it, the VFA, as a sole executive
agreement, cannot climb to the same lofty height that the dignity of a treaty can reach.
Consequently, it falls short of the requirement set by Sec. 25, Art. XVIII of the 1987
Constitution that the agreement allowing the presence of foreign military troops on Philippine
soil must be "recognized as a treaty by the other contracting state."

I vote to grant the petitions.

Footnotes

1
Rollo, pp. 140-141; Consolidated Comment, pp. 20-21.

2
Entered into force on August 27, 1952.

3
The Preamble of the VFA states in relevant part as follows:

The Government of the Republic of the Philippines and the Government of the United States
of America,

Reaffirming their obligations under the Mutual Defense Treaty of August 30, 1951; xxx

4
Transcript of Committee Meeting, Committee on Foreign Relations, January 26, 1999
[hereinafter referred to as Transcript], p. 21.

5
Id., pp. 103-104.

6
Id., p. 34.

7
Id., p. 104.

8
Black’s Law Dictionary (6th ed.), p. 1464.
9
Id., p. 1139.

10
Bouvier’s Law Dictionary (Third Revision), p. 3254.

11
Id., p. 2568.

12
Entered into force on March 26, 1947.

13
Transcript, p. 139.

14
IV Record of the Constitutional Commission (1986) [hereinafter referred to as the Record],
p. 780.

15
Bernas, Constitution Explicit on VFA, Today, May 5, 1999.

16
Record, p. 781.

17
Record, pp. 780-783.

18
Henkin, Foreign Affairs and the United States Constitution, 2nd ed., pp. 184-185 (1996),
citing Restatement (Third) of the Foreign Relations Law of the United States, sec. 301,
adopting Article 1 of the Vienna Convention on the Law of Treaties.

19
Knaupp, Classifying International Agreements Under U.S. Law: The Beijing Platform as a
Case Study, Brigham Young University Law Review, vol. 1998 (1), p. 244, citing Carter and
Trimble, International Law, p. 110 (1995).

20
Vienna Convention on the Law of Treaties, U.N. Doc. A/C.39/27 (1969), sec. 1, art. II.

21
Knaupp, op cit. supra note 19, citing Carter and Trimble, op. cit. supra note 19 at 165-166.

22
McDougal and Lans, Treaties and Congressional-Executive or Presidential Agreements:
Interchangeable Instruments of National Policy: 1, The Yale Law Journal, vol. 54 (2), pp. 197-
198 (1945).

23
Henkin, op. cit. supra note 18 at 215.

McCormick, American Foreign Policy and Process, 2nd ed., p. 276 (1992), citing Nelson,
24

Congressional Quarterly’s Guide to the Presidency (Washington, D.C.: Congressional

Quarterly, Inc., 1989), p. 1104.

25
Id., pp. 277-278.

26
Id., p. 278.

27
Id., p. 288.

28
Id., p. 298.

29
Id., p. 300.
30
Rotunda, Nowak, and Young, Treatise on Constitutional Law - Substance and Procedure
[hereinafter referred to as Treatise], p. 394 (1986), citing Restatement of the Law, 2d,
Foreign Relations of the United States, sec. 119 (1965).

31
Id., sec. 120.

32
Id., sec. 121.

33
Randall, The Treaty Power, 51 Ohio St. L.J., p. 6 (1990).

34
Id., p. 7.

35
Id., citing McDougal and Lans, supra note 22 at 212.

36
Randall, op. cit. supra note 33 at 8, citing McDougal and Lans, supra note 22 at 261-306.

37
Randall, op. cit. supra note 33 at 10-11.

38
Supra, note 3.

39
Randall, op. cit. supra note 33 at 6.

40
136 UNTS 216 (1952).

41
Consolidated Memorandum, p. 29.

42
199 UNTS 67 (1954).

43
34 UNTS 244 (1949).

44
Consolidated Memorandum, p. 33.

45
Randall, op. cit. supra note 33 at 4.

46
Weston, Falk, D’Amato, International Law and World Order, p. 926 (1980).

47
U.S. Const., Art. VI, sec. 2.

48
Maris, International Law, An Introduction (1984), p. 224, citing In re Aircrash in Bali, 1982.

49
United States v. Belmont, 81 L. Ed. 1134 (1937).

50
Ibid.

51
Id., p. 1139.

52
Id., at 1137.

53
See note 51, supra.
54
Id., p. 1140.

55
315 U.S. 203, 62 S. Ct. 552, 86 L. Ed. 796 (1942).

56
Id., p. 818.

McDougal and Lans, op. cit. supra note 22 at 310, citing Monaco v. Mississippi, 292 U.S.
57

313, 331 (1934) (emphasis supplied).

58
453 U.S. 654 (1981).

59
For criticism of such view, see Mathews, The Constitutional Power of the President to
Conclude International Agreements, The Yale Law Journal, vol. 64, p. 376 (1954-1955) and
McCormick, American Foreign Policy and Process, 2nd ed., p. 282 (1992), citing Henkin,
"Foreign Affairs and the Constitution," Foreign Affairs 66 (Winter 1987/88), p. 185.

Henkin, Foreign Affairs and the United States Constitution, 2nd ed., p. 209 (1996), citing
60

Whitney v. Robertson, 124 U.S. 190, 194 (1888).

61
Id., p. 199, quoting Chief Justice Marshall.

62
11 Wallace 616 (1870).

Byrd, Jr., Treaties and Executive Agreements in the United States, Their Separate Roles
63

and Limitations, p. 82 (1960).

64
Id., p. 83.

65
Supra, note 60, p. 209.

Mathews, op. cit. supra note 59 at p. 381, citing Lissitzyn, The Legal Status of Executive
66

Agreements on Air Transportation, 17 J. Air L. & Comm. 436, 444 (1950); Corwin, The
President’s Control of Foreign Relations 120 (1917); Hearings before Subcommittee of
Senate Committee on the Judiciary on S.J. Res. 1 & S.J. Res. 43, 83d Cong., 1st sess. 224,
247 & n.57 (1953); MacChesney, et al., The Treaty Power and the Constitution: The Case
Against Amendment, 40 A.B.A.J. 203, 205 (1954).

Paul, The Geopolitical Constitution: Executive Expediency and Executive Agreements,

67

86(4) California Law Review, Note 287 (1998), citing McClure, International Executive
Agreements, p. 343 (1967).

68
Id., p. 729, citing Restatement (Third) of the Foreign Relations Law of the United States,
sec. 303 cmt.j.

69
McDougal and Lans, Treaties and Congressional-Executive or Presidential Agreements:
Interchangeable Instruments of National Policy: 1, The Yale Law Journal, vol. 54 (1), p. 317
(1945).

70
204 F.2d 655 (4th Cir. 1953), affirmed on other grounds, 348 U.S. 296, 75 S. Ct. 326, 99
L.Ed. 329 (1955).
71
Treatise, p. 399.

Mathews, op. cit. supra note 59 at 381, citing Youngstown & Tube Co. v. Sawyer, 343 U.S.
72

579, 635-36 n.2 (1952) (concurring opinion of Jackson).

73
Mathews, op. cit. supra note 59 at 381.

74
Treatise, p. 401.

75
See note 69, supra.

See Powell, The President’s Authority over Foreign Affairs: An Executive Branch
76

Perspective, 67 The George Washington Law Review, p. 550 (1999).

77
Mathews, op. cit. supra note 59 at 381.

Note 154, Mathews, op. cit. supra note 59, citing Corwin, The President: Office and Powers
78

243 (2nd ed. 1941).

79
Id., p. 376, citing Corwin op. cit. supra note 66 at 417.

80
229 U.S. 447, 474, 476 (1913).

81
Note 154, Mathews, op. cit. supra note 59 at 376.

82
Byrd, Treaties and Executive Agreements in the United States, Their separate roles and
limitations, p. 84 (1960), citing The Cherokee Tobacco (Boudinot v. United States), 11
Wallace 616 at 620 (1870).

83
252 U.S. 416 (1920).

84
Maris, International Law, An Introduction, p. 224 (1984).

85
354 U.S. at 16, 77 S.Ct. at 1230.

Treatise, p. 387. See also, Geofrey v. Riggs, 133 U.S. 258, 267, 10 S.Ct. 295, 297, 33 L.
86

Ed. 642 (1890); Holden v. Joy, 84 U.S. (17 Wall.) 211, 242-43, 21 L. Ed. 523 (1872); The
Cherokee Tobacco, 78 U.S. (11 Wall.) 616, 620-21, 20 L. Ed. 227 (1870); Doe v. Braden, 57
U.S. (16 How.) 635, 657, 14 L. Ed. 1090 (1853); New Orleans v. United States, 35 U.S. (10
Pet.) 662, 736, 9 L. Ed. 573 (1836).

87
Ibid.

88
McDougal and Lans, op. cit. supra note 69 at 315.

89
Mathews, op. cit. supra note 59, p. 377, citing Missouri v. Holland, 252 U.S. 416, 433
(1920) (dictum); Geoffrey v. Riggs, 133 U.S. 258, 267 (1890) (same); The Cherokee
Tobacco, 11 Wall. (78 U.S.) 616, 620-21 (1870) (same). See also Henkin, op. cit. supra note
60 at 185.
90
Henkin, Foreign Affairs and the United States Constitution, 2nd ed., p. 224 (1996).