Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 183591 October 14, 2008

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

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

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 Domain7 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 members18 of the Sangguniang
Panlalawigan of Zamboanga del Norte filed on August 15, 2008 a petition for Certiorari, Mandamus
and Prohibition,19 docketed as G.R. No. 183951. They pray, inter alia, that the MOA-AD be declared
null and void and without operative effect, and that respondents be enjoined from executing the
MOA-AD.

On August 19, 2008, Ernesto Maceda, Jejomar Binay, and Aquilino Pimentel III filed a petition for
Prohibition,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 concern114 faces
no serious challenge. In fact, respondents admit that the MOA-AD is indeed of public concern.115 In
previous cases, the Court found that the regularity of real estate transactions entered in the Register
of Deeds,116 the need for adequate notice to the public of the various laws,117 the civil service
eligibility of a public employee,118 the proper management of GSIS funds allegedly used to grant
loans to public officials,119 the recovery of the Marcoses' alleged ill-gotten wealth,120 and the identity
of party-list nominees,121 among others, are matters of public concern. Undoubtedly, the MOA-AD
subject of the present cases is of public concern, involving as it does the sovereignty and
territorial integrity of the State, which directly affects the lives of the public at large.

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

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

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

Requiring a consummated contract will keep the public in the dark until the contract, which
may be grossly disadvantageous to the government or even illegal, becomes fait accompli.
This negates the State policy of full transparency on matters of public concern, a situation
which the framers of the Constitution could not have intended. Such a requirement will
prevent the citizenry from participating in the public discussion of any 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 broader130 right to information on matters of
public concern is already enforceable while the correlative duty of the State to disclose its
transactions involving public interest is not enforceable until there is an enabling law. Respondents
cannot thus point to the absence of an implementing legislation as an excuse in not effecting such
policy.

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

communication between the government and the people. It is in the interest of the State that the
channels for free political discussion be maintained to the end that the government may perceive
and be responsive to the people's will.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 Rights161 and
the International Covenant on Economic, Social and Cultural Rights162 which state, in Article 1 of
both covenants, that all peoples, by virtue of the right of 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 Amnesty180 (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.
The South China Sea Arbitration (12 July 2016) PCA Case No.
2013-19
BY R . R I D D E R H O F ON J U L Y 1 2 , 2 0 1 6 · L E A V E A C O M M E N T

Today, in the South China Sea Arbitration Award (12 July 2016) an arbitral tribunal at The Hague ruled that China’s
claim to historic rights to resources was incompatible with the detailed allocation of rights and maritime zones in the
UN Convention on the Law of the Sea (UNCLOS). The Tribunal considered that prior to the Convention, the waters of
the South China Sea beyond the territorial sea were legally part of the high seas, in which vessels from any State
could freely navigate and fish. Accordingly, the Tribunal concluded that historical navigation and fishing by China in
the waters of the South China Sea represented the exercise of high seas freedoms, rather than a historic right, and
that there was no evidence that China had historically exercised exclusive control over the waters of the South China
Sea or prevented other States from exploiting their resources. See for more information: the Peace Palace Library
Special South China Sea Territorial Disputes

CNN Hongkong brought the news as: Court rules in favor of Philippines over China Viewed as a decisive win for the
Philippines, the ruling could heighten friction in a region already bristling with tension, especially if it unleashes a
defiant reaction from China. The United States, which has been at odds with China over freedom of navigation in the
South China Sea, urged all parties "to avoid provocative statements and actions." (by Katie Hunt, July 12, 2016)

The Chinese president, Xi Jinping, said China’s “territorial sovereignty and marine rights” in the seas would not be
affected by the ruling, which declared large areas of the sea to be neutral international waters or the exclusive
economic zones of other countries. He insisted China was still “committed to resolving disputes” with its neighbours.

The ‘Nine-Dash Line’ and China’s Claim to Historic Rights in the Maritime Areas of
the South China Sea

In its Award of 12 July 2016, the Tribunal considered the implications of China’s ‘nine-dash line’ and whether China
has historic rights to resources in the South China Sea beyond the limits of the maritime zones that it is entitled to
pursuant to the Convention. The Tribunal examined the history of the Convention and its provisions concerning
maritime zones and concluded that the Convention was intended to comprehensively allocate the rights of States to
maritime areas. The Tribunal found that China’s claim to historic rights to resources was incompatible with the
detailed allocation of rights and maritime zones in the Convention and concluded that, to the extent China had
historic rights to resources in the waters of the South China Sea, such rights were extinguished by the entry into
force of the Convention to the extent they were incompatible with the Convention’s system of maritime zones.
The Tribunal also examined the historical record to determine whether China actually had historic rights to resources
in the South China Sea prior to the entry into force of the Convention. The Tribunal noted that there is evidence that
Chinese navigators and fishermen, as well as those of other States, had historically made use of the islands in the
South China Sea, although the Tribunal emphasized that it was not empowered to decide the question of sovereignty
over the islands. However, the Tribunal considered that prior to the Convention, the waters of the South China Sea
beyond the territorial sea were legally part of the high seas, in which vessels from any State could freely navigate
and fish. Accordingly, the Tribunal concluded that historical navigation and fishing by China in the waters of the
South China Sea represented the exercise of high seas freedoms, rather than a historic right, and that there was no
evidence that China had historically exercised exclusive control over the waters of the South China Sea or prevented
other States from exploiting their resources.
Accordingly, the Tribunal concluded that, as between the Philippines and China, there was no legal basis for China
to claim historic rights to resources, in excess of the rights provided for by the Convention, within the sea
areas falling within the ‘nine-dash line’

The Status of Features in the South China Sea

In its Award of 12 July 2016, the Tribunal considered the status of features in the South China Sea and the
entitlements to maritime areas that China could potentially claim pursuant to the Convention. The Tribunal first
undertook a technical evaluation as to whether certain coral reefs claimed by China are or are not above water at
high tide. Under Articles 13 and 121 of the Convention, features that are above water at high tide generate an
entitlement to at least a 12 nautical mile territorial sea, whereas features that are submerged at high tide generate
no entitlement to maritime zones. The Tribunal noted that many of the reefs in the South China Sea have been
heavily modified by recent land reclamation and construction and recalled that the Convention classifies features on
the basis of their natural condition. The Tribunal appointed an expert hydrographer to assist it in evaluating the
Philippines’ technical evidence and relied heavily on archival materials and historical hydrographic surveys in
evaluating the features. The Tribunal agreed with the Philippines that Scarborough Shoal, Johnson Reef, Cuarteron
Reef, and Fiery Cross Reef are high-tide features and that Subi Reef, Hughes Reef, Mischief Reef, and Second
Thomas Shoal were submerged at high tide in their natural condition. However, the Tribunal disagreed with the
Philippines regarding the status of Gaven Reef (North) and McKennan Reef and concluded that both are high tide

features.

The Tribunal then considered whether any of the features claimed by China could generate an entitlement to
maritime zones beyond 12 nautical miles. Under Article 121 of the Convention, islands generate an entitlement to an
exclusive economic zone of 200 nautical miles and to a continental shelf, but “[r]ocks which cannot sustain human
habitation or economic life of their own shall have no exclusive economic zone or continental shelf.” The Tribunal
noted that this provision was closely linked to the expansion of coastal State jurisdiction with the creation of the
exclusive economic zone and was intended to prevent insignificant features from generating large entitlements to
maritime zones that would infringe on the entitlements of inhabited territory or on the high seas and the area of the
seabed reserved for the common heritage of mankind. The Tribunal interpreted Article 121 and concluded that the
entitlements of a feature depend on (a) the objective capacity of a feature, (b) in its natural condition, to sustain
either (c) a stable community of people or (d) economic activity that is neither dependent on outside resources nor
purely extractive in nature.
The Tribunal noted that many of the features in the Spratly Islands are currently controlled by one or another of the
littoral States, which have constructed installations and maintain personnel there.
The Tribunal concluded that the current presence of official personnel on many of the features does not establish
their capacity, in their natural condition, to sustain a stable community of people and considered that historical
evidence of habitation or economic life was more relevant to the objective capacity of the features. The Tribunal
concluded that temporary use of the features by fishermen did not amount to inhabitation by a stable community
and that all of the historical economic activity had been extractive in nature. Accordingly, the Tribunal concluded
that all of the high-tide features in the Spratly Islands(including, for example, Itu Aba, Thitu, West York
Island, Spratly Island, North-East Cay, South-West Cay) are legally “rocks” that do not generate an exclusive
economic zone or continental shelf.

Chinese Activities in the South China Sea

In its Award of 12 July 2016, the Tribunal considered the lawfulness under the Convention of various Chinese actions
in the South China Sea.
Having found that Mischief Reef, Second Thomas Shoal and Reed Bank are submerged at high tide, form part of the
exclusive economic zone and continental shelf of the Philippines, and are not overlapped by any possible entitlement
of China, the Tribunal concluded that the Convention is clear in allocating sovereign rights to the Philippines with
respect to sea areas in its exclusive economic zone. The Tribunal found as a matter of fact that China had (a)
interfered with Philippine petroleum exploration at Reed Bank, (b) purported to prohibit fishing by Philippine vessels
within the Philippines’ exclusive economic zone, (c) protected and failed to prevent Chinese fishermen from fishing
within the Philippines’ exclusive economic zone at Mischief Reef and Second Thomas Shoal, and (d) constructed
installations and artificial islands at Mischief Reef without the authorization of the Philippines. The Tribunal therefore
concluded that China had violated the Philippines’ sovereign rights with respect to its exclusive
economic zone and continental shelf.

Although the Tribunal emphasized that it was not deciding sovereignty over Scarborough Shoal, it found that China
had violated its duty to respect to the traditional fishing rights of Philippine fishermen by halting access to the Shoal
after May 2012. The Tribunal noted, however, that it would reach the same conclusion with respect to the traditional
fishing rights of Chinese fishermen if the Philippines were to prevent fishing by Chinese nationals at Scarborough
Shoal.

A significant aspect of the territorial dispute in the South China Sea concerns China's construction in the area,
particularly in the past few years. China has engaged in large-scale land reclamation activities in seven reefs (Fiery
Cross Reef, Johnson South Reef, Cuarteron Reef, Gaven Reef, Hughes Reef, Mischief Reef and Subi Reef) in the
disputed Spratly Islands area of the South China Sea. These projects have created seven new artificial land masses in
the Spratlys, see for some examples the following articles: Massive island-building and international law and What
China Has Been Building in the South China Sea

The Tribunal also considered the effect of China’s actions on the marine environment. In doing so, the Tribunal was
assisted by three independent experts on coral reef biology who were appointed to assist it in evaluating the
available scientific evidence and the Philippines’ expert reports. The Tribunal found that China’s recent large scale
land reclamation and construction of artificial islands at seven features in the Spratly Islands has caused severe harm
to the coral reef environment and that China has violated its obligation under Articles 192 and 194 of the
Convention to preserve and protect the marine environment with respect to fragile ecosystems and the
habitat of depleted, threatened, or endangered species.

Finally, the Tribunal considered the lawfulness of the conduct of Chinese law enforcement vessels at Scarborough
Shoal on two occasions in April and May 2012 when Chinese vessels had sought to physically obstruct Philippine
vessels from approaching or gaining entrance to the Shoal. The Tribunal found that Chinese law enforcement vessels
had repeatedly approached the Philippine vessels at high speed and sought to cross ahead of them at close
distances, creating serious risk of collision and danger to Philippine ships and personnel. The Tribunal concluded that
China had breached its obligations under the Convention on the International Regulations for Preventing Collisions at
Sea, 1972, and Article 94 the Convention concerning maritime safety.

Aggravation of the Dispute between the Parties

The Tribunal noted that China has (a) built a large artificial island on Mischief Reef, a low-tide elevation located in the
exclusive economic zone of the Philippines; (b) caused permanent, irreparable harm to the coral reef ecosystem and
(c) permanently destroyed evidence of the natural condition of the features in question. The Tribunal concluded that
China had violated its obligations to refrain from aggravating or extending the Parties’ disputes during the pendency
of the settlement process.

The Tribunal considered that the root of the disputes at issue in this arbitration lies not in any intention on the part of
China or the Philippines to infringe on the legal rights of the other, but rather in fundamentally different
understandings of their respective rights under the Convention in the waters of the South China
Sea.

[This unanimous Award has been issued today by the Tribunal constituted under Annex VII to the United Nations
Convention on the Law of the Sea (the “Convention”) in the arbitration instituted by the Republic of the Philippines
against the People’s Republic of China].

Source : PCA Press Release: PCA Case No. 2013-19 - The South China Sea Arbitration (The Republic of the
Philippines v. The People's Republic of China)

"Although the Convention does contain provisions concerning the delimitation of maritime boundaries, China made a
declaration in 2006 to exclude maritime boundary delimitation from its acceptance of compulsory dispute settlement,
something the Convention expressly permits for maritime boundaries and certain other matters. Accordingly, the
Tribunal has not been asked to, and does not purport to, delimit any maritime boundary between the Parties or
involving any other State bordering on the South China Sea."

[number of readers: 4057]

Did President Duterte talk too fast about
China? | Taiwan News
2018-02-22 18:26:00
...k too fast about China? By Chang Kuo-tsai
,Taiwan News, Contributing Writer 2018/02/22
16:26 Philippines President Rodrigo D....
Librarian's choice
A selection of relevant publications from the Peace Palace Library collection

 Bateman, S., "Maritime Boundary Delimitation, Excessive Claims and Effective Regime Building in the South
China", in Yann-huei Song and Keyuan Zou (eds.), Major Law and Policy Issues in the South China Sea: European
and American Perspectives, 2014, pp. 119-136.
 Batongbacal, J.L., "Extended Continental Shelves in the South China Sea: Delimitation Prospects and Challenges",
in Tran Truong Thuy and Le Thuy Trang (eds.), Power, Law, and Maritime Order in the South China Sea,
Lanham, Lexington Books, 2015, pp. 167-195.
 Beckman, R., "International Law, UNCLOS and the South China Sea", in Beckman, R., Townsend-Gault, I.,
Schofield, C., Davenport, T. and Bernard L. (eds.), Beyond Territorial Disputes in the South China Sea : Legal
Frameworks for the Joint Development of Hydrocarbon Resources, 2013, pp. 47-90.

 Beckman, R., "UNCLOS Part XV and the South China Sea", in Jayakumar, S., T. Koh and R. Beckman (eds.), The
South China Sea Disputes and Law of the Sea, 2014, pp. 229-264.
 Beckman, R., "The 'Philippines v. China' Case and the South China Sea Disputes", in Jing Huang and Andrew Billo
(eds.), Territorial Disputes in the South China Sea: Navigating Rough Waters, 2015, pp. 54-65.
 Beckman, R., "Disputed Areas in the South China Sea", in Tran Truong Thuy and Le Thuy Trang (eds.), Power,
Law, and Maritime Order in the South China Sea, Lanham, Lexington Books, 2015, pp. 103-117.
 Buszynski, L. and C.B. Roberts, (eds.), The South China Sea Maritime Dispute: Political, Legal and Regional
Perspectives, London, New York, Routledge, Taylor & Francis Group, 2015.
 Coito, J.C., "Boundary Conflict: the China-Philippines Confrontation over the Scarborough Reef, and the Viability
of UNCLOS Dispute Resolution Procedures", in H.N. Scheiber, J. Kraska and M.-S. Kwon (eds.), Science,
Technology, and New Challenges to Ocean Law, 2015, pp. 395-431.
 Cruz De Castro, R., "The 2012 Scarborough Shoal Stand-Off: From Stalemate to Escalation of the South China
Sea Dispute?" in L. Buszynski and C.B. Roberts (eds.), The South China Sea Maritime Dispute: Political, Legal and
Regional Perspectives, 2015, pp. 111-129.

 Dutton, P.A., "An Analysis of China's Claim to Historic Rights in the South China Sea", in Yann-huei Song and
Keyuan Zou (eds.), Major Law and Policy Issues in the South China Sea: European and American Perspectives,
2014, pp. 57-73.
 Hong, N., "State Practice of UNCLOS in the South China Sea", in Wu, S., Valencia, M. and Hong, N. (eds.), UN
Convention on the Law of the Sea and the South China Sea, Farnham, Ashgate, 2015, pp. 267-299.
 Huang, J. and Billo, A. (eds.), Territorial Disputes in the South China Sea: Navigating Rough Waters, Basingstoke,
Palgrave Macmillan, 2016.
 Jayakumar, S., T. Koh and R. Beckman (eds.), The South China Sea Disputes and Law of the Sea, Cheltenham,
Edward Elgar, 2014.
 Jia, B.B., "The Principle of the Domination of the Land over the Sea: a Historical Perspective on the Adaptability
of the Law of the Sea to New Challenges", German Yearbook of International Law, 57 (2015), pp. 63-93.
 Jimenez, A.A., "Philippines' Approaches to the South China Sea Disputes: International Arbitration and the
Challenges of a Rule-Based Regime", in Jing Huang and Andrew Billo (eds.), Territorial Disputes in the South
China Sea: Navigating Rough Waters, 2015, pp. 99-127.
 Joyner, C.C., "The Spratly Islands dispute: rethinking the interplay of law, diplomacy, and geo-politics in the
South China Sea", The international journal of marine and coastal law, 13 (1998), No. 2, pp. 193-236.
 Ku, J., Game Changer? Philippines Seeks UNCLOS Arbitration with China Over the South China Sea, Opinio Juris
(January 22, 2013).
 Pham Lan Dung and Nguyen Ngoc Lan, "Some Legal Aspects of the Philippines-China Arbitration under Annex VII
of the United Nations Convention on the Law of the Sea", in Tran Truong Thuy and Le Thuy Trang (eds.), Power,
Law, and Maritime Order in the South China Sea, Lanham, Lexington Books, 2015, pp. 331-348.
 Poling, G.B., The South China Sea in Focus: Clarifying the Limits of Maritime Dispute CSIS (last visited July 31,
2015).
 Poling, G., "US Interests in the South China Sea: International Law and Peaceful Dispute Resolution", in Tran
Truong Thuy and Le Thuy Trang (eds.), Power, Law, and Maritime Order in the South China Sea, Lanham,
Lexington Books, 2015, pp. 61-75.
 Roach, A.J., "China’s Shifting Sands in the Spratlys" (ASIL Insight of July 15, 2015).
 Rosenberg, D., Beyond the Scarborough Scare: Joint Resource Management in the South China Sea (e-
International Relations, May 1, 2012).

Territorial Disputes in the South China Sea: Selective Bibliography

Relevant Research guides

 Law of the Sea

External links

o PCA Press Release: PCA Case No. 2013-19 - The South China Sea Arbitration (The Republic of the Philippines
v. The People's Republic of China)
o Permanent Court of Arbitration (PCA) South China Sea Arbitration Award (12 July 2016)
o South China Sea trbunal: Key points (BBC News. 12 July 2016)
o The Tribunal's Award in the "South China Sea Arbitration" Initiated by the Philippines is Null and
Void (Chinese Society of International Law, 10 June 2016)
o The farce of ultra vires Arbitration ended, when will be the drama of negotiation? (Ambassador WU Ken's
article on NRC, Saturday, 16 July 2016)
 EN BANC

January 12, 2016

G.R. No. 212426

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

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

G.R. No. 212444

BAGONG ALYANSANG MAKABAYAN (BAYAN), REPRESENTED BY ITS SECRETARY

GENERAL RENATO M. REYES, JR., BAYAN MUNA PARTY-LIST REPRESENTATIVES NERI J.
COLMENARES AND CARLOS ZARATE, GABRIELA WOMEN'S PARTY-LIST
REPRESENTATIVES LUZ ILAGAN AND EMERENCIANA DE JESUS, ACT TEACHERS PARTY-
LIST REPRESENTATIVE ANTONIO L. TINIO, ANAKPAWIS PARTY-LIST REPRESENTATIVE
FERNANDO HICAP, KABATAAN PARTY-LIST REPRESENTATIVE TERRY RIDON,
MAKABAYANG KOALISYON NG MAMAMAYAN (MAKABAYAN), REPRESENTED BY
SATURNINO OCAMPO AND LIZA MAZA, BIENVENIDO LUMBERA, JOEL C. LAMANGAN,
RAFAEL MARIANO, SALVADOR FRANCE, ROGELIO M. SOLUTA, AND CLEMENTE G.
BAUTISTA, Petitioners,
vs.
DEPARTMENT OF NATIONAL DEFENSE (DND) SECRETARY VOLTAIRE GAZMIN,
DEPARTMENT OF FOREIGN AFFAIRS SECRETARY ALBERT DEL ROSARIO, EXECUTIVE
SECRETARY PAQUITO N. OCHOA, JR., ARMED FORCES OF THE PHILIPPINES CHIEF OF
STAFF GENERAL EMMANUEL T. BAUTISTA, DEFENSE UNDERSECRETARY PIO LORENZO
BATINO, AMBASSADOR LOURDES YPARRAGUIRRE, AMBASSADOR J. EDUARDO MALAYA,
DEPARTMENT OF JUSTICE UNDERSECRETARY FRANCISCO BARAAN III, AND DND
ASSISTANT SECRETARY FOR STRATEGIC ASSESSMENTS RAYMUND JOSE QUILOP AS
CHAIRPERSON AND MEMBERS, RESPECTIVELY, OF THE NEGOTIATING PANEL FOR THE
PHILIPPINES ON EDCA, Respondents.

x-----------------------x
KILUSANG MAYO UNO, REPRESENTED BY ITS CHAIRPERSON, ELMER LABOG,
CONFEDERATION FOR UNITY, RECOGNITION AND ADVANCEMENT OF GOVERNMENT
EMPLOYEES (COURAGE), REPRESENTED BY ITS NATIONAL PRESIDENT FERDINAND
GAITE, NATIONAL FEDERATION OF LABOR UNIONS-KILUSANG MAYO UNO,
REPRESENTED BY ITS NATIONAL PRESIDENT JOSELITO USTAREZ, NENITA GONZAGA,
VIOLETA ESPIRITU, VIRGINIA FLORES, AND ARMANDO TEODORO, JR., Petitioners-in-
Intervention,
RENE A.Q. SAGUISAG, JR., Petitioner-in-Intervention.

DECISION

SERENO, J.:

The petitions1 before this Court question the constitutionality of the Enhanced Defense Cooperation
Agreement (EDCA) between the Republic of the Philippines and the United States of America (U.S.).
Petitioners allege that respondents committed grave abuse of discretion amounting to lack or excess
of jurisdiction when they entered into EDCA with the U.S.,2 claiming that the instrument violated
multiple constitutional provisions.3 In reply, respondents argue that petitioners lack standing to bring
the suit. To support the legality of their actions, respondents invoke the 1987 Constitution, treaties,
and judicial precedents.4

A proper analysis of the issues requires this Court to lay down at the outset the basic parameters of
the constitutional powers and roles of the President and the Senate in respect of the above issues. A
more detailed discussion of these powers and roles will be made in the latter portions.

I. BROAD CONSTITUTIONAL CONTEXT OF THE POWERS OF THE PRESIDENT: DEFENSE,

FOREIGN RELATIONS, AND EDCA

A. The Prime Duty of the State and the Consolidation of Executive Power in the President

Mataimtim kong pinanunumpaan (o pinatotohanan) na tutuparin ko nang buong katapatan at sigasig

ang aking mga tungkulin bilang Pangulo (o Pangalawang Pangulo o Nanunungkulang Pangulo) ng
Pilipinas, pangangalagaan at ipagtatanggol ang kanyang Konstitusyon, ipatutupad ang mga batas
nito, magiging makatarungan sa bawat tao, at itatalaga ang aking sarili sa paglilingkod sa Bansa.
Kasihan nawa aka ng Diyos.

- Panunumpa sa Katungkulan ng Pangulo ng Pilipinas ayon sa Saligang Batas5

The 1987 Constitution has "vested the executive power in the President of the Republic of the
Philippines."6 While the vastness of the executive power that has been consolidated in the person of
the President cannot be expressed fully in one provision, the Constitution has stated the prime duty
of the government, of which the President is the head:

The prime duty of the Government is to serve and protect the people. The Government may call
upon the people to defend the State and, in the fulfillment thereof, all citizens may be required, under
conditions provided by law, to render personal military or civil service.7 (Emphases supplied)

B. The duty to protect the territory and the citizens of the Philippines, the power to call upon
the people to defend the State, and the President as Commander-in-Chief
The duty to protect the State and its people must be carried out earnestly and effectively throughout
the whole territory of the Philippines in accordance with the constitutional provision on national
territory. Hence, the President of the Philippines, as the sole repository of executive power, is the
guardian of the Philippine archipelago, including all the islands and waters embraced therein and all
other territories over which it has sovereignty or jurisdiction. These territories consist of its terrestrial,
fluvial, and aerial domains; including its territorial sea, the seabed, the subsoil, the insular shelves,
and other submarine areas; and the waters around, between, and connecting the islands of the
archipelago, regardless of their breadth and dimensions.8

To carry out this important duty, the President is equipped with authority over the Armed Forces of
the Philippines (AFP),9 which is the protector of the people and the state. The AFP's role is to secure
the sovereignty of the State and the integrity of the national territory.10 In addition, the Executive is
constitutionally empowered to maintain peace and order; protect life, liberty, and property; and
promote the general welfare.11

In recognition of these powers, Congress has specified that the President must oversee, ensure, and
reinforce our defensive capabilities against external and internal threats12 and, in the same vein,
ensure that the country is adequately prepared for all national and local emergencies arising from
natural and man-made disasters.13

To be sure, this power is limited by the Constitution itself. To illustrate, the President may call out the
AFP to prevent or suppress instances of lawless violence, invasion or rebellion,14 but not suspend the
privilege of the writ of habeas corpus for a period exceeding 60 days, or place the Philippines or any
part thereof under martial law exceeding that same span. In the exercise of these powers, the
President is also duty-bound to submit a report to Congress, in person or in writing, within 48 hours
from the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus;
and Congress may in turn revoke the proclamation or suspension. The same provision provides for
the Supreme Court's review of the factual basis for the proclamation or suspension, as well as the
promulgation of the decision within 30 days from filing.

C. The power and duty to conduct foreign relations

The President also carries the mandate of being the sole organ in the conduct of foreign
relations.15 Since every state has the capacity to interact with and engage in relations with other
sovereign states,16 it is but logical that every state must vest in an agent the authority to represent its
interests to those other sovereign states.

The conduct of foreign relations is full of complexities and consequences, sometimes with life and
death significance to the nation especially in times of war. It can only be entrusted to that department
of government which can act on the basis of the best available information and can decide with
decisiveness. x x x It is also the President who possesses the most comprehensive and the most
confidential information about foreign countries for our diplomatic and consular officials regularly
brief him on meaningful events all over the world. He has also unlimited access to ultra-sensitive
military intelligence data. In fine, the presidential role in foreign affairs is dominant and the President
is traditionally accorded a wider degree of discretion in the conduct of foreign affairs. The regularity,
nay, validity of his actions are adjudged under less stringent standards, lest their judicial repudiation
lead to breach of an international obligation, rupture of state relations, forfeiture of confidence,
national embarrassment and a plethora of other problems with equally undesirable consequences.17

The role of the President in foreign affairs is qualified by the Constitution in that the Chief Executive
must give paramount importance to the sovereignty of the nation, the integrity of its territory, its
interest, and the right of the sovereign Filipino people to self-determination.18 In specific provisions,
the President's power is also limited, or at least shared, as in Section 2 of Article II on the conduct of
war; Sections 20 and 21 of Article VII on foreign loans, treaties, and international agreements;
Sections 4(2) and 5(2)(a) of Article VIII on the judicial review of executive acts; Sections 4 and 25 of
Article XVIII on treaties and international agreements entered into prior to the Constitution and on
the presence of foreign military troops, bases, or facilities.

D. The relationship between the two major presidential functions and the role of the Senate

Clearly, the power to defend the State and to act as its representative in the international sphere
inheres in the person of the President. This power, however, does not crystallize into absolute
discretion to craft whatever instrument the Chief Executive so desires. As previously mentioned, the
Senate has a role in ensuring that treaties or international agreements the President enters into, as
contemplated in Section 21 of Article VII of the Constitution, obtain the approval of two-thirds of its
members.

Previously, treaties under the 1973 Constitution required ratification by a majority of the Batasang
Pambansa,19except in instances wherein the President "may enter into international treaties or
agreements as the national welfare and interest may require."20 This left a large margin of discretion
that the President could use to bypass the Legislature altogether. This was a departure from the
1935 Constitution, which explicitly gave the President the power to enter into treaties only with the
concurrence of two-thirds of all the Members of the Senate.21 The 1987 Constitution returned the
Senate's power22 and, with it, the legislative's traditional role in foreign affairs.23

The responsibility of the President when it comes to treaties and international agreements under the
present Constitution is therefore shared with the Senate. This shared role, petitioners claim, is
bypassed by EDCA.

II. HISTORICAL ANTECEDENTS OF EDCA

A. U.S. takeover of Spanish colonization and its military bases, and the transition to
Philippine independence

The presence of the U.S. military forces in the country can be traced to their pivotal victory in the
1898 Battle of Manila Bay during the Spanish-American War.24 Spain relinquished its sovereignty
over the Philippine Islands in favor of the U.S. upon its formal surrender a few months later.25 By
1899, the Americans had consolidated a military administration in the archipelago.26

When it became clear that the American forces intended to impose colonial control over the
Philippine Islands, General Emilio Aguinaldo immediately led the Filipinos into an all-out war against
the U.S.27 The Filipinos were ultimately defeated in the Philippine-American War, which lasted until
1902 and led to the downfall of the first Philippine Republic.28 The Americans henceforth began to
strengthen their foothold in the country.29 They took over and expanded the former Spanish Naval
Base in Subic Bay, Zambales, and put up a cavalry post called Fort Stotsenberg in Pampanga, now
known as Clark Air Base.30

When talks of the eventual independence of the Philippine Islands gained ground, the U.S.
manifested the desire to maintain military bases and armed forces in the country.31 The U.S.
Congress later enacted the Hare-Hawes-Cutting Act of 1933, which required that the proposed
constitution of an independent Philippines recognize the right of the U.S. to maintain the latter's
armed forces and military bases.32 The Philippine Legislature rejected that law, as it also gave the
U.S. the power to unilaterally designate any part of Philippine territory as a permanent military or
naval base of the U.S. within two years from complete independence.33
The U.S. Legislature subsequently crafted another law called the Tydings-McDuffie Act or the
Philippine Independence Act of 1934. Compared to the old Hare-Hawes-Cutting Act, the new law
provided for the surrender to the Commonwealth Government of "all military and other reservations"
of the U.S. government in the Philippines, except "naval reservations and refueling
stations."34 Furthermore, the law authorized the U.S. President to enter into negotiations for the
adjustment and settlement of all questions relating to naval reservations and fueling stations within
two years after the Philippines would have gained independence.35 Under the Tydings-McDuffie Act,
the U.S. President would proclaim the American withdrawal and surrender of sovereignty over the
islands 10 years after the inauguration of the new government in the Philippines.36 This law
eventually led to the promulgation of the 1935 Philippine Constitution.

The original plan to surrender the military bases changed.37 At the height of the Second World War,
the Philippine and the U.S. Legislatures each passed resolutions authorizing their respective
Presidents to negotiate the matter of retaining military bases in the country after the planned
withdrawal of the U.S.38 Subsequently, in 1946, the countries entered into the Treaty of General
Relations, in which the U.S. relinquished all control and sovereignty over the Philippine
Islands, except the areas that would be covered by the American military bases in the country.39 This
treaty eventually led to the creation of the post-colonial legal regime on which would hinge the
continued presence of U.S. military forces until 1991: the Military Bases Agreement (MBA) of 1947,
the Military Assistance Agreement of 1947, and the Mutual Defense Treaty (MDT) of 1951.40

B. Former legal regime on the presence of U.S. armed forces in the territory of an
independent Philippines (1946-1991)

Soon after the Philippines was granted independence, the two countries entered into their first
military arrangement pursuant to the Treaty of General Relations - the 1947 MBA.41 The Senate
concurred on the premise of "mutuality of security interest,"42 which provided for the presence and
operation of 23 U.S. military bases in the Philippines for 99 years or until the year 2046.43 The treaty
also obliged the Philippines to negotiate with the U.S. to allow the latter to expand the existing bases
or to acquire new ones as military necessity might require.44

A number of significant amendments to the 1947 MBA were made.45 With respect to its duration, the
parties entered into the Ramos-Rusk Agreement of 1966, which reduced the term of the treaty from
99 years to a total of 44 years or until 1991.46 Concerning the number of U.S. military bases in the
country, the Bohlen-Serrano Memorandum of Agreement provided for the return to the Philippines of
17 U.S. military bases covering a total area of 117,075 hectares.47 Twelve years later, the U.S.
returned Sangley Point in Cavite City through an exchange of notes.48 Then, through the Romulo-
Murphy Exchange of Notes of 1979, the parties agreed to the recognition of Philippine sovereignty
over Clark and Subic Bases and the reduction of the areas that could be used by the U.S.
military.49 The agreement also provided for the mandatory review of the treaty every five years.50 In
1983, the parties revised the 1947 MBA through the Romualdez-Armacost Agreement.51 The revision
pertained to the operational use of the military bases by the U.S. government within the context of
Philippine sovereignty,52 including the need for prior consultation with the Philippine government on
the former' s use of the bases for military combat operations or the establishment of long-range
missiles.53

Pursuant to the legislative authorization granted under Republic Act No. 9,54 the President also
entered into the 1947 Military Assistance Agreement55 with the U.S. This executive agreement
established the conditions under which U.S. military assistance would be granted to the
Philippines,56 particularly the provision of military arms, ammunitions, supplies, equipment, vessels,
services, and training for the latter's defense forces.57 An exchange of notes in 1953 made it clear
that the agreement would remain in force until terminated by any of the parties.58
To further strengthen their defense and security relationship,59 the Philippines and the U.S. next
entered into the MDT in 1951. Concurred in by both the Philippine60 and the U.S.61 Senates, the treaty
has two main features: first, it allowed for mutual assistance in maintaining and developing their
individual and collective capacities to resist an armed attack;62 and second, it provided for their
mutual self-defense in the event of an armed attack against the territory of either party.63 The treaty
was premised on their recognition that an armed attack on either of them would equally be a threat
to the security of the other.64

C. Current legal regime on the presence of U.S. armed forces in the country

In view of the impending expiration of the 1947 MBA in 1991, the Philippines and the U.S. negotiated
for a possible renewal of their defense and security relationship.65 Termed as the Treaty of
Friendship, Cooperation and Security, the countries sought to recast their military ties by providing a
new framework for their defense cooperation and the use of Philippine installations.66 One of the
proposed provisions included an arrangement in which U.S. forces would be granted the use of
certain installations within the Philippine naval base in Subic.67 On 16 September 1991, the Senate
rejected the proposed treaty.68

The consequent expiration of the 1947 MBA and the resulting paucity of any formal agreement
dealing with the treatment of U.S. personnel in the Philippines led to the suspension in 1995 of large-
scale joint military exercises.69In the meantime, the respective governments of the two countries
agreed70 to hold joint exercises at a substantially reduced level.71 The military arrangements between
them were revived in 1999 when they concluded the first Visiting Forces Agreement (VFA).72

As a "reaffirm[ation] [of the] obligations under the MDT,"73 the VFA has laid down the regulatory
mechanism for the treatment of U.S. military and civilian personnel visiting the country.74 It contains
provisions on the entry and departure of U.S. personnel; the purpose, extent, and limitations of their
activities; criminal and disciplinary jurisdiction; the waiver of certain claims; the importation and
exportation of equipment, materials, supplies, and other pieces of property owned by the U.S.
government; and the movement of U.S. military vehicles, vessels, and aircraft into and within the
country.75 The Philippines and the U.S. also entered into a second counterpart agreement (VFA II),
which in turn regulated the treatment of Philippine military and civilian personnel visiting the
U.S.76 The Philippine Senate concurred in the first VFA on 27 May 1999.77

Beginning in January 2002, U.S. military and civilian personnel started arriving in Mindanao to take
part in joint military exercises with their Filipino counterparts.78 Called Balikatan, these exercises
involved trainings aimed at simulating joint military maneuvers pursuant to the MDT.79

In the same year, the Philippines and the U.S. entered into the Mutual Logistics Support Agreement
to "further the interoperability, readiness, and effectiveness of their respective military forces"80 in
accordance with the MDT, the Military Assistance Agreement of 1953, and the VFA.81 The new
agreement outlined the basic terms, conditions, and procedures for facilitating the reciprocal
provision of logistics support, supplies, and services between the military forces of the two
countries.82 The phrase "logistics support and services" includes billeting, operations support,
construction and use of temporary structures, and storage services during an approved activity
under the existing military arrangements.83 Already extended twice, the agreement will last until
2017.84

D. The Enhanced Defense Cooperation Agreement

EDCA authorizes the U.S. military forces to have access to and conduct activities within certain
"Agreed Locations" in the country. It was not transmitted to the Senate on the executive's
understanding that to do so was no longer necessary.85 Accordingly, in June 2014, the Department of
Foreign Affairs (DFA) and the U.S. Embassy exchanged diplomatic notes confirming the completion
of all necessary internal requirements for the agreement to enter into force in the two countries.86

According to the Philippine government, the conclusion of EDCA was the result of intensive and
comprehensive negotiations in the course of almost two years.87 After eight rounds of negotiations,
the Secretary of National Defense and the U.S. Ambassador to the Philippines signed the
agreement on 28 April 2014.88 President Benigno S. Aquino III ratified EDCA on 6 June 2014.89 The
OSG clarified during the oral arguments90 that the Philippine and the U.S. governments had yet to
agree formally on the specific sites of the Agreed Locations mentioned in the agreement.

Two petitions for certiorari were thereafter filed before us assailing the constitutionality of EDCA.
They primarily argue that it should have been in the form of a treaty concurred in by the Senate, not
an executive agreement.

On 10 November 2015, months after the oral arguments were concluded and the parties ordered to
file their respective memoranda, the Senators adopted Senate Resolution No. (SR) 105.91 The
resolution expresses the "strong sense"92 of the Senators that for EDCA to become valid and
effective, it must first be transmitted to the Senate for deliberation and concurrence.

III. ISSUES

Petitioners mainly seek a declaration that the Executive Department committed grave abuse of
discretion in entering into EDCA in the form of an executive agreement. For this reason, we cull the
issues before us:

A. Whether the essential requisites for judicial review are present

B. Whether the President may enter into an executive agreement on foreign military
bases, troops, or facilities

C. Whether the provisions under EDCA are consistent with the Constitution, as well as
with existing laws and treaties

IV. DISCUSSION

A. Whether the essential requisites for judicial review have been satisfied

Petitioners are hailing this Court's power of judicial review in order to strike down EDCA for violating
the Constitution. They stress that our fundamental law is explicit in prohibiting the presence of
foreign military forces in the country, except under a treaty concurred in by the Senate. Before this
Court may begin to analyze the constitutionality or validity of an official act of a coequal branch of
government, however, petitioners must show that they have satisfied all the essential requisites for
judicial review.93

Distinguished from the general notion of judicial power, the power of judicial review specially refers
to both the authority and the duty of this Court to determine whether a branch or an instrumentality of
government has acted beyond the scope of the latter's constitutional powers.94 As articulated in
Section 1, Article VIII of the Constitution, the power of judicial review involves the power to resolve
cases in which the questions concern the constitutionality or validity of any treaty, international or
executive agreement, law, presidential decree, proclamation, order, instruction, ordinance, or
regulation.95 In Angara v. Electoral Commission, this Court exhaustively discussed this "moderating
power" as part of the system of checks and balances under the Constitution. In our fundamental law,
the role of the Court is to determine whether a branch of government has adhered to the specific
restrictions and limitations of the latter's power:96

The separation of powers is a fundamental principle in our system of government. It obtains not
through express provision but by actual division in our Constitution. Each department of the
government has exclusive cognizance of matters within its jurisdiction, and is supreme
within its own sphere. But it does not follow from the fact that the three powers are to be kept
separate and distinct that the Constitution intended them to be absolutely unrestrained and
independent of each other. The Constitution has provided for an elaborate system of checks
and balances to secure coordination in the workings of the various departments of the government.
x x x. And the judiciary in turn, with the Supreme Court as the final arbiter, effectively checks the
other departments in the exercise of its power to determine the law, and hence to declare
executive and legislative acts void if violative of the Constitution.

xxxx

As any human production, our Constitution is of course lacking perfection and perfectibility, but as
much as it was within the power of our people, acting through their delegates to so provide, that
instrument which is the expression of their sovereignty however limited, has established a
republican government intended to operate and function as a harmonious whole, under a
system of checks and balances, and subject to specific limitations and restrictions provided
in the said instrument. The Constitution sets forth in no uncertain language the restrictions
and limitations upon governmental powers and agencies. If these restrictions and limitations
are transcended it would be inconceivable if the Constitution had not provided for a
mechanism by which to direct the course of government along constitutional channels, for
then the distribution of powers would be mere verbiage, the bill of rights mere expressions of
sentiment, and the principles of good government mere political apothegms. Certainly, the
limitations and restrictions embodied in our Constitution are real as they should be in any living
constitution. x x x. In our case, this moderating power is granted, if not expressly, by clear implication
from section 2 of article VIII of [the 1935] Constitution.

The Constitution is a definition of the powers of government. Who is to determine the nature, scope
and extent of such powers? The Constitution itself has provided for the instrumentality of the
judiciary as the rational way. And when the judiciary mediates to allocate constitutional
boundaries, it does not assert any superiority over the other departments; it does not in
reality nullify or invalidate an act of the legislature, but only asserts the solemn and sacred
obligation assigned to it by the Constitution to determine conflicting claims of authority
under the Constitution and to establish for the parties in an actual controversy the rights
which that instrument secures and guarantees to them. This is in truth all that is involved in what
is termed "judicial supremacy" which properly is the power of judicial review under the
Constitution. x x x x. (Emphases supplied)

The power of judicial review has since been strengthened in the 1987 Constitution. The scope of that
power has been extended to the determination of whether in matters traditionally considered to be
within the sphere of appreciation of another branch of government, an exercise of discretion has
been attended with grave abuse.97 The expansion of this power has made the political question
doctrine "no longer the insurmountable obstacle to the exercise of judicial power or the impenetrable
shield that protects executive and legislative actions from judicial inquiry or review."98
This moderating power, however, must be exercised carefully and only if it cannot be completely
avoided. We stress that our Constitution is so incisively designed that it identifies the spheres of
expertise within which the different branches of government shall function and the questions of
policy that they shall resolve.99 Since the power of judicial review involves the delicate exercise of
examining the validity or constitutionality of an act of a coequal branch of government, this Court
must continually exercise restraint to avoid the risk of supplanting the wisdom of the constitutionally
appointed actor with that of its own.100

Even as we are left with no recourse but to bare our power to check an act of a coequal branch of
government - in this case the executive - we must abide by the stringent requirements for the
exercise of that power under the Constitution. Demetria v. Alba101 and Francisco v. House of
Representatives102 cite the "pillars" of the limitations on the power of judicial review as enunciated in
the concurring opinion of U.S. Supreme Court Justice Brandeis in Ashwander v. Tennessee Valley
Authority.103 Francisco104 redressed these "pillars" under the following categories:

1. That there be absolute necessity of deciding a case

2. That rules of constitutional law shall be formulated only as required by the facts of the
case

3. That judgment may not be sustained on some other ground

4. That there be actual injury sustained by the party by reason of the operation of the
statute

5. That the parties are not in estoppel

6. That the Court upholds the presumption of constitutionality

(Emphases supplied)

These are the specific safeguards laid down by the Court when it exercises its power of judicial
review.105 Guided by these pillars, it may invoke the power only when the following four stringent
requirements are satisfied: (a) there is an actual case or controversy; (b) petitioners possess locus
standi; (c) the question of constitutionality is raised at the earliest opportunity; and (d) the issue of
constitutionality is the lis mota of the case.106 Of these four, the first two conditions will be the focus of
our discussion.

1. Petitioners have shown the presence of an actual case or controversy.

The OSG maintains107 that there is no actual case or controversy that exists, since the Senators have
not been deprived of the opportunity to invoke the privileges of the institution they are representing.
It contends that the nonparticipation of the Senators in the present petitions only confirms that even
they believe that EDCA is a binding executive agreement that does not require their concurrence.

It must be emphasized that the Senate has already expressed its position through SR
105.108 Through the Resolution, the Senate has taken a position contrary to that of the OSG. As the
body tasked to participate in foreign affairs by ratifying treaties, its belief that EDCA infringes upon its
constitutional role indicates that an actual controversy - albeit brought to the Court by non-Senators,
exists.
Moreover, we cannot consider the sheer abstention of the Senators from the present proceedings as
basis for finding that there is no actual case or controversy before us. We point out that the focus of
this requirement is the ripeness for adjudication of the matter at hand, as opposed to its being
merely conjectural or anticipatory.109 The case must involve a definite and concrete issue involving
real parties with conflicting legal rights and legal claims admitting of specific relief through a decree
conclusive in nature.110 It should not equate with a mere request for an opinion or advice on what the
law would be upon an abstract, hypothetical, or contingent state of facts.111 As explained in Angara v.
Electoral Commission:112

[The] power of judicial review is limited to actual cases and controversies to be exercised after
full opportunity of argument by the parties, and limited further to the constitutional question
raised or the very lis mota presented. Any attempt at abstraction could only lead to dialectics
and barren legal questions and to sterile conclusions of wisdom, justice or expediency of
legislation. More than that, courts accord the presumption of constitutionality to legislative
enactments, not only because the legislature is presumed to abide by the Constitution but also
because the judiciary in the determination of actual cases and controversies must reflect the
wisdom and justice of the people as expressed through their representatives in the executive
and legislative departments of the government. (Emphases supplied)

We find that the matter before us involves an actual case or controversy that is already ripe for
adjudication. The Executive Department has already sent an official confirmation to the U.S.
Embassy that "all internal requirements of the Philippines x x x have already been complied
with."113 By this exchange of diplomatic notes, the Executive Department effectively performed the
last act required under Article XII(l) of EDCA before the agreement entered into force. Section 25,
Article XVIII of the Constitution, is clear that the presence of foreign military forces in the country
shall only be allowed by virtue of a treaty concurred in by the Senate. Hence, the performance of an
official act by the Executive Department that led to the entry into force of an executive agreement
was sufficient to satisfy the actual case or controversy requirement.

2. While petitioners Saguisag et. al., do not have legal standing, they nonetheless raise issues
involving matters of transcendental importance.

The question of locus standi or legal standing focuses on the determination of whether those
assailing the governmental act have the right of appearance to bring the matter to the court for
adjudication.114 They must show that they have a personal and substantial interest in the case, such
that they have sustained or are in immediate danger of sustaining, some direct injury as a
consequence of the enforcement of the challenged governmental act.115 Here, "interest" in the
question involved must be material - an interest that is in issue and will be affected by the official act
- as distinguished from being merely incidental or general.116 Clearly, it would be insufficient to show
that the law or any governmental act is invalid, and that petitioners stand to suffer in some indefinite
way.117 They must show that they have a particular interest in bringing the suit, and that they have
been or are about to be denied some right or privilege to which they are lawfully entitled, or that they
are about to be subjected to some burden or penalty by reason of the act complained of.118 The
reason why those who challenge the validity of a law or an international agreement are required to
allege the existence of a personal stake in the outcome of the controversy is "to assure the concrete
adverseness which sharpens the presentation of issues upon which the court so largely depends for
illumination of difficult constitutional questions."119

The present petitions cannot qualify as citizens', taxpayers', or legislators' suits; the Senate as a
body has the requisite standing, but considering that it has not formally filed a pleading to join the
suit, as it merely conveyed to the Supreme Court its sense that EDCA needs the Senate's
concurrence to be valid, petitioners continue to suffer from lack of standing.
In assailing the constitutionality of a governmental act, petitioners suing as citizens may dodge the
requirement of having to establish a direct and personal interest if they show that the act affects a
public right.120 In arguing that they have legal standing, they claim121 that the case they have filed is a
concerned citizen's suit. But aside from general statements that the petitions involve the protection of
a public right, and that their constitutional rights as citizens would be violated, they fail to make any
specific assertion of a particular public right that would be violated by the enforcement of EDCA. For
their failure to do so, the present petitions cannot be considered by the Court as citizens'
suits that would justify a disregard of the aforementioned requirements.

In claiming that they have legal standing as taxpayers, petitioners122 aver that the implementation of
EDCA would result in the unlawful use of public funds. They emphasize that Article X(1) refers to an
appropriation of funds; and that the agreement entails a waiver of the payment of taxes, fees, and
rentals. During the oral arguments, however, they admitted that the government had not yet
appropriated or actually disbursed public funds for the purpose of implementing the
agreement.123 The OSG, on the other hand, maintains that petitioners cannot sue as
taxpayers.124Respondent explains that EDCA is neither meant to be a tax measure, nor is it directed
at the disbursement of public funds.

A taxpayer's suit concerns a case in which the official act complained of directly involves the illegal
disbursement of public funds derived from taxation.125 Here, those challenging the act must
specifically show that they have sufficient interest in preventing the illegal expenditure of public
money, and that they will sustain a direct injury as a result of the enforcement of the assailed
act.126 Applying that principle to this case, they must establish that EDCA involves the exercise by
Congress of its taxing or spending powers.127

We agree with the OSG that the petitions cannot qualify as taxpayers' suits. We emphasize that a
taxpayers' suit contemplates a situation in which there is already an appropriation or a disbursement
of public funds.128 A reading of Article X(l) of EDCA would show that there has been neither an
appropriation nor an authorization of disbursement of funds. The cited provision reads:

All obligations under this Agreement are subject to the availability of appropriated
funds authorized for these purposes. (Emphases supplied)

This provision means that if the implementation of EDCA would require the disbursement of public
funds, the money must come from appropriated funds that are specifically authorized for this
purpose. Under the agreement, before there can even be a disbursement of public funds, there must
first be a legislative action. Until and unless the Legislature appropriates funds for EDCA, or
unless petitioners can pinpoint a specific item in the current budget that allows expenditure
under the agreement, we cannot at this time rule that there is in fact an appropriation or a
disbursement of funds that would justify the filing of a taxpayers' suit.

Petitioners Bayan et al. also claim129 that their co-petitioners who are party-list representatives have
the standing to challenge the act of the Executive Department, especially if it impairs the
constitutional prerogatives, powers, and privileges of their office. While they admit that there is no
incumbent Senator who has taken part in the present petition, they nonetheless assert that they also
stand to sustain a derivative but substantial injury as legislators. They argue that under the
Constitution, legislative power is vested in both the Senate and the House of Representatives;
consequently, it is the entire Legislative Department that has a voice in determining whether or not
the presence of foreign military should be allowed. They maintain that as members of the
Legislature, they have the requisite personality to bring a suit, especially when a constitutional issue
is raised.
The OSG counters130 that petitioners do not have any legal standing to file the suits concerning the
lack of Senate concurrence in EDCA. Respondent emphasizes that the power to concur in treaties
and international agreements is an "institutional prerogative" granted by the Constitution to the
Senate. Accordingly, the OSG argues that in case of an allegation of impairment of that power, the
injured party would be the Senate as an institution or any of its incumbent members, as it is the
Senate's constitutional function that is allegedly being violated.

The legal standing of an institution of the Legislature or of any of its Members has already been
recognized by this Court in a number of cases.131 What is in question here is the alleged impairment
of the constitutional duties and powers granted to, or the impermissible intrusion upon the domain of,
the Legislature or an institution thereof.132 In the case of suits initiated by the legislators themselves,
this Court has recognized their standing to question the validity of any official action that they claim
infringes the prerogatives, powers, and privileges vested by the Constitution in their office.133 As aptly
explained by Justice Perfecto in Mabanag v. Lopez Vito:134

Being members of Congress, they are even duty bound to see that the latter act within the
bounds of the Constitution which, as representatives of the people, they should uphold, unless
they are to commit a flagrant betrayal of public trust. They are representatives of the sovereign
people and it is their sacred duty to see to it that the fundamental law embodying the will of
the sovereign people is not trampled upon. (Emphases supplied)

We emphasize that in a legislators' suit, those Members of Congress who are challenging the official
act have standing only to the extent that the alleged violation impinges on their right to participate in
the exercise of the powers of the institution of which they are members.135 Legislators have the
standing "to maintain inviolate the prerogatives, powers, and privileges vested by the Constitution
in their office and are allowed to sue to question the validity of any official action, which they claim
infringes their prerogatives as legislators."136 As legislators, they must clearly show that there was a
direct injury to their persons or the institution to which they belong.137

As correctly argued by respondent, the power to concur in a treaty or an international agreement is

an institutional prerogative granted by the Constitution to the Senate, not to the entire Legislature.
In Pimentel v. Office of the Executive Secretary, this Court did not recognize the standing of one of
the petitioners therein who was a member of the House of Representatives. The petition in that case
sought to compel the transmission to the Senate for concurrence of the signed text of the Statute of
the International Criminal Court. Since that petition invoked the power of the Senate to grant or
withhold its concurrence in a treaty entered into by the Executive Department, only then incumbent
Senator Pimentel was allowed to assert that authority of the Senate of which he was a member.

Therefore, none of the initial petitioners in the present controversy has the standing to
maintain the suits as legislators.

Nevertheless, this Court finds that there is basis for it to review the act of the Executive for the
following reasons.

In any case, petitioners raise issues involving matters of transcendental importance.

Petitioners138 argue that the Court may set aside procedural technicalities, as the present petition
tackles issues that are of transcendental importance. They point out that the matter before us is
about the proper exercise of the Executive Department's power to enter into international
agreements in relation to that of the Senate to concur in those agreements. They also assert that
EDCA would cause grave injustice, as well as irreparable violation of the Constitution and of the
Filipino people's rights.
The OSG, on the other hand, insists139 that petitioners cannot raise the mere fact that the present
petitions involve matters of transcendental importance in order to cure their inability to comply with
the constitutional requirement of standing. Respondent bewails the overuse of "transcendental
importance" as an exception to the traditional requirements of constitutional litigation. It stresses that
one of the purposes of these requirements is to protect the Supreme Court from unnecessary
litigation of constitutional questions.

In a number of cases,140 this Court has indeed taken a liberal stance towards the requirement of legal
standing, especially when paramount interest is involved. Indeed, when those who challenge the
official act are able to craft an issue of transcendental significance to the people, the Court may
exercise its sound discretion and take cognizance of the suit. It may do so in spite of the inability of
the petitioners to show that they have been personally injured by the operation of a law or any other
government act.

While this Court has yet to thoroughly delineate the outer limits of this doctrine, we emphasize that
not every other case, however strong public interest may be, can qualify as an issue of
transcendental importance. Before it can be impelled to brush aside the essential requisites for
exercising its power of judicial review, it must at the very least consider a number of factors: (1) the
character of the funds or other assets involved in the case; (2) the presence of a clear case of
disregard of a constitutional or statutory prohibition by the public respondent agency or
instrumentality of the government; and (3) the lack of any other party that has a more direct and
specific interest in raising the present questions.141

An exhaustive evaluation of the memoranda of the parties, together with the oral arguments, shows
that petitioners have presented serious constitutional issues that provide ample justification for the
Court to set aside the rule on standing. The transcendental importance of the issues presented here
is rooted in the Constitution itself. Section 25, Article XVIII thereof, cannot be any clearer: there is a
much stricter mechanism required before foreign military troops, facilities, or bases may be allowed
in the country. The DFA has already confirmed to the U.S. Embassy that "all internal requirements of
the Philippines x x x have already been complied with."142 It behooves the Court in this instance to
take a liberal stance towards the rule on standing and to determine forthwith whether there was
grave abuse of discretion on the part of the Executive Department.

We therefore rule that this case is a proper subject for judicial review.

B. Whether the President may enter into an executive agreement on foreign military
bases, troops, or facilities

C. Whether the provisions under EDCA are consistent with the Constitution, as well as
with existing laws and treaties

Issues B and C shall be discussed together infra.

1. The role of the President as the executor of the law includes the duty to defend the State,
for which purpose he may use that power in the conduct of foreign relations

Historically, the Philippines has mirrored the division of powers in the U.S. government. When the
Philippine government was still an agency of the Congress of the U.S., it was as an agent entrusted
with powers categorized as executive, legislative, and judicial, and divided among these three great
branches.143 By this division, the law implied that the divided powers cannot be exercised except by
the department given the power.144
This divide continued throughout the different versions of the Philippine Constitution and specifically
vested the supreme executive power in the Governor-General of the Philippines,145 a position
inherited by the President of the Philippines when the country attained independence. One of the
principal functions of the supreme executive is the responsibility for the faithful execution of the laws
as embodied by the oath of office.146 The oath of the President prescribed by the 1987 Constitution
reads thus:

I do solemnly swear (or affirm) that I will faithfully and conscientiously fulfill my duties as
President (or Vice-President or Acting President) of the Philippines, preserve and defend its
Constitution, execute its laws, do justice to every man, and consecrate myself to the service of the
Nation. So help me God. (In case of affirmation, last sentence will be omitted.)147 (Emphases
supplied)

This Court has interpreted the faithful execution clause as an obligation imposed on the President,
and not a separate grant of power.148 Section 1 7, Article VII of the Constitution, expresses this duty
in no uncertain terms and includes it in the provision regarding the President's power of control over
the executive department, viz:

The President shall have control of all the executive departments, bureaus, and offices. He shall
ensure that the laws be faithfully executed.

The equivalent provisions in the next preceding Constitution did not explicitly require this oath from
the President. In the 1973 Constitution, for instance, the provision simply gives the President control
over the ministries.149 A similar language, not in the form of the President's oath, was present in the
1935 Constitution, particularly in the enumeration of executive functions.150 By 1987, executive power
was codified not only in the Constitution, but also in the Administrative Code:151

SECTION 1. Power of Control. - The President shall have control of all the executive departments,
bureaus, and offices. He shall ensure that the laws be faithfully executed. (Emphasis supplied)

Hence, the duty to faithfully execute the laws of the land is inherent in executive power and is
intimately related to the other executive functions. These functions include the faithful execution of
the law in autonomous regions;152 the right to prosecute crimes;153 the implementation of
transportation projects;154 the duty to ensure compliance with treaties, executive agreements and
executive orders;155 the authority to deport undesirable aliens;156 the conferment of national awards
under the President's jurisdiction;157 and the overall administration and control of the executive
department.158

These obligations are as broad as they sound, for a President cannot function with crippled hands,
but must be capable of securing the rule of law within all territories of the Philippine Islands and be
empowered to do so within constitutional limits. Congress cannot, for instance, limit or take over the
President's power to adopt implementing rules and regulations for a law it has enacted.159

More important, this mandate is self-executory by virtue of its being inherently executive in
nature.160 As Justice Antonio T. Carpio previously wrote,161

[i]f the rules are issued by the President in implementation or execution of self-executory
constitutional powers vested in the President, the rule-making power of the President is not a
delegated legislative power. The most important self-executory constitutional power of the President
is the President's constitutional duty and mandate to "ensure that the laws be faithfully executed."
The rule is that the President can execute the law without any delegation of power from the
legislature.
The import of this characteristic is that the manner of the President's execution of the law,
even if not expressly granted by the law, is justified by necessity and limited only by law,
since the President must "take necessary and proper steps to carry into execution the
law."162 Justice George Malcolm states this principle in a grand manner:163

The executive should be clothed with sufficient power to administer efficiently the affairs of state. He
should have complete control of the instrumentalities through whom his responsibility is discharged.
It is still true, as said by Hamilton, that "A feeble executive implies a feeble execution of the
government. A feeble execution is but another phrase for a bad execution; and a government ill
executed, whatever it may be in theory, must be in practice a bad government." The mistakes of
State governments need not be repeated here.

xxxx

Every other consideration to one side, this remains certain - The Congress of the United States
clearly intended that the Governor-General's power should be commensurate with his responsibility.
The Congress never intended that the Governor-General should be saddled with the responsibility of
administering the government and of executing the laws but shorn of the power to do so. The
interests of the Philippines will be best served by strict adherence to the basic principles of
constitutional government.

In light of this constitutional duty, it is the President's prerogative to do whatever is legal and
necessary for Philippine defense interests. It is no coincidence that the constitutional provision on
the faithful execution clause was followed by that on the President's commander-in-chief
powers,164 which are specifically granted during extraordinary events of lawless violence, invasion, or
rebellion. And this duty of defending the country is unceasing, even in times when there is no state
of lawlesss violence, invasion, or rebellion. At such times, the President has full powers to ensure
the faithful execution of the laws.

It would therefore be remiss for the President and repugnant to the faithful-execution clause of the
Constitution to do nothing when the call of the moment requires increasing the military's defensive
capabilities, which could include forging alliances with states that hold a common interest with the
Philippines or bringing an international suit against an offending state.

The context drawn in the analysis above has been termed by Justice Arturo D. Brion's Dissenting
Opinion as the beginning of a "patent misconception."165 His dissent argues that this approach taken
in analyzing the President's role as executor of the laws is preceded by the duty to preserve and
defend the Constitution, which was allegedly overlooked.166

In arguing against the approach, however, the dissent grossly failed to appreciate the nuances of the
analysis, if read holistically and in context. The concept that the President cannot function with
crippled hands and therefore can disregard the need for Senate concurrence in treaties167 was never
expressed or implied. Rather, the appropriate reading of the preceding analysis shows that the point
being elucidated is the reality that the President's duty to execute the laws and protect the
Philippines is inextricably interwoven with his foreign affairs powers, such that he must resolve
issues imbued with both concerns to the full extent of his powers, subject only to the limits supplied
by law. In other words, apart from an expressly mandated limit, or an implied limit by virtue of
incompatibility, the manner of execution by the President must be given utmost deference. This
approach is not different from that taken by the Court in situations with fairly similar contexts.

Thus, the analysis portrayed by the dissent does not give the President authority to bypass
constitutional safeguards and limits. In fact, it specifies what these limitations are, how these
limitations are triggered, how these limitations function, and what can be done within the sphere of
constitutional duties and limitations of the President.

Justice Brion's dissent likewise misinterprets the analysis proffered when it claims that the foreign
relations power of the President should not be interpreted in isolation.168 The analysis itself
demonstrates how the foreign affairs function, while mostly the President's, is shared in several
instances, namely in Section 2 of Article II on the conduct of war; Sections 20 and 21 of Article VII on
foreign loans, treaties, and international agreements; Sections 4(2) and 5(2)(a) of Article VIII on the
judicial review of executive acts; Sections 4 and 25 of Article XVIII on treaties and international
agreements entered into prior to the Constitution and on the presence of foreign military troops,
bases, or facilities.

In fact, the analysis devotes a whole subheading to the relationship between the two major
presidential functions and the role of the Senate in it.

This approach of giving utmost deference to presidential initiatives in respect of foreign affairs is not
novel to the Court. The President's act of treating EDCA as an executive agreement is not the
principal power being analyzed as the Dissenting Opinion seems to suggest. Rather, the preliminary
analysis is in reference to the expansive power of foreign affairs. We have long treated this power as
something the Courts must not unduly restrict. As we stated recently in Vinuya v. Romulo:

To be sure, not all cases implicating foreign relations present political questions, and courts certainly
possess the authority to construe or invalidate treaties and executive agreements. However, the
question whether the Philippine government should espouse claims of its nationals against a foreign
government is a foreign relations matter, the authority for which is demonstrably committed by our
Constitution not to the courts but to the political branches. In this case, the Executive Department
has already decided that it is to the best interest of the country to waive all claims of its nationals for
reparations against Japan in the Treaty of Peace of 1951. The wisdom of such decision is not for the
courts to question. Neither could petitioners herein assail the said determination by the Executive
Department via the instant petition for certiorari.

In the seminal case of US v. Curtiss-Wright Export Corp., the US Supreme Court held that "[t]he
President is the sole organ of the nation in its external relations, and its sole representative with
foreign relations."

It is quite apparent that if, in the maintenance of our international relations,

embarrassment - perhaps serious embarrassment - is to be avoided and success for
our aims achieved, congressional legislation which is to be made effective through
negotiation and inquiry within the international field must often accord to the
President a degree of discretion and freedom from statutory restriction which
would not be admissible where domestic affairs alone involved. Moreover, he,
not Congress, has the better opportunity of knowing the conditions which prevail in
foreign countries, and especially is this true in time of war. He has his confidential
sources of information. He has his agents in the form of diplomatic, consular and
other officials ....

This ruling has been incorporated in our jurisprudence through Bavan v. Executive
Secretary and Pimentel v. Executive Secretary; its overreaching principle was, perhaps, best
articulated in (now Chief) Justice Puno's dissent in Secretary of Justice v. Lantion:

. . . The conduct of foreign relations is full of complexities and consequences,

sometimes with life and death significance to the nation especially in times of war. It
 can only be entrusted to that department of government which can act on the basis
of the best available information and can decide with decisiveness .... It is also the
President who possesses the most comprehensive and the most confidential
information about foreign countries for our diplomatic and consular officials regularly
brief him on meaningful events all over the world. He has also unlimited access to
ultra-sensitive military intelligence data. In fine, the presidential role in foreign
affairs is dominant and the President is traditionally accorded a wider degree
of discretion in the conduct of foreign affairs. The regularity, nay, validity of his
actions are adjudged under less stringent standards, lest their judicial
repudiation lead to breach of an international obligation, rupture of state
relations, forfeiture of confidence, national embarrassment and a plethora of
other problems with equally undesirable consequences.169 (Emphases supplied)

Understandably, this Court must view the instant case with the same perspective and understanding,
knowing full well the constitutional and legal repercussions of any judicial overreach.

2. The plain meaning of the Constitution prohibits the entry of foreign military bases, troops
or facilities, except by way of a treaty concurred in by the Senate - a clear limitation on the
President's dual role as defender of the State and as sole authority in foreign relations.

Despite the President's roles as defender of the State and sole authority in foreign relations, the
1987 Constitution expressly limits his ability in instances when it involves the entry of foreign military
bases, troops or facilities. The initial limitation is found in Section 21 of the provisions on the
Executive Department: "No treaty or international agreement shall be valid and effective unless
concurred in by at least two-thirds of all the Members of the Senate." The specific limitation is given
by Section 25 of the Transitory Provisions, the full text of which reads as follows:

SECTION 25. 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.

It is quite plain that the Transitory Provisions of the 1987 Constitution intended to add to the basic
requirements of a treaty under Section 21 of Article VII. This means that both provisions must be
read as additional limitations to the President's overarching executive function in matters of defense
and foreign relations.

3. The President, however, may enter into an executive agreement on foreign military bases,
troops, or facilities, if (a) it is not the instrument that allows the presence of foreign military
bases, troops, or facilities; or (b) it merely aims to implement an existing law or treaty.

Again we refer to Section 25, Article XVIII of the Constitution:

SECTION 25. 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. (Emphases supplied)
In view of this provision, petitioners argue170 that EDCA must be in the form of a "treaty" duly
concurred in by the Senate. They stress that the Constitution is unambigous in mandating the
transmission to the Senate of all international agreements concluded after the expiration of the MBA
in 1991 - agreements that concern the presence of foreign military bases, troops, or facilities in the
country. Accordingly, petitioners maintain that the Executive Department is not given the choice to
conclude agreements like EDCA in the form of an executive agreement.

This is also the view of the Senate, which, through a majority vote of 15 of its members - with 1
against and 2 abstaining - says in SR 105171 that EDCA must be submitted to the Senate in the form
of a treaty for concurrence by at least two-thirds of all its members.

The Senate cites two constitutional provisions (Article VI, Section 21 and Article XVIII, Section 25) to
support its position. Compared with the lone constitutional provision that the Office of the Solicitor
General (OSG) cites, which is Article XVIII, Section 4(2), which includes the constitutionality of
"executive agreement(s)" among the cases subject to the Supreme Court's power of judicial review,
the Constitution clearly requires submission of EDCA to the Senate. Two specific provisions versus
one general provision means that the specific provisions prevail. The term "executive agreement" is
"a term wandering alone in the Constitution, bereft of provenance and an unidentified constitutional
mystery."

The author of SR 105, Senator Miriam Defensor Santiago, upon interpellation even added that the
MDT, which the Executive claims to be partly implemented through EDCA, is already obsolete.

There are two insurmountable obstacles to this Court's agreement with SR 105, as well as with the
comment on interpellation made by Senator Santiago.

First, the concept of "executive agreement" is so well-entrenched in this Court's pronouncements on

the powers of the President. When the Court validated the concept of "executive agreement," it did
so with full knowledge of the Senate's role in concurring in treaties. It was aware of the
problematique of distinguishing when an international agreement needed Senate concurrence for
validity, and when it did not; and the Court continued to validate the existence of "executive
agreements" even after the 1987 Constitution.172 This follows a long line of similar decisions
upholding the power of the President to enter into an executive agreement.173

Second, the MDT has not been rendered obsolescent, considering that as late as 2009,174 this Court
continued to recognize its validity.

Third, to this Court, a plain textual reading of Article XIII, Section 25, inevitably leads to the
conclusion that it applies only to a proposed agreement between our government and a foreign
government, whereby military bases, troops, or facilities of such foreign government would be
"allowed" or would "gain entry" Philippine territory.

Note that the provision "shall not be allowed" is a negative injunction. This wording signifies that the
President is not authorized by law to allow foreign military bases, troops, or facilities to enter the
Philippines, except under a treaty concurred in by the Senate. Hence, the constitutionally restricted
authority pertains to the entry of the bases, troops, or facilities, and not to the activities to be done
after entry.

Under the principles of constitutional construction, of paramount consideration is the plain meaning
of the language expressed in the Constitution, or the verba legis rule.175 It is presumed that the
provisions have been carefully crafted in order to express the objective it seeks to attain.176 It is
incumbent upon the Court to refrain from going beyond the plain meaning of the words used in the
Constitution. It is presumed that the framers and the people meant what they said when they said it,
and that this understanding was reflected in the Constitution and understood by the people in the
way it was meant to be understood when the fundamental law was ordained and promulgated.177 As
this Court has often said:

We look to the language of the document itself in our search for its meaning. We do not of course
stop there, but that is where we begin. It is to be assumed that the words in which constitutional
provisions are couched express the objective sought to be attained. They are to be given their
ordinary meaning except where technical terms are employed in which case the significance
thus attached to them prevails. As the Constitution is not primarily a lawyer's document, it being
essential for the rule of law to obtain that it should ever be present in the people's consciousness, its
language as much as possible should be understood in the sense they have in common use.
What it says according to the text of the provision to be construed compels acceptance and negates
the power of the courts to alter it, based on the postulate that the framers and the people mean
what they say. Thus, these are the cases where the need for construction is reduced to a
minimum.178(Emphases supplied)

It is only in those instances in which the constitutional provision is unclear, ambiguous, or silent that
further construction must be done to elicit its meaning.179 In Ang Bagong Bayani-OFW v. Commission
on Elections,180 we reiterated this guiding principle:

it [is] safer to construe the Constitution from what appears upon its face. The proper
interpretation therefore depends more on how it was understood by the people adopting it than
in the framers' understanding thereof. (Emphases supplied)

The effect of this statement is surprisingly profound, for, if taken literally, the phrase "shall not be
allowed in the Philippines" plainly refers to the entry of bases, troops, or facilities in the country.
The Oxford English Dictionary defines the word "allow" as a transitive verb that means "to permit,
enable"; "to give consent to the occurrence of or relax restraint on (an action, event, or activity)"; "to
consent to the presence or attendance of (a person)"; and, when with an adverbial of place, "to
permit (a person or animal) to go, come, or be in, out, near, etc."181 Black's Law Dictionary defines the
term as one that means "[t]o grant, approve, or permit."182

The verb "allow" is followed by the word "in," which is a preposition used to indicate "place or
position in space or anything having material extension: Within the limits or bounds of, within (any
place or thing)."183 That something is the Philippines, which is the noun that follows.

It is evident that the constitutional restriction refers solely to the initial entry of the foreign military
bases, troops, or facilities. Once entry is authorized, the subsequent acts are thereafter subject only
to the limitations provided by the rest of the Constitution and Philippine law, and not to the Section
25 requirement of validity through a treaty.

The VFA has already allowed the entry of troops in the Philippines. This Court stated in Lim v.
Executive Secretary:

After studied reflection, it appeared farfetched that the ambiguity surrounding the meaning of the
word "activities" arose from accident. In our view, it was deliberately made that way to give both
parties a certain leeway in negotiation. In this manner, visiting US forces may sojourn in
Philippine territory for purposes other than military. As conceived, the joint exercises may
include training on new techniques of patrol and surveillance to protect the nation's marine
resources, sea search-and-rescue operations to assist vessels in distress, disaster relief operations,
civic action projects such as the building of school houses, medical and humanitarian missions, and
the like.

Under these auspices, the VFA gives legitimacy to the current Balikatan exercises. It is only logical
to assume that "Balikatan 02-1," a "mutual anti- terrorism advising, assisting and training exercise,"
falls under the umbrella of sanctioned or allowable activities in the context of the agreement. Both
the history and intent of the Mutual Defense Treaty and the VFA support the conclusion that combat-
related activities -as opposed to combat itself-such as the one subject of the instant petition, are
indeed authorized.184 (Emphasis supplied)

Moreover, the Court indicated that the Constitution continues to govern the conduct of foreign
military troops in the Philippines,185 readily implying the legality of their initial entry into the country.

The OSG emphasizes that EDCA can be in the form of an executive agreement, since it merely
involves "adjustments in detail" in the implementation of the MDT and the VFA.186 It points out that
there are existing treaties between the Philippines and the U.S. that have already been concurred in
by the Philippine Senate and have thereby met the requirements of the Constitution under Section
25. Because of the status of these prior agreements, respondent emphasizes that EDCA need not
be transmitted to the Senate.

The aforecited Dissenting Opinion of Justice Brion disagrees with the ponencia's application of verba
legis construction to the words of Article XVIII, Section 25.187 It claims that the provision is "neither
plain, nor that simple."188 To buttress its disagreement, the dissent states that the provision refers to a
historical incident, which is the expiration of the 1947 MBA.189 Accordingly, this position requires
questioning the circumstances that led to the historical event, and the meaning of the terms under
Article XVIII, Section 25.

This objection is quite strange. The construction technique of verba legis is not inapplicable just
because a provision has a specific historical context. In fact, every provision of the Constitution has
a specific historical context. The purpose of constitutional and statutory construction is to set tiers of
interpretation to guide the Court as to how a particular provision functions. Verba legis is of
paramount consideration, but it is not the only consideration. As this Court has often said:

We look to the language of the document itself in our search for its meaning. We do not of course
stop there, but that is where we begin. It is to be assumed that the words in which constitutional
provisions are couched express the objective sought to be attained. They are to be given their
ordinary meaning except where technical terms are employed in which case the significance
thus attached to them prevails. As the Constitution is not primarily a lawyer's document, it being
essential for the rule of law to obtain that it should ever be present in the people's consciousness, its
language as much as possible should be understood in the sense they have in common use.
What it says according to the text of the provision to be construed compels acceptance and negates
the power of the courts to alter it, based on the postulate that the framers and the people mean
what they say. Thus, these are the cases where the need for construction is reduced to a
minimum.190(Emphases supplied)

As applied, verba legis aids in construing the ordinary meaning of terms. In this case, the phrase
being construed is "shall not be allowed in the Philippines" and not the preceding one referring to
"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." It is explicit
in the wording of the provision itself that any interpretation goes beyond the text itself and into the
discussion of the framers, the context of the Constitutional Commission's time of drafting, and the
history of the 1947 MBA. Without reference to these factors, a reader would not understand those
terms. However, for the phrase "shall not be allowed in the Philippines," there is no need for such
reference. The law is clear. No less than the Senate understood this when it ratified the VFA.

4. The President may generally enter into executive agreements subject to limitations defined
by the Constitution and may be in furtherance of a treaty already concurred in by the Senate.

We discuss in this section why the President can enter into executive agreements.

It would be helpful to put into context the contested language found in Article XVIII, Section 25. Its
more exacting requirement was introduced because of the previous experience of the country when
its representatives felt compelled to consent to the old MBA.191 They felt constrained to agree to the
MBA in fulfilment of one of the major conditions for the country to gain independence from the
U.S.192 As a result of that experience, a second layer of consent for agreements that allow military
bases, troops and facilities in the country is now articulated in Article XVIII of our present
Constitution.

This second layer of consent, however, cannot be interpreted in such a way that we completely
ignore the intent of our constitutional framers when they provided for that additional layer, nor the
vigorous statements of this Court that affirm the continued existence of that class of international
agreements called "executive agreements."

The power of the President to enter into binding executive agreements without Senate concurrence
is already well-established in this jurisdiction.193 That power has been alluded to in our present and
past Constitutions,194 in various statutes,195 in Supreme Court decisions,196 and during the deliberations
of the Constitutional Commission.197 They cover a wide array of subjects with varying scopes and
purposes,198 including those that involve the presence of foreign military forces in the country.199

As the sole organ of our foreign relations200 and the constitutionally assigned chief architect of our
foreign policy,201the President is vested with the exclusive power to conduct and manage the
country's interface with other states and governments. Being the principal representative of the
Philippines, the Chief Executive speaks and listens for the nation; initiates, maintains, and develops
diplomatic relations with other states and governments; negotiates and enters into international
agreements; promotes trade, investments, tourism and other economic relations; and settles
international disputes with other states.202

As previously discussed, this constitutional mandate emanates from the inherent power of the
President to enter into agreements with other states, including the prerogative to
conclude binding executive agreements that do not require further Senate concurrence. The
existence of this presidential power203 is so well-entrenched that Section 5(2)(a), Article VIII of the
Constitution, even provides for a check on its exercise. As expressed below, executive agreements
are among those official governmental acts that can be the subject of this Court's power of judicial
review:

(2) Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the
Rules of Court may provide, final judgments and orders of lower courts in:

(a) All cases in which the constitutionality or

validity of any treaty, international or executive agreement, law, presidential
decree, proclamation, order, instruction, ordinance, or regulation is in question.
(Emphases supplied)
In Commissioner of Customs v. Eastern Sea Trading, executive agreements are defined as
"international agreements embodying adjustments of detail carrying out well-established national
policies and traditions and those involving arrangements of a more or less temporary
nature."204 In Bayan Muna v. Romulo, this Court further clarified that executive agreements can cover
a wide array of subjects that have various scopes and purposes.205 They are no longer limited to the
traditional subjects that are usually covered by executive agreements as identified in Eastern Sea
Trading. The Court thoroughly discussed this matter in the following manner:

The categorization of subject matters that may be covered by international

agreementsmentioned in Eastern Sea Trading is not cast in stone. x x x.

As may be noted, almost half a century has elapsed since the Court rendered its decision
in Eastern Sea Trading. Since then, the conduct of foreign affairs has become more complex
and the domain of international law wider, as to include such subjects as human rights, the
environment, and the sea. In fact, in the US alone, the executive agreements executed by its
President from 1980 to 2000 covered subjects such as defense, trade, scientific cooperation,
aviation, atomic energy, environmental cooperation, peace corps, arms limitation, and
nuclear safety, among others. Surely, the enumeration in Eastern Sea Trading cannot
circumscribe the option of each state on the matter of which the international agreement format
would be convenient to serve its best interest. As Francis Sayre said in his work referred to
earlier:

. . . It would be useless to undertake to discuss here the large variety of executive agreements
as such concluded from time to time. Hundreds of executive agreements, other than those
entered into under the trade-agreement act, have been negotiated with foreign governments. . . .
They cover such subjects as the inspection of vessels, navigation dues, income tax on shipping
profits, the admission of civil air craft, custom matters and commercial relations generally,
international claims, postal matters, the registration of trademarks and copyrights, etc .... (Emphases
Supplied)

One of the distinguishing features of executive agreements is that their validity and effectivity are not
affected by a lack of Senate concurrence.206 This distinctive feature was recognized as early as
in Eastern Sea Trading (1961), viz:

Treaties are formal documents which require ratification with the approval of two-thirds of the
Senate. Executive agreements become binding through executive action without the need of a
vote by the Senate or by Congress.

xxxx

[T]he 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. (Emphases Supplied)

That notion was carried over to the present Constitution. In fact, the framers specifically deliberated
on whether the general term "international agreement" included executive agreements, and whether
it was necessary to include an express proviso that would exclude executive agreements from the
requirement of Senate concurrence. After noted constitutionalist Fr. Joaquin Bernas quoted the
Court's ruling in Eastern Sea Trading, the Constitutional Commission members ultimately decided
that the term "international agreements" as contemplated in Section 21, Article VII, does not include
executive agreements, and that a proviso is no longer needed. Their discussion is reproduced
below:207

MS. AQUINO: Madam President, first I would like a clarification from the Committee. We have
retained the words "international agreement" which I think is the correct judgment on the matter
because an international agreement is different from a treaty. A treaty is a contract between parties
which is in the nature of international agreement and also a municipal law in the sense that the
people are bound. So there is a conceptual difference. However, I would like to be clarified if the
international agreements include executive agreements.

MR. CONCEPCION: That depends upon the parties. All parties to these international negotiations
stipulate the conditions which are necessary for the agreement or whatever it may be to become
valid or effective as regards the parties.

MS. AQUINO: Would that depend on the parties or would that depend on the nature of the executive
agreement? According to common usage, there are two types of executive agreement: one is
purely proceeding from an executive act which affects external relations independent of the
legislative and the other is an executive act in pursuance of legislative authorization. The first
kind might take the form of just conventions or exchanges of notes or protocol while the other,
which would be pursuant to the legislative authorization, may be in the nature of commercial
agreements.

MR. CONCEPCION: Executive agreements are generally made to implement a treaty already
enforced or to determine the details for the implementation of the treaty. We are speaking of
executive agreements, not international agreements.

MS. AQUINO: I am in full agreement with that, except that it does not cover the first kind of executive
agreement which is just protocol or an exchange of notes and this would be in the nature of
reinforcement of claims of a citizen against a country, for example.

MR. CONCEPCION: The Commissioner is free to require ratification for validity insofar as the
Philippines is concerned.

MS. AQUINO: It is my humble submission that we should provide, unless the Committee explains
to us otherwise, an explicit proviso which would except executive agreements from
the requirement of concurrence of two-thirds of the Members of the Senate. Unless I am
enlightened by the Committee I propose that tentatively, the sentence should read. "No treaty or
international agreement EXCEPT EXECUTIVE AGREEMENTS shall be valid and effective."

FR. BERNAS: I wonder if a quotation from the Supreme Court decision [in Eastern Sea
Trading] might help clarify this:

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 this has never been
seriously questioned by our Courts.

Agreements with respect to the registration of trademarks have been concluded by the executive of
various countries under the Act of Congress of March 3, 1881 (21 Stat. 502) . . . International
agreements involving political issues or changes of national policy and those involving
international agreements of a permanent character usually take the form of treaties. But
international agreements embodying adjustments of detail, carrying out well established
national policies and traditions and those involving arrangements of a more or less temporary
nature usually take the form of executive agreements.

MR. ROMULO: Is the Commissioner, therefore, excluding the executive agreements?

FR. BERNAS: What we are referring to, therefore, when we say international agreements which
need concurrence by at least two-thirds are those which are permanent in nature.

MS. AQUINO: And it may include commercial agreements which are executive agreements
essentially but which are proceeding from the authorization of Congress. If that is our understanding,
then I am willing to withdraw that amendment.

FR. BERNAS: If it is with prior authorization of Congress, then it does not need subsequent
concurrence by Congress.

MS. AQUINO: In that case, I am withdrawing my amendment.

MR. TINGSON: Madam President.

THE PRESIDENT: Is Commissioner Aquino satisfied?

MS. AQUINO: Yes. There is already an agreement among us on the definition of "executive
agreements" and that would make unnecessary any explicit proviso on the matter.

xxx

MR. GUINGONA: I am not clear as to the meaning of "executive agreements" because I heard that
these executive agreements must rely on treaties. In other words, there must first be treaties.

MR. CONCEPCION: No, I was speaking about the common use, as executive agreements being the
implementation of treaties, details of which do not affect the sovereignty of the State.

MR. GUINGONA: But what about the matter of permanence, Madam President? Would 99 years be
considered permanent? What would be the measure of permanency? I do not conceive of a treaty
that is going to be forever, so there must be some kind of a time limit.

MR. CONCEPCION: I suppose the Commissioner's question is whether this type of agreement
should be included in a provision of the Constitution requiring the concurrence of Congress.

MR. GUINGONA: It depends on the concept of the executive agreement of which I am not clear. If
the executive agreement partakes of the nature of a treaty, then it should also be included.

MR. CONCEPCION: Whether it partakes or not of the nature of a treaty, it is within the power of the
Constitutional Commission to require that.

MR. GUINGONA: Yes. That is why I am trying to clarify whether the words "international
agreements" would include executive agreements.
MR. CONCEPCION: No, not necessarily; generally no.

xxx

MR. ROMULO: I wish to be recognized first. I have only one question. Do we take it, therefore,
that as far as the Committee is concerned, the term "international agreements" does not
include the term "executive agreements" as read by the Commissioner in that text?

FR. BERNAS: Yes. (Emphases Supplied)

The inapplicability to executive agreements of the requirements under Section 21 was again
recognized in Bayan v. Zamora and in Bayan Muna v. Romulo. These cases, both decided under the
aegis of the present Constitution, quoted Eastern Sea Trading in reiterating that executive
agreements are valid and binding even without the concurrence of the Senate.

Executive agreements may dispense with the requirement of Senate concurrence because of the
legal mandate with which they are concluded. As culled from the afore-quoted deliberations of the
Constitutional Commission, past Supreme Court Decisions, and works of noted scholars,208 executive
agreements merely involve arrangements on the implementation of existing policies, rules, laws, or
agreements. They are concluded (1) to adjust the details of a treaty;209 (2) pursuant to or upon
confirmation by an act of the Legislature;210 or (3) in the exercise of the President's independent
powers under the Constitution.211 The raison d'etre of executive agreements hinges
on prior constitutional or legislative authorizations.

The special nature of an executive agreement is not just a domestic variation in international
agreements. International practice has accepted the use of various forms and designations of
international agreements, ranging from the traditional notion of a treaty - which connotes a formal,
solemn instrument - to engagements concluded in modem, simplified forms that no longer
necessitate ratification.212 An international agreement may take different forms: treaty, act, protocol,
agreement, concordat, compromis d'arbitrage, convention, covenant, declaration, exchange of
notes, statute, pact, charter, agreed minute, memorandum of agreement, modus vivendi, or some
other form.213 Consequently, under international law, the distinction between a treaty and an
international agreement or even an executive agreement is irrelevant for purposes of determining
international rights and obligations.

However, this principle does not mean that the domestic law distinguishing treaties, international
agreements, and executive agreements is relegated to a mere variation in form, or that the
constitutional requirement of Senate concurrence is demoted to an optional constitutional directive.
There remain two very important features that distinguish treaties from executive agreements and
translate them into terms of art in the domestic setting.

First, executive agreements must remain traceable to an express or implied authorization under the
Constitution, statutes, or treaties. The absence of these precedents puts the validity and effectivity of
executive agreements under serious question for the main function of the Executive is to enforce the
Constitution and the laws enacted by the Legislature, not to defeat or interfere in the performance of
these rules.214 In turn, executive agreements cannot create new international obligations that are not
expressly allowed or reasonably implied in the law they purport to implement.

Second, treaties are, by their very nature, considered superior to executive agreements. Treaties are
products of the acts of the Executive and the Senate215 unlike executive agreements, which are solely
executive actions.216Because of legislative participation through the Senate, a treaty is regarded as
being on the same level as a statute.217 If there is an irreconcilable conflict, a later law or treaty takes
precedence over one that is prior.218 An executive agreement is treated differently. Executive
agreements that are inconsistent with either a law or a treaty are considered ineffective.219 Both types
of international agreement are nevertheless subject to the supremacy of the Constitution.220

This rule does not imply, though, that the President is given carte blanche to exercise this discretion.
Although the Chief Executive wields the exclusive authority to conduct our foreign relations, this
power must still be exercised within the context and the parameters set by the Constitution, as well
as by existing domestic and international laws. There are constitutional provisions that restrict or limit
the President's prerogative in concluding international agreements, such as those that involve the
following:

a. The policy of freedom from nuclear weapons within Philippine territory221

b. The fixing of tariff rates, import and export quotas, tonnage and wharfage dues, and other
duties or imposts, which must be pursuant to the authority granted by Congress222

c. The grant of any tax exemption, which must be pursuant to a law concurred in by a
majority of all the Members of Congress223

d. The contracting or guaranteeing, on behalf of the Philippines, of foreign loans that must be
previously concurred in by the Monetary Board224

e. The authorization of the presence of foreign military bases, troops, or facilities in the
country must be in the form of a treaty duly concurred in by the Senate.225

f. For agreements that do not fall under paragraph 5, the concurrence of the Senate is
required, should the form of the government chosen be a treaty.

5. The President had the choice to enter into EDCA by way of an executive agreement or a
treaty.

No court can tell the President to desist from choosing an executive agreement over a treaty to
embody an international agreement, unless the case falls squarely within Article VIII, Section 25.

As can be gleaned from the debates among the members of the Constitutional Commission, they
were aware that legally binding international agreements were being entered into by countries in
forms other than a treaty. At the same time, it is clear that they were also keen to preserve the
concept of "executive agreements" and the right of the President to enter into such agreements.

What we can glean from the discussions of the Constitutional Commissioners is that they
understood the following realities:

1. Treaties, international agreements, and executive agreements are all constitutional

manifestations of the conduct of foreign affairs with their distinct legal characteristics.

a. Treaties are formal contracts between the Philippines and other States-parties,
which are in the nature of international agreements, and also of municipal laws in the
sense of their binding nature.226

b. International agreements are similar instruments, the provisions of which may

require the ratification of a designated number of parties thereto. These agreements
 involving political issues or changes in national policy, as well as those involving
international agreements of a permanent character, usually take the form of treaties.
They may also include commercial agreements, which are executive agreements
essentially, but which proceed from previous authorization by Congress, thus
dispensing with the requirement of concurrence by the Senate.227

c. Executive agreements are generally intended to implement a treaty already

enforced or to determine the details of the implementation thereof that do not affect
the sovereignty of the State.228

2. Treaties and international agreements that cannot be mere executive agreements must,
by constitutional decree, be concurred in by at least two-thirds of the Senate.

3. However, an agreement - the subject of which is the entry of foreign military troops, bases,
or facilities - is particularly restricted. The requirements are that it be in the form of a treaty
concurred in by the Senate; that when Congress so requires, it be ratified by a majority of the
votes cast by the people in a national referendum held for that purpose; and that it be
recognized as a treaty by the other contracting State.

4. Thus, executive agreements can continue to exist as a species of international

agreements.

That is why our Court has ruled the way it has in several cases.

In Bayan Muna v. Romulo, we ruled that the President acted within the scope of her constitutional
authority and discretion when she chose to enter into the RP-U.S. Non-Surrender Agreement in the
form of an executive agreement, instead of a treaty, and in ratifying the agreement without Senate
concurrence. The Court en banc discussed this intrinsic presidential prerogative as follows:

Petitioner parlays the notion that the Agreement is of dubious validity, partaking as it does of the
nature of a treaty; hence, it must be duly concurred in by the Senate. x x x x. Pressing its point,
petitioner submits that the subject of the Agreement does not fall under any of the subject-categories
that xx x may be covered by an executive agreement, such as commercial/consular relations, most-
favored nation rights, patent rights, trademark and copyright protection, postal and navigation
arrangements and settlement of claims.

The categorization of subject matters that may be covered by international agreements mentioned
in Eastern Sea Trading is not cast in stone. There are no hard and fast rules on the propriety of
entering, on a given subject, into a treaty or an executive agreement as an instrument of
international relations. The primary consideration in the choice of the form of agreement is
the parties' intent and desire to craft an international agreement in the form they so wish to
further their respective interests. Verily, the matter of form takes a back seat when it comes to
effectiveness and binding effect of the enforcement of a treaty or an executive agreement, as the
parties in either international agreement each labor under the pacta sunt servanda principle.

xxxx

But over and above the foregoing considerations is the fact that - save for the situation and matters
contemplated in Sec. 25, Art. XVIII of the Constitution - when a treaty is required, the Constitution
does not classify any subject, like that involving political issues, to be in the form of, and
ratified as, a treaty. What the Constitution merely prescribes is that treaties need the concurrence
of the Senate by a vote defined therein to complete the ratification process.
 xxxx

x x x. As the President wields vast powers and influence, her conduct in the external affairs of the
nation is, as Bayan would put it, "executive altogether." The right of the President to enter into or
ratify binding executive agreements has been confirmed by long practice.

In thus agreeing to conclude the Agreement thru E/N BF0-028-03, then President Gloria
Macapagal-Arroyo, represented by the Secretary of Foreign Affairs, acted within the scope of the
authority and discretion vested in her by the Constitution. At the end of the day, the President -
by ratifying, thru her deputies, the non-surrender agreement - did nothing more than
discharge a constitutional duty and exercise a prerogative that pertains to her
office. (Emphases supplied)

Indeed, in the field of external affairs, the President must be given a larger measure of authority and
wider discretion, subject only to the least amount of checks and restrictions under the
Constitution.229 The rationale behind this power and discretion was recognized by the Court in Vinuya
v. Executive Secretary, cited earlier.230

Section 9 of Executive Order No. 459, or the Guidelines in the Negotiation of International
Agreements and its Ratification, thus, correctly reflected the inherent powers of the President when it
stated that the DFA "shall determine whether an agreement is an executive agreement or a treaty."

Accordingly, in the exercise of its power of judicial review, the Court does not look into whether an
international agreement should be in the form of a treaty or an executive agreement, save in cases
in which the Constitution or a statute requires otherwise. Rather, in view of the vast constitutional
powers and prerogatives granted to the President in the field of foreign affairs, the task of the Court
is to determine whether the international agreement is consistent with the applicable limitations.

6. Executive agreements may cover the matter of foreign military forces if it merely involves
detail adjustments.

The practice of resorting to executive agreements in adjusting the details of a law or a treaty that
already deals with the presence of foreign military forces is not at all unusual in this jurisdiction. In
fact, the Court has already implicitly acknowledged this practice in Lim v. Executive Secretary.231 In
that case, the Court was asked to scrutinize the constitutionality of the Terms of Reference of
the Balikatan 02-1 joint military exercises, which sought to implement the VFA. Concluded in the
form of an executive agreement, the Terms of Reference detailed the coverage of the term
"activities" mentioned in the treaty and settled the matters pertaining to the construction of temporary
structures for the U.S. troops during the activities; the duration and location of the exercises; the
number of participants; and the extent of and limitations on the activities of the U.S. forces. The
Court upheld the Terms of Reference as being consistent with the VFA. It no longer took issue with
the fact that the Balikatan Terms of Reference was not in the form of a treaty concurred in by the
Senate, even if it dealt with the regulation of the activities of foreign military forces on Philippine
territory.

In Nicolas v. Romulo,232 the Court again impliedly affirmed the use of an executive agreement in an
attempt to adjust the details of a provision of the VFA. The Philippines and the U.S. entered into the
Romulo-Kenney Agreement, which undertook to clarify the detention of a U.S. Armed Forces
member, whose case was pending appeal after his conviction by a trial court for the crime of rape. In
testing the validity of the latter agreement, the Court precisely alluded to one of the inherent
limitations of an executive agreement: it cannot go beyond the terms of the treaty it purports to
implement. It was eventually ruled that the Romulo-Kenney Agreement was "not in accord" with the
VFA, since the former was squarely inconsistent with a provision in the treaty requiring that the
detention be "by Philippine authorities." Consequently, the Court ordered the Secretary of Foreign
Affairs to comply with the VFA and "forthwith negotiate with the United States representatives for the
appropriate agreement on detention facilities under Philippine authorities as provided in Art. V, Sec.
10 of the VFA. "233

Culling from the foregoing discussions, we reiterate the following pronouncements to guide us in
resolving the present controversy:

1. Section 25, Article XVIII of the Constitution, contains stringent requirements that must be
fulfilled by the international agreement allowing the presence of foreign military bases,
troops, or facilities in the Philippines: (a) the agreement must be in the form of a treaty, and
(b) it must be duly concurred in by the Senate.

2. If the agreement is not covered by the above situation, then the President may choose the
form of the agreement (i.e., either an executive agreement or a treaty), provided that the
agreement dealing with foreign military bases, troops, or facilities is not the principal
agreement that first allows their entry or presence in the Philippines.

3. The executive agreement must not go beyond the parameters, limitations, and standards
set by the law and/or treaty that the former purports to implement; and must not unduly
expand the international obligation expressly mentioned or necessarily implied in the law or
treaty.

4. The executive agreement must be consistent with the Constitution, as well as with existing
laws and treaties.

In light of the President's choice to enter into EDCA in the form of an executive agreement,
respondents carry the burden of proving that it is a mere implementation of existing laws and treaties
concurred in by the Senate. EDCA must thus be carefully dissected to ascertain if it remains within
the legal parameters of a valid executive agreement.

7. EDCA is consistent with the content, purpose, and framework of the MDT and the VFA

The starting point of our analysis is the rule that "an executive agreement xx x may not be used to
amend a treaty."234 In Lim v. Executive Secretary and in Nicolas v. Romulo, the Court approached the
question of the validity of executive agreements by comparing them with the general framework and
the specific provisions of the treaties they seek to implement.

In Lim, the Terms of Reference of the joint military exercises was scrutinized by studying "the
framework of the treaty antecedents to which the Philippines bound itself,"235 i.e., the MDT and the
VFA. The Court proceeded to examine the extent of the term "activities" as contemplated in Articles
1236 and II237 of the VFA. It later on found that the term "activities" was deliberately left undefined and
ambiguous in order to permit "a wide scope of undertakings subject only to the approval of the
Philippine government"238 and thereby allow the parties "a certain leeway in negotiation."239 The Court
eventually ruled that the Terms of Reference fell within the sanctioned or allowable activities,
especially in the context of the VFA and the MDT.

The Court applied the same approach to Nicolas v. Romulo. It studied the provisions of the VFA on
custody and detention to ascertain the validity of the Romulo-Kenney Agreement.240 It eventually
found that the two international agreements were not in accord, since the Romulo-Kenney
Agreement had stipulated that U.S. military personnel shall be detained at the U.S. Embassy
Compound and guarded by U.S. military personnel, instead of by Philippine authorities. According to
the Court, the parties "recognized the difference between custody during the trial and detention after
conviction."241 Pursuant to Article V(6) of the VFA, the custody of a U.S. military personnel resides
with U.S. military authorities during trial. Once there is a finding of guilt, Article V(l0) requires that the
confinement or detention be "by Philippine authorities."

Justice Marvic M.V.F. Leonen's Dissenting Opinion posits that EDCA "substantially modifies or
amends the VFA"242and follows with an enumeration of the differences between EDCA and the VFA.
While these arguments will be rebutted more fully further on, an initial answer can already be given
to each of the concerns raised by his dissent.

The first difference emphasized is that EDCA does not only regulate visits as the VFA does, but
allows temporary stationing on a rotational basis of U.S. military personnel and their contractors in
physical locations with permanent facilities and pre-positioned military materiel.

This argument does not take into account that these permanent facilities, while built by U.S. forces,
are to be owned by the Philippines once constructed.243 Even the VFA allowed construction for the
benefit of U.S. forces during their temporary visits.

The second difference stated by the dissent is that EDCA allows the prepositioning of military
materiel, which can include various types of warships, fighter planes, bombers, and vessels, as well
as land and amphibious vehicles and their corresponding ammunition.244

However, the VFA clearly allows the same kind of equipment, vehicles, vessels, and aircraft to be
brought into the country. Articles VII and VIII of the VFA contemplates that U.S. equipment,
materials, supplies, and other property are imported into or acquired in the Philippines by or on
behalf of the U.S. Armed Forces; as are vehicles, vessels, and aircraft operated by or for U.S. forces
in connection with activities under the VFA. These provisions likewise provide for the waiver of the
specific duties, taxes, charges, and fees that correspond to these equipment.

The third difference adverted to by the Justice Leonen's dissent is that the VFA contemplates the
entry of troops for training exercises, whereas EDCA allows the use of territory for launching military
and paramilitary operations conducted in other states.245 The dissent of Justice Teresita J. Leonardo-
De Castro also notes that VFA was intended for non-combat activides only, whereas the entry and
activities of U.S. forces into Agreed Locations were borne of military necessity or had a martial
character, and were therefore not contemplated by the VFA.246

This Court's jurisprudence however established in no uncertain terms that combat-related activities,
as opposed to actual combat, were allowed under the MDT and VFA, viz:

Both the history and intent of the Mutual Defense Treaty and the VFA support the conclusion that
combat-related activities as opposed to combat itself such as the one subject of the instant petition,
are indeed authorized.247

Hence, even if EDCA was borne of military necessity, it cannot be said to have strayed from the
intent of the VFA since EDCA's combat-related components are allowed under the treaty.

Moreover, both the VFA and EDCA are silent on what these activities actually are. Both the VFA and
EDCA deal with the presence of U.S. forces within the Philippines, but make no mention of being
platforms for activity beyond Philippine territory. While it may be that, as applied, military operations
under either the VFA or EDCA would be carried out in the future the scope of judicial review does
not cover potential breaches of discretion but only actual occurrences or blatantly illegal provisions.
Hence, we cannot invalidate EDCA on the basis of the potentially abusive use of its provisions.

The fourth difference is that EDCA supposedly introduces a new concept not contemplated in the
VFA or the MDT: Agreed Locations, Contractors, Pre-positioning, and Operational Control.248

As previously mentioned, these points shall be addressed fully and individually in the latter analysis
of EDCA's provisions. However, it must already be clarified that the terms and details used by an
implementing agreement need not be found in the mother treaty. They must be sourced from the
authority derived from the treaty, but are not necessarily expressed word-for-word in the mother
treaty. This concern shall be further elucidated in this Decision.

The fifth difference highlighted by the Dissenting Opinion is that the VFA does not have provisions
that may be construed as a restriction on or modification of obligations found in existing statues,
including the jurisdiction of courts, local autonomy, and taxation. Implied in this argument is that
EDCA contains such restrictions or modifications.249

This last argument cannot be accepted in view of the clear provisions of EDCA. Both the VFA and
EDCA ensure Philippine jurisdiction in all instances contemplated by both agreements, with the
exception of those outlined by the VFA in Articles III-VI. In the VFA, taxes are clearly waived
whereas in EDCA, taxes are assumed by the government as will be discussed later on. This fact
does not, therefore, produce a diminution of jurisdiction on the part of the Philippines, but rather a
recognition of sovereignty and the rights that attend it, some of which may be waived as in the cases
under Articles III-VI of the VFA.

Taking off from these concerns, the provisions of EDCA must be compared with those of the MDT
and the VFA, which are the two treaties from which EDCA allegedly draws its validity.

"Authorized presence" under the VFA versus "authorized activities" under EDCA: (1) U.S.
personnel and (2) U.S. contractors

The OSG argues250 that EDCA merely details existing policies under the MDT and the VFA. It
explains that EDCA articulates the principle of defensive preparation embodied in Article II of the
MDT; and seeks to enhance the defensive, strategic, and technological capabilities of both parties
pursuant to the objective of the treaty to strengthen those capabilities to prevent or resist a possible
armed attack. Respondent also points out that EDCA simply implements Article I of the VFA, which
already allows the entry of U.S. troops and personnel into the country. Respondent stresses this
Court's recognition in Lim v. Executive Secretary that U.S. troops and personnel are authorized to
conduct activities that promote the goal of maintaining and developing their defense capability.

Petitioners contest251 the assertion that the provisions of EDCA merely implement the MDT.
According to them, the treaty does not specifically authorize the entry of U.S. troops in the country in
order to maintain and develop the individual and collective capacities of both the Philippines and the
U.S. to resist an armed attack. They emphasize that the treaty was concluded at a time when there
was as yet no specific constitutional prohibition on the presence of foreign military forces in the
country.

Petitioners also challenge the argument that EDCA simply implements the VFA. They assert that the
agreement covers only short-term or temporary visits of U.S. troops "from time to time" for the
specific purpose of combined military exercises with their Filipino counterparts. They stress that, in
contrast, U.S. troops are allowed under EDCA to perform activities beyond combined military
exercises, such as those enumerated in Articles 111(1) and IV(4) thereof. Furthermore, there is
some degree of permanence in the presence of U.S. troops in the country, since the effectivity of
EDCA is continuous until terminated. They proceed to argue that while troops have a "rotational"
presence, this scheme in fact fosters their permanent presence.

a. Admission of U.S. military and civilian personnel into Philippine territory is already allowed under
the VFA

We shall first deal with the recognition under EDCA of the presence in the country of three distinct
classes of individuals who will be conducting different types of activities within the Agreed Locations:
(1) U.S. military personnel; (2) U.S. civilian personnel; and (3) U.S. contractors. The agreement
refers to them as follows:

"United States personnel" means United States military and civilian personnel temporarily in
the territory of the Philippines in connection with activities approved by the Philippines, as those
terms are defined in the VFA.252

"United States forces" means the entity comprising United States personnel and all property,
equipment, and materiel of the United States Armed Forces present in the territory of the
Philippines.253

"United States contractors" means companies and firms, and their employees, under contract
or subcontract to or on behalf of the United States Department of Defense. United States
contractors are not included as part of the definition of United States personnel in this Agreement,
including within the context of the VFA.254

United States forces may contract for any materiel, supplies, equipment, and
services (including construction) to be furnished or undertaken in the territory of the Philippines
without restriction as to choice of contractor, supplier, or person who provides such materiel,
supplies, equipment, or services. Such contracts shall be solicited, awarded, and administered in
accordance with the laws and regulations of the United States.255 (Emphases Supplied)

A thorough evaluation of how EDCA is phrased clarities that the agreement does not deal with
the entry into the country of U.S. personnel and contractors per se. While Articles I(l)(b)256 and
II(4)257 speak of "the right to access and use" the Agreed Locations, their wordings indicate the
presumption that these groups have already been allowed entry into Philippine territory, for which,
unlike the VFA, EDCA has no specific provision. Instead, Article II of the latter simply alludes to the
VFA in describing U.S. personnel, a term defined under Article I of the treaty as follows:

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 ordinarily resident 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.258
Article II of EDCA must then be read with Article III of the VFA, which provides for the entry
accommodations to be accorded to U.S. military and civilian personnel:

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 enteringand departing the Philippines.

3. The following documents only, which shall be required in respect of United States military
personnel who enter the Philippines; xx xx.

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.
(Emphases Supplied)

By virtue of Articles I and III of the VFA, the Philippines already allows U.S. military and civilian
personnel to be "temporarily in the Philippines," so long as their presence is "in connection with
activities approved by the Philippine Government." The Philippines, through Article III, even
guarantees that it shall facilitate the admission of U.S. personnel into the country and grant
exemptions from passport and visa regulations. The VFA does not even limit their temporary
presence to specific locations.

Based on the above provisions, the admission and presence of U.S. military and civilian
personnel in Philippine territory are already allowed under the VFA, the treaty supposedly
being implemented by EDCA. What EDCA has effectively done, in fact, is merely provide the
mechanism to identify the locations in which U.S. personnel may perform allowed activities pursuant
to the VFA. As the implementing agreement, it regulates and limits the presence of U.S. personnel in
the country.

b. EDCA does not provide the legal basis for admission of U.S. contractors into Philippine territory;
their entry must be sourced from extraneous Philippine statutes and regulations for the admission of
alien employees or business persons.

Of the three aforementioned classes of individuals who will be conducting certain activities within the
Agreed Locations, we note that only U.S. contractors are not explicitly mentioned in the VFA. This
does not mean, though, that the recognition of their presence under EDCA is ipso facto an
amendment of the treaty, and that there must be Senate concurrence before they are allowed to
enter the country.

Nowhere in EDCA are U.S. contractors guaranteed immediate admission into the Philippines.
Articles III and IV, in fact, merely grant them the right of access to, and the authority to conduct
certain activities within the Agreed Locations. Since Article II(3) of EDCA specifically leaves out U.S.
contractors from the coverage of the VFA, they shall not be granted the same entry accommodations
and privileges as those enjoyed by U.S. military and civilian personnel under the VFA.

Consequently, it is neither mandatory nor obligatory on the part of the Philippines to admit U.S.
contractors into the country.259 We emphasize that the admission of aliens into Philippine territory is
"a matter of pure permission and simple tolerance which creates no obligation on the part of the
government to permit them to stay."260 Unlike U.S. personnel who are accorded entry
accommodations, U.S. contractors are subject to Philippine immigration laws.261The latter must
comply with our visa and passport regulations262 and prove that they are not subject to exclusion
under any provision of Philippine immigration laws.263 The President may also deny them entry
pursuant to his absolute and unqualified power to prohibit or prevent the admission of aliens whose
presence in the country would be inimical to public interest.264

In the same vein, the President may exercise the plenary power to expel or deport U.S.
contractors265 as may be necessitated by national security, public safety, public health, public morals,
and national interest.266 They may also be deported if they are found to be illegal or undesirable
aliens pursuant to the Philippine Immigration Act267 and the Data Privacy Act.268 In contrast, Article
111(5) of the VFA requires a request for removal from the Philippine government before a member
of the U.S. personnel may be "dispos[ed] xx x outside of the Philippines."

c. Authorized activities of U.S. military and civilian personnel within Philippine territory are in
furtherance of the MDT and the VFA

We begin our analysis by quoting the relevant sections of the MDT and the VFA that pertain to the
activities in which U.S. military and civilian personnel may engage:

MUTUAL DEFENSE TREATY

Article II

In order more effectively to achieve the objective of this Treaty, the Parties separately and jointly
byself-help and mutual aid will maintain and develop their individual and collective capacity to
resist armed attack.

Article III

The Parties, through their Foreign Ministers or their deputies, will consult together from time to
time regarding the implementation of this Treaty and whenever in the opinion of either of them the
territorial integrity, political independence or security of either of the Parties is threatened by external
armed attack in the Pacific.

VISITING FORCES AGREEMENT

Preamble

xxx

Reaffirming their obligations under the Mutual Defense Treaty of August 30, 1951;

Noting that from time to time elements of the United States armed forces may visit the Republic of
the Philippines;

Considering that cooperation between the United States and the Republic of the
Philippines promotes their common security interests;

xxx

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: xx x

Article II - Respect for Law

It is the duty of 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 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. x
x x.

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. x x x (Emphases Supplied)

Manifest in these provisions is the abundance of references to the creation of further "implementing
arrangements" including the identification of "activities [to be] approved by the Philippine
Government." To determine the parameters of these implementing arrangements and activities, we
referred to the content, purpose, and framework of the MDT and the VFA.

By its very language, the MDT contemplates a situation in which both countries shall engage
in joint activities, so that they can maintain and develop their defense capabilities. The wording itself
evidently invites a reasonable construction that the joint activities shall involve joint military trainings,
maneuvers, and exercises. Both the interpretation269 and the subsequent practice270 of the parties
show that the MDT independently allows joint military exercises in the country. Lim v. Executive
Secretary271 and Nicolas v. Romulo272 recognized that Balikatan exercises, which are activities that
seek to enhance and develop the strategic and technological capabilities of the parties to resist an
armed attack, "fall squarely under the provisions of the RP-US MDT."273 In Lim, the Court especially
noted that the Philippines and the U.S. continued to conduct joint military exercises even after the
expiration of the MBA and even before the conclusion of the VFA.274 These activities presumably
related to the Status of Forces Agreement, in which the parties agreed on the status to be accorded
to U.S. military and civilian personnel while conducting activities in the Philippines in relation to the
MDT.275

Further, it can be logically inferred from Article V of the MDT that these joint activities may be
conducted on Philippine or on U.S. soil. The article expressly provides that the term armed
attack includes "an armed attack on the metropolitan territory of either of the Parties, or on
the island territories under its jurisdiction in the Pacific or on its armed forces, public vessels
or aircraft in the Pacific." Surely, in maintaining and developing our defense capabilities, an
assessment or training will need to be performed, separately and jointly by self-help and mutual aid,
in the territories of the contracting parties. It is reasonable to conclude that the assessment of
defense capabilities would entail understanding the terrain, wind flow patterns, and other
environmental factors unique to the Philippines.

It would also be reasonable to conclude that a simulation of how to respond to attacks in vulnerable
areas would be part of the training of the parties to maintain and develop their capacity to resist an
actual armed attack and to test and validate the defense plan of the Philippines. It is likewise
reasonable to imagine that part of the training would involve an analysis of the effect of the weapons
that may be used and how to be prepared for the eventuality. This Court recognizes that all of this
may require training in the area where an armed attack might be directed at the Philippine territory.

The provisions of the MDT must then be read in conjunction with those of the VFA.

Article I of the VFA indicates that the presence of U.S. military and civilian personnel in the
Philippines is "in connection with activities approved by the Philippine Government." While the treaty
does not expressly enumerate or detail the nature of activities of U.S. troops in the country, its
Preamble makes explicit references to the reaffirmation of the obligations of both countries under the
MDT. These obligations include the strengthening of international and regional security in the Pacific
area and the promotion of common security interests.

The Court has already settled in Lim v. Executive Secretary that the phrase "activities approved by
the Philippine Government" under Article I of the VFA was intended to be ambiguous in order to
afford the parties flexibility to adjust the details of the purpose of the visit of U.S. personnel.276 In
ruling that the Terms of Reference for the Balikatan Exercises in 2002 fell within the context of the
treaty, this Court explained:

After studied reflection, it appeared farfetched that the ambiguity surrounding the meaning of the
word "activities" arose from accident. In our view, it was deliberately made that way to give
both parties a certain leeway in negotiation. In this manner, visiting US forces may sojourn in
Philippine territory for purposes other than military. As conceived, the joint exercises may
include training on new techniques of patrol and surveillance to protect the nation's marine
resources, sea search-and-rescue operations to assist vessels in distress, disaster relief operations,
civic action projects such as the building of school houses, medical and humanitarian missions, and
the like.

Under these auspices, the VFA gives legitimacy to the current Balikatan exercises. It is only logical
to assume that "Balikatan 02-1," a "mutual anti-terrorism advising, assisting and training
exercise," falls under the umbrella of sanctioned or allowable activities in the context of the
agreement. Both the history and intent of the Mutual Defense Treaty and the VFA support the
conclusion that combat-related activities - as opposed to combat itself- such as the one subject of
the instant petition, are indeed authorized. (Emphases Supplied)

The joint report of the Senate committees on foreign relations and on national defense and security
further explains the wide range and variety of activities contemplated in the VFA, and how these
activities shall be identified:277

These joint exercises envisioned in the VFA are not limited to combat-related activities; they
have a wide range and variety. They include exercises that will reinforce the AFP's ability
to acquire new techniques of patrol and surveillance to protect the country's maritime
resources; sea-search and rescue operations to assist ships in distress; and disaster-relief
operations to aid the civilian victims of natural calamities, such as earthquakes, typhoons and tidal
waves.

xxxx

Joint activities under the VFA will include combat maneuvers; training in aircraft maintenance and
equipment repair; civic-action projects; and consultations and meetings of the Philippine-U.S. Mutual
Defense Board. It is at the level of the Mutual Defense Board-which is headed jointly by the Chief
of Staff of the AFP and the Commander in Chief of the U.S. Pacific Command-that the VFA
exercises are planned. Final approval of any activity involving U.S. forces is,
however, invariably given by the Philippine Government.

xxxx

Siazon clarified that it is not the VFA by itself that determines what activities will be
conductedbetween the armed forces of the U.S. and the Philippines. The VFA regulates and
provides the legal framework for the presence, conduct and legal status of U.S.
personnel while they are in the country for visits, joint exercises and other related activities.
(Emphases Supplied)

What can be gleaned from the provisions of the VFA, the joint report of the Senate
committees on foreign relations and on national defense and security, and the ruling of this
Court in Lim is that the "activities" referred to in the treaty are meant to be specified and
identified infurther agreements. EDCA is one such agreement.

EDCA seeks to be an instrument that enumerates the Philippine-approved activities of U.S.

personnel referred to in the VFA. EDCA allows U.S. military and civilian personnel to perform
"activities approved by the Philippines, as those terms are defined in the VFA"278 and clarifies that
these activities include those conducted within the Agreed Locations:

1. Security cooperation exercises; joint and combined training activities; humanitarian assistance
and disaster relief activities; and such other activities as may be agreed upon by the Parties279

2. Training; transit; support and related activities; refueling of aircraft; bunkering of vessels;
temporary maintenance of vehicles, vessels, and aircraft; temporary accommodation of personnel;
communications; prepositioning of equipment, supplies, and materiel; deployment of forces and
materiel; and such other activities as the Parties may agree280

3. Exercise of operational control over the Agreed Locations for construction activities and other
types of activity, including alterations and improvements thereof281

4. Exercise of all rights and authorities within the Agreed Locations that are necessary for their
operational control or defense, including the adoption of apfropriate measures to protect U.S. forces
and contractors282

5. Use of water, electricity, and other public utilities283

6. Operation of their own telecommunication systems, including the utilization of such means and
services as are required to ensure the full ability to operate telecommunication systems, as well as
the use of the necessary radio spectrum allocated for this purpose284

According to Article I of EDCA, one of the purposes of these activities is to maintain and develop,
jointly and by mutual aid, the individual and collective capacities of both countries to resist an armed
attack. It further states that the activities are in furtherance of the MDT and within the context of the
VFA.

We note that these planned activities are very similar to those under the Terms of
Reference285 mentioned in Lim. Both EDCA and the Terms of Reference authorize the U.S. to
perform the following: (a) participate in training exercises; (b) retain command over their forces; (c)
establish temporary structures in the country; (d) share in the use of their respective resources,
equipment and other assets; and (e) exercise their right to self-defense. We quote the relevant
portion of the Terms and Conditions as follows:286

I. POLICY LEVEL

xxxx

No permanent US basing and support facilities shall be established. Temporary structures such as
those for troop billeting, classroom instruction and messing may be set up for use by RP and
US Forces during the Exercise.

The Exercise shall be implemented jointly by RP and US Exercise Co-Directors under the authority
of the Chief of Staff, AFP. In no instance will US Forces operate independently during field training
exercises (FTX). AFP and US Unit Commanders will retain command over their respective
forces under the overall authority of the Exercise Co-Directors. RP and US participants shall
comply with operational instructions of the AFP during the FTX.

The exercise shall be conducted and completed within a period of not more than six months, with the
projected participation of 660 US personnel and 3,800 RP Forces. The Chief of Staff, AFP shall
direct the Exercise Co-Directors to wind up and terminate the Exercise and other activities within the
six month Exercise period.

The Exercise is a mutual counter-terrorism advising, assisting and training Exercise relative to
Philippine efforts against the ASG, and will be conducted on the Island of Basilan. Further advising,
assisting and training exercises shall be conducted in Malagutay and the Zamboanga area. Related
activities in Cebu will be for support of the Exercise.

xx xx.

US exercise participants shall not engage in combat, without prejudice to their right of self-
defense.

These terms of Reference are for purposes of this Exercise only and do not create additional legal
obligations between the US Government and the Republic of the Philippines.

II. EXERCISE LEVEL

1. TRAINING
 a. The Exercise shall involve the conduct of mutual military assisting, advising
and trainingof RP and US Forces with the primary objective of enhancing the
operational capabilities of both forces to combat terrorism.

b. At no time shall US Forces operate independently within RP territory.

c. Flight plans of all aircraft involved in the exercise will comply with the local air
traffic regulations.

2. ADMINISTRATION & LOGISTICS

xxxx

a. RP and US participating forces may share, in accordance with their respective laws and
regulations, in the use of their resources, equipment and other assets. They will use their
respective logistics channels. x x x. (Emphases Supplied)

After a thorough examination of the content, purpose, and framework of the MDT and the VFA, we
find that EDCA has remained within the parameters set in these two treaties. Just like the Terms of
Reference mentioned in Lim, mere adjustments in detail to implement the MDT and the VFA can be
in the form of executive agreements.

Petitioners assert287 that the duration of the activities mentioned in EDCA is no longer consistent with
the temporary nature of the visits as contemplated in the VFA. They point out that Article XII(4) of
EDCA has an initial term of 10 years, a term automatically renewed unless the Philippines or the
U.S. terminates the agreement. According to petitioners, such length of time already has a badge of
permanency.

In connection with this, Justice Teresita J. Leonardo-De Castro likewise argues in her Concurring
and Dissenting Opinion that the VFA contemplated mere temporary visits from U.S. forces, whereas
EDCA allows an unlimited period for U.S. forces to stay in the Philippines.288

However, the provisions of EDCA directly contradict this argument by limiting itself to 10 years of
effectivity. Although this term is automatically renewed, the process for terminating the agreement is
unilateral and the right to do so automatically accrues at the end of the 10 year period. Clearly, this
method does not create a permanent obligation.

Drawing on the reasoning in Lim, we also believe that it could not have been by chance that the VFA
does not include a maximum time limit with respect to the presence of U.S. personnel in the country.
We construe this lack of specificity as a deliberate effort on the part of the Philippine and the U.S.
governments to leave out this aspect and reserve it for the "adjustment in detail" stage of the
implementation of the treaty. We interpret the subsequent, unconditional concurrence of the Senate
in the entire text of the VFA as an implicit grant to the President of a margin of appreciation in
determining the duration of the "temporary" presence of U.S. personnel in the country.

Justice Brion's dissent argues that the presence of U.S. forces under EDCA is "more permanent" in
nature.289However, this argument has not taken root by virtue of a simple glance at its provisions on
the effectivity period. EDCA does not grant permanent bases, but rather temporary rotational access
to facilities for efficiency. As Professor Aileen S.P. Baviera notes:
The new EDCA would grant American troops, ships and planes rotational access to facilities of the
Armed Forces of the Philippines – but not permanent bases which are prohibited under the
Philippine Constitution - with the result of reducing response time should an external threat from a
common adversary crystallize.290

EDCA is far from being permanent in nature compared to the practice of states as shown in other
defense cooperation agreements. For example, Article XIV(l) of the U.S.-Romania defense
agreement provides the following:

This Agreement is concluded for an indefinite period and shall enter into force in accordance with
the internal laws of each Party x x x. (emphasis supplied)

Likewise, Article 36(2) of the US-Poland Status of Forces Agreement reads:

This Agreement has been concluded for an indefinite period of time. It may be terminated by
written notification by either Party and in that event it terminates 2 years after the receipt of the
notification. (emphasis supplied)

Section VIII of US.-Denmark Mutual Support Agreement similarly provides:

8.1 This Agreement, which consists of a Preamble, SECTIONs I-VIII, and Annexes A and B, shall
become effective on the date of the last signature affixed below and shall remain in force until
terminated by the Parties, provided that it may be terminated by either Party upon 180 days written
notice of its intention to do so to the other Party. (emphasis supplied)

On the other hand, Article XXI(3) of the US.-Australia Force Posture Agreement provides a longer
initial term:

3. This Agreement shall have an initial term of 25 years and thereafter shall continue in force,
but may be terminated by either Party at any time upon one year's written notice to the other Party
through diplomatic channels. (emphasis supplied)

The phrasing in EDCA is similar to that in the U.S.-Australia treaty but with a term less than half of
that is provided in the latter agreement. This means that EDCA merely follows the practice of other
states in not specifying a non-extendible maximum term. This practice, however, does not
automatically grant a badge of permanency to its terms. Article XII(4) of EDCA provides very clearly,
in fact, that its effectivity is for an initial term of 10 years, which is far shorter than the terms of
effectivity between the U.S. and other states. It is simply illogical to conclude that the initial,
extendible term of 10 years somehow gives EDCA provisions a permanent character.

The reasoning behind this interpretation is rooted in the constitutional role of the President who, as
Commander-in-Chief of our armed forces, is the principal strategist of the nation and, as such, duty-
bound to defend our national sovereignty and territorial integrity;291 who, as chief architect of our
foreign relations, is the head policymaker tasked to assess, ensure, and protect our national security
and interests;292 who holds the most comprehensive and most confidential information about foreign
countries293 that may affect how we conduct our external affairs; and who has unrestricted access to
highly classified military intelligence data294 that may threaten the life of the nation. Thus, if after a
geopolitical prognosis of situations affecting the country, a belief is engendered that a much longer
period of military training is needed, the President must be given ample discretion to adopt
necessary measures including the flexibility to set an extended timetable.
Due to the sensitivity and often strict confidentiality of these concerns, we acknowledge that the
President may not always be able to candidly and openly discuss the complete situation being faced
by the nation. The Chief Executive's hands must not be unduly tied, especially if the situation calls
for crafting programs and setting timelines for approved activities. These activities may be necessary
for maintaining and developing our capacity to resist an armed attack, ensuring our national
sovereignty and territorial integrity, and securing our national interests. If the Senate decides that the
President is in the best position to define in operational terms the meaning of temporary in relation to
the visits, considered individually or in their totality, the Court must respect that policy decision. If the
Senate feels that there is no need to set a time limit to these visits, neither should we.

Evidently, the fact that the VFA does not provide specificity in regard to the extent of the "temporary"
nature of the visits of U.S. personnel does not suggest that the duration to which the President may
agree is unlimited. Instead, the boundaries of the meaning of the term temporary in Article I of the
treaty must be measured depending on the purpose of each visit or activity.295 That purpose must be
analyzed on a case-by-case basis depending on the factual circumstances surrounding the
conclusion of the implementing agreement. While the validity of the President's actions will be
judged under less stringent standards, the power of this Court to determine whether there was grave
abuse of discretion remains unimpaired.

d. Authorized activities performed by US. contractors within Philippine territory - who were
legitimately permitted to enter the country independent of EDCA - are subject to relevant Philippine
statutes and regulations and must be consistent with the MDT and the VFA

Petitioners also raise296 concerns about the U.S. government's purported practice of hiring private
security contractors in other countries. They claim that these contractors - one of which has already
been operating in Mindanao since 2004 - have been implicated in incidents or scandals in other
parts of the globe involving rendition, torture and other human rights violations. They also assert that
these contractors employ paramilitary forces in other countries where they are operating.

Under Articles III and IV of EDCA, U.S. contractors are authorized to perform only the following
activities:

1. Training; transit; support and related activities; refueling of aircraft; bunkering of vessels;
temporary maintenance of vehicles, vessels, and aircraft; temporary accommodation of
personnel; communications; prepositioning of equipment, supplies, and materiel; deployment
of forces and materiel; and such other activities as the Parties may agree297

2. Prepositioning and storage of defense equipment, supplies, and materiel, including

delivery, management, inspection, use, maintenance, and removal of such equipment,
supplies and materiel298

3. Carrying out of matters in accordance with, and to the extent permissible under, U.S. laws,
regulations, and policies299

EDCA requires that all activities within Philippine territory be in accordance with Philippine law. This
means that certain privileges denied to aliens are likewise denied to foreign military contractors.
Relevantly, providing security300and carrying, owning, and possessing firearms301 are illegal for foreign
civilians.

The laws in place already address issues regarding the regulation of contractors. In the 2015
Foreign Investment Negative list,302 the Executive Department has already identified corporations that
have equity restrictions in Philippine jurisdiction. Of note is No. 5 on the list - private security
agencies that cannot have any foreign equity by virtue of Section 4 of Republic Act No. 5487;303 and
No. 15, which regulates contracts for the construction of defense-related structures based on
Commonwealth Act No. 541.

Hence, any other entity brought into the Philippines by virtue of EDCA must subscribe to corporate
and civil requirements imposed by the law, depending on the entity's corporate structure and the
nature of its business.

That Philippine laws extraneous to EDCA shall govern the regulation of the activities of U.S.
contractors has been clear even to some of the present members of the Senate.

For instance, in 2012, a U.S. Navy contractor, the Glenn Marine, was accused of spilling fuel in the
waters off Manila Bay.304 The Senate Committee on Foreign Relations and the Senate Committee on
Environment and Natural Resources chairperson claimed environmental and procedural violations
by the contractor.305 The U.S. Navy investigated the contractor and promised stricter guidelines to be
imposed upon its contractors.306 The statement attributed to Commander Ron Steiner of the public
affairs office of the U.S. Navy's 7th Fleet - that U.S. Navy contractors are bound by Philippine laws -
is of particular relevance. The statement acknowledges not just the presence of the contractors, but
also the U.S. position that these contractors are bound by the local laws of their host state. This
stance was echoed by other U.S. Navy representatives.307

This incident simply shows that the Senate was well aware of the presence of U.S. contractors for
the purpose of fulfilling the terms of the VFA. That they are bound by Philippine law is clear to all,
even to the U.S.

As applied to EDCA, even when U.S. contractors are granted access to the Agreed Locations, all
their activities must be consistent with Philippine laws and regulations and pursuant to the MDT and
the VFA.

While we recognize the concerns of petitioners, they do not give the Court enough justification to
strike down EDCA. In Lim v. Executive Secretary, we have already explained that we cannot take
judicial notice of claims aired in news reports, "not because of any issue as to their truth, accuracy,
or impartiality, but for the simple reason that facts must be established in accordance with the rules
of evidence."308 What is more, we cannot move one step ahead and speculate that the alleged illegal
activities of these contractors in other countries would take place in the Philippines with certainty. As
can be seen from the above discussion, making sure that U.S. contractors comply with Philippine
laws is a function of law enforcement. EDCA does not stand in the way of law enforcement.

Nevertheless, we emphasize that U.S. contractors are explicitly excluded from the coverage of the
VFA. As visiting aliens, their entry, presence, and activities are subject to all laws and treaties
applicable within the Philippine territory. They may be refused entry or expelled from the country if
they engage in illegal or undesirable activities. There is nothing that prevents them from being
detained in the country or being subject to the jurisdiction of our courts. Our penal laws,309 labor
laws,310 and immigrations laws311 apply to them and therefore limit their activities here. Until and
unless there is another law or treaty that specifically deals with their entry and activities, their
presence in the country is subject to unqualified Philippine jurisdiction.

EDCA does not allow the presence of U.S.-owned or -controlled military facilities and bases
in the Philippines

Petitioners Saguisag et al. claim that EDCA permits the establishment of U.S. military bases through
the "euphemistically" termed "Agreed Locations. "312 Alluding to the definition of this term in Article
II(4) of EDCA, they point out that these locations are actually military bases, as the definition refers
to facilities and areas to which U.S. military forces have access for a variety of purposes. Petitioners
claim that there are several badges of exclusivity in the use of the Agreed Locations by U.S.
forces. First, Article V(2) of EDCA alludes to a "return" of these areas once they are no longer
needed by U.S. forces, indicating that there would be some transfer of use. Second, Article IV(4)
ofEDCA talks about American forces' unimpeded access to the Agreed Locations for all matters
relating to the prepositioning and storage of U.S. military equipment, supplies, and materiel. Third,
Article VII of EDCA authorizes U.S. forces to use public utilities and to operate their own
telecommunications system.

a. Preliminary point on badges of exclusivity

As a preliminary observation, petitioners have cherry-picked provisions of EDCA by presenting so-

called "badges of exclusivity," despite the presence of contrary provisions within the text of the
agreement itself.

First, they clarify the word "return" in Article V(2) of EDCA. However, the use of the word "return" is
within the context of a lengthy provision. The provision as a whole reads as follows:

The United States shall return to the Philippines any Agreed Locations, or any portion thereof,
including non-relocatable structures and assemblies constructed, modified, or improved by the
United States, once no longer required by United States forces for activities under this Agreement.
The Parties or the Designated Authorities shall consult regarding the terms of return of any Agreed
Locations, including possible compensation for improvements or construction.

The context of use is "required by United States forces for activities under this Agreement."
Therefore, the return of an Agreed Location would be within the parameters of an activity that the
Mutual Defense Board (MDB) and the Security Engagement Board (SEB) would authorize. Thus,
possession by the U.S. prior to its return of the Agreed Location would be based on the authority
given to it by a joint body co-chaired by the "AFP Chief of Staff and Commander, U.S. PACOM with
representatives from the Philippines' Department of National Defense and Department of Foreign
Affairs sitting as members."313 The terms shall be negotiated by both the Philippines and the U.S., or
through their Designated Authorities. This provision, seen as a whole, contradicts petitioners'
interpretation of the return as a "badge of exclusivity." In fact, it shows the cooperation and
partnership aspect of EDCA in full bloom.

Second, the term "unimpeded access" must likewise be viewed from a contextual perspective.
Article IV(4) states that U.S. forces and U.S. contractors shall have "unimpeded access to Agreed
Locations for all matters relating to the prepositioning and storage of defense equipment, supplies,
and materiel, including delivery, management, inspection, use, maintenance, and removal of such
equipment, supplies and materiel."

At the beginning of Article IV, EDCA states that the Philippines gives the U.S. the authority to bring
in these equipment, supplies, and materiel through the MDB and SEB security mechanism. These
items are owned by the U.S.,314 are exclusively for the use of the U.S.315 and, after going through the
joint consent mechanisms of the MDB and the SEB, are within the control of the U.S.316 More
importantly, before these items are considered prepositioned, they must have gone through the
process of prior authorization by the MDB and the SEB and given proper notification to the AFP.317

Therefore, this "unimpeded access" to the Agreed Locations is a necessary adjunct to the
ownership, use, and control of the U.S. over its own equipment, supplies, and materiel and must
have first been allowed by the joint mechanisms in play between the two states since the time of the
MDT and the VFA. It is not the use of the Agreed Locations that is exclusive per se; it is mere
access to items in order to exercise the rights of ownership granted by virtue of the Philippine Civil
Code.318

As for the view that EDCA authorizes U.S. forces to use public utilities and to operate their own
telecommunications system, it will be met and answered in part D, infra.

Petitioners also point out319 that EDCA is strongly reminiscent of and in fact bears a one-to-one
correspondence with the provisions of the 1947 MBA. They assert that both agreements (a) allow
similar activities within the area; (b) provide for the same "species of ownership" over facilities; and
(c) grant operational control over the entire area. Finally, they argue320 that EDCA is in fact an
implementation of the new defense policy of the U.S. According to them, this policy was not what
was originally intended either by the MDT or by the VFA.

On these points, the Court is not persuaded.

The similar activities cited by petitioners321 simply show that under the MBA, the U.S. had the right to
construct, operate, maintain, utilize, occupy, garrison, and control the bases. The so-called parallel
provisions of EDCA allow only operational control over the Agreed Locations specifically for
construction activities. They do not allow the overarching power to operate, maintain, utilize, occupy,
garrison, and control a base with full discretion. EDCA in fact limits the rights of the U.S. in respect of
every activity, including construction, by giving the MDB and the SEB the power to determine the
details of all activities such as, but not limited to, operation, maintenance, utility, occupancy,
garrisoning, and control.322

The "species of ownership" on the other hand, is distinguished by the nature of the property. For
immovable property constructed or developed by the U.S., EDCA expresses that ownership will
automatically be vested to the Philippines.323 On the other hand, for movable properties brought into
the Philippines by the U.S., EDCA provides that ownership is retained by the latter. In contrast, the
MBA dictates that the U.S. retains ownership over immovable and movable properties.

To our mind, both EDCA and the MBA simply incorporate what is already the law of the land in the
Philippines. The Civil Code's provisions on ownership, as applied, grant the owner of a movable
property full rights over that property, even if located in another person's property.324

The parallelism, however, ends when the situation involves facilities that can be considered
immovable. Under the MBA, the U.S. retains ownership if it paid for the facility.325 Under EDCA, an
immovable is owned by the Philippines, even if built completely on the back of U.S. funding.326 This is
consistent with the constitutional prohibition on foreign land ownership.327

Despite the apparent similarity, the ownership of property is but a part of a larger whole that must be
considered before the constitutional restriction is violated. Thus, petitioners' points on operational
control will be given more attention in the discussion below. The arguments on policy are, however,
outside the scope of judicial review and will not be discussed

Moreover, a direct comparison of the MBA and EDCA will result in several important distinctions that
would allay suspicion that EDCA is but a disguised version of the MBA.

b. There are substantial matters that the US. cannot do under EDCA, but which it was authorized to
do under the 1947 MBA
The Philippine experience with U.S. military bases under the 1947 MBA is simply not possible under
EDCA for a number of important reasons.

First, in the 1947 MBA, the U.S. retained all rights of jurisdiction in and over Philippine territory
occupied by American bases. In contrast, the U.S. under EDCA does not enjoy any such right over
any part of the Philippines in which its forces or equipment may be found. Below is a comparative
table between the old treaty and EDCA:

1947 MBA/ 1946 Treaty of General EDCA

Relations
1947 MBA, Art. I(1): EDCA, preamble:

The Government of the Republic of Affirming that the Parties share an

the Philippines (hereinafter referred to as the
Philippines) grants to the Government of
the United States of America (hereinafter
referred to as the United States) the right to
retain the use of the bases in the
Philippines listed in Annex A attached hereto.
1947 MBA, Art. XVII(2):
All buildings and structures which
are erected by the United States in the
bases shall be the property of the United
States and may be removed by it before the
expiration of this Agreement or the earlier
relinquishment of the base on which the
structures are situated. There shall be no
obligation on the part of the Philippines or of
the United States to rebuild or repair any
destruction or damage inflicted from any cause
whatsoever on any of the said buildings or
structures owned or used by the United States
in the bases. x x x x.
1946 Treaty of Gen. Relations, Art. I:
The United States of America agrees to
withdraw and surrender, and does hereby
withdraw and surrender, all rights of
possession, supervision, jurisdiction,
control or sovereignty existing and exercised
by the United States of America in and over
the territory and the people of the
Philippine Islands, except the use of such
bases, necessary appurtenances to such
bases, and the rights incident thereto, as
the United States of America, by agreement
with the Republic of the Philippines may deem
necessary to retain for the mutual protection of
understanding for the United States not to
establish a permanent military presence or
base in the territory of the Philippines;
xxxx
Recognizing that all United States access to
and use of facilities and areas will be at the
invitation of the Philippines and with full
respect for the Philippine Constitution and
Philippine laws;
xxxx
EDCA, Art. II(4):
"Agreed Locations" means facilities and
areas that are provided by the Government
of the Philippines through the AFP and that
United States forces, United States
contractors, and others as mutually agreed,
shall have the right to access and use
pursuant to this Agreement. Such Agreed
Locations may be listed in an annex to be
appended to this Agreement, and may be
further described in implementing
arrangements.
EDCA, Art. V:
1. The Philippines shall retain ownership of
and title to Agreed Locations.
xxxx
4. All buildings, non-relocatable structures,
and assemblies affixed to the land in the
 the Republic of the Philippines and of the
United States of America. x x x.
Agreed Locations, including ones altered or
improved by United States forces, remain the
property of the Philippines.Permanent
buildings constructed by United States forces
become the property of the Philippines, once
constructed, but shall be used by United
States forces until no longer required by
United States forces.

Second, in the bases agreement, the U.S. and the Philippines were visibly not on equal footing
when it came to deciding whether to expand or to increase the number of bases, as the Philippines
may be compelled to negotiate with the U.S. the moment the latter requested an expansion of the
existing bases or to acquire additional bases. In EDCA, U.S. access is purely at the invitation of the
Philippines.

1947 MBA/ 1946 Treaty of General EDCA

Relations
1947 MBA, Art.I(3): EDCA, preamble:

The Philippines agree to enter into
negotiations with the United States at the
latter's request, to permit the United States to
expand such bases, to exchange such bases
for other bases, to acquire additional bases,
or relinquish rights to bases, as any of such
exigencies may be required by military
necessity.
1946 Treaty of Gen. Relations, Art. I:
The United States of America agrees to
withdraw and surrender, and does hereby
withdraw and surrender, all rights of
possession, supervision, jurisdiction,
control or sovereignty existing and exercised
by the United States of America in and over
the territory and the people of the
Philippine Islands, except the use of such
bases, necessary appurtenances to such
bases, and the rights incident thereto, as the
United States of America, by agreement
with the Republic of the Philippines may
deem necessary to retain for the mutual
protection of the Republic of the Philippines
and of the United States of America. x x x.
Recognizing that all United States access to
and use of facilities and areas will be at the
invitation of the Philippines and with full
respect for the Philippine Constitution and
Philippine laws;
xxxx
EDCA. Art. II(4):
"Agreed Locations" means facilities and
areas that are provided by the Government
of the Philippines through the AFP and that
United States forces, United States
contractors, and others as mutually agreed,
shall have the right to access and use
pursuant to this Agreement. Such Agreed
Locations may be listed in an annex to be
appended to this Agreement, and may be
further described in implementing
arrangements.

Third, in EDCA, the Philippines is- guaranteed access over the entire area of the Agreed Locations.
On the other hand, given that the U.S. had complete control over its military bases under the 1947
MBA, the treaty did not provide for any express recognition of the right of access of Philippine
authorities. Without that provision and in light of the retention of U.S. sovereignty over the old military
bases, the U.S. could effectively prevent Philippine authorities from entering those bases.

1947 MBA EDCA

No equivalent provision. EDCA, Art. III(5):

The Philippine Designated Authority and its

authorized representative shall have access
to the entire area of the Agreed Locations.
Such access shall be provided promptly
consistent with operational safety and security
requirements in accordance with agreed
procedures developed by the Parties.

Fourth, in the bases agreement, the U.S. retained the right, power, and authority over the
establishment, use, operation, defense, and control of military bases, including the limits of territorial
waters and air space adjacent to or in the vicinity of those bases. The only standard used in
determining the extent of its control was military necessity. On the other hand, there is no such grant
of power or authority under EDCA. It merely allows the U.S. to exercise operational control over the
construction of Philippine-owned structures and facilities:

1947 MBA EDCA

1947 MBA, Art.I(2): EDCA, Art. III(4):

The Philippines agrees to permit the United
States, upon notice to the Philippines, to use
such of those bases listed in Annex B as the
United States determines to be required by
military necessity.
1947 MBA, Art. III(1):
It is mutually agreed that the United
Statesshall have the rights, power and
authority within the bases which
are necessary for the establishment, use,
operation and defense thereof or
appropriate for the control thereof and all
the rights, power and authority within the
limits of territorial waters and air space
adjacent to, or in the vicinity of, the bases
which are necessary to provide access to
them, or appropriate for their control.
The Philippines hereby grants to the United
States, through bilateral security
mechanisms, such as the MDB and
SEB, operational control of Agreed
Locations for construction
activities and authority to undertake such
activities on, and make alterations and
improvements to, Agreed Locations. United
States forces shall consult on issues
regarding such construction, alterations,
and improvements based on the Parties'
shared intent that the technical requirements
and construction standards of any such
projects undertaken by or on behalf of United
States forces should be consistent with the
requirements and standards of both Parties.

Fifth, the U.S. under the bases agreement was given the authority to use Philippine territory for
additional staging areas, bombing and gunnery ranges. No such right is given under EDCA, as seen
below:
 1947 MBA EDCA
1947 MBA, Art. VI: EDCA, Art. III(1):

The United States shall, subject to previous With consideration of the views of
agreement with the Philippines, have the right the Parties,
to use land and coastal sea areas of the Philippines hereby authorizes and
appropriate size and location for periodic agrees that United States forces, United
maneuvers, for additional staging areas, States contractors, and vehicles, vessels, and
bombing and gunnery ranges, and for such aircraft operated by or for United States forces
intermediate airfields as may be required for may conduct the following activities with
safe and efficient air operations. Operations in
respect to Agreed Locations: training; transit;
such areas shall be carried on with due regard support and related activities; refueling of
and safeguards for the public safety. aircraft; bunkering of vessels; temporary
maintenance of vehicles, vessels, and aircraft;
1947 MBA, Art.I(2): temporary accommodation of personnel;
communications; prepositioning of equipment,
The Philippines agrees to permit the United supplies, and materiel; deploying forces and
States, upon notice to the Philippines, to use materiel; and such other activities as the
such of those bases listed in Annex B as the Parties may agree.
United States determines to be required by
military necessity.

Sixth, under the MBA, the U.S. was given the right, power, and authority to control and prohibit the
movement and operation of all types of vehicles within the vicinity of the bases. The U.S. does not
have any right, power, or authority to do so under EDCA.

1947 MBA EDCA

1947 MBA, Art. 111(2)(c) No equivalent provision.

Such rights, power and authority shall

include, inter alia, the right, power and
authority: x x x x to control (including the
right to prohibit) in so far as may be required
for the efficient operation and safety of the
bases, and within the limits of military
necessity, anchorages, moorings, landings,
takeoffs, movements and operation of
ships and water-borne craft, aircraft and
other vehicles on water, in the air or on
land comprising

Seventh, under EDCA, the U.S. is merely given temporary access to land and facilities (including
roads, ports, and airfields). On the other hand, the old treaty gave the U.S. the right to improve and
deepen the harbors, channels, entrances, and anchorages; and to construct or maintain necessary
roads and bridges that would afford it access to its military bases.

1947 MBA EDCA

 1947 MBA, Art. III(2)(b): EDCA, Art. III(2):

Such rights, power and authority shall
include, inter alia, the right, power and
authority: x x x x to improve and deepen
the harbors, channels, entrances and
anchorages, and to construct or maintain
necessary roadsand bridges affording access
to the bases.
When requested, the Designated Authority of
the Philippines shall assist in facilitating
transit or temporary access by United States
forces to public land and facilities (including
roads, ports, and airfields), including those
owned or controlled by local governments, and
to other land and facilities (including roads,
ports, and airfields).

Eighth, in the 1947 MBA, the U.S. was granted the automatic right to use any and all public utilities,
services and facilities, airfields, ports, harbors, roads, highways, railroads, bridges, viaducts, canals,
lakes, rivers, and streams in the Philippines in the same manner that Philippine military forces
enjoyed that right. No such arrangement appears in EDCA. In fact, it merely extends to U.S. forces
temporary access to public land and facilities when requested:

1947 MBA EDCA

1947 MBA, Art. VII: EDCA, Art. III(2):

It is mutually agreed that the United States
may employ and use for United States
military forces any and all public utilities,
other services and facilities, airfields, ports,
harbors, roads, highways, railroads, bridges,
viaducts, canals, lakes, rivers and streams in
the Philippines under conditions no less
favorable than those that may
be applicablefrom time to time to the military
forces of the Philippines.
When requested, the Designated Authority of
the Philippines shall assist in facilitating
transit or temporary access by United States
forces to public land and facilities (including
roads, ports, and airfields), including those
owned or controlled by local governments, and
to other land and facilities (including roads,
ports, and airfields).

Ninth, under EDCA, the U.S. no longer has the right, power, and authority to construct, install,
maintain, and employ any type of facility, weapon, substance, device, vessel or vehicle, or system
unlike in the old treaty. EDCA merely grants the U.S., through bilateral security mechanisms, the
authority to undertake construction, alteration, or improvements on the Philippine-owned Agreed
Locations.

1947 MBA EDCA

1947 MBA, Art. III(2)(e): EDCA, Art. III(4):

Such rights, power and authority shall
include, inter alia, the right, power and
authority: x x x x to construct, install,
maintain, and employ on any base any
type of facilities, weapons, substance,
device, vessel or vehicle on or under the
ground, in the air or on or under the water that
may be requisite or appropriate, including
meteorological systems, aerial and water
The Philippines hereby grants to the United
States, through bilateral security
mechanisms, such as the MDB and SEB,
operational control of Agreed Locations for
construction activities and authority to
undertake such activities on, and make
alterations and improvements to, Agreed
Locations. United States forces shall consult
on issues regarding such construction,
 navigation lights, radio and radar apparatus
and electronic devices, of any desired power,
type of emission and frequency.
alterations, and improvements based on the
Parties' shared intent that the technical
requirements and construction standards of
any such projects undertaken by or on behalf
of United States forces should be consistent
with the requirements and standards of both
Parties.

Tenth, EDCA does not allow the U.S. to acquire, by condemnation or expropriation proceedings,
real property belonging to any private person. The old military bases agreement gave this right to the
U.S. as seen below:

1947 MBA EDCA

1947 MBA, Art. XXII(l): No equivalent provision.

Whenever it is necessary to acquire by

condemnation or expropriation
proceedings real property belonging to any
private persons, associations or corporations
located in bases named in Annex A and Annex
B in order to carry out the purposes of this
Agreement, the Philippines will institute and
prosecute such condemnation or expropriation
proceedings in accordance with the laws of the
Philippines. The United States agrees to
reimburse the Philippines for all the
reasonable expenses, damages and costs
therebv incurred, including the value of the
property as determined by the Court. In
addition, subject to the mutual agreement of
the two Governments, the United States will
reimburse the Philippines for the reasonable
costs of transportation and removal of any
occupants displaced or ejected by reason of
the condemnation or expropriation.

Eleventh, EDCA does not allow the U.S. to unilaterally bring into the country non-Philippine
nationals who are under its employ, together with their families, in connection with the construction,
maintenance, or operation of the bases. EDCA strictly adheres to the limits under the VFA.

1947 MBA EDCA

1947 MBA, Art. XI(l): EDCA, Art. II:

It is mutually agreed that the United States
shall have the right to bring into the
Philippines members of the United States
military forces and the United States
nationals employed by or under a contract
1. "United States personnel" means United
States military and civilian
personneltemporarily in the territory of the
Philippines in connection with activities
 with the United States together with their
families, and technical personnel of other
nationalities (not being persons excluded by
the laws of the Philippines) in connection with
the construction, maintenance, or operation of
the bases. The United States shall make
suitable arrangements so that such persons
may be readily identified and their status
established when necessary by the Philippine
authorities. Such persons, other than members
of the United States armed forces in uniform,
shall present their travel documents to the
appropriate Philippine authorities for visas, it
being understood that no objection will be
made to their travel to the Philippines as
non-immigrants.
approved by the Philippines, as those terms
are defined in the VFA.
x xx x
3. "United States contractors" means
companies and firms, and their employees,
under contract or subcontract to or on behalf of
the United States Department of Defense.
United States contractors are not included as
part of the definition of United States
personnel in this Agreement, including
within the context of the VFA.

Twelfth, EDCA does not allow the U.S. to exercise jurisdiction over any offense committed by any
person within the Agreed Locations, unlike in the former military bases:

1947 MBA EDCA

1947 MBA, Art. XIII(l)(a): No equivalent provision.

The Philippines consents that the United

States shall have the right to exercise

jurisdiction over the following offenses:
(a) Any offense committed by any
person within any base except where the
offender and offended parties are both
Philippine citizens (not members of the armed
forces of the United States on active duty) or
the offense is against the security of the
Philippines.

Thirteenth, EDCA does not allow the U.S. to operate military post exchange (PX) facilities, which is
free of customs duties and taxes, unlike what the expired MBA expressly allowed. Parenthetically,
the PX store has become the cultural icon of U.S. military presence in the country.

1947 MBA EDCA

1947 MBA, Art. XVIII(l): No equivalent provision.

It is mutually agreed that the United States

shall have the right to establish on bases,

free of all licenses; fees; sales, excise or
other taxes, or imposts; Government
agencies, including concessions, such
as sales commissaries and post
 exchanges; messes and social clubs, for the
exclusive use of the United States military
forces and authorized civilian personnel
and their families. The merchandise or
services sold or dispensed by such agencies
shall be free of all taxes, duties and
inspection by the Philippine
authorities. Administrative measures shall be
taken by the appropriate authorities of the
United States to prevent the resale of goods
which are sold under the provisions of this
Article to persons not entitled to buy goods at
such agencies and, generally, to prevent
abuse of the privileges granted under this
Article. There shall be cooperation between
such authorities and the Philippines to this
end.

In sum, EDCA is a far cry from a basing agreement as was understood by the people at the time that
the 1987 Constitution was adopted.

Nevertheless, a comprehensive review of what the Constitution means by "foreign military bases"
and "facilities" is required before EDCA can be deemed to have passed judicial scrutiny.

c. The meaning of military facilities and bases

An appreciation of what a military base is, as understood by the Filipino people in 1987, would be
vital in determining whether EDCA breached the constitutional restriction.

Prior to the drafting of the 1987 Constitution, the last definition of "military base" was provided under
Presidential Decree No. (PD) 1227.328 Unlawful entry into a military base is punishable under the
decree as supported by Article 281 of the Revised Penal Code, which itself prohibits the act of
trespass.

Section 2 of the law defines the term in this manner: "'[M]ilitary base' as used in this decree means
any military, air, naval, or coast guard reservation, base, fort, camp, arsenal, yard, station, or
installation in the Philippines."

Commissioner Tadeo, in presenting his objections to U.S. presence in the Philippines before the
1986 Constitutional Commission, listed the areas that he considered as military bases:

1,000 hectares Camp O'Donnel

20,000 hectares Crow Valley Weapon's Range

55,000 hectares Clark Air Base

150 hectares Wallace Air Station

400 hectares John Hay Air Station

 15,000 hectares Subic Naval Base

1,000 hectares San Miguel Naval Communication

750 hectares Radio Transmitter in Capas, Tarlac

900 hectares Radio Bigot Annex at Bamban, Tarlac329

The Bases Conversion and Development Act of 1992 described its coverage in its Declaration of
Policies:

Sec. 2. Declaration of Policies. - It is hereby declared the policy of the Government to accelerate the
sound and balanced conversion into alternative productive uses of the Clark and Subic military
reservations and their extensions (John Hay Station, Wallace Air Station, O'Donnell Transmitter
Station, San Miguel Naval Communications Station and Capas Relay Station), to raise funds by the
sale of portions of Metro Manila military camps, and to apply said funds as provided herein for the
development and conversion to productive civilian use of the lands covered under the 194 7 Military
Bases Agreement between the Philippines and the United States of America, as amended.330

The result of the debates and subsequent voting is Section 25, Article XVIII of the Constitution,
which specifically restricts, among others, foreign military facilities or bases. At the time of its crafting
of the Constitution, the 1986 Constitutional Commission had a clear idea of what exactly it was
restricting. While the term "facilities and bases" was left undefined, its point of reference was clearly
those areas covered by the 1947 MBA as amended.

Notably, nearly 30 years have passed since then, and the ever-evolving world of military technology
and geopolitics has surpassed the understanding of the Philippine people in 1986. The last direct
military action of the U.S. in the region was the use of Subic base as the staging ground for Desert
Shield and Desert Storm during the Gulf War.331In 1991, the Philippine Senate rejected the successor
treaty of the 1947 MBA that would have allowed the continuation of U.S. bases in the Philippines.

Henceforth, any proposed entry of U.S. forces into the Philippines had to evolve likewise, taking into
consideration the subsisting agreements between both parties, the rejection of the 1991 proposal,
and a concrete understanding of what was constitutionally restricted. This trend birthed the VFA
which, as discussed, has already been upheld by this Court.

The latest agreement is EDCA, which proposes a novel concept termed "Agreed Locations."

By definition, Agreed Locations are

facilities and areas that are provided by the Government of the Philippines through the AFP and that
United States forces, United States contractors, and others as mutually agreed, shall have the right
to access and use pursuant to this Agreement. Such Agreed Locations may be listed in an annex to
be appended to this Agreement, and may be further described in implementing arrangements.332

Preliminarily, respondent already claims that the proviso that the Philippines shall retain ownership
of and title to the Agreed Locations means that EDCA is "consistent with Article II of the VFA which
recognizes Philippine sovereignty and jurisdiction over locations within Philippine territory.333

By this interpretation, respondent acknowledges that the contention of petitioners springs from an
understanding that the Agreed Locations merely circumvent the constitutional restrictions. Framed
differently, the bone of contention is whether the Agreed Locations are, from a legal perspective,
foreign military facilities or bases. This legal framework triggers Section 25, Article XVIII, and makes
Senate concurrence a sine qua non.

Article III of EDCA provides for Agreed Locations, in which the U.S. is authorized by the Philippines
to "conduct the following activities: "training; transit; support and related activities; refueling of
aircraft; bunkering of vessels; temporary maintenance of vehicles, vessels and aircraft; temporary
accommodation of personnel; communications; prepositioning of equipment, supplies and materiel;
deploying forces and materiel; and such other activities as the Parties may agree."

This creation of EDCA must then be tested against a proper interpretation of the Section 25
restriction.

d. Reasons for the constitutional requirements and legal standards for constitutionally compatible
military bases and facilities

Section 25 does not define what is meant by a "foreign military facility or base." While it specifically
alludes to U.S. military facilities and bases that existed during the framing of the Constitution, the
provision was clearly meant to apply to those bases existing at the time and to any future facility or
base. The basis for the restriction must first be deduced from the spirit of the law, in order to set a
standard for the application of its text, given the particular historical events preceding the agreement.

Once more, we must look to the 1986 Constitutional Commissioners to glean, from their collective
wisdom, the intent of Section 25. Their speeches are rich with history and wisdom and present a
clear picture of what they considered in the crafting the provision.

SPEECH OF COMMISSIONER REGALADO334

xxxx

We have been regaled here by those who favor the adoption of the anti-bases provisions with what
purports to be an objective presentation of the historical background of the military bases in the
Philippines. Care appears, however, to have been taken to underscore the inequity in their
inception as well as their implementation, as to seriously reflect on the supposed objectivity of
the report. Pronouncements of military and civilian officials shortly after World War II are quoted in
support of the proposition on neutrality; regrettably, the implication is that the same remains valid
today, as if the world and international activity stood still for the last 40 years.

We have been given inspired lectures on the effect of the presence of the military bases on
our sovereignty - whether in its legal or political sense is not clear - and the theory that any
country with foreign bases in its territory cannot claim to be fully sovereign or completely
independent. I was not aware that the concepts of sovereignty and independence have now
assumed the totality principle, such that a willing assumption of some delimitations in the exercise of
some aspects thereof would put that State in a lower bracket of nationhood.

xxxx

We have been receiving a continuous influx of materials on the pros and cons on the advisability of
having military bases within our shores. Most of us who, only about three months ago, were just
mulling the prospects of these varying contentions are now expected, like armchair generals, to
decide not only on the geopolitical aspects and contingent implications of the military bases but also
on their political, social, economic and cultural impact on our national life. We are asked to answer a
plethora of questions, such as: 1) whether the bases are magnets of nuclear attack or are deterrents
to such attack; 2) whether an alliance or mutual defense treaty is a derogation of our national
sovereignty; 3) whether criticism of us by Russia, Vietnam and North Korea is outweighed by the
support for us of the ASEAN countries, the United States, South Korea, Taiwan, Australia and New
Zealand; and 4) whether the social, moral and legal problems spawned by the military bases and
their operations can be compensated by the economic benefits outlined in papers which have been
furnished recently to all of us.335

xxxx

Of course, one side of persuasion has submitted categorical, unequivocal and forceful assertions of
their positions. They are entitled to the luxury of the absolutes. We are urged now to adopt the
proposed declaration as a "golden," "unique" and "last" opportunity for Filipinos to assert
their sovereign rights. Unfortunately, I have never been enchanted by superlatives, much less for
the applause of the moment or the ovation of the hour. Nor do I look forward to any glorious summer
after a winter of political discontent. Hence, if I may join Commissioner Laurel, I also invoke a caveat
not only against the tyranny of labels but also the tyranny of slogans.336

xxxx

SPEECH OF COMMISSIONER SUAREZ337

MR. SUAREZ: Thank you, Madam President.

I am quite satisfied that the crucial issues involved in the resolution of the problem of the removal of
foreign bases from the Philippines have been adequately treated by previous speakers. Let me,
therefore, just recapitulate the arguments adduced in favor of a foreign bases-free Philippines:

1. That every nation should be free to shape its own destiny without outside
interference;

2. That no lasting peace and no true sovereignty would ever be achieved so long as there
are foreign military forces in our country;

3. That the presence of foreign military bases deprives us of the very substance of
national sovereigntyand this is a constant source of national embarrassment and an insult
to our national dignity and selfrespect as a nation;

4. That these foreign military bases unnecessarily expose our country to devastating
nuclear attacks;

5. That these foreign military bases create social problems and are designed to perpetuate
the strangle-hold of United States interests in our national economy and development;

6. That the extraterritorial rights enjoyed by these foreign bases operate to deprive our
country of jurisdiction over civil and criminal offenses committed within our own national
territory and against Filipinos;

7. That the bases agreements are colonial impositions and dictations upon our helpless
country; and
 8. That on the legal viewpoint and in the ultimate analysis, all the bases agreements are null
and void ab initio, especially because they did not count the sovereign consent and will of the
Filipino people.338

xxxx

In the real sense, Madam President, if we in the Commission could accommodate the provisions I
have cited, what is our objection to include in our Constitution a matter as priceless as the nationalist
values we cherish? A matter of the gravest concern for the safety and survival of this
nation indeed deserves a place in our Constitution.

xxxx

x x x Why should we bargain away our dignity and our self-respect as a nation and the future of
generations to come with thirty pieces of silver?339

SPEECH OF COMMISSIONER BENNAGEN340

xxxx

The underlying principle of military bases and nuclear weapons wherever they are found and
whoever owns them is that those are for killing people or for terrorizing humanity. This objective
by itself at any point in history is morally repugnant. This alone is reason enough for us to
constitutionalize the ban on foreign military bases and on nuclear weapons.341

SPEECH OF COMMISSIONER BACANI342

xxxx

x x x Hence, the remedy to prostitution does not seem to be primarily to remove the
bases because even if the bases are removed, the girls mired in poverty will look for their clientele
elsewhere. The remedy to the problem of prostitution lies primarily elsewhere - in an alert and
concerned citizenry, a healthy economy and a sound education in values.343

SPEECH OF COMMISSIONER JAMIR344

xxxx

One of the reasons advanced against the maintenance of foreign military bases here is that
they impair portions of our sovereignty. While I agree that our country's sovereignty should not
be impaired, I also hold the view that there are times when it is necessary to do so according to the
imperatives of national interest. There are precedents to this effect. Thus, during World War II,
England leased its bases in the West Indies and in Bermuda for 99 years to the United States for its
use as naval and air bases. It was done in consideration of 50 overaged destroyers which the United
States gave to England for its use in the Battle of the Atlantic.

A few years ago, England gave the Island of Diego Garcia to the United States for the latter's use as
a naval base in the Indian Ocean. About the same time, the United States obtained bases in Spain,
Egypt and Israel. In doing so, these countries, in effect, contributed to the launching of a preventive
defense posture against possible trouble in the Middle East and in the Indian Ocean for their own
protection.345
SPEECH OF COMMISSIONER TINGSON346

xxxx

In the case of the Philippines and the other Southeast Asian nations, the presence of American
troops in the country is a projection of America's security interest. Enrile said that nonetheless, they
also serve, although in an incidental and secondary way, the security interest of the Republic of the
Philippines and the region. Yes, of course, Mr. Enrile also echoes the sentiments of most of us in
this Commission, namely: It is ideal for us as an independent and sovereign nation to ultimately
abrogate the RP-US military treaty and, at the right time, build our own air and naval might.347

xxxx

Allow me to say in summation that I am for the retention of American military bases in the
Philippines provided that such an extension from one period to another shall be concluded
upon concurrence of the parties, and such extension shall be based on justice, the historical
amity of the people of the Philippines and the United States and their common defense
interest.348

SPEECH OF COMMISSIONER ALONTO349

xxxx

Madam President, sometime ago after this Commission started with this task of framing a
constitution, I read a statement of President Aquino to the effect that she is for the removal of the
U.S. military bases in this country but that the removal of the U.S. military bases should not be done
just to give way to other foreign bases. Today, there are two world superpowers, both vying to
control any and all countries which have importance to their strategy for world domination. The
Philippines is one such country.

Madam President, I submit that I am one of those ready to completely remove any vestiges of
the days of enslavement, but not prepared to erase them if to do so would merely leave a vacuum
to be occupied by a far worse type.350

SPEECH OF COMMISSIONER GASCON351

xxxx

Let us consider the situation of peace in our world today. Consider our brethren in the Middle East,
in Indo-China, Central America, in South Africa - there has been escalation of war in some of these
areas because of foreign intervention which views these conflicts through the narrow prism of the
East-West conflict. The United States bases have been used as springboards for intervention
in some of these conflicts. We should not allow ourselves to be party to the warlike mentality
of these foreign interventionists. We must always be on the side of peace – this means that we
should not always rely on military solution.352

xxxx

x x x The United States bases, therefore, are springboards for intervention in our own internal
affairs and in the affairs of other nations in this region.
 xxxx

Thus, I firmly believe that a self-respecting nation should safeguard its fundamental freedoms which
should logically be declared in black and white in our fundamental law of the land - the
Constitution. Let us express our desire for national sovereignty so we may be able to achieve
national self-determination. Let us express our desire for neutrality so that we may be able to
follow active nonaligned independent foreign policies. Let us express our desire for peace and a
nuclear-free zone so we may be able to pursue a healthy and tranquil existence, to have peace that
is autonomous and not imposed. 353

xxxx

SPEECH OF COMMISSIONER TADEO354

Para sa magbubukid, ano ha ang kahulugan ng U.S. military bases? Para sa magbubukid, ang
kahulugan nito ay pagkaalipin. Para sa magbubukid, ang pananatili ng U.S. military bases ay tinik
sa dibdib ng sambayanang Pilipinong patuloy na nakabaon. Para sa sambayanang
magbubukid, ang ibig sabihin ng U.S. military bases ay batong pabigat na patuloy na pinapasan
ng sambayanang Pilipino. Para sa sambayanang magbubukid, ang pananatili ng U.S. military
bases ay isang nagdudumilat na katotohanan ng patuloy na paggahasa ng imperyalistang
Estados Unidos sa ating Inang Bayan - economically, politically and culturally. Para sa
sambayanang magbubukid ang U.S. military bases ay kasingkahulugan ng nuclear weapon - ang
kahulugan ay magneto ng isang nuclear war. Para sa sambayanang magbubukid, ang
kahulugan ng U.S. military bases ay isang salot.355

SPEECH OF COMMISSIONER QUESADA356

xxxx

The drift in the voting on issues related to freeing ourselves from the instruments of domination
and subservience has clearly been defined these past weeks.

xxxx

So for the record, Mr. Presiding Officer, I would like to declare my support for the committee's
position to enshrine in the Constitution a fundamental principle forbidding foreign military bases,
troops or facilities in any part of the Philippine territory as a clear and concrete manifestation of
our inherent right to national self-determination, independence and sovereignty.

Mr. Presiding Officer, I would like to relate now these attributes of genuine nationhood to the social
cost of allowing foreign countries to maintain military bases in our country. Previous speakers have
dwelt on this subject, either to highlight its importance in relation to the other issues or to gloss over
its significance and !llake this a part of future negotiations.357

xxxx

Mr. Presiding Officer, I feel that banning foreign military bases is one of the solutions and is the
response of the Filipino people against this condition and other conditions that have already been
clearly and emphatically discussed in past deliberations. The deletion, therefore, of Section 3 in the
Constitution we are drafting will have the following implications:
First, the failure of the Constitutional Commission to decisively respond to the continuing violation
of our territorial integrity via the military bases agreement which permits the retention of U.S.
facilities within the Philippine soil over which our authorities have no exclusive jurisdiction
contrary to the accepted definition of the exercise of sovereignty.

Second, consent by this forum, this Constitutional Commission, to an exception in the application
of a provision in the Bill of Rights that we have just drafted regarding equal application of the laws
of the land to all inhabitants, permanent or otherwise, within its territorial boundaries.

Third, the continued exercise by the United States of extraterritoriality despite the
condemnations of such practice by the world community of nations in the light of overwhelming
international approval of eradicating all vestiges of colonialism.358

xxxx

Sixth, the deification of a new concept called pragmatic sovereignty, in the hope that such can be
wielded to force the United States government to concede to better terms and conditions concerning
the military bases agreement, including the transfer of complete control to the Philippine
government of the U.S. facilities, while in the meantime we have to suffer all existing indignities
and disrespect towards our rights as a sovereign nation.

xxxx

Eighth, the utter failure of this forum to view the issue of foreign military bases as essentially
a question of sovereignty which does not require in-depth studies or analyses and which this
forum has, as a constituent assembly drafting a constitution, the expertise and capacity to decide on
except that it lacks the political will that brought it to existence and now engages in an elaborate
scheme of buck-passing.

xxxx

Without any doubt we can establish a new social order in our country, if we reclaim, restore, uphold
and defend our national sovereignty. National sovereignty is what the military bases issue is all
about. It is only the sovereign people exercising their national sovereignty who can design an
independent course and take full control of their national destiny.359

SPEECH OF COMMISSIONER P ADILLA360

xxxx

Mr. Presiding Officer, in advocating the majority committee report, specifically Sections 3 and 4 on
neutrality, nuclear and bases-free country, some views stress sovereignty of the Republic and
even invoke survival of the Filipino nation and people.361

REBUTTAL OF COMMISSIONER NOLLEDO362

xxxx

The anachronistic and ephemeral arguments against the provisions of the committee report to
dismantle the American bases after 1991 only show the urgent need to free our country from the
entangling alliance with any power bloc.363
 xxxx

xx x Mr. Presiding Officer, it is not necessary for us to possess expertise to know that the so-called
RP-US Bases Agreement will expire in 1991, that it infringes on our sovereignty and jurisdiction
as well as national dignity and honor, that it goes against the UN policy of disarmament and that it
constitutes unjust intervention in our internal affairs.364 (Emphases Supplied)

The Constitutional Commission eventually agreed to allow foreign military bases, troops, or facilities,
subject to the provisions of Section 25. It is thus important to read its discussions carefully. From
these discussions, we can deduce three legal standards that were articulated by the Constitutional
Commission Members. These are characteristics of any agreement that the country, and by
extension this Court, must ensure are observed. We can thereby determine whether a military base
or facility in the Philippines, which houses or is accessed by foreign military troops, is foreign or
remains a Philippine military base or facility. The legal standards we find applicable are:
independence from foreign control, sovereignty and applicable law, and national security and
territorial integrity.

i. First standard: independence from foreign control

Very clearly, much of the opposition to the U.S. bases at the time of the Constitution's drafting was
aimed at asserting Philippine independence from the U.S., as well as control over our country's
territory and military.

Under the Civil Code, there are several aspects of control exercised over property.

Property is classified as private or public.365 It is public if "intended for public use, such as roads,
canals, rivers, torrents, ports and bridges constructed by the State, banks, shores, roadsteads, and
others of similar character[,]" or "[t]hose which belong to the State, without being for public use, and
are intended for some public service or for the development of the national wealth. "366

Quite clearly, the Agreed Locations are contained within a property for public use, be it within a
government military camp or property that belongs to the Philippines. 1avv phi 1

Once ownership is established, then the rights of ownership flow freely. Article 428 of the Civil Code
provides that "[t]he owner has the right to enjoy and dispose of a thing, without other limitations than
those established by law." Moreover, the owner "has also a right of action against the holder and
possessor of the thing in order to recover it."

Philippine civil law therefore accords very strong rights to the owner of property, even against those
who hold the property. Possession, after all, merely raises a disputable presumption of ownership,
which can be contested through normal judicial processes.367

In this case, EDCA explicitly provides that ownership of the Agreed Locations remains with the
Philippine govemment.368 What U.S. personnel have a right to, pending mutual agreement, is access
to and use of these locations.369

The right of the owner of the property to allow access and use is consistent with the Civil Code,
since the owner may dispose of the property in whatever way deemed fit, subject to the limits of the
law. So long as the right of ownership itself is not transferred, then whatever rights are transmitted
by agreement does not completely divest the owner of the rights over the property, but may only limit
them in accordance with law.
Hence, even control over the property is something that an owner may transmit freely. This act does
not translate into the full transfer of ownership, but only of certain rights. In Roman Catholic Apostolic
Administrator of Davao, Inc. v. Land Registration Commission, we stated that the constitutional
proscription on property ownership is not violated despite the foreign national's control over the
property.370

EDCA, in respect of its provisions on Agreed Locations, is essentially a contract of use and access.
Under its pertinent provisions, it is the Designated Authority of the Philippines that shall, when
requested, assist in facilitating transit or access to public land and facilities.371 The activities carried
out within these locations are subject to agreement as authorized by the Philippine
govemment.372 Granting the U.S. operational control over these locations is likewise subject to EDCA'
s security mechanisms, which are bilateral procedures involving Philippine consent and
cooperation.373 Finally, the Philippine Designated Authority or a duly designated representative is
given access to the Agreed Locations.374

To our mind, these provisions do not raise the spectre of U.S. control, which was so feared by the
Constitutional Commission. In fact, they seem to have been the product of deliberate negotiation
from the point of view of the Philippine government, which balanced constitutional restrictions on
foreign military bases and facilities against the security needs of the country. In the 1947 MBA, the
U.S. forces had "the right, power and authority x x x to construct (including dredging and filling),
operate, maintain, utilize, occupy, garrison and control the bases."375 No similarly explicit provision is
present in EDCA.

Nevertheless, the threshold for allowing the presence of foreign military facilities and bases has
been raised by the present Constitution. Section 25 is explicit that foreign military bases, troops, or
facilities shall not be allowed in the Philippines, except under a treaty duly concurred in by the
Senate. Merely stating that the Philippines would retain ownership would do violence to the
constitutional requirement if the Agreed Locations were simply to become a less obvious
manifestation of the U.S. bases that were rejected in 1991.

When debates took place over the military provisions of the Constitution, the committee rejected a
specific provision proposed by Commissioner Sarmiento. The discussion illuminates and provides
context to the 1986 Constitutional Commission's vision of control and independence from the U.S.,
to wit:

MR. SARMIENTO: Madam President, my proposed amendment reads as follows: "THE STATE
SHALL ESTABLISH AND MAINTAIN AN INDEPENDENT AND SELF-RELIANT ARMED FORCES
OF THE PHILIPPINES." Allow me to briefly explain, Madam President. The Armed Forces of the
Philippines is a vital component of Philippine society depending upon its training, orientation and
support. It will either be the people's protector or a staunch supporter of a usurper or tyrant, local and
foreign interest. The Armed Forces of the Philippines' past and recent experience shows it has
never been independent and self-reliant. Facts, data and statistics will show that it has been
substantially dependent upon a foreign power. In March 1968, Congressman Barbero, himself a
member of the Armed Forces of the Philippines, revealed top secret documents showing what he
described as U.S. dictation over the affairs of the Armed Forces of the Philippines. He showed that
under existing arrangements, the United States unilaterally determines not only the types and
quantity of arms and equipments that our armed forces would have, but also the time when
these items are to be made available to us. It is clear, as he pointed out, that the composition,
capability and schedule of development of the Armed Forces of the Philippines is under the
effective control of the U.S. government.376 (Emphases supplied)
Commissioner Sarmiento proposed a motherhood statement in the 1987 Constitution that would
assert "independent" and "self-reliant" armed forces. This proposal was rejected by the
committee, however. As Commissioner De Castro asserted, the involvement of the Philippine
military with the U.S. did not, by itself, rob the Philippines of its real independence. He made
reference to the context of the times: that the limited resources of the Philippines and the current
insurgency at that time necessitated a strong military relationship with the U.S. He said that the U.S.
would not in any way control the Philippine military despite this relationship and the fact that the
former would furnish military hardware or extend military assistance and training to our military.
Rather, he claimed that the proposal was in compliance with the treaties between the two states.

MR. DE CASTRO: If the Commissioner will take note of my speech on U.S. military bases on 12
September 1986, I spoke on the selfreliance policy of the armed forces. However, due to very limited
resources, the only thing we could do is manufacture small arms ammunition. We cannot blame the
armed forces. We have to blame the whole Republic of the Philippines for failure to provide the
necessary funds to make the Philippine Armed Forces self-reliant. Indeed that is a beautiful dream.
And I would like it that way. But as of this time, fighting an insurgency case, a rebellion in our country
- insurgency - and with very limited funds and very limited number of men, it will be quite impossible
for the Philippines to appropriate the necessary funds therefor. However, if we say that the U.S.
government is furnishing us the military hardware, it is not control of our armed forces or of
our government. It is in compliance with the Mutual Defense Treaty. It is under the military
assistance program that it becomes the responsibility of the United States to furnish us the
necessary hardware in connection with the military bases agreement. Please be informed that there
are three (3) treaties connected with the military bases agreement; namely: the RP-US Military
Bases Agreement, the Mutual Defense Treaty and the Military Assistance Program.

My dear Commissioner, when we enter into a treaty and we are furnished the military
hardware pursuant to that treaty, it is not in control of our armed forces nor control of our
government. True indeed, we have military officers trained in the U.S. armed forces school. This is
part of our Military Assistance Program, but it does not mean that the minds of our military officers
are for the U.S. government, no. I am one of those who took four courses in the United States
schools, but I assure you, my mind is for the Filipino people. Also, while we are sending military
officers to train or to study in U.S. military schools, we are also sending our officers to study in other
military schools such as in Australia, England and in Paris. So, it does not mean that when we send
military officers to United States schools or to other military schools, we will be under the control of
that country. We also have foreign officers in our schools, we in the Command and General Staff
College in Fort Bonifacio and in our National Defense College, also in Fort Bonifacio.377 (Emphases
supplied)

This logic was accepted in Tañada v. Angara, in which the Court ruled that independence does not
mean the absence of foreign participation:

Furthermore, the constitutional policy of a "self-reliant and independent national economy" does not
necessarily rule out the entry of foreign investments, goods and services. It contemplates
neither "economic seclusion" nor "mendicancy in the international community." As explained by
Constitutional Commissioner Bernardo Villegas, sponsor of this constitutional policy:

Economic self reliance is a primary objective of a developing country that is keenly aware of
overdependence on external assistance for even its most basic needs. It does not mean autarky or
economic seclusion; rather, it means avoiding mendicancy in the international
community. Independence refers to the freedom from undue foreign control of the national
economy, especially in such strategic industries as in the development of natural resources and
public utilities.378 (Emphases supplied)
The heart of the constitutional restriction on foreign military facilities and bases is therefore the
assertion of independence from the U.S. and other foreign powers, as independence is exhibited by
the degree of foreign control exerted over these areas. The essence of that independence is self-
1âw phi 1

governance and self-control.379 Independence itself is "[t]he state or condition of being free from
dependence, subjection, or control. "380

Petitioners assert that EDCA provides the U.S. extensive control and authority over Philippine
facilities and locations, such that the agreement effectively violates Section 25 of the 1987
Constitution.381

Under Article VI(3) of EDCA, U.S. forces are authorized to act as necessary for "operational control
and defense." The term "operational control" has led petitioners to regard U.S. control over the
Agreed Locations as unqualified and, therefore, total.382 Petitioners contend that the word "their"
refers to the subject "Agreed Locations."

This argument misreads the text, which is quoted below:

United States forces are authorized to exercise all rights and authorities within Agreed Locations that
are necessary for their operational control or defense, including taking appropriate measure to
protect United States forces and United States contractors. The United States should coordinate
such measures with appropriate authorities of the Philippines.

A basic textual construction would show that the word "their," as understood above, is a possessive
pronoun for the subject "they," a third-person personal pronoun in plural form. Thus, "their" cannot
be used for a non-personal subject such as "Agreed Locations." The simple grammatical conclusion
is that "their" refers to the previous third-person plural noun, which is "United States forces." This
conclusion is in line with the definition of operational control.

a. U.S. operational control as the exercise of authority over U.S. personnel, and not over the Agreed
Locations

Operational control, as cited by both petitioner and respondents, is a military term referring to

[t]he authority to perform those functions of command over subordinate forces involving organizing
and employing commands and forces, assigning tasks, designating objective, and giving
authoritative direction necessary to accomplish the mission.383

At times, though, operational control can mean something slightly different. In JUSMAG Philippines
v. National Labor Relations Commission, the Memorandum of Agreement between the AFP and
JUSMAG Philippines defined the term as follows:384

The term "Operational Control" includes, but is not limited to, all personnel administrative actions,
such as: hiring recommendations; firing recommendations; position classification; discipline;
nomination and approval of incentive awards; and payroll computation.

Clearly, traditional standards define "operational control" as personnel control. Philippine law, for
instance, deems operational control as one exercised by police officers and civilian authorities over
their subordinates and is distinct from the administrative control that they also exercise over police
subordinates.385 Similarly, a municipal mayor exercises operational control over the police within the
municipal government,386 just as city mayor possesses the same power over the police within the city
government.387
Thus, the legal concept of operational control involves authority over personnel in a commander-
subordinate relationship and does not include control over the Agreed Locations in this particular
case. Though not necessarily stated in EDCA provisions, this interpretation is readily implied by the
reference to the taking of "appropriate measures to protect United States forces and United States
contractors."

It is but logical, even necessary, for the U.S. to have operational control over its own forces, in much
the same way that the Philippines exercises operational control over its own units.

For actual operations, EDCA is clear that any activity must be planned and pre-approved by the
MDB-SEB.388 This provision evinces the partnership aspect of EDCA, such that both stakeholders
have a say on how its provisions should be put into effect.

b. Operational control vis-à-vis effective command and control

Petitioners assert that beyond the concept of operational control over personnel, qualifying access to
the Agreed Locations by the Philippine Designated Authority with the phrase "consistent with
operational safety and security requirements in accordance with agreed procedures developed by
the Parties" leads to the conclusion that the U.S. exercises effective control over the Agreed
Locations.389 They claim that if the Philippines exercises possession of and control over a given area,
its representative should not have to be authorized by a special provision.390

For these reasons, petitioners argue that the "operational control" in EDCA is the "effective
command and control" in the 1947 MBA.391 In their Memorandum, they distinguish effective command
and control from operational control in U.S. parlance.392 Citing the Doctrine for the Armed Forces of
the United States, Joint Publication 1, "command and control (C2)" is defined as "the exercise of
authority and direction by a properly designated commander over assigned and attached forces in
the accomplishment of the mission x x x."393 Operational control, on the other hand, refers to "[t]hose
functions of command over assigned forces involving the composition of subordinate forces, the
assignment of tasks, the designation of objectives, the overall control of assigned resources, and the
full authoritative direction necessary to accomplish the mission."394

Two things demonstrate the errors in petitioners' line of argument.

Firstly, the phrase "consistent with operational safety and security requirements in accordance with
agreed procedures developed by the Parties" does not add any qualification beyond that which is
already imposed by existing treaties. To recall, EDCA is based upon prior treaties, namely the VFA
and the MDT.395 Treaties are in themselves contracts from which rights and obligations may be
claimed or waived.396 In this particular case, the Philippines has already agreed to abide by the
security mechanisms that have long been in place between the U.S. and the Philippines based on
the implementation of their treaty relations.397

Secondly, the full document cited by petitioners contradicts the equation of "operational control" with
"effective command and control," since it defines the terms quite differently, viz:398

Command and control encompasses the exercise of authority, responsibility, and direction by a
commander over assigned and attached forces to accomplish the mission. Command at all levels is
the art of motivating and directing people and organizations into action to accomplish missions.
Control is inherent in command. To control is to manage and direct forces and functions consistent
with a commander's command authority. Control of forces and functions helps commanders and
staffs compute requirements, allocate means, and integrate efforts. Mission command is the
preferred method of exercising C2. A complete discussion of tenets, organization, and processes for
effective C2 is provided in Section B, "Command and Control of Joint Forces," of Chapter V "Joint
Command and Control."

Operational control is defined thus:399

OPCON is able to be delegated from a lesser authority than COCOM. It is the authority to perform
those functions of command over subordinate forces involving organizing and employing commands
and forces, assigning tasks, designating objectives, and giving authoritative direction over all
aspects of military operations and joint training necessary to accomplish the mission. It should be
delegated to and exercised by the commanders of subordinate organizations; normally, this authority
is exercised through subordinate JFCs, Service, and/or functional component commanders. OPCON
provides authority to organize and employ commands and forces as the commander considers
necessary to accomplish assigned missions. It does not include authoritative direction for logistics or
matters of administration, discipline, internal organization, or unit training. These elements of
COCOM must be specifically delegated by the CCDR. OPCON does include the authority to
delineate functional responsibilities and operational areas of subordinate JFCs.

Operational control is therefore the delegable aspect of combatant command, while command and
control is the overall power and responsibility exercised by the commander with reference to a
mission. Operational control is a narrower power and must be given, while command and control is
plenary and vested in a commander. Operational control does not include the planning,
programming, budgeting, and execution process input; the assignment of subordinate commanders;
the building of relationships with Department of Defense agencies; or the directive authority for
logistics, whereas these factors are included in the concept of command and control.400

This distinction, found in the same document cited by petitioners, destroys the very foundation of the
arguments they have built: that EDCA is the same as the MBA.

c. Limited operational control over the Agreed Locations only for construction activitites

As petitioners assert, EDCA indeed contains a specific provision that gives to the U.S. operational
control within the Agreed Locations during construction activities.401 This exercise of operational
control is premised upon the approval by the MDB and the SEB of the construction activity through
consultation and mutual agreement on the requirements and standards of the construction,
alteration, or improvement.402

Despite this grant of operational control to the U.S., it must be emphasized that the grant is only for
construction activities. The narrow and limited instance wherein the U.S. is given operational control
within an Agreed Location cannot be equated with foreign military control, which is so abhorred by
the Constitution.

The clear import of the provision is that in the absence of construction activities, operational control
over the Agreed Location is vested in the Philippine authorities. This meaning is implicit in the
specific grant of operational control only during construction activities. The principle of constitutional
construction, "expressio unius est exclusio alterius," means the failure to mention the thing becomes
the ground for inferring that it was deliberately excluded.403Following this construction, since EDCA
mentions the existence of U.S. operational control over the Agreed Locations for construction
activities, then it is quite logical to conclude that it is not exercised over other activities.

Limited control does not violate the Constitution. The fear of the commissioners was total control, to
the point that the foreign military forces might dictate the terms of their acts within the
Philippines.404 More important, limited control does not mean an abdication or derogation of
Philippine sovereignty and legal jurisdiction over the Agreed Locations. It is more akin to the
extension of diplomatic courtesies and rights to diplomatic agents,405 which is a waiver of control on a
limited scale and subject to the terms of the treaty.

This point leads us to the second standard envisioned by the framers of the Constitution: that the
Philippines must retain sovereignty and jurisdiction over its territory.

ii. Second standard: Philippine sovereignty and applicable law

EDCA states in its Preamble the "understanding for the United States not to establish a permanent
military presence or base in the territory of the Philippines." Further on, it likewise states the
recognition that "all United States access to and use of facilities and areas will be at the invitation of
the Philippines and with full respect for the Philippine Constitution and Philippine laws."

The sensitivity of EDCA provisions to the laws of the Philippines must be seen in light of Philippine
sovereignty and jurisdiction over the Agreed Locations.

Sovereignty is the possession of sovereign power,406 while jurisdiction is the conferment by law of
power and authority to apply the law.407 Article I of the 1987 Constitution states:

The national territory comprises the Philippine archipelago, with all the islands and waters embraced
therein, and all other territories over which the Philippines has sovereignty or jurisdiction,
consisting of its terrestrial, fluvial, and aerial domains, including its territorial sea, the seabed, the
subsoil, the insular shelves, and other submarine areas. The waters around, between, and
connecting the islands of the archipelago, regardless of their breadth and dimensions, form part of
the internal waters of the Philippines. (Emphasis supplied)

From the text of EDCA itself, Agreed Locations are territories of the Philippines that the U.S. forces
are allowed to access and use.408 By withholding ownership of these areas and retaining unrestricted
access to them, the government asserts sovereignty over its territory. That sovereignty exists so
long as the Filipino people exist.409

Significantly, the Philippines retains primary responsibility for security with respect to the Agreed
Locations.410Hence, Philippine law remains in force therein, and it cannot be said that jurisdiction has
been transferred to the U.S. Even the previously discussed necessary measures for operational
control and defense over U.S. forces must be coordinated with Philippine authorities.411

Jurisprudence bears out the fact that even under the former legal regime of the MBA, Philippine laws
continue to be in force within the bases.412 The difference between then and now is that EDCA
retains the primary jurisdiction of the Philippines over the security of the Agreed Locations, an
important provision that gives it actual control over those locations. Previously, it was the provost
marshal of the U.S. who kept the peace and enforced Philippine law in the bases. In this instance,
Philippine forces act as peace officers, in stark contrast to the 1947 MBA provisions on jurisdiction.413

iii. Third standard: must respect national security and territorial integrity

The last standard this Court must set is that the EDCA provisions on the Agreed Locations must not
impair or threaten the national security and territorial integrity of the Philippines.

This Court acknowledged in Bayan v. Zamora that the evolution of technology has essentially
rendered the prior notion of permanent military bases obsolete.
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.414

The VFA serves as the basis for the entry of U.S. troops in a limited scope. It does not allow, for
instance, the re-establishment of the Subic military base or the Clark Air Field as U.S. military
reservations. In this context, therefore, this Court has interpreted the restrictions on foreign bases,
troops, or facilities as three independent restrictions. In accord with this interpretation, each
restriction must have its own qualification.

Petitioners quote from the website http://en.wikipedia.org to define what a military base is.415 While
the source is not authoritative, petitioners make the point that the Agreed Locations, by granting
access and use to U.S. forces and contractors, are U.S. bases under a different name.416 More
important, they claim that the Agreed Locations invite instances of attack on the Philippines from
enemies of the U.S.417

We believe that the raised fear of an attack on the Philippines is not in the realm of law, but of
politics and policy. At the very least, we can say that under international law, EDCA does not provide
a legal basis for a justified attack on the Philippines.

In the first place, international law disallows any attack on the Agreed Locations simply because of
the presence of U.S. personnel. Article 2(4) of the United Nations Charter states that "All Members
shall refrain in their international relations from the threat or use of force against the territorial
integrity or political independence of any state, or in any other manner inconsistent with the
Purposes of the United Nations."418 Any unlawful attack on the Philippines breaches the treaty, and
triggers Article 51 of the same charter, which guarantees the inherent right of individual or collective
self-defence.

Moreover, even if the lawfulness of the attack were not in question, international humanitarian law
standards prevent participants in an armed conflict from targeting non-participants. International
humanitarian law, which is the branch of international law applicable to armed conflict, expressly
limits allowable military conduct exhibited by forces of a participant in an armed conflict.419 Under this
legal regime, participants to an armed conflict are held to specific standards of conduct that require
them to distinguish between combatants and non-combatants,420 as embodied by the Geneva
Conventions and their Additional Protocols.421

Corollary to this point, Professor John Woodcliffe, professor of international law at the University of
Leicester, noted that there is no legal consensus for what constitutes a base, as opposed to other
terms such as "facilities" or "installation."422 In strategic literature, "base" is defined as an installation
"over which the user State has a right to exclusive control in an extraterritorial sense."423 Since this
definition would exclude most foreign military installations, a more important distinction must be
made.

For Woodcliffe, a type of installation excluded from the definition of "base" is one that does not fulfill
a combat role. He cites an example of the use of the territory of a state for training purposes, such
as to obtain experience in local geography and climactic conditions or to carry out joint
exercises.424 Another example given is an advanced communications technology installation for
purposes of information gathering and communication.425 Unsurprisingly, he deems these non-
combat uses as borderline situations that would be excluded from the functional understanding of
military bases and installations.426

By virtue of this ambiguity, the laws of war dictate that the status of a building or person is presumed
to be protected, unless proven otherwise.427 Moreover, the principle of distinction requires
combatants in an armed conflict to distinguish between lawful targets428 and protected targets.429 In an
actual armed conflict between the U.S. and a third state, the Agreed Locations cannot be considered
U.S. territory, since ownership of territory even in times of armed conflict does not change.430

Hence, any armed attack by forces of a third state against an Agreed Location can only be legitimate
under international humanitarian law if it is against a bona fide U.S. military base, facility, or
installation that directly contributes to the military effort of the U.S. Moreover, the third state's forces
must take all measures to ensure that they have complied with the principle of distinction (between
combatants and non-combatants).

There is, then, ample legal protection for the Philippines under international law that would ensure its
territorial integrity and national security in the event an Agreed Location is subjected to attack. As
EDCA stands, it does not create the situation so feared by petitioners - one in which the Philippines,
while not participating in an armed conflict, would be legitimately targeted by an enemy of the U.S.431

In the second place, this is a policy question about the wisdom of allowing the presence of U.S.
personnel within our territory and is therefore outside the scope of judicial review.

Evidently, the concept of giving foreign troops access to "agreed" locations, areas, or facilities within
the military base of another sovereign state is nothing new on the international plane. In fact, this
arrangement has been used as the framework for several defense cooperation agreements, such as
in the following:

1. 2006 U.S.-Bulgaria Defense Cooperation Agreement432

2. 2009 U.S.-Colombia Defense Cooperation Agreement433

3. 2009 U.S.-Poland Status of Forces Agreement434

4. 2014 U.S.-Australia Force Posture Agreement435

5. 2014 U.S.-Afghanistan Security and Defense Cooperation Agreement436

In all of these arrangements, the host state grants U.S. forces access to their military bases.437 That
access is without rental or similar costs to the U.S.438 Further, U.S. forces are allowed to undertake
construction activities in, and make alterations and improvements to, the agreed locations, facilities,
or areas.439 As in EDCA, the host states retain ownership and jurisdiction over the said bases.440

In fact, some of the host states in these agreements give specific military-related rights to the U.S.
For example, under Article IV(l) of the US.-Bulgaria Defense Cooperation Agreement, "the United
States forces x x x are authorized access to and may use agreed facilities and areas x x x for
staging and deploying of forces and materiel, with the purpose of conducting x x x contingency
operations and other missions, including those undertaken in the framework of the North Atlantic
Treaty." In some of these agreements, host countries allow U.S. forces to construct facilities for the
latter’s exclusive use.441
Troop billeting, including construction of temporary structures, is nothing new. In Lim v. Executive
Secretary, the Court already upheld the Terms of Reference of Balikatan 02-1, which authorized
U.S. forces to set up "[t]emporary structures such as those for troop billeting, classroom instruction
and messing x x x during the Exercise." Similar provisions are also in the Mutual Logistics Support
Agreement of 2002 and 2007, which are essentially executive agreements that implement the VFA,
the MDT, and the 1953 Military Assistance Agreement. These executive agreements similarly tackle
the "reciprocal provision of logistic support, supplies, and services,"442 which include "[b ]illeting, x x x
operations support (and construction and use of temporary structures incident to operations
support), training services, x x x storage services, x x x during an approved activity."443 These logistic
supplies, support, and services include temporary use of "nonlethal items of military equipment
which are not designated as significant military equipment on the U.S. Munitions List, during an
approved activity."444 The first Mutual Logistics Support Agreement has lapsed, while the second one
has been extended until 2017 without any formal objection before this Court from the Senate or any
of its members.

The provisions in EDCA dealing with Agreed Locations are analogous to those in the
aforementioned executive agreements. Instead of authorizing the building of temporary structures as
previous agreements have done, EDCA authorizes the U.S. to build permanent structures or alter or
improve existing ones for, and to be owned by, the Philippines.445 EDCA is clear that the Philippines
retains ownership of altered or improved facilities and newly constructed permanent or non-
relocatable structures.446 Under EDCA, U.S. forces will also be allowed to use facilities and areas for
"training; x x x; support and related activities; x x x; temporary accommodation of personnel;
communications" and agreed activities.447

Concerns on national security problems that arise from foreign military equipment being present in
the Philippines must likewise be contextualized. Most significantly, the VFA already authorizes the
presence of U.S. military equipment in the country. Article VII of the VFA already authorizes the
U.S. to import into or acquire in the Philippines "equipment, materials, supplies, and other property"
that will be used "in connection with activities" contemplated therein. The same section also
recognizes that "[t]itle to such property shall remain" with the US and that they have the discretion to
"remove such property from the Philippines at any time."

There is nothing novel, either, in the EDCA provision on the prepositioning and storing of "defense
equipment, supplies, and materiel,"448 since these are sanctioned in the VFA. In fact, the two
countries have already entered into various implementing agreements in the past that are
comparable to the present one. The Balikatan 02-1 Terms of Reference mentioned in Lim v.
Executive Secretary specifically recognizes that Philippine and U.S. forces "may share x x x in the
use of their resources, equipment and other assets." Both the 2002 and 2007 Mutual Logistics
Support Agreements speak of the provision of support and services, including the "construction and
use of temporary structures incident to operations support" and "storage services" during approved
activities.449 These logistic supplies, support, and services include the "temporary use of x x x
nonlethal items of military equipment which are not designated as significant military equipment on
the U.S. Munitions List, during an approved activity."450Those activities include "combined exercises
and training, operations and other deployments" and "cooperative efforts, such as humanitarian
assistance, disaster relief and rescue operations, and maritime anti-pollution operations" within or
outside Philippine territory.451 Under EDCA, the equipment, supplies, and materiel that will be
prepositioned at Agreed Locations include "humanitarian assistance and disaster relief equipment,
supplies, and materiel. "452 Nuclear weapons are specifically excluded from the materiel that will be
prepositioned.

Therefore, there is no basis to invalidate EDCA on fears that it increases the threat to our national
security. If anything, EDCA increases the likelihood that, in an event requiring a defensive response,
the Philippines will be prepared alongside the U.S. to defend its islands and insure its territorial
integrity pursuant to a relationship built on the MDT and VFA.

8. Others issues and concerns raised

A point was raised during the oral arguments that the language of the MDT only refers to mutual
help and defense in the Pacific area.453 We believe that any discussion of the activities to be
undertaken under EDCA vis-a-vis the defense of areas beyond the Pacific is premature. We note
that a proper petition on that issue must be filed before we rule thereon. We also note that none of
the petitions or memoranda has attempted to discuss this issue, except only to theorize that the U.S.
will not come to our aid in the event of an attack outside of the Pacific. This is a matter of policy and
is beyond the scope of this judicial review.

In reference to the issue on telecommunications, suffice it to say that the initial impression of the
facility adverted to does appear to be one of those that require a public franchise by way of
congressional action under Section 11, Article XII of the Constitution. As respondents submit,
however, the system referred to in the agreement does not provide telecommunications services to
the public for compensation.454 It is clear from Article VIl(2) of EDCA that the telecommunication
system is solely for the use of the U.S. and not the public in general, and that this system will not
interfere with that which local operators use. Consequently, a public franchise is no longer
necessary.

Additionally, the charge that EDCA allows nuclear weapons within Philippine territory is entirely
speculative. It is noteworthy that the agreement in fact specifies that the prepositioned materiel shall
not include nuclear weapons.455Petitioners argue that only prepositioned nuclear weapons are
prohibited by EDCA; and that, therefore, the U.S. would insidiously bring nuclear weapons to
Philippine territory.456 The general prohibition on nuclear weapons, whether prepositioned or not, is
already expressed in the 1987 Constitution.457 It would be unnecessary or superfluous to include all
prohibitions already in the Constitution or in the law through a document like EDCA.

Finally, petitioners allege that EDCA creates a tax exemption, which under the law must originate
from Congress. This allegation ignores jurisprudence on the government's assumption of tax liability.
EDCA simply states that the taxes on the use of water, electricity, and public utilities are for the
account of the Philippine Government.458 This provision creates a situation in which a contracting
party assumes the tax liability of the other.459 In National Power Corporation v. Province of
Quezon, we distinguished between enforceable and unenforceable stipulations on the assumption of
tax liability. Afterwards, we concluded that an enforceable assumption of tax liability requires the
party assuming the liability to have actual interest in the property taxed.460 This rule applies to EDCA,
since the Philippine Government stands to benefit not only from the structures to be built thereon or
improved, but also from the joint training with U.S. forces, disaster preparation, and the preferential
use of Philippine suppliers.461 Hence, the provision on the assumption of tax liability does not
constitute a tax exemption as petitioners have posited.

Additional issues were raised by petitioners, all relating principally to provisions already sufficiently
addressed above. This Court takes this occasion to emphasize that the agreement has been
construed herein as to absolutely disauthorize the violation of the Constitution or any applicable
statute. On the contrary, the applicability of Philippine law is explicit in EDCA.

EPILOGUE

The fear that EDCA is a reincarnation of the U.S. bases so zealously protested by noted
personalities in Philippine history arises not so much from xenophobia, but from a genuine desire for
self-determination, nationalism, and above all a commitment to ensure the independence of the
Philippine Republic from any foreign domination.

Mere fears, however, cannot curtail the exercise by the President of the Philippines of his
Constitutional prerogatives in respect of foreign affairs. They cannot cripple him when he deems that
additional security measures are made necessary by the times. As it stands, the Philippines through
the Department of Foreign Affairs has filed several diplomatic protests against the actions of the
People's Republic of China in the West Philippine Sea;462 initiated arbitration against that country
under the United Nations Convention on the Law of the Sea;463 is in the process of negotiations with
the Moro Islamic Liberation Front for peace in Southern Philippines,464 which is the subject of a
current case before this Court; and faces increasing incidents of kidnappings of Filipinos and
foreigners allegedly by the Abu Sayyaf or the New People's Army.465 The Philippine military is
conducting reforms that seek to ensure the security and safety of the nation in the years to
come.466 In the future, the Philippines must navigate a world in which armed forces fight with
increasing sophistication in both strategy and technology, while employing asymmetric warfare and
remote weapons.

Additionally, our country is fighting a most terrifying enemy: the backlash of Mother Nature. The
Philippines is one of the countries most directly affected and damaged by climate change. It is no
coincidence that the record-setting tropical cyclone Yolanda (internationally named Haiyan), one of
the most devastating forces of nature the world has ever seen hit the Philippines on 8 November
2013 and killed at least 6,000 people.467 This necessitated a massive rehabilitation project.468 In the
aftermath, the U.S. military was among the first to extend help and support to the Philippines.

That calamity brought out the best in the Filipinos as thousands upon thousands volunteered their
help, their wealth, and their prayers to those affected. It also brought to the fore the value of having
friends in the international community.

In order to keep the peace in its archipelago in this region of the world, and to sustain itself at the
same time against the destructive forces of nature, the Philippines will need friends. Who they are,
and what form the friendships will take, are for the President to decide. The only restriction is what
the Constitution itself expressly prohibits. It appears that this overarching concern for balancing
constitutional requirements against the dictates of necessity was what led to EDCA.

As it is, EDCA is not constitutionally infirm. As an executive agreement, it remains consistent with
existing laws and treaties that it purports to implement.

WHEREFORE, we hereby DISMISS the petitions.

SO ORDERED.
 SECOND DIVISION

G.R. No. 180110, May 30, 2016

CAPITOL WIRELESS, INC., Petitioner, v. THE PROVINCIAL TREASURER OF BATANGAS, THE

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

DECISION

PERALTA, J.:

Before the Court is a petition for review on certiorari under Rule 45 of the Rules of Court seeking to annul
and set aside the Court of Appeals' Decision1 dated May 30, 2007 and Resolution2 dated October 8, 2007 in
CA-G.R. SP No. 82264, which both denied the appeal of petitioner against the decision of the Regional Trial
Court.

Below are the facts of the case.

Petitioner Capitol Wireless Inc. (Capwire) is a Philippine corporation in the business of providing international
telecommunications services.3 As such provider, Capwire has signed agreements with other local and foreign
telecommunications companies covering an international network of submarine cable systems such as the
Asia Pacific Cable Network System (APCN) (which connects Australia, Thailand, Malaysia, Singapore, Hong
Kong, Taiwan, Korea, Japan, Indonesia and the Philippines); the Brunei-Malaysia-Philippines Cable Network
System (BMP-CNS), the Philippines-Italy (SEA-ME-WE-3 CNS), and the Guam Philippines (GP-CNS)
systems.4 The agreements provide for co-ownership and other rights among the parties over the network.5

Petitioner Capwire claims that it is co-owner only of the so-called "Wet Segment" of the APCN, while the
landing stations or terminals and Segment E of APCN located in Nasugbu, Batangas are allegedly owned by
the Philippine Long Distance Telephone Corporation (PLDT).6 Moreover, it alleges that the Wet Segment is
laid in international, and not Philippine, waters.7

Capwire claims that as co-owner, it does not own any particular physical part of the cable system but,
consistent with its financial contributions, it owns the right to use a certain capacity of the said system.8This
property right is allegedly reported in its financial books as "Indefeasible Rights in Cable Systems."9

However, for loan restructuring purposes, Capwire claims that "it was required to register the value of its
right," hence, it engaged an appraiser to "assess the market value of the international submarine cable
system and the cost to Capwire."10 On May 15, 2000, Capwire submitted a Sworn Statement of True Value
of Real Properties at the Provincial Treasurer's Office, Batangas City, Batangas Province, for the Wet
Segment of the system, stating:

System Sound Value

APCN P 203,300,000.00
BMP-CNS P 65,662,000.00
SEA-ME-WE-3 CNS P P 7,540,000.00
GP-CNS P1,789,000.00

Capwire claims that it also reported that the system "interconnects at the PLDT Landing Station in Nasugbu,
Batangas," which is covered by a transfer certificate of title and tax declarations in the name of PLDT.11

As a result, the respondent Provincial Assessor of Batangas (Provincial Assessor) issued the following
Assessments of Real Property (ARP) against Capwire:

ARP Cable System Assessed Value

019-00967 BMP-CNS P 52,529,600.00
019-00968 APCN P 162,640,000.00
019-00969 SEA-ME-WE3-CNS P 6,032,000.00
019-00970 GP-CNS P 1,431,200.00

In essence, the Provincial Assessor had determined that the submarine cable systems described in Capwire's
Sworn Statement of True Value of Real Properties are taxable real property, a determination that was
contested by Capwire in an exchange of letters between the company and the public respondent.12 The
reason cited by Capwire is that the cable system lies outside of Philippine territory, i.e., on international
waters.13

On February 7, 2003 and March 4, 2003, Capwire received a Warrant of Levy and a Notice of Auction Sale,
respectively, from the respondent Provincial Treasurer of Batangas (Provincial Treasurer).14

On March 10, 2003, Capwire filed a Petition for Prohibition and Declaration of Nullity of Warrant of Levy,
Notice of Auction Sale and/or Auction Sale with the Regional Trial Court (RTC) of Batangas City.15
Alter the filing of the public respondents' Comment,16 on May 5, 2003, the RTC issued an Order dismissing
the petition for failure of the petitioner Capwire to follow the requisite of payment under protest as well as
failure to appeal to the Local Board of Assessment Appeals (LBAA), as provided for in Sections 206 and 226
of Republic Act (R.A.) No. 7160, or the Local Government Code.17

Capwire filed a Motion for Reconsideration, but the same was likewise dismissed by the RTC in an
Order19 dated August 26, 2003. It then filed an appeal to the Court of Appeals.20

On May 30, 2007, the Court of Appeals promulgated its Decision dismissing the appeal filed by Capwire and
affirming the order of the trial court. The dispositive portion of the CA's decision states:

WHEREFORE, premises considered, the assailed Orders dated May 5, 2003 and August 26, 2003 of the
Regional Trial Court, Branch 11 of Batangas City, are AFFIRMED.

SO ORDERED.21

The appellate court held that the trial court correctly dismissed Capwire's petition because of the latter's
failure to comply with the requirements set in Sections 226 and 229 of the Local Government Code, that is,
by not availing of remedies before administrative bodies like the LBAA and the Central Board of Assessment
Appeals (CBAA).22 Although Capwire claims that it saw no need to undergo administrative proceedings
because its petition raises purely legal questions, the appellate court did not share this view and noted that
the case raises questions of fact, such as the extent to which parts of the submarine cable system lie within
the territorial jurisdiction of the taxing authorities, the public respondents.23Further, the CA noted that
Capwire failed to pay the tax assessed against it under protest, another strict requirement under Section
252 of the Local Government Code.24

Hence, the instant petition for review of Capwire.

Petitioner Capwire asserts that recourse to the Local Board of Assessment Appeals, or payment of the tax
under protest, is inapplicable to the case at bar since there is no question of fact involved, or that the
question involved is not the reasonableness of the amount assessed but, rather, the authority and power of
the assessor to impose the tax and of the treasurer to collect it.25 It contends that there is only a pure
question of law since the issue is whether its submarine cable system, which it claims lies in international
waters, is taxable.26 Capwire holds the position that the cable system is not subject to tax.27cralawred

Respondents assessors and treasurers of the Province of Batangas ana Municipality of Nasugbu, Batangas
disagree with Capwire and insist that the case presents questions of fact such as the extent and portion of
the submarine cable system that lies within the jurisdiction of the said local governments, as well as the
nature of the so-called indefeasible rights as property of Capwire.28 Such questions are allegedly resolvable
only before administrative agencies like the Local Board of Assessment Appeals.29

The Court confronts the following issues: Is the case cognizable by the administrative agencies and covered
by the requirements in Sections 226 and 229 of the Local Government Code which makes the dismissal of
Capwire's petition by the RTC proper? May submarine communications cables be classified as taxable real
property by the local governments?

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

In disputes involving real property taxation, the general rule is to require the taxpayer to first avail of
administrative remedies and pay the tax under protest before allowing any resort to a judicial action, except
when the assessment itself is alleged to be illegal or is made without legal authority.30 For example, prior
resort to administrative action is required when among the issues raised is an allegedly erroneous
assessment, like when the reasonableness of the amount is challenged, while direct court action is permitted
when only the legality, power, validity or authority of the assessment itself is in question.31 Stated
differently, the general rule of a prerequisite recourse to administrative remedies applies when questions of
fact are raised, but the exception of direct court action is allowed when purely questions of law are
involved.32

This Court has previously and rather succinctly discussed the difference between a question of fact and a
question of law. In Cosmos Bottling Corporation v. Nagrama, Jr.,33 it held:
The Court has made numerous dichotomies between questions of law and fact. A reading of these
dichotomies shows that labels attached to law and fact are descriptive rather than definitive. We are not
alone in Our difficult task of clearly distinguishing questions of feet from questions of law. The United States
Supreme Court has ruled that: "we [do not| yet know of any other rule or principle that will unerringly
distinguish a tactual finding from a legal conclusion."

In Ramos v. Pepsi-Cola Bottling Co. of the P.I., the Court ruled:

There is a question of law in a given case when the doubt or difference arises as to what the law is on a
certain state of facts; there is a question of fact when the doubt or difference arises as to the truth or the
falsehood of alleged facts.

We shall label this the doubt dichotomy.

In Republic v. Sandiganbayan, the Court ruled:

x x x A question of law exists when the doubt or controversy concerns the correct application of law or
jurisprudence to a certain set of facts; or when the issue docs not call for an examination of the probative
value of the evidence presented, the truth or falsehood of facts being admitted. In contrast, a question of
fact exists when the doubt or difference arises as to the truth or falsehood of facts or when the query invites
calibration of the whole evidence considering mainly the credibility of the witnesses, the existence and
relevancy of specific surrounding circumstances as well as their relation to each other and to the whole, and
the probability of the situation.

For the sake of brevity, We shall label this the law application and calibration dichotomy.

In contrast, the dynamic legal scholarship in the United States has birthed many commentaries on the
question of law and question of fact dichotomy. As early as 1944, the law was described as growing
downward toward "roots of fact" which grew upward to meet it. In 1950, the late Professor Louis Jaffe saw
fact and law as a spectrum, with one shade blending imperceptibly into the other. Others have defined
questions of law as those that deal with the general body of legal principles; questions of fact deal with "all
other phenomena x x x." Kenneth Gulp Davis also weighed in and noted that the difference between fact
and law has been characterized as that between "ought" questions and "is" questions.34

Guided by the quoted pronouncement, the Court sustains the CA's finding that petitioner's case is one
replete with questions of fact instead of pure questions of law, which renders its filing in a judicial forum
improper because it is instead cognizable by local administrative bodies like the Board of Assessment
Appeals, which are the proper venues for trying these factual issues. Verily, what is alleged by Capwire in its
petition as "the crux of the controversy," that is, "whether or not an indefeasible right over a submarine
cable system that lies in international waters can be subject to real property tax in the Philippines,"35 is not
the genuine issue that the case presents - as it is already obvious and fundamental that real property that
lies outside of Philippine territorial jurisdiction cannot be subjected to its domestic and sovereign power of
real property taxation - but, rather, such factual issues as the extent and status of Capwire's ownership of
the system, the actual length of the cable/s that lie in Philippine territory, and the corresponding assessment
and taxes due on the same, because the public respondents imposed and collected the assailed real
property tax on the finding that at least a portion or some portions of the submarine cable system that
Capwire owns or co-owns lies inside Philippine territory. Capwire's disagreement with such findings of the
administrative bodies presents little to no legal question that only the courts may directly resolve.

Instead, Capwire argues and makes claims on mere assumptions of certain facts as if they have been
already admitted or established, when they have not, since no evidence of such have yet been presented in
the proper agencies and even in the current petition. As such, it remains unsettled whether Capwire is a
mere co-owner, not full owner, of the subject submarine cable and, if the former, as to what extent;
whether all or certain portions of the cable are indeed submerged in water; and whether the waters wherein
the cable/s is/are laid are entirely outside of Philippine territorial or inland waters, i.e., in international
waters. More simply, Capwire argues based on mere legal conclusions, culminating on its claim of illegality
of respondents' acts, but the conclusions are yet unsupported by facts that should have been threshed out
quasi-judicially before the administrative agencies. It has been held that "a bare characterization in a
petition of unlawfulness, is merely a legal conclusion and a wish of the pleader, and such a legal conclusion
unsubstantiated by facts which could give it life, has no standing in any court where issues must be
presented and determined by facts in ordinary and concise language."36 Therefore, Capwire's resort to
judicial action, premised on its legal conclusion that its cables (the equipment being taxed) lie entirely on
international waters, without first administratively substantiating such a factual premise, is improper and
was rightly denied. Its proposition that the cables lie entirely beyond Philippine territory, and therefore,
outside of Philippine sovereignty, is a fact that is not subject to judicial notice since, on the contrary, and as
will be explained later, it is in fact certain that portions of the cable would definitely lie within Philippine
waters. Jurisprudence on the Local Government Code is clear that facts such as these must be threshed out
administratively, as the courts in these types of cases step in at the first instance only when pure questions
of law are involved.

Nonetheless, We proceed to decide on whether submarine wires or cables used for communications may be
taxed like other real estate.

We hold in the affirmative.

Submarine or undersea communications cables are akin to electric transmission lines which this Court has
recently declared in Manila Electric Company v. City Assessor and City Treasurer of Lucena City,37 as "no
longer exempted from real property tax" and may qualify as "machinery" subject to real property tax under
the Local Government Code. To the extent that the equipment's location is determinable to be within the
taxing authority's jurisdiction, the Court sees no reason to distinguish between submarine cables used for
communications and aerial or underground wires or lines used for electric transmission, so that both pieces
of property do not merit a different treatment in the aspect of real property taxation. Both electric lines and
communications cables, in the strictest sense, are not directly adhered to the soil but pass through posts,
relays or landing stations, but both may be classified under the term "machinery" as real property under
Article 415(5)38 of the Civil Code for the simple reason that such pieces of equipment serve the owner's
business or tend to meet the needs of his industry or works that are on real estate. Even objects in or on a
body of water may be classified as such, as "waters" is classified as an immovable under Article 415(8)39 of
the Code. A classic example is a boathouse which, by its nature, is a vessel and, therefore, a personal
property but, if it is tied to the shore and used as a residence, and since it floats on waters which is
immovable, is considered real property.40 Besides, the Court has already held that "it is a familiar
phenomenon to see things classed as real property for purposes of taxation which on general principle might
be considered personal property."41

Thus, absent any showing from Capwire of any express grant of an exemption for its lines and cables from
real property taxation, then this interpretation applies and Capwire's submarine cable may be held subject
to real property tax.

Having determined that Capwire is liable, and public respondents have the right to impose a real property
tax on its submarine cable, the issue that is unresolved is how much of such cable is taxable based on the
extent of Capwire's ownership or co-ownership of it and the length that is laid within respondents' taxing
jurisdiction. The matter, however, requires a factual determination that is best performed by the Local and
Central Boards of Assessment Appeals, a remedy which the petitioner did not avail of.

At any rate, given the importance of the issue, it is proper to lay down the other legal bases for the local
taxing authorities' power to tax portions of the submarine cables of petitioner. It is not in dispute that the
submarine cable system's Landing Station in Nasugbu, Batangas is owned by PLDT and not by Capwire.
Obviously, Capwire is not liable for the real property tax on this Landing Station. Nonetheless, Capwire
admits that it co-owns the submarine cable system that is subject of the tax assessed and being collected by
public respondents. As the Court takes judicial notice that Nasugbu is a coastal town and the surrounding
sea falls within what the United Nations Convention on the Law of the Sea (UNCLOS) would define as the
country's territorial sea (to the extent of 12 nautical miles outward from the nearest baseline, under Part II,
Sections 1 and 2) over which the country has sovereignty, including the seabed and subsoil, it follows that
indeed a portion of the submarine cable system lies within Philippine territory and thus falls within the
jurisdiction of the said local taxing authorities.42 It easily belies Capwire's contention that the cable system is
entirely in international waters. And even if such portion does not lie in the 12-nautical-mile vicinity of the
territorial sea but further inward, in Prof. Magallona v. Hon. Ermita, et al.43 this Court held that "whether
referred to as Philippine 'internal waters' under Article I of the Constitution44 or as 'archipelagic waters'
under UNCLOS Part III, Article 49(1, 2, 4),45 the Philippines exercises sovereignty over the body of water
lying landward of (its) baselines, including the air space over it and the submarine areas underneath."
Further, under Part VI, Article 7946 of the UNCLOS, the Philippines clearly has jurisdiction with respect to
cables laid in its territory that are utilized in support of other installations and structures under its
jurisdiction.
And as far as local government units are concerned, the areas described above are to be considered
subsumed under the term "municipal waters" which, under the Local Government Code, includes "not only
streams, lakes, and tidal waters within the municipality, not being the subject of private ownership and not
comprised within the national parks, public forest, timber lands, forest reserves or fishery reserves, but also
marine waters included between two lines drawn perpendicularly to the general coastline from points where
the boundary lines of the municipality or city touch the sea at low tide and a third line parallel with the
general coastline and fifteen (15) kilometers from it."47 Although the term "municipal waters" appears in the
Code in the context of the grant of quarrying and fisheries privileges for a fee by local governments,48 its
inclusion in the Code's Book II which covers local taxation means that it may also apply as guide in
determining the territorial extent of the local authorities' power to levy real property taxation.

Thus, the jurisdiction or authority over such part of the subject submarine cable system lying within
Philippine jurisdiction includes the authority to tax the same, for taxation is one of the three basic and
necessary attributes of sovereignty,49 and such authority has been delegated by the national legislature to
the local governments with respect to real property taxation.50

As earlier stated, a way for Capwire to claim that its cable system is not covered by such authority is by
showing a domestic enactment or even contract, or an international agreement or treaty exempting the
same from real property taxation. It failed to do so, however, despite the fact that the burden of proving
exemption from local taxation is upon whom the subject real property is declared.51 Under the Local
Government Code, every person by or for whom real property is declared, who shall claim tax exemption for
such property from real property taxation "shall file with the provincial, city or municipal assessor within
thirty (30) days from the date of the declaration of real property sufficient documentary evidence in support
of such claim."52 Capwire omitted to do so. And even under Capwire's legislative franchise, RA 4387, which
amended RA 2037, where it may be derived that there was a grant of real property tax exemption for
properties that are part of its franchise, or directly meet the needs of its business,53 such had been
expressly withdrawn by the Local Government Code, which took effect on January 1, 1992, Sections 193
and 234 of which provide:54

Section 193. Withdrawal of Tax Exemption Privileges. - Unless otherwise provided in this Code, tax
exemptions or incentives granted to, or presently enjoyed by all persons, whether natural or
juridical, including government-owned or controlled corporations, except local water districts,
cooperatives duly registered under R.A. No. 6938, nonstock and nonprofit hospitals and
educational institutions, are hereby withdrawn upon the effectivity of this Code.

xxxx

Section 234. Exemptions from Real Property Tax. - The following arc exempted from payment of the real
property tax:

(a) Real property owned by the Republic of the Philippines or any of its political subdivisions except when
the beneficial use thereof has been granted, for consideration of otherwise, to a taxable person;

(b) Charitable institutions, churches, parsonages or convents appurtenant thereto, mosques, nonprofit or
religious cemeteries and all lands, buildings, and improvements actually, directly, and exclusively used for
religious, charitable or educational purposes;

(c) All machineries and equipment that are actually, directly and exclusively used by local water districts and
government-owned or controlled corporations engaged in the supply and distribution of water and/or
generation and transmission of electric power;

(d) All real property owned by duly registered cooperatives as provided for under R.A. No. 6938; and

(c) Machinery and equipment used for pollution control and environmental protection.

Except as provided herein, any exemption from payment of real property tax previously granted
to, or presently enjoyed by, all persons, whether natural or juridical, including all government-
owned or controlled corporations arc hereby withdrawn upon the effectivity of this Code. 55

Such express withdrawal had been previously held effective upon exemptions bestowed by legislative
franchises granted prior to the effectivity of the Local Government Code.56 Capwire fails to allege or provide
any other privilege or exemption that were granted to it by the legislature after the enactment of the Local
Government Code. Therefore, the presumption stays that it enjoys no such privilege or exemption. Tax
exemptions are strictly construed against the taxpayer because taxes are considered the lifeblood of the
nation.57

WHEREFORE, the petition is DENIED. The Court of Appeals' Decision dated May 30, 2007 and Resolution
dated October 8, 2007 are AFFIRMED.

SO ORDERED. cralawlawlibra ry

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R No. 187167 August 16, 2011

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

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

DECISION

CARPIO, J.:

The Case

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

The Antecedents

In 1961, Congress passed Republic Act No. 3046 (RA 3046)2 demarcating the maritime baselines of
the Philippines as an archipelagic State.3 This law followed the framing of the Convention on the
Territorial Sea and the Contiguous Zone in 1958 (UNCLOS I),4 codifying, among others, the
sovereign right of States parties over their "territorial sea," the breadth of which, however, was left
undetermined. Attempts to fill this void during the second round of negotiations in Geneva in 1960
(UNCLOS II) proved futile. Thus, domestically, RA 3046 remained unchanged for nearly five
decades, save for legislation passed in 1968 (Republic Act No. 5446 [RA 5446]) correcting
typographical errors and reserving the drawing of baselines around Sabah in North Borneo.

In March 2009, Congress amended RA 3046 by enacting RA 9522, the statute now under scrutiny.
The change was prompted by the need to make RA 3046 compliant with the terms of the United
Nations Convention on the Law of the Sea (UNCLOS III),5 which the Philippines ratified on 27
February 1984.6 Among others, UNCLOS III prescribes the water-land ratio, length, and contour of
baselines of archipelagic States like the Philippines7 and sets the deadline for the filing of application
for the extended continental shelf.8 Complying with these requirements, RA 9522 shortened one
baseline, optimized the location of some basepoints around the Philippine archipelago and classified
adjacent territories, namely, the Kalayaan Island Group (KIG) and the Scarborough Shoal, as
"regimes of islands" whose islands generate their own applicable maritime zones.

Petitioners, professors of law, law students and a legislator, in their respective capacities as
"citizens, taxpayers or x x x legislators,"9 as the case may be, assail the constitutionality of RA 9522
on two principal grounds, namely: (1) RA 9522 reduces Philippine maritime territory, and logically,
the reach of the Philippine state’s sovereign power, in violation of Article 1 of the 1987
Constitution,10 embodying the terms of the Treaty of Paris11 and ancillary treaties,12 and (2) RA 9522
opens the country’s waters landward of the baselines to maritime passage by all vessels and
aircrafts, undermining Philippine sovereignty and national security, contravening the country’s
nuclear-free policy, and damaging marine resources, in violation of relevant constitutional
provisions.13
In addition, petitioners contend that RA 9522’s treatment of the KIG as "regime of islands" not only
results in the loss of a large maritime area but also prejudices the livelihood of subsistence
fishermen.14 To buttress their argument of territorial diminution, petitioners facially attack RA 9522 for
what it excluded and included – its failure to reference either the Treaty of Paris or Sabah and its use
of UNCLOS III’s framework of regime of islands to determine the maritime zones of the KIG and the
Scarborough Shoal.

Commenting on the petition, respondent officials raised threshold issues questioning (1) the
petition’s compliance with the case or controversy requirement for judicial review grounded on
petitioners’ alleged lack of locus standi and (2) the propriety of the writs of certiorari and prohibition
to assail the constitutionality of RA 9522. On the merits, respondents defended RA 9522 as the
country’s compliance with the terms of UNCLOS III, preserving Philippine territory over the KIG or
Scarborough Shoal. Respondents add that RA 9522 does not undermine the country’s security,
environment and economic interests or relinquish the Philippines’ claim over Sabah.

Respondents also question the normative force, under international law, of petitioners’ assertion that
what Spain ceded to the United States under the Treaty of Paris were the islands and all the
waters found within the boundaries of the rectangular area drawn under the Treaty of Paris.

We left unacted petitioners’ prayer for an injunctive writ.

The Issues

The petition raises the following issues:

1. Preliminarily –

1. Whether petitioners possess locus standi to bring this suit; and

2. Whether the writs of certiorari and prohibition are the proper remedies to assail the
constitutionality of RA 9522.

2. On the merits, whether RA 9522 is unconstitutional.

The Ruling of the Court

On the threshold issues, we hold that (1) petitioners possess locus standi to bring this suit as
citizens and (2) the writs of certiorari and prohibition are proper remedies to test the constitutionality
of RA 9522. On the merits, we find no basis to declare RA 9522 unconstitutional.

On the Threshold Issues

Petitioners Possess Locus
Standi as Citizens

Petitioners themselves undermine their assertion of locus standi as legislators and taxpayers
because the petition alleges neither infringement of legislative prerogative15 nor misuse of public
funds,16 occasioned by the passage and implementation of RA 9522. Nonetheless, we recognize
petitioners’ locus standi as citizens with constitutionally sufficient interest in the resolution of the
merits of the case which undoubtedly raises issues of national significance necessitating urgent
resolution. Indeed, owing to the peculiar nature of RA 9522, it is understandably difficult to find other
litigants possessing "a more direct and specific interest" to bring the suit, thus satisfying one of the
requirements for granting citizenship standing.17

The Writs of Certiorari and Prohibition

Are Proper Remedies to Test
the Constitutionality of Statutes

In praying for the dismissal of the petition on preliminary grounds, respondents seek a strict
observance of the offices of the writs of certiorari and prohibition, noting that the writs cannot issue
absent any showing of grave abuse of discretion in the exercise of judicial, quasi-judicial or
ministerial powers on the part of respondents and resulting prejudice on the part of petitioners.18

Respondents’ submission holds true in ordinary civil proceedings. When this Court exercises its
constitutional power of judicial review, however, we have, by tradition, viewed the writs of certiorari
and prohibition as proper remedial vehicles to test the constitutionality of statutes,19 and indeed, of
acts of other branches of government.20 Issues of constitutional import are sometimes crafted out of
statutes which, while having no bearing on the personal interests of the petitioners, carry such
relevance in the life of this nation that the Court inevitably finds itself constrained to take cognizance
of the case and pass upon the issues raised, non-compliance with the letter of procedural rules
notwithstanding. The statute sought to be reviewed here is one such law.

RA 9522 is Not Unconstitutional

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

Petitioners submit that RA 9522 "dismembers a large portion of the national territory"21 because it
discards the pre-UNCLOS III demarcation of Philippine territory under the Treaty of Paris and related
treaties, successively encoded in the definition of national territory under the 1935, 1973 and 1987
Constitutions. Petitioners theorize that this constitutional definition trumps any treaty or statutory
provision denying the Philippines sovereign control over waters, beyond the territorial sea
recognized at the time of the Treaty of Paris, that Spain supposedly ceded to the United States.
Petitioners argue that from the Treaty of Paris’ technical description, Philippine sovereignty over
territorial waters extends hundreds of nautical miles around the Philippine archipelago, embracing
the rectangular area delineated in the Treaty of Paris.22

Petitioners’ theory fails to persuade us.

UNCLOS III has nothing to do with the acquisition (or loss) of territory. It is a multilateral treaty
regulating, among others, sea-use rights over maritime zones (i.e., the territorial waters [12 nautical
miles from the baselines], contiguous zone [24 nautical miles from the baselines], exclusive
economic zone [200 nautical miles from the baselines]), and continental shelves that UNCLOS III
delimits.23 UNCLOS III was the culmination of decades-long negotiations among United Nations
members to codify norms regulating the conduct of States in the world’s oceans and submarine
areas, recognizing coastal and archipelagic States’ graduated authority over a limited span of waters
and submarine lands along their coasts.

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

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

Thus, baselines laws are nothing but statutory mechanisms for UNCLOS III States parties to delimit
with precision the extent of their maritime zones and continental shelves. In turn, this gives notice to
the rest of the international community of the scope of the maritime space and submarine areas
within which States parties exercise treaty-based rights, namely, the exercise of sovereignty over
territorial waters (Article 2), the jurisdiction to enforce customs, fiscal, immigration, and sanitation
laws in the contiguous zone (Article 33), and the right to exploit the living and non-living resources in
the exclusive economic zone (Article 56) and continental shelf (Article 77).

Even under petitioners’ theory that the Philippine territory embraces the islands and all the
waters within the rectangular area delimited in the Treaty of Paris, the baselines of the Philippines
would still have to be drawn in accordance with RA 9522 because this is the only way to draw the
baselines in conformity with UNCLOS III. The baselines cannot be drawn from the boundaries or
other portions of the rectangular area delineated in the Treaty of Paris, but from the "outermost
islands and drying reefs of the archipelago."24

UNCLOS III and its ancillary baselines laws play no role in the acquisition, enlargement or, as
petitioners claim, diminution of territory. Under traditional international law typology, States acquire
(or conversely, lose) territory through occupation, accretion, cession and prescription,25 not by
executing multilateral treaties on the regulations of sea-use rights or enacting statutes to comply with
the treaty’s terms to delimit maritime zones and continental shelves. Territorial claims to land
features are outside UNCLOS III, and are instead governed by the rules on general international
law.26

RA 9522’s Use of the Framework

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

Petitioners next submit that RA 9522’s use of UNCLOS III’s regime of islands framework to draw the
baselines, and to measure the breadth of the applicable maritime zones of the KIG, "weakens our
territorial claim" over that area.27Petitioners add that the KIG’s (and Scarborough Shoal’s) exclusion
from the Philippine archipelagic baselines results in the loss of "about 15,000 square nautical miles
of territorial waters," prejudicing the livelihood of subsistence fishermen.28 A comparison of the
configuration of the baselines drawn under RA 3046 and RA 9522 and the extent of maritime space
encompassed by each law, coupled with a reading of the text of RA 9522 and its congressional
deliberations, vis-à-vis the Philippines’ obligations under UNCLOS III, belie this view.1avv phi 1

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

Petitioners’ assertion of loss of "about 15,000 square nautical miles of territorial waters" under RA
9522 is similarly unfounded both in fact and law. On the contrary, RA 9522, by optimizing the
location of basepoints, increased the Philippines’ total maritime space (covering its internal waters,
territorial sea and exclusive economic zone) by 145,216 square nautical miles, as shown in the table
below:29

Extent of maritime
area using RA 3046, Extent of maritime
as amended, taking area using RA 9522,
into account the taking into account
Treaty of Paris’ UNCLOS III (in
delimitation (in square nautical
square nautical miles)
miles)
Internal or
archipelagic
waters 166,858 171,435
Territorial Sea 274,136 32,106
Exclusive
Economic Zone 382,669
TOTAL 440,994 586,210

Thus, as the map below shows, the reach of the exclusive economic zone drawn under RA 9522
even extends way beyond the waters covered by the rectangular demarcation under the Treaty of
Paris. Of course, where there are overlapping exclusive economic zones of opposite or adjacent
States, there will have to be a delineation of maritime boundaries in accordance with UNCLOS III.30
Further, petitioners’ argument that the KIG now lies outside Philippine territory because the
baselines that RA 9522 draws do not enclose the KIG is negated by RA 9522 itself. Section 2 of the
law commits to text the Philippines’ continued claim of sovereignty and jurisdiction over the KIG and
the Scarborough Shoal:

SEC. 2. The baselines in the following areas over which the Philippines likewise exercises
sovereignty and jurisdiction shall be determined as "Regime of Islands" under the Republic of the
Philippines consistent with Article 121 of the United Nations Convention on the Law of the Sea
(UNCLOS):

a) The Kalayaan Island Group as constituted under Presidential Decree No. 1596 and

b) Bajo de Masinloc, also known as Scarborough Shoal. (Emphasis supplied)

Had Congress in RA 9522 enclosed the KIG and the Scarborough Shoal as part of the Philippine
archipelago, adverse legal effects would have ensued. The Philippines would have committed a
breach of two provisions of UNCLOS III. First, Article 47 (3) of UNCLOS III requires that "[t]he
drawing of such baselines shall not depart to any appreciable extent from the general configuration
of the archipelago." Second, Article 47 (2) of UNCLOS III requires that "the length of the baselines
shall not exceed 100 nautical miles," save for three per cent (3%) of the total number of baselines
which can reach up to 125 nautical miles.31

Although the Philippines has consistently claimed sovereignty over the KIG32 and the Scarborough
Shoal for several decades, these outlying areas are located at an appreciable distance from the
nearest shoreline of the Philippine archipelago,33 such that any straight baseline loped around them
from the nearest basepoint will inevitably "depart to an appreciable extent from the general
configuration of the archipelago."

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

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

This is called contested islands outside our configuration. We see that our archipelago is defined by
the orange line which [we] call[] archipelagic baseline. Ngayon, tingnan ninyo ang maliit na circle
doon sa itaas, that is Scarborough Shoal, itong malaking circle sa ibaba, that is Kalayaan Group or
the Spratlys. Malayo na sila sa ating archipelago kaya kung ilihis pa natin ang dating archipelagic
baselines para lamang masama itong dalawang circles, hindi na sila magkalapit at baka hindi na
tatanggapin ng United Nations because of the rule that it should follow the natural configuration of
the archipelago.34 (Emphasis supplied)

Similarly, the length of one baseline that RA 3046 drew exceeded UNCLOS III’s limits. The need to
1avv phi 1

shorten this baseline, and in addition, to optimize the location of basepoints using current maps,
became imperative as discussed by respondents:

[T]he amendment of the baselines law was necessary to enable the Philippines to draw the outer
limits of its maritime zones including the extended continental shelf in the manner provided by Article
47 of [UNCLOS III]. As defined by R.A. 3046, as amended by R.A. 5446, the baselines suffer from
some technical deficiencies, to wit:

1. The length of the baseline across Moro Gulf (from Middle of 3 Rock Awash to Tongquil
Point) is 140.06 nautical miles x x x. This exceeds the maximum length allowed under Article
47(2) of the [UNCLOS III], which states that "The length of such baselines shall not exceed
100 nautical miles, except that up to 3 per cent of the total number of baselines enclosing
any archipelago may exceed that length, up to a maximum length of 125 nautical miles."

2. The selection of basepoints is not optimal. At least 9 basepoints can be skipped or deleted
from the baselines system. This will enclose an additional 2,195 nautical miles of water.
 3. Finally, the basepoints were drawn from maps existing in 1968, and not established by
geodetic survey methods. Accordingly, some of the points, particularly along the west coasts
of Luzon down to Palawan were later found to be located either inland or on water, not on
low-water line and drying reefs as prescribed by Article 47.35

Hence, far from surrendering the Philippines’ claim over the KIG and the Scarborough Shoal,
Congress’ decision to classify the KIG and the Scarborough Shoal as "‘Regime[s] of Islands’ under
the Republic of the Philippines consistent with Article 121"36 of UNCLOS III manifests the Philippine
State’s responsible observance of its pacta sunt servanda obligation under UNCLOS III. Under
Article 121 of UNCLOS III, any "naturally formed area of land, surrounded by water, which is above
water at high tide," such as portions of the KIG, qualifies under the category of "regime of islands,"
whose islands generate their own applicable maritime zones.37

Statutory Claim Over Sabah under

RA 5446 Retained

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

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

UNCLOS III and RA 9522 not

Incompatible with the Constitution’s
Delineation of Internal Waters

As their final argument against the validity of RA 9522, petitioners contend that the law
unconstitutionally "converts" internal waters into archipelagic waters, hence subjecting these waters
to the right of innocent and sea lanes passage under UNCLOS III, including overflight. Petitioners
extrapolate that these passage rights indubitably expose Philippine internal waters to nuclear and
maritime pollution hazards, in violation of the Constitution.38

Whether referred to as Philippine "internal waters" under Article I of the Constitution39 or as

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

Article 49. Legal status of archipelagic waters, of the air space over archipelagic waters and of their
bed and subsoil. –

1. The sovereignty of an archipelagic State extends to the waters enclosed by the

archipelagic baselines drawn in accordance with article 47, described as archipelagic
waters, regardless of their depth or distance from the coast.

2. This sovereignty extends to the air space over the archipelagic waters, as well as to
their bed and subsoil, and the resources contained therein.

xxxx
 4. The regime of archipelagic sea lanes passage established in this Part shall not in other
respects affect the status of the archipelagic waters, including the sea lanes, or the
exercise by the archipelagic State of its sovereignty over such waters and their air
space, bed and subsoil, and the resources contained therein. (Emphasis supplied)

The fact of sovereignty, however, does not preclude the operation of municipal and international law
norms subjecting the territorial sea or archipelagic waters to necessary, if not marginal, burdens in
the interest of maintaining unimpeded, expeditious international navigation, consistent with the
international law principle of freedom of navigation. Thus, domestically, the political branches of the
Philippine government, in the competent discharge of their constitutional powers, may pass
legislation designating routes within the archipelagic waters to regulate innocent and sea lanes
passage.40 Indeed, bills drawing nautical highways for sea lanes passage are now pending in
Congress.41

In the absence of municipal legislation, international law norms, now codified in UNCLOS III, operate
to grant innocent passage rights over the territorial sea or archipelagic waters, subject to the treaty’s
limitations and conditions for their exercise.42 Significantly, the right of innocent passage is a
customary international law,43 thus automatically incorporated in the corpus of Philippine law.44 No
modern State can validly invoke its sovereignty to absolutely forbid innocent passage that is
exercised in accordance with customary international law without risking retaliatory measures from
the international community.

The fact that for archipelagic States, their archipelagic waters are subject to both the right of
innocent passage and sea lanes passage45 does not place them in lesser footing vis-à-
vis continental coastal States which are subject, in their territorial sea, to the right of innocent
passage and the right of transit passage through international straits. The imposition of these
passage rights through archipelagic waters under UNCLOS III was a concession by archipelagic
States, in exchange for their right to claim all the waters landward of their baselines, regardless of
their depth or distance from the coast, as archipelagic waters subject to their territorial sovereignty.
More importantly, the recognition of archipelagic States’ archipelago and the waters enclosed by
their baselines as one cohesive entity prevents the treatment of their islands as separate islands
under UNCLOS III.46 Separate islands generate their own maritime zones, placing the waters
between islands separated by more than 24 nautical miles beyond the States’ territorial sovereignty,
subjecting these waters to the rights of other States under UNCLOS III.47

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

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

In fact, the demarcation of the baselines enables the Philippines to delimit its exclusive economic
zone, reserving solely to the Philippines the exploitation of all living and non-living resources within
such zone. Such a maritime delineation binds the international community since the delineation is in
strict observance of UNCLOS III. If the maritime delineation is contrary to UNCLOS III, the
international community will of course reject it and will refuse to be bound by it.
UNCLOS III favors States with a long coastline like the Philippines. UNCLOS III creates a sui
generis maritime space – the exclusive economic zone – in waters previously part of the high seas.
UNCLOS III grants new rights to coastal States to exclusively exploit the resources found within this
zone up to 200 nautical miles.53 UNCLOS III, however, preserves the traditional freedom of
navigation of other States that attached to this zone beyond the territorial sea before UNCLOS III.

RA 9522 and the Philippines’ Maritime Zones

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

The enactment of UNCLOS III compliant baselines law for the Philippine archipelago and adjacent
areas, as embodied in RA 9522, allows an internationally-recognized delimitation of the breadth of
the Philippines’ maritime zones and continental shelf. RA 9522 is therefore a most vital step on the
part of the Philippines in safeguarding its maritime zones, consistent with the Constitution and our
national interest.

WHEREFORE, we DISMISS the petition.

SO ORDERED.

THE 1987 CONSTITUTION

OF THE
REPUBLIC OF THE PHILIPPINES

ARTICLE II
DECLARATION OF PRINCIPLES AND STATE POLICIES
PRINCIPLES

Section 1. The Philippines is a democratic and republican State. Sovereignty resides in the people and all government
authority emanates from them.

Section 2. The Philippines renounces war as an instrument of national policy, 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.

Section 3. Civilian authority is, at all times, supreme over the military. The Armed Forces of the Philippines is the
protector of the people and the State. Its goal is to secure the sovereignty of the State and the integrity of the
national territory.
Section 4. The prime duty of the Government is to serve and protect the people. The Government may call upon the
people to defend the State and, in the fulfillment thereof, all citizens may be required, under conditions provided by
law, to render personal, military or civil service.cralaw

Section 5. The maintenance of peace and order, the protection of life, liberty, and property, and promotion of the
general welfare are essential for the enjoyment by all the people of the blessings of democracy.

Section 6. The separation of Church and State shall be inviolable.

STATE POLICIES
Section 7. The State shall pursue an independent foreign policy. In its relations with other states, the paramount
consideration shall be national sovereignty, territorial integrity, national interest, and the right to self-determination.
Section 8. The Philippines, consistent with the national interest, adopts and pursues a policy of freedom from nuclear
weapons in its territory.

Section 9. The State shall promote a just and dynamic social order that will ensure the prosperity and independence
of the nation and free the people from poverty through policies that provide adequate social services, promote full
employment, a rising standard of living, and an improved quality of life for all.cralaw

Section 10. The State shall promote social justice in all phases of national development.cralaw

Section 11. The State values the dignity of every human person and guarantees full respect for human rights.

Section 12. The State recognizes the sanctity of family life and shall protect and strengthen the family as a basic
autonomous social institution. It shall equally protect the life of the mother and the life of the unborn from
conception. The natural and primary right and duty of parents in the rearing of the youth for civic efficiency and the
development of moral character shall receive the support of the Government.

Section 13. The State recognizes the vital role of the youth in nation-building and shall promote and protect their
physical, moral, spiritual, intellectual, and social well-being. It shall inculcate in the youth patriotism and nationalism,
and encourage their involvement in public and civic affairs.

Section 14. The State recognizes the role of women in nation-building, and shall ensure the fundamental equality
before the law of women and men.

Section 15. The State shall protect and promote the right to health of the people and instill health consciousness
among them.

Section 16. The State shall protect and advance the right of the people to a balanced and healthful ecology in accord
with the rhythm and harmony of nature.

Section 17. The State shall give priority to education, science and technology, arts, culture, and sports to foster
patriotism and nationalism, accelerate social progress, and promote total human liberation and development.

Section 18. The State affirms labor as a primary social economic force. It shall protect the rights of workers and
promote their welfare.

Section 19. The State shall develop a self-reliant and independent national economy effectively controlled by
Filipinos.

Section 20. The State recognizes the indispensable role of the private sector, encourages private enterprise, and
provides incentives to needed investments.

Section 21. The State shall promote comprehensive rural development and agrarian reform.

Section 22. The State recognizes and promotes the rights of indigenous cultural communities within the framework of
national unity and development.
Section 23. The State shall encourage non-governmental, community-based, or sectoral organizations that promote
the welfare of the nation.

Section 24. The State recognizes the vital role of communication and information in nation-building.

Section 25. The State shall ensure the autonomy of local governments.

Section 26. The State shall guarantee equal access to opportunities for public service and prohibit political dynasties
as may be defined by law.

Section 27. The State shall maintain honesty and integrity in the public service and take positive and effective
measures against graft and corruption.

Section 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.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 205728 January 21, 2015

THE DIOCESE OF BACOLOD, REPRESENTED BY THE MOST REV. BISHOP VICENTE M.

NAVARRA and THE BISHOP HIMSELF IN HIS PERSONAL CAPACITY, Petitioners,
vs.
COMMISSION ON ELECTIONS AND THE ELECTION OFFICER OF BACOLOD CITY, ATTY.
MAVIL V. MAJARUCON, Respondents.

DECISION
LEONEN, J.:

"The Philippines is a democratic and republican State. Sovereignty resides in the people and all
government authority emanates from them." – Article II, Section 1, Constitution

All governmental authority emanates from our people. No unreasonable restrictions of the
fundamental and preferred right to expression of the electorate during political contests no matter
how seemingly benign will be tolerated.

This case defines the extent that our people may shape the debates during elections. It is significant
and of first impression. We are asked to decide whether the Commission on Elections (COMELEC)
has the competence to limit expressions made by the citizens — who are not candidates — during
elections.

Before us is a special civil action for certiorari and prohibition with application for preliminary
injunction and temporary restraining order1 under Rule 65 of the Rules of Court seeking to nullify
COMELEC’s Notice to Remove Campaign Materials2 dated February 22, 2013 and letter3 issued on
February 27, 2013.

The facts are not disputed.

On February 21, 2013, petitioners posted two (2) tarpaulins within a private compound housing the
San Sebastian Cathedral of Bacolod. Each tarpaulin was approximately six feet (6') by ten feet (10')
in size. They were posted on the front walls of the cathedral within public view. The first tarpaulin
contains the message "IBASURA RH Law" referring to the Reproductive Health Law of 2012 or
Republic Act No. 10354. The second tarpaulin is the subject of the present case.4 This tarpaulin
contains the heading "Conscience Vote" and lists candidates as either "(Anti-RH) Team Buhay" with
a check mark, or "(Pro-RH) Team Patay" with an "X" mark.5 The electoral candidates were classified
according to their vote on the adoption of Republic Act No. 10354, otherwise known as the RH
Law.6Those who voted for the passing of the law were classified by petitioners as comprising "Team
Patay," while those who voted against it form "Team Buhay":7

TEAM BUHAY TEAM PATAY

Estrada, JV Angara, Juan Edgardo
Honasan, Gregorio Casiño, Teddy
Magsaysay, Mitos Cayetano, Alan Peter
Pimentel, Koko Enrile, Jackie
Trillanes, Antonio Escudero, Francis
Villar, Cynthia Hontiveros, Risa
Party List Buhay Legarda, Loren
Party List Ang Pamilya Party List Gabriela
Party List Akbayan
Party List Bayan Muna
Party List Anak Pawis

During oral arguments, respondents conceded that the tarpaulin was neither sponsored nor paid for
by any candidate. Petitioners also conceded that the tarpaulin contains names ofcandidates for the
2013 elections, but not of politicians who helped in the passage of the RH Law but were not
candidates for that election.

On February 22, 2013, respondent Atty. Mavil V. Majarucon, in her capacity as Election Officer of
Bacolod City, issued a Notice to Remove Campaign Materials8 addressed to petitioner Most Rev.
Bishop Vicente M. Navarra. The election officer ordered the tarpaulin’s removal within three (3) days
from receipt for being oversized. COMELEC Resolution No. 9615 provides for the size requirement
of two feet (2’) by three feet (3’).9

On February 25, 2013, petitioners replied10 requesting, among others, that (1) petitioner Bishop be
given a definite ruling by COMELEC Law Department regarding the tarpaulin; and (2) pending this
opinion and the availment of legal remedies, the tarpaulin be allowed to remain.11

On February 27, 2013, COMELEC Law Department issued a letter12 ordering the immediate removal
of the tarpaulin; otherwise, it will be constrained to file an election offense against petitioners. The
letter of COMELEC Law Department was silenton the remedies available to petitioners. The letter
provides as follows:

Dear Bishop Navarra:

It has reached this Office that our Election Officer for this City, Atty. Mavil Majarucon, had already
given you notice on February 22, 2013 as regards the election propaganda material posted on the
church vicinity promoting for or against the candidates and party-list groups with the following names
and messages, particularly described as follows:

Material size : six feet (6’) by ten feet (10’)

Description : FULL COLOR TARPAULIN

Image of : SEE ATTACHED PICTURES

Message : CONSCIENCE VOTE (ANTI RH) TEAM

BUHAY; (PRO RH) TEAM PATAY

Location : POSTED ON THE CHURCH VICINITY

OF THE DIOCESE OF BACOLOD CITY

The three (3) – day notice expired on February 25, 2013.

Considering that the above-mentioned material is found to be in violation of Comelec Resolution No.
9615 promulgated on January 15, 2013 particularly on the size (even with the subsequent division of
the said tarpaulin into two), as the lawful size for election propaganda material is only two feet (2’) by
three feet (3’), please order/cause the immediate removal of said election propaganda material,
otherwise, we shall be constrained to file an election offense case against you.

We pray that the Catholic Church will be the first institution to help the Commission on Elections
inensuring the conduct of peaceful, orderly, honest and credible elections.

Thank you and God Bless!

[signed]
ATTY. ESMERALDA AMORA-LADRA
Director IV13

Concerned about the imminent threatof prosecution for their exercise of free speech, petitioners
initiated this case through this petition for certiorari and prohibition with application for preliminary
injunction and temporary restraining order.14 They question respondents’ notice dated February 22,
2013 and letter issued on February 27, 2013. They pray that: (1) the petition be given due course;
(2) a temporary restraining order (TRO) and/or a writ of preliminary injunction be issued restraining
respondents from further proceeding in enforcing their orders for the removal of the Team Patay
tarpaulin; and (3) after notice and hearing, a decision be rendered declaring the questioned orders of
respondents as unconstitutional and void, and permanently restraining respondents from enforcing
them or any other similar order.15

After due deliberation, this court, on March 5, 2013, issued a temporary restraining order enjoining
respondents from enforcing the assailed notice and letter, and set oral arguments on March 19,
2013.16

On March 13, 2013, respondents filed their comment17 arguing that (1) a petition for certiorari and
prohibition under Rule 65 of the Rules of Court filed before this court is not the proper remedy to
question the notice and letter of respondents; and (2) the tarpaulin is an election propaganda subject
to regulation by COMELEC pursuant to its mandate under Article IX-C, Section 4 of the Constitution.
Hence, respondents claim that the issuances ordering its removal for being oversized are valid and
constitutional.18

During the hearing held on March 19, 2013, the parties were directed to file their respective
memoranda within 10 days or by April 1, 2013, taking into consideration the intervening holidays.19

The issues, which also served as guide for the oral arguments, are:20

I.

WHETHER THE 22 FEBRUARY 2013 NOTICE/ORDER BY ELECTION OFFICER MAJARUCON

AND THE 27 FEBRUARY 2013 ORDER BY THE COMELEC LAW DEPARTMENT ARE
CONSIDERED JUDGMENTS/FINAL ORDERS/RESOLUTIONS OF THE COMELEC WHICH
WOULD WARRANT A REVIEW OF THIS COURT VIA RULE 65 PETITION[;]

A. WHETHER PETITIONERS VIOLATED THE HIERARCHY OF COURTS

DOCTRINE AND JURISPRUDENTIAL RULES GOVERNING APPEALS FROM
COMELEC DECISIONS;

B. ASSUMING ARGUENDO THAT THE AFOREMENTIONED ORDERS ARE NOT

CONSIDERED JUDGMENTS/FINAL ORDERS/RESOLUTIONS OF THE
COMELEC, WHETHER THERE ARE EXCEPTIONAL CIRCUMSTANCES WHICH
WOULD ALLOW THIS COURT TO TAKE COGNIZANCE OF THE CASE[;]

II.

WHETHER IT IS RELEVANT TODETERMINE WHETHER THE TARPAULINS ARE "POLITICAL

ADVERTISEMENT" OR "ELECTION PROPAGANDA" CONSIDERING THAT PETITIONER IS NOT
A POLITICAL CANDIDATE[;]
III.

WHETHER THE TARPAULINS ARE A FORM OR EXPRESSION (PROTECTED SPEECH), OR

ELECTION PROPAGANDA/POLITICAL ADVERTISEMENT[;]

A. ASSUMING ARGUENDO THAT THE TARPAULINS ARE A FORM OF

EXPRESSION, WHETHER THE COMELEC POSSESSES THE AUTHORITY TO
REGULATE THE SAME[;]

B. WHETHER THIS FORM OF EXPRESSION MAY BE REGULATED[;]

IV.

WHETHER THE 22 FEBRUARY 2013 NOTICE/ ORDER BY ELECTION OFFICER MAJARUCON

AND THE 27 FEBRUARY 2013 ORDER BY THE COMELEC LAW DEPARTMENT VIOLATES THE
PRINCIPLE OF SEPARATION OF CHURCH AND STATE[;] [AND]

V.

WHETHER THE ACTION OF THE PETITIONERS IN POSTING ITS TARPAULIN VIOLATES THE
CONSTITUTIONAL PRINCIPLE OF SEPARATION OF CHURCH AND STATE.

I
PROCEDURAL ISSUES

I.A

This court’s jurisdiction over COMELEC cases

Respondents ask that this petition be dismissed on the ground that the notice and letter are not final
orders, decisions, rulings, or judgments of the COMELEC En Banc issued in the exercise of its
adjudicatory powers, reviewable via Rule 64 of the Rules of Court.21

Rule 64 is not the exclusive remedy for all acts of the COMELEC. Rule 65 is applicable especially to
raise objections relating to a grave abuse of discretion resulting in the ouster of jurisdiction.22 As a
special civil action, there must also be a showing that there be no plain, speedy, and adequate
remedy in the ordinary course of the law.

Respondents contend that the assailed notice and letter are not subject to review by this court,
whose power to review is "limited only to final decisions, rulings and orders of the COMELEC En
Banc rendered in the exercise of its adjudicatory or quasi-judicial power."23 Instead, respondents
claim that the assailed notice and letter are reviewable only by COMELEC itself pursuant to Article
IX-C, Section 2(3) of the Constitution24 on COMELEC’s power to decide all questions affecting
elections.25 Respondents invoke the cases of Ambil, Jr. v. COMELEC,26 Repol v.
COMELEC,27 Soriano, Jr. v. COMELEC,28 Blanco v. COMELEC,29 and Cayetano v. COMELEC,30 to
illustrate how judicialintervention is limited to final decisions, orders, rulings and judgments of the
COMELEC En Banc.31

These cases are not applicable.

In Ambil, Jr. v. COMELEC, the losing party in the gubernatorial race of Eastern Samar filed the
election protest.32 At issue was the validity of the promulgation of a COMELEC Division
resolution.33 No motion for reconsideration was filed to raise this issue before the COMELEC En
Banc. This court declared that it did not have jurisdiction and clarified:

We have interpreted [Section 7, Article IX-A of the Constitution]34 to mean final orders, rulings and
decisionsof the COMELEC rendered in the exercise of its adjudicatory or quasi-judicial powers." This
decision must be a final decision or resolution of the Comelec en banc, not of a division, certainly not
an interlocutory order of a division.The Supreme Court has no power to review viacertiorari, an
interlocutory order or even a final resolution of a Division of the Commission on
Elections.35 (Emphasis in the original, citations omitted)

However, in the next case cited by respondents, Repol v. COMELEC, this court provided exceptions
to this general rule. Repolwas another election protest case, involving the mayoralty elections in
Pagsanghan, Samar.36 This time, the case was brought to this court because the COMELEC First
Division issued a status quo ante order against the Regional Trial Court executing its decision
pending appeal.37 This court’s ponencia discussed the general rule enunciated in Ambil, Jr. that it
cannot take jurisdiction to review interlocutory orders of a COMELEC Division.38However, consistent
with ABS-CBN Broadcasting Corporation v. COMELEC,39 it clarified the exception:

This Court, however, has ruled in the past that this procedural requirement [of filing a motion for
reconsideration] may be glossed over to prevent miscarriage of justice, when the issue involves the
principle of social justice or the protection of labor, when the decision or resolution sought to be set
aside is a nullity, or when the need for relief is extremely urgent and certiorari is the only adequate
and speedy remedy available.40

Based on ABS-CBN, this court could review orders and decisions of COMELEC — in electoral
contests — despite not being reviewed by the COMELEC En Banc, if:

1) It will prevent the miscarriage of justice;

2) The issue involves a principle of social justice;

3) The issue involves the protection of labor;

4) The decision or resolution sought tobe set aside is a nullity; or

5) The need for relief is extremely urgent and certiorari is the only adequate and speedy
remedy available.

Ultimately, this court took jurisdiction in Repoland decided that the status quo anteorder issued by
the COMELEC Division was unconstitutional.

Respondents also cite Soriano, Jr. v. COMELEC.This case was also an election protest case
involving candidates for the city council of Muntinlupa City.41 Petitioners in Soriano, Jr.filed before this
court a petition for certiorari against an interlocutory order of the COMELEC First

Division.42 While the petition was pending in this court, the COMELEC First Division dismissed the
main election protest case.43 Sorianoapplied the general rule that only final orders should be
questioned with this court. The ponencia for this court, however, acknowledged the exceptions to the
general rule in ABS-CBN.44
Blanco v. COMELEC, another case cited by respondents, was a disqualification case of one of the
mayoralty candidates of Meycauayan, Bulacan.45 The COMELEC Second Division ruled that
petitioner could not qualify for the 2007 elections due to the findings in an administrative case that he
engaged in vote buying in the 1995 elections.46No motion for reconsideration was filed before the
COMELEC En Banc. This court, however, took cognizance of this case applying one of the
exceptions in ABS-CBN: The assailed resolution was a nullity.47

Finally, respondents cited Cayetano v. COMELEC, a recent election protest case involving the
mayoralty candidates of Taguig City.48 Petitioner assailed a resolution of the COMELEC denying her
motion for reconsideration to dismiss the election protest petition for lack of form and
substance.49 This court clarified the general rule and refused to take cognizance of the review of the
COMELEC order. While recognizing the exceptions in ABS-CBN, this court ruled that these
exceptions did not apply.50

Ambil, Jr., Repol, Soriano, Jr., Blanco, and Cayetano cited by respondents do not operate as
precedents to oust this court from taking jurisdiction over this case. All these cases cited involve
election protests or disqualification cases filed by the losing candidate against the winning candidate.

In the present case, petitioners are not candidates seeking for public office. Their petition is filed to
assert their fundamental right to expression.

Furthermore, all these cases cited by respondents pertained to COMELEC’s exercise of its
adjudicatory or quasi-judicial power. This case pertains to acts of COMELEC in the implementation
of its regulatory powers. When it issued the notice and letter, the COMELEC was allegedly
enforcingelection laws.

I.B

Rule 65, grave abuse of discretion,

and limitations on political speech

The main subject of thiscase is an alleged constitutional violation: the infringement on speech and
the "chilling effect" caused by respondent COMELEC’s notice and letter.

Petitioners allege that respondents committed grave abuse of discretion amounting to lack or excess
of jurisdiction in issuing the notice51 dated February 22,2013 and letter52 dated February 27, 2013
ordering the removal of the tarpaulin.53 It is their position that these infringe on their fundamental right
to freedom of expression and violate the principle of separation of church and state and, thus, are
unconstitutional.54

The jurisdiction of this court over the subject matter is determined from the allegations in the petition.
Subject matter jurisdiction is defined as the authority "to hear and determine cases of the general
class to which the proceedings in question belong and is conferred by the sovereign authority which
organizes the court and defines its powers."55Definitely, the subject matter in this case is different
from the cases cited by respondents.

Nothing less than the electorate’s political speech will be affected by the restrictions imposed by
COMELEC. Political speech is motivated by the desire to be heard and understood, to move people
to action. It is concerned with the sovereign right to change the contours of power whether through
the election of representatives in a republican government or the revision of the basic text of the
Constitution. The zeal with which we protect this kind of speech does not depend on our evaluation
of the cogency of the message. Neither do we assess whether we should protect speech based on
the motives of COMELEC. We evaluate restrictions on freedom of expression from their effects. We
protect both speech and medium because the quality of this freedom in practice will define the
quality of deliberation in our democratic society.

COMELEC’s notice and letter affect preferred speech. Respondents’ acts are capable of repetition.
Under the conditions in which it was issued and in view of the novelty of this case,it could result in a
"chilling effect" that would affect other citizens who want their voices heard on issues during the
elections. Other citizens who wish to express their views regarding the election and other related
issues may choose not to, for fear of reprisal or sanction by the COMELEC. Direct resort to this court
is allowed to avoid such proscribed conditions. Rule 65 is also the procedural platform for raising
grave abuse of discretion.

Both parties point to constitutional provisions on jurisdiction. For petitioners, it referred to this court’s
expanded exercise of certiorari as provided by the Constitution as follows:

Judicial power includes the duty of the courts of justice to settle actual controversies involving rights
which are legally demandable and enforceable, and to determine whether ornot there has been a
grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government.56(Emphasis supplied)

On the other hand, respondents relied on its constitutional mandate to decide all questions
affectingelections. Article IX-C, Section 2(3) of the Constitution, provides:

Sec. 2. The Commission on Elections shall exercise the following powers and functions:

....

(3) Decide, except those involving the right to vote, all questions affecting elections, including
determination of the number and location of polling places, appointment of election officials and
inspectors, and registration of voters.

Respondents’ reliance on this provision is misplaced.

We are not confronted here with the question of whether the COMELEC, in its exercise of
jurisdiction, gravely abused it. We are confronted with the question as to whether the COMELEC had
any jurisdiction at all with its acts threatening imminent criminal action effectively abridging
meaningful political speech.

It is clear that the subject matter of the controversy is the effect of COMELEC’s notice and letter on
free speech. This does not fall under Article IX-C, Section 2(3) of the Constitution. The use of the
word "affecting" in this provision cannot be interpreted to mean that COMELEC has the exclusive
power to decide any and allquestions that arise during elections. COMELEC’s constitutional
competencies during elections should not operate to divest this court of its own jurisdiction.

The more relevant provision for jurisdiction in this case is Article VIII, Section 5(1) of the
Constitution.This provision provides for this court’s original jurisdiction over petitions for certiorari
and prohibition. This should be read alongside the expanded jurisdiction of the court in Article VIII,
Section 1 of the Constitution.
Certainly, a breach of the fundamental right of expression by COMELEC is grave abuse of
discretion. Thus, the constitutionality of the notice and letter coming from COMELEC is within this
court’s power to review.

During elections, we have the power and the duty to correct any grave abuse of discretion or any act
tainted with unconstitutionality on the part of any government branch or instrumentality. This includes
actions by the COMELEC. Furthermore, it is this court’s constitutional mandate to protect the people
against government’s infringement of their fundamental rights. This constitutional mandate out
weighs the jurisdiction vested with the COMELEC.

It will, thus, be manifest injustice if the court does not take jurisdiction over this case.

I.C

Hierarchy of courts

This brings us to the issue of whether petitioners violated the doctrine of hierarchy of courts in
directly filing their petition before this court.

Respondents contend that petitioners’ failure to file the proper suit with a lower court of concurrent
jurisdiction is sufficient ground for the dismissal of their petition.57 They add that observation of the
hierarchy of courts is compulsory, citing Heirs of Bertuldo Hinog v. Melicor.58 While respondents
claim that while there are exceptions to the general rule on hierarchy of courts, none of these are
present in this case.59

On the other hand, petitioners cite Fortich v. Corona60 on this court’s discretionary power to take
cognizance of a petition filed directly to it if warranted by "compelling reasons, or [by] the nature and
importance of the issues raised. . . ."61 Petitioners submit that there are "exceptional and compelling
reasons to justify a direct resort [with] this Court."62

In Bañez, Jr. v. Concepcion,63 we explained the necessity of the application of the hierarchy of
courts:

The Court must enjoin the observance of the policy on the hierarchy of courts, and now affirms that
the policy is not to be ignored without serious consequences. The strictness of the policy is designed
to shield the Court from having to deal with causes that are also well within the competence of the
lower courts, and thus leave time to the Court to deal with the more fundamental and more essential
tasks that the Constitution has assigned to it. The Court may act on petitions for the extraordinary
writs of certiorari, prohibition and mandamus only when absolutely necessary or when serious and
important reasons exist to justify an exception to the policy.64

In Bañez, we also elaborated on the reasons why lower courts are allowed to issue writs of certiorari,
prohibition, and mandamus, citing Vergara v. Suelto:65

The Supreme Court is a court of lastresort, and must so remain if it is to satisfactorily perform the
functions assigned to it by the fundamental charter and immemorial tradition. It cannot and should
not be burdened with the task of dealing with causes in the first instance. Its original jurisdiction to
issue the so-called extraordinary writs should be exercised only where absolutely necessary or
where serious and important reasons exist therefore. Hence, that jurisdiction should generally be
exercised relative to actions or proceedings before the Court of Appeals, or before constitutional or
other tribunals, bodies or agencies whose acts for some reason or another are not controllable by
the Court of Appeals. Where the issuance of an extraordinary writ is also within the competence of
the Court of Appeals or a Regional Trial Court, it is in either of these courts that the specific action
for the writ’s procurement must be presented. This is and should continue to be the policy in this
regard, a policy that courts and lawyers must strictly observe.66 (Emphasis omitted)

The doctrine that requires respect for the hierarchy of courts was created by this court to ensure that
every level of the judiciary performs its designated roles in an effective and efficient manner. Trial
courts do not only determine the facts from the evaluation of the evidence presented before them.
They are likewise competent to determine issues of law which may include the validity of an
ordinance, statute, or even an executive issuance in relation to the Constitution.67 To effectively
perform these functions, they are territorially organized into regions and then into branches. Their
writs generally reach within those territorial boundaries. Necessarily, they mostly perform the all-
important task of inferring the facts from the evidence as these are physically presented before
them. In many instances, the facts occur within their territorial jurisdiction, which properly present the
‘actual case’ that makes ripe a determination of the constitutionality of such action. The
consequences, of course, would be national in scope. There are, however, some cases where resort
to courts at their level would not be practical considering their decisions could still be appealed
before the higher courts, such as the Court of Appeals.

The Court of Appeals is primarily designed as an appellate court that reviews the determination of
facts and law made by the trial courts. It is collegiate in nature. This nature ensures more
standpoints in the review of the actions of the trial court. But the Court of Appeals also has original
jurisdiction over most special civil actions. Unlike the trial courts, its writs can have a nationwide
scope. It is competent to determine facts and, ideally, should act on constitutional issues thatmay not
necessarily be novel unless there are factual questions to determine.

This court, on the other hand, leads the judiciary by breaking new ground or further reiterating — in
the light of new circumstances or in the light of some confusions of bench or bar — existing
precedents. Rather than a court of first instance or as a repetition of the actions of the Court of
Appeals, this court promulgates these doctrinal devices in order that it truly performs that role.

In other words, the Supreme Court’s role to interpret the Constitution and act in order to protect
constitutional rights when these become exigent should not be emasculated by the doctrine in
respect of the hierarchy of courts. That has never been the purpose of such doctrine.

Thus, the doctrine of hierarchy of courts is not an iron-clad rule.68 This court has "full discretionary
power to take cognizance and assume jurisdiction [over] special civil actions for certiorari . . .filed
directly with it for exceptionally compelling reasons69 or if warranted by the nature of the issues
clearly and specifically raised in the petition."70 As correctly pointed out by petitioners,71 we have
provided exceptions to this doctrine:

First, a direct resort to this court is allowed when there are genuine issues of constitutionality that
must be addressed at the most immediate time. A direct resort to this court includes availing of the
remedies of certiorari and prohibition toassail the constitutionality of actions of both legislative and
executive branches of the government.72

In this case, the assailed issuances of respondents prejudice not only petitioners’ right to freedom of
expression in the present case, but also of others in future similar cases. The case before this court
involves an active effort on the part of the electorate to reform the political landscape. This has
become a rare occasion when private citizens actively engage the public in political discourse. To
quote an eminent political theorist:
[T]he theory of freedom of expression involves more than a technique for arriving at better social
judgments through democratic procedures. It comprehends a vision of society, a faith and a whole
way of life. The theory grew out of an age that was awakened and invigorated by the idea of new
society in which man's mind was free, his fate determined by his own powers of reason, and his
prospects of creating a rational and enlightened civilization virtually unlimited. It is put forward as a
prescription for attaining a creative, progressive, exciting and intellectually robust community. It
contemplates a mode of life that, through encouraging toleration, skepticism, reason and initiative,
will allow man to realize his full potentialities.It spurns the alternative of a society that is tyrannical,
conformist, irrational and stagnant.73

In a democracy, the citizen’s right tofreely participate in the exchange of ideas in furtherance of
political decision-making is recognized. It deserves the highest protection the courts may provide, as
public participation in nation-building isa fundamental principle in our Constitution. As such, their
right to engage in free expression of ideas must be given immediate protection by this court.

A second exception is when the issuesinvolved are of transcendental importance.74 In these cases,
the imminence and clarity of the threat to fundamental constitutional rights outweigh the necessity for
prudence. The doctrine relating to constitutional issues of transcendental importance prevents courts
from the paralysis of procedural niceties when clearly faced with the need for substantial protection.

In the case before this court, there is a clear threat to the paramount right of freedom of speech and
freedom of expression which warrants invocation of relief from this court. The principles laid down in
this decision will likely influence the discourse of freedom of speech in the future, especially in the
context of elections. The right to suffrage not only includes the right to vote for one’s chosen
candidate, but also the right to vocalize that choice to the public in general, in the hope of influencing
their votes. It may be said that in an election year, the right to vote necessarily includes the right to
free speech and expression. The protection of these fundamental constitutional rights, therefore,
allows for the immediate resort to this court.

Third, cases of first impression75 warrant a direct resort to this court. In cases of first impression, no
jurisprudence yet exists that will guide the lower courts on this matter. In Government of the United
States v. Purganan,76 this court took cognizance of the case as a matter of first impression that may
guide the lower courts:

In the interest of justice and to settle once and for all the important issue of bail in extradition
proceedings, we deem it best to take cognizance of the present case. Such proceedings constitute a
matter of first impression over which there is, as yet, no local jurisprudence to guide lower courts.77

This court finds that this is indeed a case of first impression involving as it does the issue of whether
the right of suffrage includes the right of freedom of expression. This is a question which this court
has yet to provide substantial answers to, through jurisprudence. Thus, direct resort to this court is
allowed.

Fourth, the constitutional issues raisedare better decided by this court. In Drilon v. Lim,78 this court
held that:

. . . it will be prudent for such courts, if only out of a becoming modesty, to defer to the higher
judgmentof this Court in the consideration of its validity, which is better determined after a thorough
deliberation by a collegiate body and with the concurrence of the majority of those who participated
in its discussion.79 (Citation omitted)
In this case, it is this court, with its constitutionally enshrined judicial power, that can rule with finality
on whether COMELEC committed grave abuse of discretion or performed acts contrary to the
Constitution through the assailed issuances.

Fifth, the time element presented in this case cannot be ignored. This case was filed during the 2013
election period. Although the elections have already been concluded, future cases may be filed that
necessitate urgency in its resolution. Exigency in certain situations would qualify as an exception for
direct resort to this court.

Sixth, the filed petition reviews the act of a constitutional organ. COMELEC is a constitutional body.
In Albano v. Arranz,80 cited by petitioners, this court held that "[i]t is easy to realize the chaos that
would ensue if the Court of First Instance ofeach and every province were [to] arrogate itself the
power to disregard, suspend, or contradict any order of the Commission on Elections: that
constitutional body would be speedily reduced to impotence."81

In this case, if petitioners sought to annul the actions of COMELEC through pursuing remedies with
the lower courts, any ruling on their part would not have been binding for other citizens whom
respondents may place in the same situation. Besides, thiscourt affords great respect to the
Constitution and the powers and duties imposed upon COMELEC. Hence, a ruling by this court
would be in the best interest of respondents, in order that their actions may be guided accordingly in
the future.

Seventh, petitioners rightly claim that they had no other plain, speedy, and adequate remedy in the
ordinary course of law that could free them from the injurious effects of respondents’ acts in violation
of their right to freedom of expression.

In this case, the repercussions of the assailed issuances on this basic right constitute an
exceptionally compelling reason to justify the direct resort to this court. The lack of other sufficient
remedies in the course of law alone is sufficient ground to allow direct resort to this court.

Eighth, the petition includes questionsthat are "dictated by public welfare and the advancement of
public policy, or demanded by the broader interest of justice, or the orders complained of were found
to be patent nullities, or the appeal was consideredas clearly an inappropriate remedy."82 In the past,
questions similar to these which this court ruled on immediately despite the doctrine of hierarchy of
courts included citizens’ right to bear arms,83 government contracts involving modernization of voters’
registration lists,84 and the status and existence of a public office.85

This case also poses a question of similar, if not greater import. Hence, a direct action to this court is
permitted.

It is not, however, necessary that all of these exceptions must occur at the same time to justify a
direct resort to this court. While generally, the hierarchy of courts is respected, the present case falls
under the recognized exceptions and, as such, may be resolved by this court directly.

I.D

The concept of a political question

Respondents argue further that the size limitation and its reasonableness is a political question,
hence not within the ambit of this court’s power of review. They cite Justice Vitug’s separate opinion
in Osmeña v. COMELEC86 to support their position:
It might be worth mentioning that Section 26, Article II, of the Constitution also states that the "State
shall guarantee equal access to opportunities for public service, and prohibit political dynasties as
may be defined by law." I see neither Article IX (C)(4) nor Section 26, Article II, of the Constitution to
be all that adversarial or irreconcilably inconsistent with the right of free expression. In any event, the
latter, being one of general application, must yield to the specific demands of the Constitution. The
freedom of expression concededly holds, it is true, a vantage point in hierarchy of constitutionally-
enshrined rights but, like all fundamental rights, it is not without limitations.

The case is not about a fight between the "rich" and the "poor" or between the "powerful" and the
"weak" in our society but it is to me a genuine attempt on the part of Congress and the Commission
on Elections to ensure that all candidates are given an equal chance to media coverage and thereby
be equally perceived as giving real life to the candidates’ right of free expression rather than being
viewed as an undue restriction of that freedom. The wisdom in the enactment of the law, i.e., that
which the legislature deems to be best in giving life to the Constitutional mandate, is not for the
Court to question; it is a matter that lies beyond the normal prerogatives of the Court to pass upon.87

This separate opinion is cogent for the purpose it was said. But it is not in point in this case.

The present petition does not involve a dispute between the rich and poor, or the powerful and weak,
on their equal opportunities for media coverage of candidates and their right to freedom of
expression. This case concerns the right of petitioners, who are non-candidates, to post the tarpaulin
in their private property, asan exercise of their right of free expression. Despite the invocation of the
political question doctrine by respondents, this court is not proscribed from deciding on the merits of
this case.

In Tañada v. Cuenco,88 this court previously elaborated on the concept of what constitutes a political
question:

What is generally meant, when it is said that a question is political, and not judicial, is that it is a
matter which is to be exercised by the people in their primary political capacity, or that it has been
specifically delegated to some other department or particular officer of the government,
withdiscretionary power to act.89 (Emphasis omitted)

It is not for this court to rehearse and re-enact political debates on what the text of the law should be.
In political forums, particularly the legislature, the creation of the textof the law is based on a general
discussion of factual circumstances, broadly construed in order to allow for general application by
the executive branch. Thus, the creation of the law is not limited by particular and specific facts that
affect the rights of certain individuals, per se.

Courts, on the other hand, rule on adversarial positions based on existing facts established on a
specific case-to-case basis, where parties affected by the legal provision seek the courts’
understanding of the law.

The complementary nature of the political and judicial branches of government is essential in order
to ensure that the rights of the general public are upheld at all times. In order to preserve this
balance, branches of government must afford due respectand deference for the duties and functions
constitutionally delegated to the other. Courts cannot rush to invalidate a law or rule. Prudence
dictates that we are careful not to veto political acts unless we can craft doctrine narrowly tailored to
the circumstances of the case.
The case before this court does not call for the exercise of prudence or modesty. There is no political
question. It can be acted upon by this court through the expanded jurisdiction granted to this court
through Article VIII, Section 1 of the Constitution.

A political question arises in constitutional issues relating to the powers or competence of different
agencies and departments of the executive or those of the legislature. The political question doctrine
is used as a defense when the petition asks this court to nullify certain acts that are exclusively
within the domain of their respective competencies, as provided by the Constitution or the law. In
such situation, presumptively, this court should act with deference. It will decline to void an act
unless the exercise of that power was so capricious and arbitrary so as to amount to grave abuse of
discretion.

The concept of a political question, however, never precludes judicial review when the act of a
constitutional organ infringes upon a fundamental individual or collective right. Even assuming
arguendo that the COMELEC did have the discretion to choose the manner of regulation of the
tarpaulin in question, it cannot do so by abridging the fundamental right to expression.

Marcos v. Manglapus90 limited the use of the political question doctrine:

When political questions are involved, the Constitution limits the determination to whether or not
there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of
the official whose action is being questioned. If grave abuse is not established, the Court will not
substitute its judgment for that of the official concerned and decide a matter which by its nature or by
law is for the latter alone to decide.91

How this court has chosen to address the political question doctrine has undergone an evolution
since the timethat it had been first invoked in Marcos v. Manglapus. Increasingly, this court has
taken the historical and social context of the case and the relevance of pronouncements of carefully
and narrowly tailored constitutional doctrines. This trend was followed in cases such as Daza v.
Singson92 and Coseteng v. Mitra Jr.93

Daza and Coseteng involved a question as to the application of Article VI, Section 18 of the 1987
Constitution involving the removal of petitioners from the Commission on Appointments. In times
past, this would have involved a quint essentially political question as it related to the dominance of
political parties in Congress. However, in these cases, this court exercised its power of judicial
review noting that the requirement of interpreting the constitutional provision involved the legality and
not the wisdom of a manner by which a constitutional duty or power was exercised. This approach
was again reiterated in Defensor Santiago v. Guingona, Jr.94

In Integrated Bar of the Philippines v. Zamora,95 this court declared again that the possible existence
ofa political question did not bar an examination of whether the exercise of discretion was done with
grave abuse of discretion. In that case, this court ruled on the question of whether there was grave
abuse of discretion in the President’s use of his power to call out the armed forces to prevent and
suppress lawless violence.

In Estrada v. Desierto,96 this court ruled that the legal question as to whether a former President
resigned was not a political question even if the consequences would be to ascertain the political
legitimacy of a successor President.

Many constitutional cases arise from political crises. The actors in such crises may use the
resolution of constitutional issues as leverage. But the expanded jurisdiction of this court now
mandates a duty for it to exercise its power of judicial review expanding on principles that may avert
catastrophe or resolve social conflict.

This court’s understanding of the political question has not been static or unbending. In Llamas v.
Executive Secretary Oscar Orbos,97 this court held:

While it is true that courts cannot inquire into the manner in which the President's discretionary
powers are exercised or into the wisdom for its exercise, it is also a settled rule that when the issue
involved concerns the validity of such discretionary powers or whether said powers are within the
limits prescribed by the Constitution, We will not decline to exercise our power of judicial review. And
such review does not constitute a modification or correction of the act of the President, nor does it
constitute interference with the functions of the President.98

The concept of judicial power in relation to the concept of the political question was discussed most
extensively in Francisco v. HRET.99 In this case, the House of Representatives arguedthat the
question of the validity of the second impeachment complaint that was filed against former Chief
Justice Hilario Davide was a political question beyond the ambit of this court. Former Chief Justice
Reynato Puno elaborated on this concept in his concurring and dissenting opinion:

To be sure, the force to impugn the jurisdiction of this Court becomes more feeble in light of the new
Constitution which expanded the definition of judicial power as including "the duty of the courts of
justice to settle actual controversies involving rights which are legally demandable and enforceable,
and to determine whether or not there has been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or instrumentality of the Government." As well
observed by retired Justice Isagani Cruz, this expanded definition of judicial power considerably
constricted the scope of political question. He opined that the language luminously suggests that this
duty (and power) is available even against the executive and legislative departments including the
President and the Congress, in the exercise of their discretionary powers.100 (Emphasis in the
original, citations omitted)

Francisco also provides the cases which show the evolution of the political question, as applied in
the following cases:

In Marcos v. Manglapus, this Court, speaking through Madame Justice Irene Cortes, held: The
present Constitution limits resort to the political question doctrine and broadens the scope of judicial
inquiry into areas which the Court,under previous constitutions, would have normally left to the
political departments to decide. x x x

In Bengzon v. Senate Blue Ribbon Committee, through Justice Teodoro Padilla, this Court declared:

The "allocation of constitutional boundaries" is a task that this Court must perform under the
Constitution. Moreover, as held in a recent case, "(t)he political question doctrine neither interposes
an obstacle to judicial determination of the rival claims. The jurisdiction to delimit constitutional
boundaries has been given to this Court. It cannot abdicate that obligation mandated by the 1987
Constitution, although said provision by no means does away with the applicability of the principle in
appropriate cases." (Emphasis and italics supplied)

And in Daza v. Singson, speaking through Justice Isagani Cruz, this Court ruled:

In the case now before us, the jurisdictional objection becomes even less tenable and decisive. The
reason is that, even if we were to assume that the issue presented before us was political in nature,
we would still not be precluded from resolving it under the expanded jurisdiction conferred upon us
that now covers, in proper cases, even the political question.x x x (Emphasis and italics supplied.)

....

In our jurisdiction, the determination of whether an issue involves a truly political and non-justiciable
question lies in the answer to the question of whether there are constitutionally imposed limits on
powers or functions conferred upon political bodies. If there are, then our courts are duty-bound to
examine whether the branch or instrumentality of the government properly acted within such
limits.101 (Citations omitted)

As stated in Francisco, a political question will not be considered justiciable if there are no
constitutionally imposed limits on powers or functions conferred upon political bodies. Hence, the
existence of constitutionally imposed limits justifies subjecting the official actions of the body to the
scrutiny and review of this court.

In this case, the Bill of Rights gives the utmost deference to the right to free speech. Any instance
that this right may be abridged demands judicial scrutiny. It does not fall squarely into any doubt that
a political question brings.

I.E

Exhaustion of administrative remedies

Respondents allege that petitioners violated the principle of exhaustion of administrative remedies.
Respondents insist that petitioners should have first brought the matter to the COMELEC En Banc or
any of its divisions.102

Respondents point out that petitioners failed to comply with the requirement in Rule 65 that "there is
no appeal, or any plain, speedy, and adequate remedy in the ordinary course of law."103 They add
that the proper venue to assail the validity of the assailed issuances was in the course of an
administrative hearing to be conducted by COMELEC.104 In the event that an election offense is filed
against petitioners for posting the tarpaulin, they claim that petitioners should resort to the remedies
prescribed in Rule 34 of the COMELEC Rules of Procedure.105

The argument on exhaustion of administrative remedies is not proper in this case.

Despite the alleged non-exhaustion of administrative remedies, it is clear that the controversy is
already ripe for adjudication. Ripeness is the "prerequisite that something had by then been
accomplished or performed by either branch [or in this case, organ of government] before a court
may come into the picture."106

Petitioners’ exercise of their rightto speech, given the message and their medium, had
understandable relevance especially during the elections. COMELEC’s letter threatening the filing of
the election offense against petitioners is already an actionable infringement of this right. The
impending threat of criminal litigation is enough to curtail petitioners’ speech.

In the context of this case, exhaustion of their administrative remedies as COMELEC suggested in
their pleadings prolongs the violation of their freedom of speech.
Political speech enjoys preferred protection within our constitutional order. In Chavez v.
Gonzales,107 Justice Carpio in a separate opinion emphasized: "[i]f everthere is a hierarchy of
protected expressions, political expression would occupy the highest rank, and among different
kinds of political expression, the subject of fair and honest elections would be at the
top."108 Sovereignty resides in the people.109 Political speech is a direct exercise of the sovereignty.
The principle of exhaustion of administrative remedies yields in order to protect this fundamental
right.

Even assuming that the principle of exhaustion of administrative remedies is applicable, the current
controversy is within the exceptions to the principle. In Chua v. Ang,110 this court held:

On the other hand, prior exhaustion of administrative remedies may be dispensed with and judicial
action may be validly resorted to immediately: (a) when there is a violation of due process; (b) when
the issue involved is purely a legal question; (c) when the administrative action is patently illegal
amounting to lack or excess of jurisdiction; (d) when there is estoppel on the part ofthe
administrative agency concerned; (e) when there is irreparable injury; (f) when the respondent is a
department secretary whose acts as analter ego of the President bear the implied and assumed
approval of the latter; (g) when to require exhaustion of administrative remedies would be
unreasonable; (h) when it would amount to a nullification of a claim; (i) when the subject matter is a
private land in land case proceedings; (j) whenthe rule does not provide a plain, speedy and
adequate remedy; or (k) when there are circumstances indicating the urgency of judicial
intervention."111 (Emphasis supplied, citation omitted)

The circumstances emphasized are squarely applicable with the present case. First, petitioners
allegethat the assailed issuances violated their right to freedom of expression and the principle of
separation of church and state. This is a purely legal question. Second, the circumstances of the
present case indicate the urgency of judicial intervention considering the issue then on the RH Law
as well as the upcoming elections. Thus, to require the exhaustion of administrative remedies in this
case would be unreasonable.

Time and again, we have held that this court "has the power to relax or suspend the rules or to
except a case from their operation when compelling reasons so warrant, or whenthe purpose of
justice requires it, [and when] [w]hat constitutes [as] good and sufficient cause that will merit
suspension of the rules is discretionary upon the court".112Certainly, this case of first impression
where COMELEC has threatenedto prosecute private parties who seek to participate in the elections
by calling attention to issues they want debated by the publicin the manner they feel would be
effective is one of those cases.

II
SUBSTANTIVE ISSUES

II.A

COMELEC had no legal basis to regulate expressions made by private citizens

Respondents cite the Constitution, laws, and jurisprudence to support their position that they had the
power to regulate the tarpaulin.113 However, all of these provisions pertain to candidates and political
parties. Petitioners are not candidates. Neither do theybelong to any political party. COMELEC does
not have the authority to regulate the enjoyment of the preferred right to freedom of expression
exercised by a non-candidate in this case.

II.A.1
First, respondents cite Article IX-C, Section 4 of the Constitution, which provides:

Section 4. The Commission may,during the election period, supervise or regulate the enjoyment or
utilization of all franchises or permits for the operation of transportation and other public utilities,
media of communication or information, all grants, special privileges, or concessions granted by the
Government or any subdivision, agency, or instrumentality thereof, including any government-owned
or controlled corporation or its subsidiary. Such supervision or regulation shall aim to ensure equal
opportunity, time, and space, and the right to reply, including reasonable, equal rates therefor, for
public information campaigns and forums among candidates in connection with the objective of
holding free, orderly, honest, peaceful, and credible elections.114 (Emphasis supplied)

Sanidad v. COMELEC115 involved the rules promulgated by COMELEC during the plebiscite for the
creation of the Cordillera Autonomous Region.116 Columnist Pablito V. Sanidad questioned the
provision prohibiting journalists from covering plebiscite issues on the day before and on plebiscite
day.117 Sanidad argued that the prohibition was a violation of the "constitutional guarantees of the
freedom of expression and of the press. . . ."118 We held that the "evil sought to be prevented by this
provision is the possibility that a franchise holder may favor or give any undue advantage to a
candidate in terms of advertising space or radio or television time."119 This court found that "[m]edia
practitioners exercising their freedom of expression during plebiscite periods are neither the
franchise holders nor the candidates[,]"120 thus, their right to expression during this period may not be
regulated by COMELEC.121

Similar to the media, petitioners in the case at bar are neither franchise holders nor candidates.
II.A.2

Respondents likewise cite Article IX-C, Section 2(7) of the Constitution as follows:122

Sec. 2. The Commission on Elections shall exercise the following powers and functions:

....

(7) Recommend to the Congress effective measures to minimize election spending, including
limitation of places where propaganda materials shall be posted, and to prevent and penalize all
forms of election frauds, offenses, malpractices, and nuisance candidates. (Emphasis supplied)
Based on the enumeration made on actsthat may be penalized, it will be inferred that this provision
only affects candidates.

Petitioners assail the "Notice to Remove Campaign Materials" issued by COMELEC. This was
followed bythe assailed letter regarding the "election propaganda material posted on the church
vicinity promoting for or against the candidates and party-list groups. . . ."123

Section 9 of the Fair Election Act124 on the posting of campaign materials only mentions "parties" and
"candidates":

Sec. 9. Posting of Campaign Materials. - The COMELEC may authorize political parties and party-
list groups to erect common poster areas for their candidates in not more than ten (10) public places
such as plazas, markets, barangay centers and the like, wherein candidates can post, display or
exhibit election propaganda: Provided, That the size ofthe poster areas shall not exceed twelve (12)
by sixteen (16) feet or its equivalent. Independent candidates with no political parties may likewise
be authorized to erect common poster areas in not more than ten (10) public places, the size of
which shall not exceed four (4) by six (6) feet or its equivalent. Candidates may post any lawful
propaganda material in private places with the consent of the owner thereof, and in public places or
property which shall be allocated equitably and impartially among the candidates. (Emphasis
supplied)

Similarly, Section 17 of COMELEC Resolution No. 9615, the rules and regulations implementing the
Fair Election Act, provides as follows:

SECTION 17. Posting of Campaign Materials. - Parties and candidates may post any lawful
campaign material in:

a. Authorized common poster areasin public places subject to the requirements and/or
limitations set forth in the next following section; and

b. Private places provided it has the consent of the owner thereof.

The posting of campaign materials in public places outside of the designated common poster areas
and those enumerated under Section 7 (g) of these Rules and the like is prohibited. Persons posting
the same shall be liable together with the candidates and other persons who caused the posting. It
will be presumed that the candidates and parties caused the posting of campaign materials outside
the common poster areas if they do not remove the same within three (3) days from notice which
shall be issued by the Election Officer of the city or municipality where the unlawful election
propaganda are posted or displayed.

Members of the PNP and other law enforcement agencies called upon by the Election Officeror
other officials of the COMELEC shall apprehend the violators caught in the act, and file the
appropriate charges against them. (Emphasis supplied)

Respondents considered the tarpaulin as a campaign material in their issuances. The above
provisions regulating the posting of campaign materials only apply to candidates and political parties,
and petitioners are neither of the two.

Section 3 of Republic Act No. 9006on "Lawful Election Propaganda" also states that these are
"allowed for all registered political parties, national, regional, sectoral parties or organizations
participating under the party-list elections and for all bona fide candidates seeking national and local
elective positions subject to the limitation on authorized expenses of candidates and political parties.
. . ." Section 6 of COMELEC Resolution No. 9615 provides for a similar wording. These provisions
show that election propaganda refers to matter done by or on behalf of and in coordination with
candidates and political parties. Some level of coordination with the candidates and political parties
for whom the election propaganda are released would ensure that these candidates and political
parties maintain within the authorized expenses limitation.

The tarpaulin was not paid for byany candidate or political party.125 There was no allegation that
petitioners coordinated with any of the persons named in the tarpaulin regarding its posting. On the
other hand, petitioners posted the tarpaulin as part of their advocacy against the RH Law.
Respondents also cite National Press Club v. COMELEC126 in arguing that its regulatory power under
the Constitution, to some extent, set a limit on the right to free speech during election period.127

National Press Club involved the prohibition on the sale and donation of space and time for political
advertisements, limiting political advertisements to COMELEC-designated space and time. This
case was brought by representatives of mass media and two candidates for office in the 1992
elections. They argued that the prohibition on the sale and donation of space and time for political
advertisements is tantamount to censorship, which necessarily infringes on the freedom of speech of
the candidates.128
This court upheld the constitutionality of the COMELEC prohibition in National Press Club. However,
this case does not apply as most of the petitioners were electoral candidates, unlike petitioners in
the instant case. Moreover, the subject matter of National Press Club, Section 11(b) of Republic Act
No. 6646,129 only refers to a particular kind of media such as newspapers, radio broadcasting, or
television.130 Justice Feliciano emphasized that the provision did not infringe upon the right of
reporters or broadcasters to air their commentaries and opinions regarding the candidates, their
qualifications, and program for government. Compared to Sanidadwherein the columnists lost their
ability to give their commentary on the issues involving the plebiscite, National Press Clubdoes not
involve the same infringement.

In the case at bar, petitioners lost their ability to give a commentary on the candidates for the 2013
national elections because of the COMELEC notice and letter. It was not merelya regulation on the
campaigns of candidates vying for public office. Thus, National Press Clubdoes not apply to this
case.

Finally, Section 79 of Batas Pambansa Blg. 881, otherwise known as the Omnibus Election Code,
defines an"election campaign" as follows:

....

(b) The term "election campaign" or "partisan political activity" refers to an act designed to promote
the election or defeat of a particular candidate or candidates to a public office which shall include:

(1) Forming organizations, associations, clubs, committees or other groups of persons for the
purpose of soliciting votes and/or undertaking any campaign for or against a candidate;

(2) Holding political caucuses, conferences, meetings, rallies, parades, or other similar
assemblies, for the purpose of soliciting votes and/or undertaking any campaign or
propaganda for or against a candidate;

(3) Making speeches, announcements or commentaries, or holding interviews for or against

the election of any candidate for public office;

(4) Publishing or distributing campaign literature or materials designed to support or oppose

the election of any candidate; or

(5) Directly or indirectly soliciting votes, pledges or support for or against a candidate.

The foregoing enumerated acts ifperformed for the purpose of enhancing the chances of aspirants
for nomination for candidacy to a public office by a political party, aggroupment, or coalition of
parties shall not be considered as election campaign or partisan election activity. Public expressions
or opinions or discussions of probable issues in a forthcoming electionor on attributes of or criticisms
against probable candidates proposed to be nominated in a forthcoming political party convention
shall not be construed as part of any election campaign or partisan political activity contemplated
under this Article. (Emphasis supplied)

True, there is no mention whether election campaign is limited only to the candidates and political
parties themselves. The focus of the definition is that the act must be "designed to promote the
election or defeat of a particular candidate or candidates to a public office."
In this case, the tarpaulin contains speech on a matter of public concern, that is, a statement of
either appreciation or criticism on votes made in the passing of the RH law. Thus, petitioners invoke
their right to freedom of expression.

II.B

The violation of the constitutional right

to freedom of speech and expression

Petitioners contend that the assailed notice and letter for the removal of the tarpaulin violate their
fundamental right to freedom of expression.

On the other hand, respondents contend that the tarpaulin is an election propaganda subject to their
regulation pursuant to their mandate under Article IX-C, Section 4 of the Constitution. Thus, the
assailed notice and letter ordering itsremoval for being oversized are valid and constitutional.131

II.B.1

Fundamental to the consideration of this issue is Article III, Section 4 of the Constitution:

Section 4. No law shall be passed abridging the freedom of speech, of expression, or of the press, or
the right of the people peaceably to assemble and petition the government for redress of
grievances.132

No law. . .

While it is true that the present petition assails not a law but an opinion by the COMELEC Law
Department, this court has applied Article III, Section 4 of the Constitution even to governmental
acts.

In Primicias v. Fugoso,133 respondent Mayor applied by analogy Section 1119 of the Revised
Ordinances of 1927 of Manila for the public meeting and assembly organized by petitioner
Primicias.134 Section 1119 requires a Mayor’s permit for the use of streets and public places for
purposes such as athletic games, sports, or celebration of national holidays.135 What was questioned
was not a law but the Mayor’s refusal to issue a permit for the holding of petitioner’s public
meeting.136 Nevertheless, this court recognized the constitutional right to freedom of speech, to
peaceful assembly and to petition for redress of grievances, albeit not absolute,137 and the petition for
mandamus to compel respondent Mayor to issue the permit was granted.138

In ABS-CBN v. COMELEC, what was assailed was not a law but COMELEC En Banc Resolution
No. 98-1419 where the COMELEC resolved to approve the issuance of a restraining order to stop
ABS-CBN from conducting exit surveys.139 The right to freedom of expression was similarly upheld in
this case and, consequently, the assailed resolution was nullified and set aside.140

. . . shall be passed abridging. . .

All regulations will have an impact directly or indirectly on expression. The prohibition against the
abridgment of speech should not mean an absolute prohibition against regulation. The primary and
incidental burden on speech must be weighed against a compelling state interest clearly allowed in
the Constitution. The test depends on the relevant theory of speech implicit in the kind of society
framed by our Constitution.

. . . of expression. . .

Our Constitution has also explicitly included the freedom of expression, separate and in addition to
the freedom of speech and of the press provided in the US Constitution. The word "expression" was
added in the 1987 Constitution by Commissioner Brocka for having a wider scope:

MR. BROCKA: This is a very minor amendment, Mr. Presiding Officer. On Section 9, page 2, line 29,
it says: "No law shall be passed abridging the freedom of speech." I would like to recommend to the
Committee the change of the word "speech" to EXPRESSION; or if not, add the words AND
EXPRESSION after the word "speech," because it is more expansive, it has a wider scope, and it
would refer to means of expression other than speech.

THE PRESIDING OFFICER (Mr.Bengzon): What does the Committee say?

FR. BERNAS: "Expression" is more broad than speech. We accept it.

MR. BROCKA: Thank you.

THE PRESIDING OFFICER (Mr.Bengzon): Is it accepted?

FR. BERNAS: Yes.

THE PRESIDING OFFICER (Mr.Bengzon): Is there any objection? (Silence) The Chair hears none;
the amendment is approved.

FR. BERNAS: So, that provision will now read: "No law shall be passed abridging the freedom of
speech, expression or of the press . . . ."141 Speech may be said to be inextricably linked to freedom
itself as "[t]he right to think is the beginning of freedom, and speech must be protected from the
government because speech is the beginning of thought."142

II.B.2

Communication is an essential outcome of protected speech.143 Communication exists when "(1) a

speaker, seeking to signal others, uses conventional actions because he orshe reasonably believes
that such actions will be taken by the audience in the manner intended; and (2) the audience so
takes the actions."144 "[I]n communicative action[,] the hearer may respond to the claims by . . . either
accepting the speech act’s claims or opposing them with criticism or requests for justification."145

Speech is not limited to vocal communication. "[C]onduct is treated as a form of speech sometimes
referred to as ‘symbolic speech[,]’"146 such that "‘when ‘speech’ and ‘nonspeech’ elements are
combined in the same course of conduct,’ the ‘communicative element’ of the conduct may be
‘sufficient to bring into play the [right to freedom of expression].’"147

The right to freedom of expression, thus, applies to the entire continuum of speech from utterances
made to conduct enacted, and even to inaction itself as a symbolic manner of communication.

In Ebralinag v. The Division Superintendent of Schools of Cebu,148 students who were members of
the religious sect Jehovah’s Witnesses were to be expelled from school for refusing to salute the
flag, sing the national anthem, and recite the patriotic pledge.149 In his concurring opinion, Justice
Cruz discussed how the salute is a symbolic manner of communication and a valid form of
expression.150 He adds that freedom of speech includes even the right to be silent:

Freedom of speech includes the right to be silent. Aptly has it been said that the Bill of Rights that
guarantees to the individual the liberty to utter what is in his mind also guarantees to him the liberty
not to utter what is not in his mind. The salute is a symbolic manner of communication that conveys
its messageas clearly as the written or spoken word. As a valid form of expression, it cannot be
compelled any more than it can be prohibited in the face of valid religious objections like those
raised in this petition. To impose it on the petitioners is to deny them the right not to speak when
their religion bids them to be silent. This coercion of conscience has no place in the free society.

The democratic system provides for the accommodation of diverse ideas, including the
unconventional and even the bizarre or eccentric. The will of the majority prevails, but it cannot
regiment thought by prescribing the recitation by rote of its opinions or proscribing the assertion of
unorthodox or unpopular views as inthis case. The conscientious objections of the petitioners, no
less than the impatience of those who disagree with them, are protected by the Constitution. The
State cannot make the individual speak when the soul within rebels.151

Even before freedom "of expression" was included in Article III, Section 4 of the present
Constitution,this court has applied its precedent version to expressions other than verbal utterances.

In the 1985 case of Gonzalez v. Chairman Katigbak,152 petitioners objected to the classification of the
motion picture "Kapit sa Patalim" as "For Adults Only." They contend that the classification "is
without legal and factual basis and is exercised as impermissible restraint of artistic
expression."153 This court recognized that "[m]otion pictures are important both as a medium for the
communication of ideas and the expression of the artistic impulse."154 It adds that "every writer,actor,
or producer, no matter what medium of expression he may use, should be freed from the
censor."155 This court found that "[the Board’s] perception of what constitutes obscenity appears to be
unduly restrictive."156 However, the petition was dismissed solely on the ground that there were not
enough votes for a ruling of grave abuse of discretion in the classification made by the Board.157

II.B.3

Size does matter

The form of expression is just as important as the information conveyed that it forms part of the
expression. The present case is in point.

It is easy to discern why size matters.

First, it enhances efficiency in communication. A larger tarpaulin allows larger fonts which make it
easier to view its messages from greater distances. Furthermore, a larger tarpaulin makes it easier
for passengers inside moving vehicles to read its content. Compared with the pedestrians, the
passengers inside moving vehicles have lesser time to view the content of a tarpaulin. The larger the
fonts and images, the greater the probability that it will catch their attention and, thus, the greater the
possibility that they will understand its message.

Second, the size of the tarpaulin may underscore the importance of the message to the reader.
From an ordinary person’s perspective, those who post their messages in larger fonts care more
about their message than those who carry their messages in smaller media. The perceived
importance given by the speakers, in this case petitioners, to their cause is also part of the message.
The effectivity of communication sometimes relies on the emphasis put by the speakers and onthe
credibility of the speakers themselves. Certainly, larger segments of the public may tend to be more
convinced of the point made by authoritative figures when they make the effort to emphasize their
messages.

Third, larger spaces allow for more messages. Larger spaces, therefore, may translate to more
opportunities to amplify, explain, and argue points which the speakers might want to communicate.
Rather than simply placing the names and images of political candidates and an expression of
support, larger spaces can allow for brief but memorable presentations of the candidates’ platforms
for governance. Larger spaces allow for more precise inceptions of ideas, catalyze reactions to
advocacies, and contribute more to a more educated and reasoned electorate. A more educated
electorate will increase the possibilities of both good governance and accountability in our
government.

These points become more salient when it is the electorate, not the candidates or the political
parties, that speaks. Too often, the terms of public discussion during elections are framed and kept
hostage by brief and catchy but meaningless sound bites extolling the character of the candidate.
Worse, elections sideline political arguments and privilege the endorsement by celebrities. Rather
than provide obstacles to their speech, government should in fact encourage it. Between the
candidates and the electorate, the latter have the better incentive to demand discussion of the more
important issues. Between the candidates and the electorate, the former have better incentives to
avoid difficult political standpoints and instead focus on appearances and empty promises.

Large tarpaulins, therefore, are not analogous to time and place.158 They are fundamentally part of
expression protected under Article III, Section 4 of the Constitution.

II.B.4

There are several theories and schools of thought that strengthen the need to protect the basic right
to freedom of expression.

First, this relates to the right ofthe people to participate in public affairs, including the right to criticize
government actions.

Proponents of the political theory on "deliberative democracy" submit that "substantial, open, [and]
ethical dialogue isa critical, and indeed defining, feature of a good polity."159 This theory may be
considered broad, but it definitely "includes [a] collective decision making with the participation of all
who will beaffected by the decision."160 It anchors on the principle that the cornerstone of every
democracy is that sovereignty resides in the people.161 To ensure order in running the state’s affairs,
sovereign powers were delegated and individuals would be elected or nominated in key government
positions to represent the people. On this note, the theory on deliberative democracy may evolve to
the right of the people to make government accountable. Necessarily, this includes the right of the
people to criticize acts made pursuant to governmental functions.

Speech that promotes dialogue on publicaffairs, or airs out grievances and political discontent,
should thus be protected and encouraged.

Borrowing the words of Justice Brandeis, "it is hazardous to discourage thought, hope and
imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable
government; that the path of safety lies in the opportunity to discuss freely supposed grievances and
proposed remedies."162
In this jurisdiction, this court held that "[t]he interest of society and the maintenance of good
government demand a full discussion of public affairs."163 This court has, thus, adopted the principle
that "debate on public issues should be uninhibited, robust,and wide open . . . [including even]
unpleasantly sharp attacks on government and public officials."164

Second, free speech should be encouraged under the concept of a market place of ideas. This
theory was articulated by Justice Holmes in that "the ultimate good desired is better reached by [the]
free trade in ideas:"165

When men have realized that time has upset many fighting faiths, they may come to believe even
more than they believe the very foundations of their own conduct that the ultimate good desired is
better reached by free trade in ideas - that the best test of truth is the power of the thought to get
itself accepted in the competition of the market, and that truth is the only ground upon which their
wishes safely can be carried out.166

The way it works, the exposure to the ideas of others allows one to "consider, test, and develop their
own conclusions."167 A free, open, and dynamic market place of ideas is constantly shaping new
ones. This promotes both stability and change where recurring points may crystallize and weak ones
may develop. Of course, free speech is more than the right to approve existing political beliefs and
economic arrangements as it includes, "[t]o paraphrase Justice Holmes, [the] freedom for the
thought that we hate, no less than for the thought that agrees with us."168 In fact, free speech may
"best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with
conditions as they are, or even stirs people to anger."169 It is in this context that we should guard
against any curtailment of the people’s right to participate in the free trade of ideas.

Third, free speech involves self-expression that enhances human dignity. This right is "a means of
assuring individual self-fulfillment,"170 among others. In Philippine Blooming Mills Employees
Organization v. Philippine Blooming Mills Co., Inc,171 this court discussed as follows:

The rights of free expression, free assembly and petition, are not only civil rights but also political
rights essential to man's enjoyment of his life, to his happiness and to his full and complete
fulfillment.Thru these freedoms the citizens can participate not merely in the periodic establishment
of the government through their suffrage but also in the administration of public affairs as well as in
the discipline of abusive public officers. The citizen is accorded these rights so that he can appeal to
the appropriate governmental officers or agencies for redress and protection as well as for the
imposition of the lawful sanctions on erring public officers and employees.172 (Emphasis supplied)

Fourth, expression is a marker for group identity. For one, "[v]oluntary associations perform [an]
important democratic role [in providing] forums for the development of civil skills, for deliberation,
and for the formation of identity and community spirit[,] [and] are largely immune from [any]
governmental interference."173 They also "provide a buffer between individuals and the state - a free
space for the development of individual personality, distinct group identity, and dissident ideas - and
a potential source of opposition to the state."174 Free speech must be protected as the vehicle to find
those who have similar and shared values and ideals, to join together and forward common goals.

Fifth, the Bill of Rights, free speech included, is supposed to "protect individuals and minorities
against majoritarian abuses perpetrated through [the] framework [of democratic
governance]."175 Federalist framers led by James Madison were concerned about two potentially
vulnerable groups: "the citizenry at large - majorities - who might be tyrannized or plundered by
despotic federal officials"176 and the minorities who may be oppressed by "dominant factions of the
electorate [that] capture [the] government for their own selfish ends[.]"177 According to Madison, "[i]t is
of great importance in a republic not only to guard the society against the oppression of its rulers, but
to guard one part of the society against the injustice of the other part."178 We should strive to ensure
that free speech is protected especially in light of any potential oppression against those who find
themselves in the fringes on public issues.

Lastly, free speech must be protected under the safety valve theory.179 This provides that "nonviolent
manifestations of dissent reduce the likelihood of violence[.]"180 "[A] dam about to burst . . . resulting
in the ‘banking up of a menacing flood of sullen anger behind the walls of restriction’"181 has been
used to describe the effect of repressing nonviolent outlets.182 In order to avoid this situation and
prevent people from resorting to violence, there is a need for peaceful methods in making
passionate dissent. This includes "free expression and political participation"183 in that they can "vote
for candidates who share their views, petition their legislatures to [make or] change laws, . . .
distribute literature alerting other citizens of their concerns[,]"184 and conduct peaceful rallies and
other similar acts.185 Free speech must, thus, be protected as a peaceful means of achieving one’s
goal, considering the possibility that repression of nonviolent dissent may spill over to violent means
just to drive a point.

II.B.5

Every citizen’s expression with political consequences enjoys a high degree of protection.
Respondents argue that the tarpaulinis election propaganda, being petitioners’ way of endorsing
candidates who voted against the RH Law and rejecting those who voted for it.186 As such, it is
subject to regulation by COMELEC under its constitutional mandate.187 Election propaganda is
defined under Section 1(4) of COMELEC Resolution No. 9615 as follows: SECTION 1. Definitions . .
.

....

4. The term "political advertisement" or "election propaganda" refers to any matter broadcasted,
published, printed, displayed or exhibited, in any medium, which contain the name, image, logo,
brand, insignia, color motif, initials, and other symbol or graphic representation that is capable of
being associated with a candidate or party, and is intended to draw the attention of the public or a
segment thereof to promote or oppose, directly or indirectly, the election of the said candidate or
candidates to a public office. In broadcast media, political advertisements may take the form of
spots, appearances on TV shows and radio programs, live or taped announcements, teasers, and
other forms of advertising messages or announcements used by commercial advertisers. Political
advertising includes matters, not falling within the scope of personal opinion, that appear on any
Internet website, including, but not limited to, social networks, blogging sites, and micro-blogging
sites, in return for consideration, or otherwise capable of pecuniary estimation.

On the other hand, petitioners invoke their "constitutional right to communicate their opinions, views
and beliefs about issues and candidates."188 They argue that the tarpaulin was their statement of
approval and appreciation of the named public officials’ act of voting against the RH Law, and their
criticism toward those who voted in its favor.189It was "part of their advocacy campaign against the
RH Law,"190 which was not paid for by any candidate or political party.191 Thus, "the questioned orders
which . . . effectively restrain[ed] and curtail[ed] [their] freedom of expression should be declared
unconstitutional and void."192

This court has held free speech and other intellectual freedoms as "highly ranked in our scheme of
constitutional values."193 These rights enjoy precedence and primacy.194 In Philippine Blooming Mills,
this court discussed the preferred position occupied by freedom of expression:
Property and property rights can belost thru prescription; but human rights are imprescriptible. If
human rights are extinguished by the passage of time, then the Bill of Rights is a useless attempt to
limit the power of government and ceases to be an efficacious shield against the tyranny of officials,
of majorities, ofthe influential and powerful, and of oligarchs - political, economic or otherwise.

In the hierarchy of civil liberties, the rights of free expression and of assembly occupy a preferred
position as they are essential to the preservation and vitality of our civil and political institutions; and
such priority "gives these liberties the sanctity and the sanction not permitting dubious
intrusions."195 (Citations omitted)

This primordial right calls for utmost respect, more so "when what may be curtailed is the
dissemination of information to make more meaningful the equally vital right of suffrage."196 A similar
idea appeared in our jurisprudence as early as 1969, which was Justice Barredo’s concurring and
dissenting opinion in Gonzales v. COMELEC:197

I like to reiterate over and over, for it seems this is the fundamental point others miss, that genuine
democracy thrives only where the power and right of the people toelect the men to whom they would
entrust the privilege to run the affairs of the state exist. In the language of the declaration of
principles of our Constitution, "The Philippines is a republican state. Sovereignty resides in the
people and all government authority emanates from them" (Section 1, Article II). Translating this
declaration into actuality, the Philippines is a republic because and solely because the people in it
can be governed only by officials whom they themselves have placed in office by their votes. And in
it is on this cornerstone that I hold it tobe self-evident that when the freedoms of speech, press and
peaceful assembly and redress of grievances are being exercised in relation to suffrage or asa
means to enjoy the inalienable right of the qualified citizen to vote, they are absolute and timeless. If
our democracy and republicanism are to be worthwhile, the conduct of public affairs by our officials
must be allowed to suffer incessant and unabating scrutiny, favorable or unfavorable, everyday and
at all times. Every holder of power in our government must be ready to undergo exposure any
moment of the day or night, from January to December every year, as it is only in this way that he
can rightfully gain the confidence of the people. I have no patience for those who would regard
public dissection of the establishment as an attribute to be indulged by the people only at certain
periods of time. I consider the freedoms of speech, press and peaceful assembly and redress of
grievances, when exercised in the name of suffrage, as the very means by which the right itself to
vote can only be properly enjoyed.It stands to reason therefore, that suffrage itself would be next to
useless if these liberties cannot be untrammelled [sic] whether as to degree or time.198 (Emphasis
supplied)

Not all speech are treated the same. In Chavez v. Gonzales, this court discussed that some types of
speech may be subject to regulation:

Some types of speech may be subjected to some regulation by the State under its pervasive police
power, in order that it may not be injurious to the equal right of others or those of the community or
society. The difference in treatment is expected because the relevant interests of one type of
speech, e.g., political speech, may vary from those of another, e.g., obscene speech.
Distinctionshave therefore been made in the treatment, analysis, and evaluation ofthe permissible
scope of restrictions on various categories of speech. We have ruled, for example, that in our
jurisdiction slander or libel, lewd and obscene speech, as well as "fighting words" are not entitled to
constitutional protection and may be penalized.199 (Citations omitted)

We distinguish between politicaland commercial speech. Political speech refers to speech "both
intended and received as a contribution to public deliberation about some issue,"200 "foster[ing]
informed and civicminded deliberation."201 On the other hand, commercial speech has been defined
as speech that does "no more than propose a commercial transaction."202 The expression resulting
from the content of the tarpaulin is, however, definitely political speech. In Justice Brion’s dissenting
opinion, he discussed that "[t]he content of the tarpaulin, as well as the timing of its posting, makes it
subject of the regulations in RA 9006 and Comelec Resolution No. 9615."203 He adds that "[w]hile
indeed the RH issue, by itself,is not an electoralmatter, the slant that the petitioners gave the issue
converted the non-election issue into a live election one hence, Team Buhay and Team Patay and
the plea to support one and oppose the other."204

While the tarpaulin may influence the success or failure of the named candidates and political
parties, this does not necessarily mean it is election propaganda. The tarpaulin was not paid for or
posted "in return for consideration" by any candidate, political party, or party-list group.

The second paragraph of Section 1(4) of COMELEC Resolution No. 9615, or the rules and
regulations implementing Republic Act No. 9006 as an aid to interpret the law insofar as the facts of
this case requires, states:

4. The term "political advertisement" or "election propaganda" refers to any matter broadcasted,
published, printed, displayed or exhibited, in any medium, which contain the name, image, logo,
brand, insignia, color motif, initials, and other symbol or graphic representation that is capable of
being associated with a candidate or party, and is intended to draw the attention of the public or a
segment thereof to promote or oppose, directly or indirectly, the election of the said candidate or
candidates to a public office. In broadcast media, political advertisements may take the form of
spots, appearances on TV shows and radio programs, live or taped announcements, teasers, and
other forms of advertising messages or announcements used by commercial advertisers. Political
advertising includes matters, not falling within the scope of personal opinion, that appear on any
Internet website, including, but not limited to, social networks, blogging sites, and micro-blogging
sites, in return for consideration, or otherwise capable of pecuniary estimation. (Emphasis supplied)

It is clear that this paragraph suggests that personal opinions are not included, while sponsored
messages are covered.

Thus, the last paragraph of Section 1(1) of COMELEC Resolution No. 9615 states:

SECTION 1. Definitions - As used in this Resolution:

1. The term "election campaign" or "partisan political activity" refers to an act designed to promote
the election or defeat of a particular candidate or candidates to a public office, and shall include any
of the following:

....

Personal opinions, views, and preferences for candidates, contained in blogs shall not be considered
acts of election campaigning or partisan politicalactivity unless expressed by government officials in
the Executive Department, the Legislative Department, the Judiciary, the Constitutional
Commissions, and members of the Civil Service.

In any event, this case does not refer to speech in cyberspace, and its effects and parameters
should be deemed narrowly tailored only in relation to the facts and issues in this case. It also
appears that such wording in COMELEC Resolution No. 9615 does not similarly appear in Republic
Act No. 9006, the law it implements.
We should interpret in this manner because of the value of political speech.

As early as 1918, in United States v. Bustos,205 this court recognized the need for full discussion of
public affairs. We acknowledged that free speech includes the right to criticize the conduct of public
men:

The interest of society and the maintenance of good government demand a full discussion of public
affairs. Complete liberty to comment on the conduct of public men is a scalpel in the case of free
speech. The sharp incision of its probe relieves the abscesses of official dom. Men in public life may
suffer under a hostile and an unjust accusation; the wound can be assuaged with the balm of a clear
conscience. A public officer must not be too thin-skinned with reference to comment upon his official
acts. Only thus can the intelligence and dignity of the individual be exalted.206

Subsequent jurisprudence developed the right to petition the government for redress of grievances,
allowing for criticism, save for some exceptions.207 In the 1951 case of Espuelas v. People,208 this
court noted every citizen’s privilege to criticize his or her government, provided it is "specific and
therefore constructive, reasoned or tempered, and not a contemptuous condemnation of the entire
government set-up."209

The 1927 case of People v. Titular210 involved an alleged violation of the Election Law provision
"penaliz[ing] the anonymous criticism of a candidate by means of posters or circulars."211 This court
explained that it is the poster’s anonymous character that is being penalized.212 The ponente adds
that he would "dislike very muchto see this decision made the vehicle for the suppression of public
opinion."213

In 1983, Reyes v. Bagatsing214 discussed the importance of allowing individuals to vent their views.
According to this court, "[i]ts value may lie in the fact that there may be something worth hearing
from the dissenter [and] [t]hat is to ensurea true ferment of ideas."215

Allowing citizens to air grievances and speak constructive criticisms against their government
contributes to every society’s goal for development. It puts forward matters that may be changed for
the better and ideas that may be deliberated on to attain that purpose. Necessarily, it also makes the
government accountable for acts that violate constitutionally protected rights.

In 1998, Osmeña v. COMELEC found Section 11(b) of Republic Act No. 6646, which prohibits mass
media from selling print space and air time for campaign except to the COMELEC, to be a
democracy-enhancing measure.216This court mentioned how "discussion of public issues and debate
on the qualifications of candidates in an election are essential to the proper functioning of the
government established by our Constitution."217

As pointed out by petitioners, "speech serves one of its greatest public purposes in the context of
elections when the free exercise thereof informs the people what the issues are, and who are
supporting what issues."218 At the heart of democracy is every advocate’s right to make known what
the people need to know,219 while the meaningful exercise of one’s right of suffrage includes the right
of every voter to know what they need to know in order to make their choice.

Thus, in Adiong v. COMELEC,220 this court discussed the importance of debate on public issues, and
the freedom of expression especially in relation to information that ensures the meaningful exercise
of the right of suffrage:

We have adopted the principle that debate on public issues should be uninhibited, robust, and wide
open and that it may well include vehement, caustic and sometimes unpleasantly sharp attacks on
government and public officials. Too many restrictions will deny to people the robust, uninhibited,
and wide open debate, the generating of interest essential if our elections will truly be free, clean and
honest.

We have also ruled that the preferred freedom of expression calls all the more for the utmost respect
when what may be curtailed is the dissemination of information to make more meaningful the equally
vital right of suffrage.221(Emphasis supplied, citations omitted)

Speech with political consequences isat the core of the freedom of expression and must be
protected by this court.

Justice Brion pointed out that freedomof expression "is not the god of rights to which all other rights
and even government protection of state interest must bow."222

The right to freedom of expression isindeed not absolute. Even some forms of protected speech are
still subjectto some restrictions. The degree of restriction may depend on whether the regulation is
content-based or content-neutral.223 Content-based regulations can either be based on the viewpoint
of the speaker or the subject of the expression.

II.B.6

Content-based regulation

COMELEC contends that the order for removal of the tarpaulin is a content-neutral regulation. The
order was made simply because petitioners failed to comply with the maximum size limitation for
lawful election propaganda.224

On the other hand, petitioners argue that the present size regulation is content-based as it applies
only to political speech and not to other forms of speech such as commercial speech.225 "[A]ssuming
arguendo that the size restriction sought to be applied . . . is a mere time, place, and manner
regulation, it’s still unconstitutional for lack of a clear and reasonable nexus with a constitutionally
sanctioned objective."226

The regulation may reasonably be considered as either content-neutral or content-

based.227 Regardless, the disposition of this case will be the same. Generally, compared with other
forms of speech, the proposed speech is content-based.

As pointed out by petitioners, the interpretation of COMELEC contained in the questioned order
applies only to posters and tarpaulins that may affect the elections because they deliver opinions
that shape both their choices. It does not cover, for instance, commercial speech.

Worse, COMELEC does not point to a definite view of what kind of expression of non-candidates will
be adjudged as "election paraphernalia." There are no existing bright lines to categorize speech as
election-related and those that are not. This is especially true when citizens will want to use their
resources to be able to raise public issues that should be tackled by the candidates as what has
happened in this case. COMELEC’s discretion to limit speech in this case is fundamentally
unbridled.

Size limitations during elections hit ata core part of expression. The content of the tarpaulin is not
easily divorced from the size of its medium.
Content-based regulation bears a heavy presumption of invalidity, and this court has used the clear
and present danger rule as measure.228 Thus, in Chavez v. Gonzales:

A content-based regulation, however, bears a heavy presumption of invalidity and is measured

against the clear and present danger rule. The latter will pass constitutional muster only if justified by
a compelling reason, and the restrictions imposedare neither overbroad nor vague.229 (Citations
omitted)

Under this rule, "the evil consequences sought to be prevented must be substantive, ‘extremely
serious and the degree of imminence extremely high.’"230 "Only when the challenged act has
overcome the clear and present danger rule will it pass constitutional muster, with the government
having the burden of overcoming the presumed unconstitutionality."231

Even with the clear and present danger test, respondents failed to justify the regulation. There is no
compelling and substantial state interest endangered by the posting of the tarpaulinas to justify
curtailment of the right of freedom of expression. There is no reason for the state to minimize the
right of non-candidate petitioners to post the tarpaulin in their private property. The size of the
tarpaulin does not affect anyone else’s constitutional rights.

Content-based restraint or censorship refers to restrictions "based on the subject matter of the
utterance or speech."232 In contrast, content-neutral regulation includes controls merely on the
incidents of the speech such as time, place, or manner of the speech.233

This court has attempted to define "content-neutral" restraints starting with the 1948 case of
Primicias v. Fugoso.234The ordinance in this case was construed to grant the Mayor discretion only to
determine the public places that may be used for the procession ormeeting, but not the power to
refuse the issuance of a permit for such procession or meeting.235 This court explained that free
speech and peaceful assembly are "not absolute for it may be so regulated that it shall not
beinjurious to the equal enjoyment of others having equal rights, nor injurious to the rights of the
community or society."236

The earlier case of Calalang v. Williams237 involved the National Traffic Commission resolution that
prohibited the passing of animal-drawn vehicles along certain roads at specific hours.238 This court
similarly discussed police power in that the assailed rules carry outthe legislative policy that "aims to
promote safe transit upon and avoid obstructions on national roads, in the interest and convenience
of the public."239

As early as 1907, United States v. Apurado240 recognized that "more or less disorder will mark the
public assembly of the people to protest against grievances whether real or imaginary, because on
such occasions feeling is always wrought to a high pitch of excitement. . . ."241 It is with this backdrop
that the state is justified in imposing restrictions on incidental matters as time, place, and manner of
the speech.

In the landmark case of Reyes v. Bagatsing, this court summarized the steps that permit applicants
must follow which include informing the licensing authority ahead of time as regards the date, public
place, and time of the assembly.242 This would afford the public official time to inform applicants if
there would be valid objections, provided that the clear and present danger test is the standard used
for his decision and the applicants are given the opportunity to be heard.243 This ruling was practically
codified in Batas Pambansa No. 880, otherwise known as the Public Assembly Act of 1985.

Subsequent jurisprudence have upheld Batas Pambansa No. 880 as a valid content-neutral
regulation. In the 2006 case of Bayan v. Ermita,244 this court discussed how Batas Pambansa No.
880 does not prohibit assemblies but simply regulates their time, place, and manner.245 In 2010, this
court found in Integrated Bar of the Philippines v. Atienza246 that respondent Mayor Atienza
committed grave abuse of discretion when he modified the rally permit by changing the venue from
Mendiola Bridge to Plaza Miranda without first affording petitioners the opportunity to be heard.247

We reiterate that the regulation involved at bar is content-based. The tarpaulin content is not easily
divorced from the size of its medium.

II.B.7

Justice Carpio and Justice Perlas-Bernabe suggest that the provisions imposing a size limit for
tarpaulins are content-neutral regulations as these "restrict the mannerby which speech is relayed
but not the content of what is conveyed."248

If we apply the test for content-neutral regulation, the questioned acts of COMELEC will not pass the
three requirements for evaluating such restraints on freedom of speech.249 "When the speech
restraints take the form of a content-neutral regulation, only a substantial governmental interest is
required for its validity,"250 and it is subject only to the intermediate approach.251

This intermediate approach is based on the test that we have prescribed in several cases.252 A
content-neutral government regulation is sufficiently justified:

[1] if it is within the constitutional power of the Government; [2] if it furthers an important or
substantial governmental interest; [3] if the governmental interest is unrelated to the suppression of
free expression; and [4] if the incident restriction on alleged [freedom of speech & expression] is no
greater than is essential to the furtherance of that interest.253

On the first requisite, it is not within the constitutional powers of the COMELEC to regulate the
tarpaulin. As discussed earlier, this is protected speech by petitioners who are non-candidates. On
the second requirement, not only must the governmental interest be important or substantial, it must
also be compelling as to justify the restrictions made.

Compelling governmental interest would include constitutionally declared principles. We have held,
for example, that "the welfare of children and the State’s mandate to protect and care for them, as
parens patriae,254 constitute a substantial and compelling government interest in regulating . . .
utterances in TV broadcast."255

Respondent invokes its constitutional mandate to ensure equal opportunity for public information
campaigns among candidates in connection with the holding of a free, orderly, honest, peaceful, and
credible election.256

Justice Brion in his dissenting opinion discussed that "[s]ize limits to posters are necessary to ensure
equality of public information campaigns among candidates, as allowing posters with different sizes
gives candidates and their supporters the incentive to post larger posters[,] [and] [t]his places
candidates with more money and/or with deep-pocket supporters at an undue advantage against
candidates with more humble financial capabilities."257

First, Adiong v. COMELEC has held that this interest is "not as important as the right of [a private
citizen] to freely express his choice and exercise his right of free speech."258 In any case, faced with
both rights to freedom of speech and equality, a prudent course would be to "try to resolve the
tension in a way that protects the right of participation."259
Second, the pertinent election lawsrelated to private property only require that the private property
owner’s consent be obtained when posting election propaganda in the property.260 This is consistent
with the fundamental right against deprivation of property without due process of law.261 The present
facts do not involve such posting of election propaganda absent consent from the property owner.
Thus, this regulation does not apply in this case.

Respondents likewise cite the Constitution262 on their authority to recommend effective measures to
minimize election spending. Specifically, Article IX-C, Section 2(7) provides:

Sec. 2. The Commission on Elections shall exercise the following powers and functions:

....

(7) Recommend to the Congress effective measures to minimize election spending, including
limitation of places where propaganda materials shall be posted, and to prevent and penalize all
forms of election frauds, offenses, malpractices, and nuisance candidates. (Emphasis supplied) This
does not qualify as a compelling and substantial government interest to justify regulation of the
preferred right to freedom of expression.

The assailed issuances for the removal of the tarpaulin are based on the two feet (2’) by three feet
(3’) size limitation under Section 6(c) of COMELEC Resolution No. 9615. This resolution implements
the Fair Election Act that provides for the same size limitation.263

This court held in Adiong v. COMELEC that "[c]ompared to the paramount interest of the State in
guaranteeing freedom of expression, any financial considerations behind the regulation are of
marginal significance."264 In fact, speech with political consequences, as in this case, should be
encouraged and not curtailed. As petitioners pointed out, the size limitation will not serve the
objective of minimizing election spending considering there is no limit on the number of tarpaulins
that may be posted.265

The third requisite is likewise lacking. We look not only at the legislative intent or motive in imposing
the restriction, but more so at the effects of such restriction, if implemented. The restriction must not
be narrowly tailored to achieve the purpose. It must be demonstrable. It must allow alternative
avenues for the actor to make speech.

In this case, the size regulation is not unrelated to the suppression of speech. Limiting the maximum
sizeof the tarpaulin would render ineffective petitioners’ message and violate their right to exercise
freedom of expression.

The COMELEC’s act of requiring the removal of the tarpaulin has the effect of dissuading
expressions with political consequences. These should be encouraged, more so when exercised to
make more meaningful the equally important right to suffrage.

The restriction in the present case does not pass even the lower test of intermediate scrutiny for
content-neutral regulations.

The action of the COMELEC in thiscase is a strong deterrent to further speech by the electorate.
Given the stature of petitioners and their message, there are indicators that this will cause a "chilling
effect" on robust discussion during elections.
The form of expression is just as important as the message itself. In the words of Marshall McLuhan,
"the medium is the message."266 McLuhan’s colleague and mentor Harold Innis has earlier asserted
that "the materials on which words were written down have often counted for more than the words
themselves."267

III
Freedom of expression and equality

III.A

The possibility of abuse

Of course, candidates and political parties do solicit the help of private individuals for the
endorsement of their electoral campaigns.

On the one extreme, this can take illicit forms such as when endorsement materials in the form of
tarpaulins, posters, or media advertisements are made ostensibly by "friends" but in reality are really
paid for by the candidate or political party. This skirts the constitutional value that provides for equal
opportunities for all candidates.

However, as agreed by the parties during the oral arguments in this case, this is not the situation
that confronts us. In such cases, it will simply be a matter for investigation and proof of fraud on the
part of the COMELEC.

The guarantee of freedom of expression to individuals without any relationship to any political
candidate should not be held hostage by the possibility of abuse by those seeking to be elected. It is
true that there can be underhanded, covert, or illicit dealings so as to hide the candidate’s real levels
of expenditures. However, labelling all expressions of private parties that tend to have an effect on
the debate in the elections as election paraphernalia would be too broad a remedy that can stifle
genuine speech like in this case. Instead, to address this evil, better and more effective enforcement
will be the least restrictive means to the fundamental freedom.

On the other extreme, moved by the credentials and the message of a candidate, others will spend
their own resources in order to lend support for the campaigns. This may be without agreement
between the speaker and the candidate or his or her political party. In lieu of donating funds to the
campaign, they will instead use their resources directly in a way that the candidate or political party
would have doneso. This may effectively skirt the constitutional and statutory limits of campaign
spending.

Again, this is not the situation in this case.

The message of petitioners in thiscase will certainly not be what candidates and political parties will
carry in their election posters or media ads. The message of petitioner, taken as a whole, is an
advocacy of a social issue that it deeply believes. Through rhetorical devices, it communicates the
desire of Diocese that the positions of those who run for a political position on this social issue be
determinative of how the public will vote. It primarily advocates a stand on a social issue; only
secondarily — even almost incidentally — will cause the election or non-election of a candidate.

The twin tarpaulins consist of satire of political parties. Satire is a "literary form that employs such
devices as sarcasm, irony and ridicule to deride prevailing vices or follies,"268 and this may target any
individual or group in society, private and government alike. It seeks to effectively communicate a
greater purpose, often used for "political and social criticism"269 "because it tears down facades,
deflates stuffed shirts, and unmasks hypocrisy. . . . Nothing is more thoroughly democratic than to
have the high-and-mighty lampooned and spoofed."270 Northrop Frye, wellknown in this literary field,
claimed that satire had two defining features: "one is wit or humor founded on fantasy or a sense of
the grotesque and absurd, the other is an object of attack."271 Thus, satire frequently uses
exaggeration, analogy, and other rhetorical devices.

The tarpaulins exaggerate. Surely, "Team Patay" does not refer to a list of dead individuals nor could
the Archbishop of the Diocese of Bacolod have intended it to mean that the entire plan of the
candidates in his list was to cause death intentionally. The tarpaulin caricatures political parties and
parodies the intention of those in the list. Furthermore, the list of "Team Patay" is juxtaposed with the
list of "Team Buhay" that further emphasizes the theme of its author: Reproductive health is an
important marker for the church of petitioners to endorse.

The messages in the tarpaulins are different from the usual messages of candidates. Election
paraphernalia from candidates and political parties are more declarative and descriptive and contain
no sophisticated literary allusion to any social objective. Thus, they usually simply exhort the public
to vote for a person with a brief description of the attributes of the candidate. For example "Vote for
[x], Sipag at Tiyaga," "Vote for [y], Mr. Palengke," or "Vote for [z], Iba kami sa Makati."

This court’s construction of the guarantee of freedom of expression has always been wary of
censorship or subsequent punishment that entails evaluation of the speaker’s viewpoint or the
content of one’s speech. This is especially true when the expression involved has political
consequences. In this case, it hopes to affect the type of deliberation that happens during elections.
A becoming humility on the part of any human institution no matter how endowed with the secular
ability to decide legal controversies with finality entails that we are not the keepers of all wisdom.

Humanity’s lack of omniscience, even acting collectively, provides space for the weakest dissent.
Tolerance has always been a libertarian virtue whose version is embedded in our Billof Rights.
There are occasional heretics of yesterday that have become our visionaries. Heterodoxies have
always given us pause. The unforgiving but insistent nuance that the majority surely and comfortably
disregards provides us with the checks upon reality that may soon evolve into creative solutions to
grave social problems. This is the utilitarian version. It could also be that it is just part of human
necessity to evolve through being able to express or communicate.

However, the Constitution we interpret is not a theoretical document. It contains other provisions
which, taken together with the guarantee of free expression, enhances each other’s value. Among
these are the provisions that acknowledge the idea of equality. In shaping doctrine construing these
constitutional values, this court needs to exercise extraordinary prudence and produce narrowly
tailored guidance fit to the facts as given so as not to unwittingly cause the undesired effect of
diluting freedoms as exercised in reality and, thus, render them meaningless.

III.B.

Speech and equality:

Some considerations We first establish that there are two paradigms of free speech that separate at
the point of giving priority to equality vis-à-vis liberty.272

In an equality-based approach, "politically disadvantaged speech prevails over regulation[,] but

regulation promoting political equality prevails over speech."273 This view allows the government
leeway to redistribute or equalize ‘speaking power,’ such as protecting, even implicitly subsidizing,
unpopular or dissenting voices often systematically subdued within society’s ideological
ladder.274 This view acknowledges that there are dominant political actors who, through authority,
power, resources, identity, or status, have capabilities that may drown out the messages of others.
This is especially true in a developing or emerging economy that is part of the majoritarian world like
ours.

The question of libertarian tolerance

This balance between equality and the ability to express so as to find one’s authentic self or to
participate in the self determination of one’s communities is not new only to law. It has always been
a philosophical problematique.

In his seminal work, Repressive Tolerance, philosopher and social theorist Herbert Marcuse
recognized how institutionalized inequality exists as a background limitation, rendering freedoms
exercised within such limitation as merely "protect[ing] the already established machinery of
discrimination."275 In his view, any improvement "in the normal course of events" within an unequal
society, without subversion, only strengthens existing interests of those in power and control.276

In other words, abstract guarantees of fundamental rights like freedom of expression may become
meaningless if not taken in a real context. This tendency to tackle rights in the abstract compromises
liberties. In his words:

Liberty is self-determination, autonomy—this is almost a tautology, but a tautology which results

from a whole series of synthetic judgments. It stipulates the ability to determine one’s own life: to be
able to determine what to do and what not to do, what to suffer and what not. But the subject of this
autonomy is never the contingent, private individual as that which he actually is or happens to be; it
is rather the individual as a human being who is capable of being free with the others. And the
problem of making possible such a harmony between every individual liberty and the other is not that
of finding a compromise between competitors, or between freedom and law, between general and
individual interest, common and private welfare in an established society, but of creating the society
in which man is no longer enslaved by institutions which vitiate self-determination from the
beginning. In other words, freedom is still to be created even for the freest of the existing
societies.277 (Emphasis in the original)

Marcuse suggests that the democratic argument — with all opinions presented to and deliberated by
the people — "implies a necessary condition, namely, that the people must be capable of
deliberating and choosing on the basis of knowledge, that they must have access to authentic
information, and that, on this basis, their evaluation must be the result of autonomous thought."278 He
submits that "[d]ifferent opinions and ‘philosophies’ can no longer compete peacefully for adherence
and persuasion on rational grounds: the ‘marketplace of ideas’ is organized and delimited by those
who determine the national and the individual interest."279 A slant toward left manifests from his belief
that "there is a ‘natural right’ of resistance for oppressed and overpowered minorities to use
extralegal means if the legal ones have proved to be inadequate."280 Marcuse, thus, stands for an
equality that breaks away and transcends from established hierarchies, power structures, and
indoctrinations. The tolerance of libertarian society he refers to as "repressive tolerance."

Legal scholars

The 20th century also bears witness to strong support from legal scholars for "stringent protections
of expressive liberty,"281 especially by political egalitarians. Considerations such as "expressive,
deliberative, and informational interests,"282 costs or the price of expression, and background facts,
when taken together, produce bases for a system of stringent protections for expressive liberties.283
Many legal scholars discuss the interest and value of expressive liberties. Justice Brandeis proposed
that "public discussion is a political duty."284 Cass Sustein placed political speech on the upper tier of
his twotier model for freedom of expression, thus, warranting stringent protection.285 He defined
political speech as "both intended and received as a contribution to public deliberation about some
issue."286

But this is usually related also tofair access to opportunities for such liberties.287 Fair access to
opportunity is suggested to mean substantive equality and not mere formal equalitysince "favorable
conditions for realizing the expressive interest will include some assurance of the resources required
for expression and some guarantee that efforts to express views on matters of common concern will
not be drowned out by the speech of betterendowed citizens."288 Justice Brandeis’ solution is to
"remedy the harms of speech with more speech."289 This view moves away from playing down the
danger as merely exaggerated, toward "tak[ing] the costs seriously and embrac[ing] expression as
the preferred strategy for addressing them."290 However, in some cases, the idea of more speech
may not be enough. Professor Laurence Tribe observed the need for context and "the specification
of substantive values before [equality] has full meaning."291 Professor Catherine A. MacKinnon adds
that "equality continues to be viewed in a formal rather than a substantive sense."292 Thus, more
speech can only mean more speech from the few who are dominant rather than those who are not.

Our jurisprudence

This court has tackled these issues.

Osmeña v. COMELEC affirmed National Press Club v. COMELEC on the validity of Section 11(b)
ofthe Electoral Reforms Law of 1987.293 This section "prohibits mass media from selling or giving free
of charge print space or air time for campaign or other political purposes, except to the Commission
on Elections."294 This court explained that this provision only regulates the time and manner of
advertising in order to ensure media equality among candidates.295 This court grounded this measure
on constitutional provisions mandating political equality:296 Article IX-C, Section 4

Section 4. The Commission may, during the election period, supervise or regulate the enjoyment or
utilization of all franchises or permits for the operation of transportation and other public utilities,
media of communication or information, all grants, special privileges, or concessions granted by the
Government or any subdivision, agency, or instrumentality thereof, including any government-owned
or controlled corporation or its subsidiary. Such supervision or regulation shall aim to ensure equal
opportunity, time, and space, and the right to reply, including reasonable, equal rates therefor, for
public information campaigns and forums among candidates in connection with the objective of
holding free, orderly, honest, peaceful, and credible elections. (Emphasis supplied)

Article XIII, Section 1

Section 1. The Congress shall give highest priorityto the enactment of measures that protect and
enhance the right of all the people to human dignity, reducesocial, economic, and political
inequalities, and remove cultural inequities by equitably diffusing wealth and political power for the
common good.

To this end, the State shall regulate the acquisition, ownership, use, and disposition of property and
its increments. (Emphasis supplied)

Article II, Section 26

Section 26. The State shall guarantee equal access to opportunities for public service, and prohibit
political dynasties as may be defined by law. (Emphasis supplied)

Thus, in these cases, we have acknowledged the Constitution’s guarantee for more substantive
expressive freedoms that take equality of opportunities into consideration during elections.

The other view

However, there is also the other view. This is that considerations of equality of opportunity or
equality inthe ability of citizens as speakers should not have a bearing in free speech doctrine.
Under this view, "members of the public are trusted to make their own individual evaluations of
speech, and government is forbidden to intervene for paternalistic or redistributive reasons . . .
[thus,] ideas are best left to a freely competitive ideological market."297 This is consistent with the
libertarian suspicion on the use of viewpoint as well as content to evaluate the constitutional validity
or invalidity of speech.

The textual basis of this view is that the constitutional provision uses negative rather than affirmative
language. It uses ‘speech’ as its subject and not ‘speakers’.298 Consequently, the Constitution
protects free speech per se, indifferent to the types, status, or associations of its
speakers.299 Pursuant to this, "government must leave speakers and listeners in the private order to
their own devices in sorting out the relative influence of speech."300

Justice Romero’s dissenting opinion in Osmeña v. COMELEC formulates this view that freedom of
speech includes "not only the right to express one’s views, but also other cognate rights relevant to
the free communication [of] ideas, not excluding the right to be informed on matters of public
concern."301 She adds:

And since so many imponderables may affect the outcome of elections — qualifications of voters
and candidates, education, means of transportation, health, public discussion, private animosities,
the weather, the threshold of a voter’s resistance to pressure — the utmost ventilation of opinion of
men and issues, through assembly, association and organizations, both by the candidate and the
voter, becomes a sine qua non for elections to truly reflect the will of the electorate.302 (Emphasis
supplied)

Justice Romero’s dissenting opinion cited an American case, if only to emphasize free speech
primacy such that"courts, as a rule are wary to impose greater restrictions as to any attempt to
curtail speeches with political content,"303 thus:

the concept that the government may restrict the speech of some elements in our society in order to
enhance the relative voice of the others is wholly foreign to the First Amendment which was
designed to "secure the widest possible dissemination of information from diverse and antagonistic
sources" and "to assure unfettered interchange of ideas for the bringing about of political and social
changes desired by the people."304

This echoes Justice Oliver Wendell Holmes’ submission "that the market place of ideas is still the
best alternative to censorship."305

Parenthetically and just to provide the whole detail of the argument, the majority of the US Supreme
Court in the campaign expenditures case of Buckley v. Valeo "condemned restrictions (even if
content-neutral) on expressive liberty imposed in the name of ‘enhanc[ing] the relative voice of
others’ and thereby ‘equaliz[ing] access to the political arena."306 The majority did not use the
equality-based paradigm.
One flaw of campaign expenditurelimits is that "any limit placed on the amount which a person can
speak, which takes out of his exclusive judgment the decision of when enough is enough, deprives
him of his free speech."307

Another flaw is how "[a]ny quantitative limitation on political campaigning inherently constricts the
sum of public information and runs counter to our ‘profound national commitment that debate on
public issues should be uninhibited, robust, and wide-open.’"308

In fact, "[c]onstraining those who have funds or have been able to raise funds does not ease the
plight of those without funds in the first place . . . [and] even if one’s main concern isslowing the
increase in political costs, it may be more effective torely on market forces toachieve that result than
on active legal intervention."309 According to Herbert Alexander, "[t]o oppose limitations is not
necessarily to argue that the sky’s the limit [because in] any campaign there are saturation levels
and a point where spending no longer pays off in votes per dollar."310

III. C.

When private speech amounts

to election paraphernalia

The scope of the guarantee of free expression takes into consideration the constitutional respect for
human potentiality and the effect of speech. It valorizes the ability of human beings to express and
their necessity to relate. On the other hand, a complete guarantee must also take into consideration
the effects it will have in a deliberative democracy. Skewed distribution of resources as well as the
cultural hegemony of the majority may have the effect of drowning out the speech and the messages
of those in the minority. In a sense, social inequality does have its effect on the exercise and effect
of the guarantee of free speech. Those who have more will have better access to media that
reaches a wider audience than those who have less. Those who espouse the more popular ideas
will have better reception than the subversive and the dissenters of society.To be really heard and
understood, the marginalized view normally undergoes its own degree of struggle.

The traditional view has been to tolerate the viewpoint of the speaker and the content of his or her
expression. This view, thus, restricts laws or regulation that allows public officials to make judgments
of the value of such viewpoint or message content. This should still be the principal approach.

However, the requirements of the Constitution regarding equality in opportunity must provide limits to
some expression during electoral campaigns.

Thus clearly, regulation of speech in the context of electoral campaigns made by candidates or the
members of their political parties or their political parties may be regulated as to time, place, and
manner. This is the effect of our rulings in Osmeña v. COMELEC and National Press Club v.
COMELEC.

Regulation of speech in the context of electoral campaigns made by persons who are not candidates
or who do not speak as members of a political party which are, taken as a whole, principally
advocacies of a social issue that the public must consider during elections is unconstitutional. Such
regulation is inconsistent with the guarantee of according the fullest possible range of opinions
coming from the electorate including those that can catalyze candid, uninhibited, and robust debate
in the criteria for the choice of a candidate.
This does not mean that there cannot be a specie of speech by a private citizen which will not
amount toan election paraphernalia to be validly regulated by law.

Regulation of election paraphernalia will still be constitutionally valid if it reaches into speech of
persons who are not candidates or who do not speak as members of a political party if they are not
candidates, only if what is regulated is declarative speech that, taken as a whole, has for its principal
object the endorsement of a candidate only. The regulation (a) should be provided by law, (b)
reasonable, (c) narrowly tailored to meet the objective of enhancing the opportunity of all candidates
to be heard and considering the primacy of the guarantee of free expression, and (d) demonstrably
the least restrictive means to achieve that object. The regulation must only be with respect to the
time, place, and manner of the rendition of the message. In no situation may the speech be
prohibited or censored onthe basis of its content. For this purpose, it will notmatter whether the
speech is made with or on private property.

This is not the situation, however, in this case for two reasons. First, as discussed, the principal
message in the twin tarpaulins of petitioners consists of a social advocacy.

Second, as pointed out in the concurring opinion of Justice Antonio Carpio, the present law —
Section 3.3 of Republic Act No. 9006 and Section 6(c) of COMELEC Resolution No. 9615 — if
applied to this case, will not pass the test of reasonability. A fixed size for election posters or
tarpaulins without any relation to the distance from the intended average audience will be arbitrary.
At certain distances, posters measuring 2 by 3 feet could no longer be read by the general public
and, hence, would render speech meaningless. It will amount to the abridgement of speech with
political consequences.

IV
Right to property

Other than the right to freedom of expression311 and the meaningful exercise of the right to
suffrage,312 the present case also involves one’s right to property.313

Respondents argue that it is the right of the state to prevent the circumvention of regulations relating
to election propaganda by applying such regulations to private individuals.314 Certainly, any provision
or regulation can be circumvented. But we are not confronted with this possibility. Respondents
agree that the tarpaulin in question belongs to petitioners. Respondents have also agreed, during
the oral arguments, that petitioners were neither commissioned nor paid by any candidate or political
party to post the material on their walls.

Even though the tarpaulin is readily seen by the public, the tarpaulin remains the private property of
petitioners. Their right to use their property is likewise protected by the Constitution.

In Philippine Communications Satellite Corporation v. Alcuaz:315

Any regulation, therefore, which operates as an effective confiscation of private property or

constitutes an arbitrary or unreasonable infringement of property rights is void, because it is
repugnant to the constitutional guaranties of due process and equal protection of the
laws.316 (Citation omitted)

This court in Adiong held that a restriction that regulates where decals and stickers should be posted
is "so broad that it encompasses even the citizen’s private property."317 Consequently, it violates
Article III, Section 1 of the Constitution which provides thatno person shall be deprived of his
property without due process of law. This court explained:
Property is more than the mere thing which a person owns, it includes the right to acquire, use, and
dispose of it; and the Constitution, in the 14th Amendment, protects these essential attributes.

Property is more than the mere thing which a person owns. It is elementary that it includes the right
to acquire, use, and dispose of it. The Constitution protects these essential attributes of property.
Holden v. Hardy, 169 U.S. 366, 391, 41 L. ed. 780, 790, 18 Sup. Ct. Rep. 383. Property consists of
the free use, enjoyment, and disposal of a person’s acquisitions without control or diminution save
by the law of the land. 1 Cooley’s Bl. Com. 127. (Buchanan v. Warley 245 US 60 [1917])318

This court ruled that the regulation in Adiong violates private property rights:

The right to property may be subject to a greater degree of regulation but when this right is joined by
a "liberty" interest, the burden of justification on the part of the Government must be exceptionally
convincing and irrefutable. The burden is not met in this case.

Section 11 of Rep. Act 6646 is so encompassing and invasive that it prohibits the posting or display
of election propaganda in any place, whether public or private, except inthe common poster areas
sanctioned by COMELEC. This means that a private person cannot post his own crudely prepared
personal poster on his own front dooror on a post in his yard. While the COMELEC will certainly
never require the absurd, there are no limits to what overzealous and partisan police officers, armed
with a copy of the statute or regulation, may do.319 Respondents ordered petitioners, who are private
citizens, to remove the tarpaulin from their own property. The absurdity of the situation is in itself an
indication of the unconstitutionality of COMELEC’s interpretation of its powers.

Freedom of expression can be intimately related with the right to property. There may be no
expression when there is no place where the expression may be made. COMELEC’s infringement
upon petitioners’ property rights as in the present case also reaches out to infringement on their
fundamental right to speech.

Respondents have not demonstrated thatthe present state interest they seek to promote justifies the
intrusion into petitioners’ property rights. Election laws and regulations must be reasonable. It must
also acknowledge a private individual’s right to exercise property rights. Otherwise, the due process
clause will be violated.

COMELEC Resolution No. 9615 and the Fair Election Act intend to prevent the posting of election
propaganda in private property without the consent of the owners of such private property.
COMELEC has incorrectly implemented these regulations. Consistent with our ruling in Adiong, we
find that the act of respondents in seeking to restrain petitioners from posting the tarpaulin in their
own private property is an impermissible encroachments on the right to property.

V
Tarpaulin and its message are not religious speech

We proceed to the last issues pertaining to whether the COMELEC in issuing the questioned notice
and letter violated the right of petitioners to the free exercise of their religion.

At the outset, the Constitution mandates the separation of church and state.320 This takes many
forms. Article III, Section 5 of the Constitution, for instance provides:

Section 5. No law shall be made respecting an establishment of religion, or prohibiting the free
exercise thereof. The free exercise and enjoyment of religious profession and worship, without
discrimination or preference, shall forever be allowed. Noreligious test shall be required for the
exercise of civil or political rights.

There are two aspects of this provision.321 The first is the none stablishment clause.322 Second is the
free exercise and enjoyment of religious profession and worship.323

The second aspect is atissue in this case.

Clearly, not all acts done by those who are priests, bishops, ustadz, imams, or any other religious
make such act immune from any secular regulation.324 The religious also have a secular existence.
They exist within a society that is regulated by law.

The Bishop of Bacolod caused the posting of the tarpaulin. But not all acts of a bishop amounts to
religious expression. This notwithstanding petitioners’ claim that "the views and position of the
petitioners, the Bishop and the Diocese of Bacolod, on the RH Bill is inextricably connected to its
Catholic dogma, faith, and moral teachings. . . ."325

The difficulty that often presents itself in these cases stems from the reality that every act can be
motivated by moral, ethical, and religious considerations. In terms of their effect on the corporeal
world, these acts range from belief, to expressions of these faiths, to religious ceremonies, and then
to acts of a secular character that may, from the point of view of others who do not share the same
faith or may not subscribe to any religion, may not have any religious bearing.

Definitely, the characterizations ofthe religious of their acts are not conclusive on this court.
Certainly, our powers of adjudication cannot be blinded by bare claims that acts are religious in
nature.

Petitioners erroneously relied on the case of Ebralinag v. The Division Superintendent of Schools of
Cebu326 in claiming that the court "emphatically" held that the adherents ofa particular religion shall be
the ones to determine whether a particular matter shall be considered ecclesiastical in nature.327 This
court in Ebralinagexempted Jehovah’s Witnesses from participating in the flag ceremony "out of
respect for their religious beliefs, [no matter how] "bizarre" those beliefsmay seem to others."328 This
court found a balance between the assertion of a religious practice and the compelling necessities of
a secular command. It was an early attempt at accommodation of religious beliefs.

In Estrada v. Escritor,329 this court adopted a policy of benevolent neutrality:

With religion looked upon with benevolence and not hostility, benevolent neutrality allows
accommodation of religion under certain circumstances. Accommodations are government policies
that take religion specifically intoaccount not to promote the government’s favored form of religion,
but to allow individuals and groups to exercise their religion without hindrance. Their purpose or
effect therefore is to remove a burden on, or facilitate the exercise of, a person’s or institution’s
religion. As Justice Brennan explained, the "government [may] take religion into account . . . to
exempt, when possible, from generally applicable governmental regulation individuals whose
religious beliefs and practices would otherwise thereby be infringed, or to create without state
involvement an atmosphere in which voluntary religious exercise may flourish."330

This court also discussed the Lemon test in that case, such that a regulation is constitutional when:
(1) it has a secular legislative purpose; (2) it neither advances nor inhibits religion; and (3) it does not
foster an excessive entanglement with religion.331
As aptly argued by COMELEC, however, the tarpaulin, on its face, "does not convey any religious
doctrine of the Catholic church."332 That the position of the Catholic church appears to coincide with
the message of the tarpaulin regarding the RH Law does not, by itself, bring the expression within
the ambit of religious speech. On the contrary, the tarpaulin clearly refers to candidates classified
under "Team Patay" and "Team Buhay" according to their respective votes on the RH Law.

The same may be said of petitioners’ reliance on papal encyclicals to support their claim that the
expression onthe tarpaulin is an ecclesiastical matter. With all due respect to the Catholic faithful,
the church doctrines relied upon by petitioners are not binding upon this court. The position of the
Catholic religion in the Philippines as regards the RH Law does not suffice to qualify the posting by
one of its members of a tarpaulin as religious speech solely on such basis. The enumeration of
candidates on the face of the tarpaulin precludes any doubtas to its nature as speech with political
consequences and not religious speech.

Furthermore, the definition of an "ecclesiastical affair" in Austria v. National Labor Relations

Commission333 cited by petitioners finds no application in the present case. The posting of the
tarpaulin does not fall within the category of matters that are beyond the jurisdiction of civil courts as
enumerated in the Austriacase such as "proceedings for excommunication, ordinations of religious
ministers, administration of sacraments and other activities withattached religious significance."334

A FINAL NOTE

We maintain sympathies for the COMELEC in attempting to do what it thought was its duty in this
case. However, it was misdirected.

COMELEC’s general role includes a mandate to ensure equal opportunities and reduce spending
among candidates and their registered political parties. It is not to regulate or limit the speech of the
electorate as it strives to participate inthe electoral exercise.

The tarpaulin in question may be viewed as producing a caricature of those who are running for
public office.Their message may be construed generalizations of very complex individuals and party-
list organizations.

They are classified into black and white: as belonging to "Team Patay" or "Team Buhay."

But this caricature, though not agreeable to some, is still protected speech.

That petitioners chose to categorize them as purveyors of death or of life on the basis of a single
issue — and a complex piece of legislation at that — can easily be interpreted as anattempt to
stereo type the candidates and party-list organizations. Not all may agree to the way their thoughts
were expressed, as in fact there are other Catholic dioceses that chose not to follow the example of
petitioners.

Some may have thought that there should be more room to consider being more broad-minded and
non-judgmental. Some may have expected that the authors would give more space to practice
forgiveness and humility.

But, the Bill of Rights enumerated in our Constitution is an enumeration of our fundamental liberties.
It is not a detailed code that prescribes good conduct. It provides space for all to be guided by their
conscience, not only in the act that they do to others but also in judgment of the acts of others.
Freedom for the thought we can disagree with can be wielded not only by those in the minority. This
can often be expressed by dominant institutions, even religious ones. That they made their point
dramatically and in a large way does not necessarily mean that their statements are true, or that they
have basis, or that they have been expressed in good taste.

Embedded in the tarpaulin, however, are opinions expressed by petitioners. It is a specie of

expression protected by our fundamental law. It is an expression designed to invite attention, cause
debate, and hopefully, persuade. It may be motivated by the interpretation of petitioners of their
ecclesiastical duty, but their parishioner’s actions will have very real secular consequences.
Certainly, provocative messages do matter for the elections.

What is involved in this case is the most sacred of speech forms: expression by the electorate that
tends to rouse the public to debate contemporary issues. This is not speechby candidates or political
parties to entice votes. It is a portion of the electorate telling candidates the conditions for their
election. It is the substantive content of the right to suffrage.

This. is a form of speech hopeful of a quality of democracy that we should all deserve. It is protected
as a fundamental and primordial right by our Constitution. The expression in the medium chosen by
petitioners deserves our protection.

WHEREFORE, the instant petition is GRANTED. The temporary restraining order previously issued
is hereby made permanent. The act of the COMELEC in issuing the assailed notice dated February
22, 2013 and letter dated February 27, 2013 is declared unconstitutional.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 118295 May 2, 1997

WIGBERTO E. TAÑADA and ANNA DOMINIQUE COSETENG, as members of the Philippine

Senate and as taxpayers; GREGORIO ANDOLANA and JOKER ARROYO as members of the
House of Representatives and as taxpayers; NICANOR P. PERLAS and HORACIO R.
MORALES, both as taxpayers; CIVIL LIBERTIES UNION, NATIONAL ECONOMIC
PROTECTIONISM ASSOCIATION, CENTER FOR ALTERNATIVE DEVELOPMENT INITIATIVES,
LIKAS-KAYANG KAUNLARAN FOUNDATION, INC., PHILIPPINE RURAL RECONSTRUCTION
MOVEMENT, DEMOKRATIKONG KILUSAN NG MAGBUBUKID NG PILIPINAS, INC., and
PHILIPPINE PEASANT INSTITUTE, in representation of various taxpayers and as non-
governmental organizations, petitioners,
vs.
EDGARDO ANGARA, ALBERTO ROMULO, LETICIA RAMOS-SHAHANI, HEHERSON
ALVAREZ, AGAPITO AQUINO, RODOLFO BIAZON, NEPTALI GONZALES, ERNESTO
HERRERA, JOSE LINA, GLORIA. MACAPAGAL-ARROYO, ORLANDO MERCADO, BLAS
OPLE, JOHN OSMEÑA, SANTANINA RASUL, RAMON REVILLA, RAUL ROCO, FRANCISCO
TATAD and FREDDIE WEBB, in their respective capacities as members of the Philippine
Senate who concurred in the ratification by the President of the Philippines of the Agreement
Establishing the World Trade Organization; SALVADOR ENRIQUEZ, in his capacity as
Secretary of Budget and Management; CARIDAD VALDEHUESA, in her capacity as National
Treasurer; RIZALINO NAVARRO, in his capacity as Secretary of Trade and Industry;
ROBERTO SEBASTIAN, in his capacity as Secretary of Agriculture; ROBERTO DE OCAMPO,
in his capacity as Secretary of Finance; ROBERTO ROMULO, in his capacity as Secretary of
Foreign Affairs; and TEOFISTO T. GUINGONA, in his capacity as Executive
Secretary, respondents.

PANGANIBAN, J.:

The emergence on January 1, 1995 of the World Trade Organization, abetted by the membership
thereto of the vast majority of countries has revolutionized international business and economic
relations amongst states. It has irreversibly propelled the world towards trade liberalization and
economic globalization. Liberalization, globalization, deregulation and privatization, the third-
millennium buzz words, are ushering in a new borderless world of business by sweeping away as
mere historical relics the heretofore traditional modes of promoting and protecting national
economies like tariffs, export subsidies, import quotas, quantitative restrictions, tax exemptions and
currency controls. Finding market niches and becoming the best in specific industries in a market-
driven and export-oriented global scenario are replacing age-old "beggar-thy-neighbor" policies that
unilaterally protect weak and inefficient domestic producers of goods and services. In the words of
Peter Drucker, the well-known management guru, "Increased participation in the world economy has
become the key to domestic economic gro wth and prosperity."

Brief Historical Background

To hasten worldwide recovery from the devastation wrought by the Second World War, plans for the
establishment of three multilateral institutions — inspired by that grand political body, the United
Nations — were discussed at Dumbarton Oaks and Bretton Woods. The first was the World Bank
(WB) which was to address the rehabilitation and reconstruction of war-ravaged and later developing
countries; the second, the International Monetary Fund (IMF) which was to deal with currency
problems; and the third, the International Trade Organization (ITO), which was to foster order and
predictability in world trade and to minimize unilateral protectionist policies that invite challenge,
even retaliation, from other states. However, for a variety of reasons, including its non-ratification by
the United States, the ITO, unlike the IMF and WB, never took off. What remained was only GATT
— the General Agreement on Tariffs and Trade. GATT was a collection of treaties governing access
to the economies of treaty adherents with no institutionalized body administering the agreements or
dependable system of dispute settlement.

After half a century and several dizzying rounds of negotiations, principally the Kennedy Round, the
Tokyo Round and the Uruguay Round, the world finally gave birth to that administering body — the
World Trade Organization — with the signing of the "Final Act" in Marrakesh, Morocco and the
ratification of the WTO Agreement by its members.1

Like many other developing countries, the Philippines joined WTO as a founding member with the
goal, as articulated by President Fidel V. Ramos in two letters to the Senate (infra), of improving
"Philippine access to foreign markets, especially its major trading partners, through the reduction of
tariffs on its exports, particularly agricultural and industrial products." The President also saw in the
WTO the opening of "new opportunities for the services sector . . . , (the reduction of) costs and
uncertainty associated with exporting . . . , and (the attraction of) more investments into the country."
Although the Chief Executive did not expressly mention it in his letter, the Philippines — and this is
of special interest to the legal profession — will benefit from the WTO system of dispute settlement
by judicial adjudication through the independent WTO settlement bodies called (1) Dispute
Settlement Panels and (2) Appellate Tribunal. Heretofore, trade disputes were settled mainly through
negotiations where solutions were arrived at frequently on the basis of relative bargaining strengths,
and where naturally, weak and underdeveloped countries were at a disadvantage.

The Petition in Brief

Arguing mainly (1) that the WTO requires the Philippines "to place nationals and products of
member-countries on the same footing as Filipinos and local products" and (2) that the WTO
"intrudes, limits and/or impairs" the constitutional powers of both Congress and the Supreme Court,
the instant petition before this Court assails the WTO Agreement for violating the mandate of the
1987 Constitution to "develop a self-reliant and independent national economy effectively controlled
by Filipinos . . . (to) give preference to qualified Filipinos (and to) promote the preferential use of
Filipino labor, domestic materials and locally produced goods."

Simply stated, does the Philippine Constitution prohibit Philippine participation in worldwide trade
liberalization and economic globalization? Does it proscribe Philippine integration into a global
economy that is liberalized, deregulated and privatized? These are the main questions raised in this
petition for certiorari, prohibition and mandamus under Rule 65 of the Rules of Court praying (1) for
the nullification, on constitutional grounds, of the concurrence of the Philippine Senate in the
ratification by the President of the Philippines of the Agreement Establishing the World Trade
Organization (WTO Agreement, for brevity) and (2) for the prohibition of its implementation and
enforcement through the release and utilization of public funds, the assignment of public officials and
employees, as well as the use of government properties and resources by respondent-heads of
various executive offices concerned therewith. This concurrence is embodied in Senate Resolution
No. 97, dated December 14, 1994.
 The Facts

On April 15, 1994, Respondent Rizalino Navarro, then Secretary of The Department of Trade and
Industry (Secretary Navarro, for brevity), representing the Government of the Republic of the
Philippines, signed in Marrakesh, Morocco, the Final Act Embodying the Results of the Uruguay
Round of Multilateral Negotiations (Final Act, for brevity).

By signing the Final Act,2 Secretary Navarro on behalf of the Republic of the Philippines, agreed:

(a) to submit, as appropriate, the WTO Agreement for the consideration of their
respective competent authorities, with a view to seeking approval of the Agreement
in accordance with their procedures; and

(b) to adopt the Ministerial Declarations and Decisions.

On August 12, 1994, the members of the Philippine Senate received a letter dated August 11, 1994
from the President of the Philippines,3 stating among others that "the Uruguay Round Final Act is
hereby submitted to the Senate for its concurrence pursuant to Section 21, Article VII of the
Constitution."

On August 13, 1994, the members of the Philippine Senate received another letter from the
President of the Philippines4 likewise dated August 11, 1994, which stated among others that "the
Uruguay Round Final Act, the Agreement Establishing the World Trade Organization, the Ministerial
Declarations and Decisions, and the Understanding on Commitments in Financial Services are
hereby submitted to the Senate for its concurrence pursuant to Section 21, Article VII of the
Constitution."

On December 9, 1994, the President of the Philippines certified the necessity of the immediate
adoption of P.S. 1083, a resolution entitled "Concurring in the Ratification of the Agreement
Establishing the World Trade Organization."5

On December 14, 1994, the Philippine Senate adopted Resolution No. 97 which "Resolved, as it is
hereby resolved, that the Senate concur, as it hereby concurs, in the ratification by the President of
the Philippines of the Agreement Establishing the World Trade Organization."6 The text of the WTO
Agreement is written on pages 137 et seq. of Volume I of the 36-volume Uruguay Round of
Multilateral Trade Negotiations and includes various agreements and associated legal instruments
(identified in the said Agreement as Annexes 1, 2 and 3 thereto and collectively referred to as
Multilateral Trade Agreements, for brevity) as follows:

ANNEX 1

Annex 1A: Multilateral Agreement on Trade in Goods

General Agreement on Tariffs and Trade 1994
Agreement on Agriculture
Agreement on the Application of Sanitary and
Phytosanitary Measures
Agreement on Textiles and Clothing
Agreement on Technical Barriers to Trade
Agreement on Trade-Related Investment Measures
Agreement on Implementation of Article VI of he
General Agreement on Tariffs and Trade
1994
 Agreement on Implementation of Article VII of the
General on Tariffs and Trade 1994
Agreement on Pre-Shipment Inspection
Agreement on Rules of Origin
Agreement on Imports Licensing Procedures
Agreement on Subsidies and Coordinating
Measures
Agreement on Safeguards

Annex 1B: General Agreement on Trade in Services and Annexes

Annex 1C: Agreement on Trade-Related Aspects of Intellectual

Property Rights

ANNEX 2

Understanding on Rules and Procedures Governing

the Settlement of Disputes

ANNEX 3

Trade Policy Review Mechanism

On December 16, 1994, the President of the Philippines signed7 the Instrument of Ratification,
declaring:

NOW THEREFORE, be it known that I, FIDEL V. RAMOS, President of the Republic

of the Philippines, after having seen and considered the aforementioned Agreement
Establishing the World Trade Organization and the agreements and associated legal
instruments included in Annexes one (1), two (2) and three (3) of that Agreement
which are integral parts thereof, signed at Marrakesh, Morocco on 15 April 1994, do
hereby ratify and confirm the same and every Article and Clause thereof.

To emphasize, the WTO Agreement ratified by the President of the Philippines is composed of the
Agreement Proper and "the associated legal instruments included in Annexes one (1), two (2) and
three (3) of that Agreement which are integral parts thereof."

On the other hand, the Final Act signed by Secretary Navarro embodies not only the WTO
Agreement (and its integral annexes aforementioned) but also (1) the Ministerial Declarations and
Decisions and (2) the Understanding on Commitments in Financial Services. In his Memorandum
dated May 13, 1996,8 the Solicitor General describes these two latter documents as follows:

The Ministerial Decisions and Declarations are twenty-five declarations and

decisions on a wide range of matters, such as measures in favor of least developed
countries, notification procedures, relationship of WTO with the International
Monetary Fund (IMF), and agreements on technical barriers to trade and on dispute
settlement.

The Understanding on Commitments in Financial Services dwell on, among other

things, standstill or limitations and qualifications of commitments to existing non-
conforming measures, market access, national treatment, and definitions of non-
 resident supplier of financial services, commercial presence and new financial
service.

On December 29, 1994, the present petition was filed. After careful deliberation on respondents'
comment and petitioners' reply thereto, the Court resolved on December 12, 1995, to give due
course to the petition, and the parties thereafter filed their respective memoranda. The court also
requested the Honorable Lilia R. Bautista, the Philippine Ambassador to the United Nations
stationed in Geneva, Switzerland, to submit a paper, hereafter referred to as "Bautista Paper,"9 for
brevity, (1) providing a historical background of and (2) summarizing the said agreements.

During the Oral Argument held on August 27, 1996, the Court directed:

(a) the petitioners to submit the (1) Senate Committee Report on the matter in
controversy and (2) the transcript of proceedings/hearings in the Senate; and

(b) the Solicitor General, as counsel for respondents, to file (1) a list of Philippine
treaties signed prior to the Philippine adherence to the WTO Agreement, which
derogate from Philippine sovereignty and (2) copies of the multi-volume WTO
Agreement and other documents mentioned in the Final Act, as soon as possible.

After receipt of the foregoing documents, the Court said it would consider the case submitted for
resolution. In a Compliance dated September 16, 1996, the Solicitor General submitted a printed
copy of the 36-volume Uruguay Round of Multilateral Trade Negotiations, and in another
Compliance dated October 24, 1996, he listed the various "bilateral or multilateral treaties or
international instruments involving derogation of Philippine sovereignty." Petitioners, on the other
hand, submitted their Compliance dated January 28, 1997, on January 30, 1997.

The Issues

In their Memorandum dated March 11, 1996, petitioners summarized the issues as follows:

A. Whether the petition presents a political question or is otherwise not justiciable.

B. Whether the petitioner members of the Senate who participated in the

deliberations and voting leading to the concurrence are estopped from impugning the
validity of the Agreement Establishing the World Trade Organization or of the validity
of the concurrence.

C. Whether the provisions of the Agreement Establishing the World Trade

Organization contravene the provisions of Sec. 19, Article II, and Secs. 10 and 12,
Article XII, all of the 1987 Philippine Constitution.

D. Whether provisions of the Agreement Establishing the World Trade Organization

unduly limit, restrict and impair Philippine sovereignty specifically the legislative
power which, under Sec. 2, Article VI, 1987 Philippine Constitution is "vested in the
Congress of the Philippines";

E. Whether provisions of the Agreement Establishing the World Trade Organization

interfere with the exercise of judicial power.
 F. Whether the respondent members of the Senate acted in grave abuse of
discretion amounting to lack or excess of jurisdiction when they voted for
concurrence in the ratification of the constitutionally-infirm Agreement Establishing
the World Trade Organization.

G. Whether the respondent members of the Senate acted in grave abuse of

discretion amounting to lack or excess of jurisdiction when they concurred only in the
ratification of the Agreement Establishing the World Trade Organization, and not with
the Presidential submission which included the Final Act, Ministerial Declaration and
Decisions, and the Understanding on Commitments in Financial Services.

On the other hand, the Solicitor General as counsel for respondents "synthesized the several issues
raised by petitioners into the following": 10

1. Whether or not the provisions of the "Agreement Establishing the World Trade
Organization and the Agreements and Associated Legal Instruments included in
Annexes one (1), two (2) and three (3) of that agreement" cited by petitioners directly
contravene or undermine the letter, spirit and intent of Section 19, Article II and
Sections 10 and 12, Article XII of the 1987 Constitution.

2. Whether or not certain provisions of the Agreement unduly limit, restrict or impair
the exercise of legislative power by Congress.

3. Whether or not certain provisions of the Agreement impair the exercise of judicial
power by this Honorable Court in promulgating the rules of evidence.

4. Whether or not the concurrence of the Senate "in the ratification by the President
of the Philippines of the Agreement establishing the World Trade Organization"
implied rejection of the treaty embodied in the Final Act.

By raising and arguing only four issues against the seven presented by petitioners, the Solicitor
General has effectively ignored three, namely: (1) whether the petition presents a political question
or is otherwise not justiciable; (2) whether petitioner-members of the Senate (Wigberto E. Tañada
and Anna Dominique Coseteng) are estopped from joining this suit; and (3) whether the respondent-
members of the Senate acted in grave abuse of discretion when they voted for concurrence in the
ratification of the WTO Agreement. The foregoing notwithstanding, this Court resolved to deal with
these three issues thus:

(1) The "political question" issue — being very fundamental and vital, and being a matter that probes
into the very jurisdiction of this Court to hear and decide this case — was deliberated upon by the
Court and will thus be ruled upon as the first issue;

(2) The matter of estoppel will not be taken up because this defense is waivable and the
respondents have effectively waived it by not pursuing it in any of their pleadings; in any event, this
issue, even if ruled in respondents' favor, will not cause the petition's dismissal as there are
petitioners other than the two senators, who are not vulnerable to the defense of estoppel; and

(3) The issue of alleged grave abuse of discretion on the part of the respondent senators will be
taken up as an integral part of the disposition of the four issues raised by the Solicitor General.
During its deliberations on the case, the Court noted that the respondents did not question the locus
standi of petitioners. Hence, they are also deemed to have waived the benefit of such issue. They
probably realized that grave constitutional issues, expenditures of public funds and serious
international commitments of the nation are involved here, and that transcendental public interest
requires that the substantive issues be met head on and decided on the merits, rather than skirted or
deflected by procedural matters. 11

To recapitulate, the issues that will be ruled upon shortly are:

(1) DOES THE PETITION PRESENT A JUSTICIABLE CONTROVERSY?

OTHERWISE STATED, DOES THE PETITION INVOLVE A POLITICAL QUESTION
OVER WHICH THIS COURT HAS NO JURISDICTION?

(2) DO THE PROVISIONS OF THE WTO AGREEMENT AND ITS THREE

ANNEXES CONTRAVENE SEC. 19, ARTICLE II, AND SECS. 10 AND 12, ARTICLE
XII, OF THE PHILIPPINE CONSTITUTION?

(3) DO THE PROVISIONS OF SAID AGREEMENT AND ITS ANNEXES LIMIT,

RESTRICT, OR IMPAIR THE EXERCISE OF LEGISLATIVE POWER BY
CONGRESS?

(4) DO SAID PROVISIONS UNDULY IMPAIR OR INTERFERE WITH THE

EXERCISE OF JUDICIAL POWER BY THIS COURT IN PROMULGATING RULES
ON EVIDENCE?

(5) WAS THE CONCURRENCE OF THE SENATE IN THE WTO AGREEMENT AND
ITS ANNEXES SUFFICIENT AND/OR VALID, CONSIDERING THAT IT DID NOT
INCLUDE THE FINAL ACT, MINISTERIAL DECLARATIONS AND DECISIONS,
AND THE UNDERSTANDING ON COMMITMENTS IN FINANCIAL SERVICES?

The First Issue: Does the Court

Have Jurisdiction Over the Controversy?

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

The jurisdiction of this Court to adjudicate the matters 14 raised in the petition is clearly set out in the
1987 Constitution, 15 as follows:

Judicial power includes the duty of the courts of justice to settle actual controversies
involving rights which are legally demandable and enforceable, and to determine
whether or not there has been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or instrumentality of the government.
The foregoing text emphasizes the judicial department's duty and power to strike down grave abuse
of discretion on the part of any branch or instrumentality of government including Congress. It is an
innovation in our political law. 16As explained by former Chief Justice Roberto Concepcion, 17 "the
judiciary is the final arbiter on the question of whether or not a branch of government or any of its
officials has acted without jurisdiction or in excess of jurisdiction or so capriciously as to constitute an
abuse of discretion amounting to excess of jurisdiction. This is not only a judicial power but a duty to
pass judgment on matters of this nature."

As this Court has repeatedly and firmly emphasized in many cases, 18 it will not shirk, digress from or
abandon its sacred duty and authority to uphold the Constitution in matters that involve grave abuse
of discretion brought before it in appropriate cases, committed by any officer, agency, instrumentality
or department of the government.

As the petition alleges grave abuse of discretion and as there is no other plain, speedy or adequate
remedy in the ordinary course of law, we have no hesitation at all in holding that this petition should
be given due course and the vital questions raised therein ruled upon under Rule 65 of the Rules of
Court. Indeed, certiorari, prohibition and mandamus are appropriate remedies to raise constitutional
issues and to review and/or prohibit/nullify, when proper, acts of legislative and executive officials.
On this, we have no equivocation.

We should stress that, in deciding to take jurisdiction over this petition, this Court will not review
the wisdom of the decision of the President and the Senate in enlisting the country into the WTO, or
pass upon the merits of trade liberalization as a policy espoused by said international body. Neither
will it rule on the propriety of the government's economic policy of reducing/removing tariffs, taxes,
subsidies, quantitative restrictions, and other import/trade barriers. Rather, it will only exercise its
constitutional duty "to determine whether or not there had been a grave abuse of discretion
amounting to lack or excess of jurisdiction" on the part of the Senate in ratifying the WTO Agreement
and its three annexes.

Second Issue: The WTO Agreement

and Economic Nationalism

This is the lis mota, the main issue, raised by the petition.

Petitioners vigorously argue that the "letter, spirit and intent" of the Constitution mandating
"economic nationalism" are violated by the so-called "parity provisions" and "national treatment"
clauses scattered in various parts not only of the WTO Agreement and its annexes but also in the
Ministerial Decisions and Declarations and in the Understanding on Commitments in Financial
Services.

Specifically, the "flagship" constitutional provisions referred to are Sec 19, Article II, and Secs. 10
and 12, Article XII, of the Constitution, which are worded as follows:

Article II

DECLARATION OF PRINCIPLES
AND STATE POLICIES

xxx xxx xxx

 Sec. 19. The State shall develop a self-reliant and independent national economy
effectively controlled by Fili pinos.

xxx xxx xxx

Article XII

NATIONAL ECONOMY AND PATRIMONY

xxx xxx xxx

Sec. 10. . . . The Congress shall enact measures that will encourage the formation
and operation of enterprises whose capital is wholly owned by Filipinos.

In the grant of rights, privileges, and concessions covering the national economy and
patrimony, the State shall give preference to qualified Filipinos.

xxx xxx xxx

Sec. 12. The State shall promote the preferential use of Filipino labor, domestic
materials and locally produced goods, and adopt measures that help make them
competitive.

Petitioners aver that these sacred constitutional principles are desecrated by the following WTO
provisions quoted in their memorandum: 19

a) In the area of investment measures related to trade in goods (TRIMS, for brevity):

Article 2

National Treatment and Quantitative Restrictions.

1. Without prejudice to other rights and obligations under GATT 1994,

no Member shall apply any TRIM that is inconsistent with the
provisions of Article II or Article XI of GATT 1994.

2. An illustrative list of TRIMS that are inconsistent with the

obligations of general elimination of quantitative restrictions provided
for in paragraph I of Article XI of GATT 1994 is contained in the
Annex to this Agreement." (Agreement on Trade-Related Investment
Measures, Vol. 27, Uruguay Round, Legal Instruments, p. 22121,
emphasis supplied).

The Annex referred to reads as follows:

ANNEX

Illustrative List
1. TRIMS that are inconsistent with the obligation of national treatment provided for
in paragraph 4 of Article III of GATT 1994 include those which are mandatory or
enforceable under domestic law or under administrative rulings, or compliance with
which is necessary to obtain an advantage, and which require:

(a) the purchase or use by an enterprise of products of domestic

origin or from any domestic source, whether specified in terms of
particular products, in terms of volume or value of products, or in
terms of proportion of volume or value of its local production; or

(b) that an enterprise's purchases or use of imported products be

limited to an amount related to the volume or value of local products
that it exports.

2. TRIMS that are inconsistent with the obligations of general elimination of

quantitative restrictions provided for in paragraph 1 of Article XI of GATT 1994
include those which are mandatory or enforceable under domestic laws or under
administrative rulings, or compliance with which is necessary to obtain an advantage,
and which restrict:

(a) the importation by an enterprise of products used in or related to

the local production that it exports;

(b) the importation by an enterprise of products used in or related to

its local production by restricting its access to foreign exchange
inflows attributable to the enterprise; or

(c) the exportation or sale for export specified in terms of particular

products, in terms of volume or value of products, or in terms of a
preparation of volume or value of its local production. (Annex to the
Agreement on Trade-Related Investment Measures, Vol. 27, Uruguay
Round Legal Documents, p. 22125, emphasis supplied).

The paragraph 4 of Article III of GATT 1994 referred to is quoted as follows:

The products of the territory of any contracting party imported into the
territory of any other contracting party shall be accorded treatment no
less favorable than that accorded to like products of national origin in
respect of laws, regulations and requirements affecting their internal
sale, offering for sale, purchase, transportation, distribution or use,
the provisions of this paragraph shall not prevent the application of
differential internal transportation charges which are based
exclusively on the economic operation of the means of transport and
not on the nationality of the product." (Article III, GATT 1947, as
amended by the Protocol Modifying Part II, and Article XXVI of GATT,
14 September 1948, 62 UMTS 82-84 in relation to paragraph 1(a) of
the General Agreement on Tariffs and Trade 1994, Vol. 1, Uruguay
Round, Legal Instruments p. 177, emphasis supplied).

(b) In the area of trade related aspects of intellectual property rights (TRIPS, for
brevity):
 Each Member shall accord to the nationals of other Members
treatment no less favourable than that it accords to its own
nationals with regard to the protection of intellectual property. . . (par.
1 Article 3, Agreement on Trade-Related Aspect of Intellectual
Property rights, Vol. 31, Uruguay Round, Legal Instruments, p. 25432
(emphasis supplied)

(c) In the area of the General Agreement on Trade in Services:

National Treatment

1. In the sectors inscribed in its schedule, and subject to any

conditions and qualifications set out therein, each Member shall
accord to services and service suppliers of any other Member, in
respect of all measures affecting the supply of services, treatment no
less favourable than it accords to its own like services and service
suppliers.

2. A Member may meet the requirement of paragraph I by according

to services and service suppliers of any other Member, either formally
suppliers of any other Member, either formally identical treatment or
formally different treatment to that it accords to its own like services
and service suppliers.

3. Formally identical or formally different treatment shall be

considered to be less favourable if it modifies the conditions of
completion in favour of services or service suppliers of the Member
compared to like services or service suppliers of any other Member.
(Article XVII, General Agreement on Trade in Services, Vol. 28,
Uruguay Round Legal Instruments, p. 22610 emphasis supplied).

It is petitioners' position that the foregoing "national treatment" and "parity provisions" of the WTO
Agreement "place nationals and products of member countries on the same footing as Filipinos and
local products," in contravention of the "Filipino First" policy of the Constitution. They allegedly
render meaningless the phrase "effectively controlled by Filipinos." The constitutional conflict
becomes more manifest when viewed in the context of the clear duty imposed on the Philippines as
a WTO member to ensure the conformity of its laws, regulations and administrative procedures with
its obligations as provided in the annexed agreements. 20 Petitioners further argue that these
provisions contravene constitutional limitations on the role exports play in national development and
negate the preferential treatment accorded to Filipino labor, domestic materials and locally produced
goods.

On the other hand, respondents through the Solicitor General counter (1) that such Charter
provisions are not self-executing and merely set out general policies; (2) that these nationalistic
portions of the Constitution invoked by petitioners should not be read in isolation but should be
related to other relevant provisions of Art. XII, particularly Secs. 1 and 13 thereof; (3) that read
properly, the cited WTO clauses do not conflict with Constitution; and (4) that the WTO Agreement
contains sufficient provisions to protect developing countries like the Philippines from the harshness
of sudden trade liberalization.

We shall now discuss and rule on these arguments.

 Declaration of Principles
Not Self-Executing

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

In the same light, we held in Basco vs. Pagcor 25 that broad constitutional principles need legislative
enactments to implement the, thus:

On petitioners' allegation that P.D. 1869 violates Sections 11 (Personal Dignity) 12

(Family) and 13 (Role of Youth) of Article II; Section 13 (Social Justice) of Article XIII
and Section 2 (Educational Values) of Article XIV of the 1987 Constitution, suffice it
to state also that these are merely statements of principles and policies. As such,
they are basically not self-executing, meaning a law should be passed by Congress
to clearly define and effectuate such principles.

In general, therefore, the 1935 provisions were not intended to be

self-executing principles ready for enforcement through the courts.
They were rather directives addressed to the executive and to the
legislature. If the executive and the legislature failed to heed the
directives of the article, the available remedy was not judicial but
political. The electorate could express their displeasure with the
failure of the executive and the legislature through the language of
the ballot. (Bernas, Vol. II, p. 2).

The reasons for denying a cause of action to an alleged infringement of board constitutional
principles are sourced from basic considerations of due process and the lack of judicial authority to
wade "into the uncharted ocean of social and economic policy making." Mr. Justice Florentino P.
Feliciano in his concurring opinion in Oposa vs. Factoran, Jr., 26 explained these reasons as follows:

My suggestion is simply that petitioners must, before the trial court, show a more
specific legal right — a right cast in language of a significantly lower order of
generality than Article II (15) of the Constitution — that is or may be violated by the
actions, or failures to act, imputed to the public respondent by petitioners so that the
trial court can validly render judgment grating all or part of the relief prayed for. To
my mind, the court should be understood as simply saying that such a more specific
legal right or rights may well exist in our corpus of law, considering the general policy
principles found in the Constitution and the existence of the Philippine Environment
Code, and that the trial court should have given petitioners an effective opportunity
so to demonstrate, instead of aborting the proceedings on a motion to dismiss.

It seems to me important that the legal right which is an essential component of a

cause of action be a specific, operable legal right, rather than a constitutional or
statutory policy, for at least two (2) reasons. One is that unless the legal right claimed
to have been violated or disregarded is given specification in operational terms,
 defendants may well be unable to defend themselves intelligently and effectively; in
other words, there are due process dimensions to this matter.

The second is a broader-gauge consideration — where a specific violation of law or

applicable regulation is not alleged or proved, petitioners can be expected to fall back
on the expanded conception of judicial power in the second paragraph of Section 1
of Article VIII of the Constitution which reads:

Sec. 1. . . .

Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and
enforceable, and to determine whether or not there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction on the
part of any branch or instrumentality of the Government. (Emphasis
supplied)

When substantive standards as general as "the right to a balanced and healthy

ecology" and "the right to health" are combined with remedial standards as broad
ranging as "a grave abuse of discretion amounting to lack or excess of jurisdiction,"
the result will be, it is respectfully submitted, to propel courts into the uncharted
ocean of social and economic policy making. At least in respect of the vast area of
environmental protection and management, our courts have no claim to special
technical competence and experience and professional qualification. Where no
specific, operable norms and standards are shown to exist, then the policy making
departments — the legislative and executive departments — must be given a real
and effective opportunity to fashion and promulgate those norms and standards, and
to implement them before the courts should intervene.

Economic Nationalism Should Be Read with

Other Constitutional Mandates to Attain
Balanced Development of Economy

On the other hand, Secs. 10 and 12 of Article XII, apart from merely laying down general principles
relating to the national economy and patrimony, should be read and understood in relation to the
other sections in said article, especially Secs. 1 and 13 thereof which read:

Sec. 1. The goals of the national economy are a more equitable distribution of
opportunities, income, and wealth; a sustained increase in the amount of goods and
services produced by the nation for the benefit of the people; and an expanding
productivity as the key to raising the quality of life for all especially the
underprivileged.

The State shall promote industrialization and full employment based on sound
agricultural development and agrarian reform, through industries that make full and
efficient use of human and natural resources, and which are competitive in both
domestic and foreign markets. However, the State shall protect Filipino enterprises
against unfair foreign competition and trade practices.

In the pursuit of these goals, all sectors of the economy and all regions of the country
shall be given optimum opportunity to develop. . . .
 xxx xxx xxx

Sec. 13. The State shall pursue a trade policy that serves the general welfare and
utilizes all forms and arrangements of exchange on the basis of equality and
reciprocity.

As pointed out by the Solicitor General, Sec. 1 lays down the basic goals of national economic
development, as follows:

1. A more equitable distribution of opportunities, income and wealth;

2. A sustained increase in the amount of goods and services provided by the nation for the benefit of
the people; and

3. An expanding productivity as the key to raising the quality of life for all especially the
underprivileged.

With these goals in context, the Constitution then ordains the ideals of economic nationalism (1) by
expressing preference in favor of qualified Filipinos "in the grant of rights, privileges and concessions
covering the national economy and patrimony" 27 and in the use of "Filipino labor, domestic materials
and locally-produced goods"; (2) by mandating the State to "adopt measures that help make them
competitive; 28 and (3) by requiring the State to "develop a self-reliant and independent national
economy effectively controlled by Filipinos." 29 In similar language, the Constitution takes into
account the realities of the outside world as it requires the pursuit of "a trade policy that serves the
general welfare and utilizes all forms and arrangements of exchange on the basis of equality ad
reciprocity"; 30 and speaks of industries "which are competitive in both domestic and foreign markets"
as well as of the protection of "Filipino enterprises against unfair foreign competition and trade
practices."

It is true that in the recent case of Manila Prince Hotel vs. Government Service Insurance System, et
al., 31 this Court held that "Sec. 10, second par., Art. XII of the 1987 Constitution is a mandatory,
positive command which is complete in itself and which needs no further guidelines or implementing
laws or rule for its enforcement. From its very words the provision does not require any legislation to
put it in operation. It is per se judicially enforceable." However, as the constitutional provision itself
states, it is enforceable only in regard to "the grants of rights, privileges and concessions covering
national economy and patrimony" and not to every aspect of trade and commerce. It refers to
exceptions rather than the rule. The issue here is not whether this paragraph of Sec. 10 of Art. XII is
self-executing or not. Rather, the issue is whether, as a rule, there are enough balancing provisions
in the Constitution to allow the Senate to ratify the Philippine concurrence in the WTO Agreement.
And we hold that there are.

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

Upon the other hand, respondents maintain that the WTO itself has some built-in advantages to
protect weak and developing economies, which comprise the vast majority of its members. Unlike in
the UN where major states have permanent seats and veto powers in the Security Council, in the
WTO, decisions are made on the basis of sovereign equality, with each member's vote equal in
weight to that of any other. There is no WTO equivalent of the UN Security Council.

WTO decides by consensus whenever possible, otherwise, decisions of the

Ministerial Conference and the General Council shall be taken by the majority of the
votes cast, except in cases of interpretation of the Agreement or waiver of the
obligation of a member which would require three fourths vote. Amendments would
require two thirds vote in general. Amendments to MFN provisions and the
Amendments provision will require assent of all members. Any member may
withdraw from the Agreement upon the expiration of six months from the date of
notice of withdrawals. 33

Hence, poor countries can protect their common interests more effectively through the WTO than
through one-on-one negotiations with developed countries. Within the WTO, developing countries
can form powerful blocs to push their economic agenda more decisively than outside the
Organization. This is not merely a matter of practical alliances but a negotiating strategy rooted in
law. Thus, the basic principles underlying the WTO Agreement recognize the need of developing
countries like the Philippines to "share in the growth in international trade commensurate with the
needs of their economic development." These basic principles are found in the preamble 34of the
WTO Agreement as follows:

The Parties to this Agreement,

Recognizing that their relations in the field of trade and economic endeavour should
be conducted with a view to raising standards of living, ensuring full employment and
a large and steadily growing volume of real income and effective demand, and
expanding the production of and trade in goods and services, while allowing for the
optimal use of the world's resources in accordance with the objective of sustainable
development, seeking both to protect and preserve the environment and to enhance
the means for doing so in a manner consistent with their respective needs and
concerns at different levels of economic development,

Recognizing further that there is need for positive efforts designed to ensure that
developing countries, and especially the least developed among them, secure
a share in the growth in international trade commensurate with the needs of their
economic development,

Being desirous of contributing to these objectives by entering into reciprocal and

mutually advantageous arrangements directed to the substantial reduction of tariffs
and other barriers to trade and to the elimination of discriminatory treatment in
international trade relations,

Resolved, therefore, to develop an integrated, more viable and durable multilateral

trading system encompassing the General Agreement on Tariffs and Trade, the
results of past trade liberalization efforts, and all of the results of the Uruguay Round
of Multilateral Trade Negotiations,
 Determined to preserve the basic principles and to further the objectives underlying
this multilateral trading system, . . . (emphasis supplied.)

Specific WTO Provisos

Protect Developing Countries

So too, the Solicitor General points out that pursuant to and consistent with the foregoing basic
principles, the WTO Agreement grants developing countries a more lenient treatment, giving their
domestic industries some protection from the rush of foreign competition. Thus, with respect to tariffs
in general, preferential treatment is given to developing countries in terms of the amount of tariff
reduction and the period within which the reduction is to be spread out. Specifically, GATT requires
an average tariff reduction rate of 36% for developed countries to be effected within a period of six
(6) years while developing countries — including the Philippines — are required to effect an average
tariff reduction of only 24% within ten (10) years.

In respect to domestic subsidy, GATT requires developed countries to reduce domestic support to
agricultural products by 20% over six (6) years, as compared to only 13% for developing countries to
be effected within ten (10) years.

In regard to export subsidy for agricultural products, GATT requires developed countries to reduce
their budgetary outlays for export subsidy by 36% and export volumes receiving export subsidy
by 21% within a period of six (6) years. For developing countries, however, the reduction rate is
only two-thirds of that prescribed for developed countries and a longer period of ten (10) years within
which to effect such reduction.

Moreover, GATT itself has provided built-in protection from unfair foreign competition and trade
practices including anti-dumping measures, countervailing measures and safeguards against import
surges. Where local businesses are jeopardized by unfair foreign competition, the Philippines can
avail of these measures. There is hardly therefore any basis for the statement that under the WTO,
local industries and enterprises will all be wiped out and that Filipinos will be deprived of control of
the economy. Quite the contrary, the weaker situations of developing nations like the Philippines
have been taken into account; thus, there would be no basis to say that in joining the WTO, the
respondents have gravely abused their discretion. True, they have made a bold decision to steer the
ship of state into the yet uncharted sea of economic liberalization. But such decision cannot be set
aside on the ground of grave abuse of discretion, simply because we disagree with it or simply
because we believe only in other economic policies. As earlier stated, the Court in taking jurisdiction
of this case will not pass upon the advantages and disadvantages of trade liberalization as an
economic policy. It will only perform its constitutional duty of determining whether the Senate
committed grave abuse of discretion.

Constitution Does Not

Rule Out Foreign Competition

Furthermore, the constitutional policy of a "self-reliant and independent national economy" 35 does
not necessarily rule out the entry of foreign investments, goods and services. It contemplates neither
"economic seclusion" nor "mendicancy in the international community." As explained by
Constitutional Commissioner Bernardo Villegas, sponsor of this constitutional policy:

Economic self-reliance is a primary objective of a developing country that is keenly

aware of overdependence on external assistance for even its most basic needs. It
does not mean autarky or economic seclusion; rather, it means avoiding mendicancy
in the international community. Independence refers to the freedom from undue
 foreign control of the national economy, especially in such strategic industries as in
the development of natural resources and public utilities. 36

The WTO reliance on "most favored nation," "national treatment," and "trade without discrimination"
cannot be struck down as unconstitutional as in fact they are rules of equality and reciprocity that
apply to all WTO members. Aside from envisioning a trade policy based on "equality and
reciprocity," 37 the fundamental law encourages industries that are "competitive in both domestic and
foreign markets," thereby demonstrating a clear policy against a sheltered domestic trade
environment, but one in favor of the gradual development of robust industries that can compete with
the best in the foreign markets. Indeed, Filipino managers and Filipino enterprises have shown
capability and tenacity to compete internationally. And given a free trade environment, Filipino
entrepreneurs and managers in Hongkong have demonstrated the Filipino capacity to grow and to
prosper against the best offered under a policy of laissez faire.

Constitution Favors Consumers,

Not Industries or Enterprises

The Constitution has not really shown any unbalanced bias in favor of any business or enterprise,
nor does it contain any specific pronouncement that Filipino companies should be pampered with a
total proscription of foreign competition. On the other hand, respondents claim that WTO/GATT aims
to make available to the Filipino consumer the best goods and services obtainable anywhere in the
world at the most reasonable prices. Consequently, the question boils down to whether WTO/GATT
will favor the general welfare of the public at large.

Will adherence to the WTO treaty bring this ideal (of favoring the general welfare) to reality?

Will WTO/GATT succeed in promoting the Filipinos' general welfare because it will — as promised
by its promoters — expand the country's exports and generate more employment?

Will it bring more prosperity, employment, purchasing power and quality products at the most
reasonable rates to the Filipino public?

The responses to these questions involve "judgment calls" by our policy makers, for which they are
answerable to our people during appropriate electoral exercises. Such questions and the answers
thereto are not subject to judicial pronouncements based on grave abuse of discretion.

Constitution Designed to Meet

Future Events and Contingencies

No doubt, the WTO Agreement was not yet in existence when the Constitution was drafted and
ratified in 1987. That does not mean however that the Charter is necessarily flawed in the sense that
its framers might not have anticipated the advent of a borderless world of business. By the same
token, the United Nations was not yet in existence when the 1935 Constitution became effective. Did
that necessarily mean that the then Constitution might not have contemplated a diminution of the
absoluteness of sovereignty when the Philippines signed the UN Charter, thereby effectively
surrendering part of its control over its foreign relations to the decisions of various UN organs like the
Security Council?

It is not difficult to answer this question. Constitutions are designed to meet not only the vagaries of
contemporary events. They should be interpreted to cover even future and unknown circumstances.
It is to the credit of its drafters that a Constitution can withstand the assaults of bigots and infidels but
at the same time bend with the refreshing winds of change necessitated by unfolding events. As one
eminent political law writer and respected jurist 38explains:

The Constitution must be quintessential rather than superficial, the root and not the
blossom, the base and frame-work only of the edifice that is yet to rise. It is but the
core of the dream that must take shape, not in a twinkling by mandate of our
delegates, but slowly "in the crucible of Filipino minds and hearts," where it will in
time develop its sinews and gradually gather its strength and finally achieve its
substance. In fine, the Constitution cannot, like the goddess Athena, rise full-grown
from the brow of the Constitutional Convention, nor can it conjure by mere fiat an
instant Utopia. It must grow with the society it seeks to re-structure and march apace
with the progress of the race, drawing from the vicissitudes of history the dynamism
and vitality that will keep it, far from becoming a petrified rule, a pulsing, living law
attuned to the heartbeat of the nation.

Third Issue: The WTO Agreement and Legislative Power

The WTO Agreement provides that "(e)ach Member shall ensure the conformity of its laws,
regulations and administrative procedures with its obligations as provided in the annexed
Agreements." 39 Petitioners maintain that this undertaking "unduly limits, restricts and impairs
Philippine sovereignty, specifically the legislative power which under Sec. 2, Article VI of the 1987
Philippine Constitution is vested in the Congress of the Philippines. It is an assault on the sovereign
powers of the Philippines because this means that Congress could not pass legislation that will be
good for our national interest and general welfare if such legislation will not conform with the WTO
Agreement, which not only relates to the trade in goods . . . but also to the flow of investments and
money . . . as well as to a whole slew of agreements on socio-cultural matters . . . 40

More specifically, petitioners claim that said WTO proviso derogates from the power to tax, which is
lodged in the Congress. 41 And while the Constitution allows Congress to authorize the President to
fix tariff rates, import and export quotas, tonnage and wharfage dues, and other duties or imposts,
such authority is subject to "specified limits and . . . such limitations and restrictions" as Congress
may provide, 42 as in fact it did under Sec. 401 of the Tariff and Customs Code.

Sovereignty Limited by
International Law and Treaties

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

UN Charter and Other Treaties

Limit Sovereignty

Thus, when the Philippines joined the United Nations as one of its 51 charter members, it consented
to restrict its sovereign rights under the "concept of sovereignty as auto-limitation."47-A Under Article
2 of the UN Charter, "(a)ll members shall give the United Nations every assistance in any action it
takes in accordance with the present Charter, and shall refrain from giving assistance to any state
against which the United Nations is taking preventive or enforcement action." Such assistance
includes payment of its corresponding share not merely in administrative expenses but also in
expenditures for the peace-keeping operations of the organization. In its advisory opinion of July 20,
1961, the International Court of Justice held that money used by the United Nations Emergency
Force in the Middle East and in the Congo were "expenses of the United Nations" under Article 17,
paragraph 2, of the UN Charter. Hence, all its members must bear their corresponding share in such
expenses. In this sense, the Philippine Congress is restricted in its power to appropriate. It is
compelled to appropriate funds whether it agrees with such peace-keeping expenses or not. So too,
under Article 105 of the said Charter, the UN and its representatives enjoy diplomatic privileges and
immunities, thereby limiting again the exercise of sovereignty of members within their own territory.
Another example: although "sovereign equality" and "domestic jurisdiction" of all members are set
forth as underlying principles in the UN Charter, such provisos are however subject to enforcement
measures decided by the Security Council for the maintenance of international peace and security
under Chapter VII of the Charter. A final example: under Article 103, "(i)n the event of a conflict
between the obligations of the Members of the United Nations under the present Charter and their
obligations under any other international agreement, their obligation under the present charter shall
prevail," thus unquestionably denying the Philippines — as a member — the sovereign power to
make a choice as to which of conflicting obligations, if any, to honor.

Apart from the UN Treaty, the Philippines has entered into many other international pacts — both
bilateral and multilateral — that involve limitations on Philippine sovereignty. These are enumerated
by the Solicitor General in his Compliance dated October 24, 1996, as follows:

(a) Bilateral convention with the United States regarding taxes on income, where the
Philippines agreed, among others, to exempt from tax, income received in the
Philippines by, among others, the Federal Reserve Bank of the United States, the
Export/Import Bank of the United States, the Overseas Private Investment
Corporation of the United States. Likewise, in said convention, wages, salaries and
similar remunerations paid by the United States to its citizens for labor and personal
services performed by them as employees or officials of the United States are
exempt from income tax by the Philippines.
 (b) Bilateral agreement with Belgium, providing, among others, for the avoidance of
double taxation with respect to taxes on income.

(c) Bilateral convention with the Kingdom of Sweden for the avoidance of double
taxation.

(d) Bilateral convention with the French Republic for the avoidance of double
taxation.

(e) Bilateral air transport agreement with Korea where the Philippines agreed to
exempt from all customs duties, inspection fees and other duties or taxes aircrafts of
South Korea and the regular equipment, spare parts and supplies arriving with said
aircrafts.

(f) Bilateral air service agreement with Japan, where the Philippines agreed to
exempt from customs duties, excise taxes, inspection fees and other similar duties,
taxes or charges fuel, lubricating oils, spare parts, regular equipment, stores on
board Japanese aircrafts while on Philippine soil.

(g) Bilateral air service agreement with Belgium where the Philippines granted
Belgian air carriers the same privileges as those granted to Japanese and Korean air
carriers under separate air service agreements.

(h) Bilateral notes with Israel for the abolition of transit and visitor visas where the
Philippines exempted Israeli nationals from the requirement of obtaining transit or
visitor visas for a sojourn in the Philippines not exceeding 59 days.

(i) Bilateral agreement with France exempting French nationals from the requirement
of obtaining transit and visitor visa for a sojourn not exceeding 59 days.

(j) Multilateral Convention on Special Missions, where the Philippines agreed that
premises of Special Missions in the Philippines are inviolable and its agents can not
enter said premises without consent of the Head of Mission concerned. Special
Missions are also exempted from customs duties, taxes and related charges.

(k) Multilateral convention on the Law of Treaties. In this convention, the Philippines
agreed to be governed by the Vienna Convention on the Law of Treaties.

(l) Declaration of the President of the Philippines accepting compulsory jurisdiction of

the International Court of Justice. The International Court of Justice has jurisdiction in
all legal disputes concerning the interpretation of a treaty, any question of
international law, the existence of any fact which, if established, would constitute a
breach "of international obligation."

In the foregoing treaties, the Philippines has effectively agreed to limit the exercise of its sovereign
powers of taxation, eminent domain and police power. The underlying consideration in this partial
surrender of sovereignty is the reciprocal commitment of the other contracting states in granting the
same privilege and immunities to the Philippines, its officials and its citizens. The same reciprocity
characterizes the Philippine commitments under WTO-GATT.
 International treaties, whether relating to nuclear disarmament, human rights, the
environment, the law of the sea, or trade, constrain domestic political sovereignty
through the assumption of external obligations. But unless anarchy in international
relations is preferred as an alternative, in most cases we accept that the benefits of
the reciprocal obligations involved outweigh the costs associated with any loss of
political sovereignty. (T)rade treaties that structure relations by reference to durable,
well-defined substantive norms and objective dispute resolution procedures reduce
the risks of larger countries exploiting raw economic power to bully smaller countries,
by subjecting power relations to some form of legal ordering. In addition, smaller
countries typically stand to gain disproportionately from trade liberalization. This is
due to the simple fact that liberalization will provide access to a larger set of potential
new trading relationship than in case of the larger country gaining enhanced success
to the smaller country's market. 48

The point is that, as shown by the foregoing treaties, a portion of sovereignty may be waived without
violating the Constitution, based on the rationale that the Philippines "adopts the generally accepted
principles of international law as part of the law of the land and adheres to the policy of . . .
cooperation and amity with all nations."

Fourth Issue: The WTO Agreement and Judicial Power

Petitioners aver that paragraph 1, Article 34 of the General Provisions and Basic Principles of the
Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) 49 intrudes on the
power of the Supreme Court to promulgate rules concerning pleading, practice and procedures. 50

To understand the scope and meaning of Article 34, TRIPS, 51 it will be fruitful to restate its full text as
follows:

Article 34

Process Patents: Burden of Proof

1. For the purposes of civil proceedings in respect of the infringement of the rights of
the owner referred to in paragraph 1 (b) of Article 28, if the subject matter of a patent
is a process for obtaining a product, the judicial authorities shall have the authority to
order the defendant to prove that the process to obtain an identical product is
different from the patented process. Therefore, Members shall provide, in at least
one of the following circumstances, that any identical product when produced without
the consent of the patent owner shall, in the absence of proof to the contrary, be
deemed to have been obtained by the patented process:

(a) if the product obtained by the patented process is new;

(b) if there is a substantial likelihood that the identical product was

made by the process and the owner of the patent has been unable
through reasonable efforts to determine the process actually used.

2. Any Member shall be free to provide that the burden of proof indicated in
paragraph 1 shall be on the alleged infringer only if the condition referred to in
subparagraph (a) is fulfilled or only if the condition referred to in subparagraph (b) is
fulfilled.
 3. In the adduction of proof to the contrary, the legitimate interests of defendants in
protecting their manufacturing and business secrets shall be taken into account.

From the above, a WTO Member is required to provide a rule of disputable (not the words "in the
absence of proof to the contrary") presumption that a product shown to be identical to one produced
with the use of a patented process shall be deemed to have been obtained by the (illegal) use of the
said patented process, (1) where such product obtained by the patented product is new, or (2) where
there is "substantial likelihood" that the identical product was made with the use of the said patented
process but the owner of the patent could not determine the exact process used in obtaining such
identical product. Hence, the "burden of proof" contemplated by Article 34 should actually be
understood as the duty of the alleged patent infringer to overthrow such presumption. Such burden,
properly understood, actually refers to the "burden of evidence" (burden of going forward) placed on
the producer of the identical (or fake) product to show that his product was produced without the use
of the patented process.

The foregoing notwithstanding, the patent owner still has the "burden of proof" since, regardless of
the presumption provided under paragraph 1 of Article 34, such owner still has to introduce evidence
of the existence of the alleged identical product, the fact that it is "identical" to the genuine one
produced by the patented process and the fact of "newness" of the genuine product or the fact of
"substantial likelihood" that the identical product was made by the patented process.

The foregoing should really present no problem in changing the rules of evidence as the present law
on the subject, Republic Act No. 165, as amended, otherwise known as the Patent Law, provides a
similar presumption in cases of infringement of patented design or utility model, thus:

Sec. 60. Infringement. — Infringement of a design patent or of a patent for utility

model shall consist in unauthorized copying of the patented design or utility model for
the purpose of trade or industry in the article or product and in the making, using or
selling of the article or product copying the patented design or utility model. Identity
or substantial identity with the patented design or utility model shall constitute
evidence of copying. (emphasis supplied)

Moreover, it should be noted that the requirement of Article 34 to provide a disputable presumption
applies only if (1) the product obtained by the patented process in NEW or (2) there is a substantial
likelihood that the identical product was made by the process and the process owner has not been
able through reasonable effort to determine the process used. Where either of these two provisos
does not obtain, members shall be free to determine the appropriate method of implementing the
provisions of TRIPS within their own internal systems and processes.

By and large, the arguments adduced in connection with our disposition of the third issue —
derogation of legislative power — will apply to this fourth issue also. Suffice it to say that the
reciprocity clause more than justifies such intrusion, if any actually exists. Besides, Article 34 does
not contain an unreasonable burden, consistent as it is with due process and the concept of
adversarial dispute settlement inherent in our judicial system.

So too, since the Philippine is a signatory to most international conventions on patents, trademarks
and copyrights, the adjustment in legislation and rules of procedure will not be substantial. 52

Fifth Issue: Concurrence Only in the WTO Agreement and

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

"A final act, sometimes called protocol de cloture, is an instrument which records the winding up of
the proceedings of a diplomatic conference and usually includes a reproduction of the texts of
treaties, conventions, recommendations and other acts agreed upon and signed by the
plenipotentiaries attending the conference." 54 It is not the treaty itself. It is rather a summary of the
proceedings of a protracted conference which may have taken place over several years. The text of
the "Final Act Embodying the Results of the Uruguay Round of Multilateral Trade Negotiations" is
contained in just one page 55 in Vol. I of the 36-volume Uruguay Round of Multilateral Trade
Negotiations. By signing said Final Act, Secretary Navarro as representative of the Republic of the
Philippines undertook:

(a) to submit, as appropriate, the WTO Agreement for the consideration of their
respective competent authorities with a view to seeking approval of the Agreement in
accordance with their procedures; and

(b) to adopt the Ministerial Declarations and Decisions.

The assailed Senate Resolution No. 97 expressed concurrence in exactly what the Final Act
required from its signatories, namely, concurrence of the Senate in the WTO Agreement.

The Ministerial Declarations and Decisions were deemed adopted without need for ratification. They
were approved by the ministers by virtue of Article XXV: 1 of GATT which provides that
representatives of the members can meet "to give effect to those provisions of this Agreement which
invoke joint action, and generally with a view to facilitating the operation and furthering the objectives
of this Agreement." 56

The Understanding on Commitments in Financial Services also approved in Marrakesh does not
apply to the Philippines. It applies only to those 27 Members which "have indicated in their
respective schedules of commitments on standstill, elimination of monopoly, expansion of operation
of existing financial service suppliers, temporary entry of personnel, free transfer and processing of
information, and national treatment with respect to access to payment, clearing systems and
refinancing available in the normal course of business."57

On the other hand, the WTO Agreement itself expresses what multilateral agreements are deemed
included as its integral parts, 58 as follows:

Article II

Scope of the WTO

1. The WTO shall provide the common institutional frame-work for the conduct of
trade relations among its Members in matters to the agreements and associated
legal instruments included in the Annexes to this Agreement.
 2. The Agreements and associated legal instruments included in Annexes 1, 2, and
3, (hereinafter referred to as "Multilateral Agreements") are integral parts of this
Agreement, binding on all Members.

3. The Agreements and associated legal instruments included in Annex 4

(hereinafter referred to as "Plurilateral Trade Agreements") are also part of this
Agreement for those Members that have accepted them, and are binding on those
Members. The Plurilateral Trade Agreements do not create either obligation or rights
for Members that have not accepted them.

4. The General Agreement on Tariffs and Trade 1994 as specified in annex 1A

(hereinafter referred to as "GATT 1994") is legally distinct from the General
Agreement on Tariffs and Trade, dated 30 October 1947, annexed to the Final Act
adopted at the conclusion of the Second Session of the Preparatory Committee of
the United Nations Conference on Trade and Employment, as subsequently rectified,
amended or modified (hereinafter referred to as "GATT 1947").

It should be added that the Senate was well-aware of what it was concurring in as shown by the
members' deliberation on August 25, 1994. After reading the letter of President Ramos dated August
11, 1994, 59 the senators
of the Republic minutely dissected what the Senate was concurring in, as follows: 60

THE CHAIRMAN: Yes. Now, the question of the validity of the submission came up
in the first day hearing of this Committee yesterday. Was the observation made by
Senator Tañada that what was submitted to the Senate was not the agreement on
establishing the World Trade Organization by the final act of the Uruguay Round
which is not the same as the agreement establishing the World Trade Organization?
And on that basis, Senator Tolentino raised a point of order which, however, he
agreed to withdraw upon understanding that his suggestion for an alternative solution
at that time was acceptable. That suggestion was to treat the proceedings of the
Committee as being in the nature of briefings for Senators until the question of the
submission could be clarified.

And so, Secretary Romulo, in effect, is the President submitting a new . . . is he

making a new submission which improves on the clarity of the first submission?

MR. ROMULO: Mr. Chairman, to make sure that it is clear cut and there should be
no misunderstanding, it was his intention to clarify all matters by giving this letter.

THE CHAIRMAN: Thank you.

Can this Committee hear from Senator Tañada and later on Senator Tolentino since
they were the ones that raised this question yesterday?

Senator Tañada, please.

SEN. TAÑADA: Thank you, Mr. Chairman.

Based on what Secretary Romulo has read, it would now clearly appear that what is
being submitted to the Senate for ratification is not the Final Act of the Uruguay
Round, but rather the Agreement on the World Trade Organization as well as the
 Ministerial Declarations and Decisions, and the Understanding and Commitments in
Financial Services.

I am now satisfied with the wording of the new submission of President Ramos.

SEN. TAÑADA. . . . of President Ramos, Mr. Chairman.

THE CHAIRMAN. Thank you, Senator Tañada. Can we hear from Senator
Tolentino? And after him Senator Neptali Gonzales and Senator Lina.

SEN. TOLENTINO, Mr. Chairman, I have not seen the new submission actually
transmitted to us but I saw the draft of his earlier, and I think it now complies with the
provisions of the Constitution, and with the Final Act itself . The Constitution does not
require us to ratify the Final Act. It requires us to ratify the Agreement which is now
being submitted. The Final Act itself specifies what is going to be submitted to with
the governments of the participants.

In paragraph 2 of the Final Act, we read and I quote:

By signing the present Final Act, the representatives agree: (a) to submit as
appropriate the WTO Agreement for the consideration of the respective competent
authorities with a view to seeking approval of the Agreement in accordance with their
procedures.

In other words, it is not the Final Act that was agreed to be submitted to the
governments for ratification or acceptance as whatever their constitutional
procedures may provide but it is the World Trade Organization Agreement. And if
that is the one that is being submitted now, I think it satisfies both the Constitution
and the Final Act itself .

Thank you, Mr. Chairman.

THE CHAIRMAN. Thank you, Senator Tolentino, May I call on Senator Gonzales.

SEN. GONZALES. Mr. Chairman, my views on this matter are already a matter of
record. And they had been adequately reflected in the journal of yesterday's session
and I don't see any need for repeating the same.

Now, I would consider the new submission as an act ex abudante cautela.

THE CHAIRMAN. Thank you, Senator Gonzales. Senator Lina, do you want to make
any comment on this?

SEN. LINA. Mr. President, I agree with the observation just made by Senator
Gonzales out of the abundance of question. Then the new submission is, I believe,
stating the obvious and therefore I have no further comment to make.

Epilogue

In praying for the nullification of the Philippine ratification of the WTO Agreement, petitioners are
invoking this Court's constitutionally imposed duty "to determine whether or not there has been grave
abuse of discretion amounting to lack or excess of jurisdiction" on the part of the Senate in giving its
concurrence therein via Senate Resolution No. 97. Procedurally, a writ of certiorari grounded on
grave abuse of discretion may be issued by the Court under Rule 65 of the Rules of Court when it is
amply shown that petitioners have no other plain, speedy and adequate remedy in the ordinary
course of law.

By grave abuse of discretion is meant such capricious and whimsical exercise of judgment as is
equivalent to lack of jurisdiction. 61 Mere abuse of discretion is not enough. It must be grave abuse of
discretion as when the power is exercised in an arbitrary or despotic manner by reason of passion or
personal hostility, and must be so patent and so gross as to amount to an evasion of a positive duty
or to a virtual refusal to perform the duty enjoined or to act at all in contemplation of law. 62 Failure on
the part of the petitioner to show grave abuse of discretion will result in the dismissal of the petition. 63

In rendering this Decision, this Court never forgets that the Senate, whose act is under review, is
one of two sovereign houses of Congress and is thus entitled to great respect in its actions. It is itself
a constitutional body independent and coordinate, and thus its actions are presumed regular and
done in good faith. Unless convincing proof and persuasive arguments are presented to overthrow
such presumptions, this Court will resolve every doubt in its favor. Using the foregoing well-accepted
definition of grave abuse of discretion and the presumption of regularity in the Senate's processes,
this Court cannot find any cogent reason to impute grave abuse of discretion to the Senate's
exercise of its power of concurrence in the WTO Agreement granted it by Sec. 21 of Article VII of the
Constitution. 64

It is true, as alleged by petitioners, that broad constitutional principles require the State to develop an
independent national economy effectively controlled by Filipinos; and to protect and/or prefer Filipino
labor, products, domestic materials and locally produced goods. But it is equally true that such
principles — while serving as judicial and legislative guides — are not in themselves sources of
causes of action. Moreover, there are other equally fundamental constitutional principles relied upon
by the Senate which mandate the pursuit of a "trade policy that serves the general welfare and
utilizes all forms and arrangements of exchange on the basis of equality and reciprocity" and the
promotion of industries "which are competitive in both domestic and foreign markets," thereby
justifying its acceptance of said treaty. So too, the alleged impairment of sovereignty in the exercise
of legislative and judicial powers is balanced by the adoption of the generally accepted principles of
international law as part of the law of the land and the adherence of the Constitution to the policy of
cooperation and amity with all nations.

That the Senate, after deliberation and voting, voluntarily and overwhelmingly gave its consent to the
WTO Agreement thereby making it "a part of the law of the land" is a legitimate exercise of its
sovereign duty and power. We find no "patent and gross" arbitrariness or despotism "by reason of
passion or personal hostility" in such exercise. It is not impossible to surmise that this Court, or at
least some of its members, may even agree with petitioners that it is more advantageous to the
national interest to strike down Senate Resolution No. 97. But that is not a legal reason to attribute
grave abuse of discretion to the Senate and to nullify its decision. To do so would constitute grave
abuse in the exercise of our own judicial power and duty. Ineludably, what the Senate did was a
valid exercise of its authority. As to whether such exercise was wise, beneficial or viable is outside
the realm of judicial inquiry and review. That is a matter between the elected policy makers and the
people. As to whether the nation should join the worldwide march toward trade liberalization and
economic globalization is a matter that our people should determine in electing their policy makers.
After all, the WTO Agreement allows withdrawal of membership, should this be the political desire of
a member.
The eminent futurist John Naisbitt, author of the best seller Megatrends, predicts an Asian
Renaissance 65 where "the East will become the dominant region of the world economically,
politically and culturally in the next century." He refers to the "free market" espoused by WTO as the
"catalyst" in this coming Asian ascendancy. There are at present about 31 countries including China,
Russia and Saudi Arabia negotiating for membership in the WTO. Notwithstanding objections
against possible limitations on national sovereignty, the WTO remains as the only viable structure for
multilateral trading and the veritable forum for the development of international trade law. The
alternative to WTO is isolation, stagnation, if not economic self-destruction. Duly enriched with
original membership, keenly aware of the advantages and disadvantages of globalization with its on-
line experience, and endowed with a vision of the future, the Philippines now straddles the
crossroads of an international strategy for economic prosperity and stability in the new millennium.
Let the people, through their duly authorized elected officers, make their free choice.

WHEREFORE, the petition is DISMISSED for lack of merit.

SO ORDERED.

EN BANC

[G.R. NO. 187298 - July 03, 2012]

JAMAR M. KULAYAN, TEMOGEN S. TULAWIE, HJI. MOH. YUSOP ISMI, JULHAJAN AWADI, and SPO1
SATTAL H. JADJULI, Petitioners, v. GOV. ABDUSAKUR M. TAN, in his capacity as Governor of Sulu;
GEN. JUANCHO SABAN, COL. EUGENIO CLEMEN PN, P/SUPT. JULASIRIM KASIM and P/SUPT.
BIENVENIDO G. LATAG, in their capacity as officers of the Phil. Marines and Phil. National Police,
respectively, Respondents.

DECISION

SERENO, J.:

On 15 January 2009, three members from the International Committee of the Red Cross (ICRC) were
kidnapped in the vicinity of the Provincial Capitol in Patikul, Sulu.1 Andres Notter, a Swiss national and head
of the ICRC in Zamboanga City, Eugenio Vagni, an Italian national and ICRC delegate, and Marie Jean
Lacaba, a Filipino engineer, were purportedly inspecting a water and sanitation project for the Sulu
Provincial Jail when inspecting a water and sanitation project for the Sulu Provincial Jail when they were
seized by three armed men who were later confirmed to be members of the Abu Sayyaf Group (ASG).2The
leader of the alleged kidnappers was identified as Raden Abu, a former guard at the Sulu Provincial Jail.
News reports linked Abu to Albader Parad, one of the known leaders of the Abu Sayyaf.

On 21 January 2009, a task force was created by the ICRC and the Philippine National Police (PNP), which
then organized a parallel local group known as the Local Crisis Committee.3 The local group, later renamed
Sulu Crisis Management Committee, convened under the leadership of respondent Abdusakur Mahail Tan,
the Provincial Governor of Sulu. Its armed forces component was headed by respondents General Juancho
Saban, and his deputy, Colonel Eugenio Clemen. The PNP component was headed by respondent Police
Superintendent Bienvenido G. Latag, the Police Deputy Director for Operations of the Autonomous Region of
Muslim Mindanao (ARMM).4 ςrνll

Governor Tan organized the Civilian Emergency Force (CEF), a group of armed male civilians coming from
different municipalities, who were redeployed to surrounding areas of Patikul.5 The organization of the CEF
was embodied in a "Memorandum of Understanding"6 entered into

between three parties: the provincial government of Sulu, represented by Governor Tan; the Armed Forces
of the Philippines, represented by Gen. Saban; and the Philippine National Police, represented by P/SUPT.
Latag. The Whereas clauses of the Memorandum alluded to the extraordinary situation in Sulu, and the
willingness of civilian supporters of the municipal mayors to offer their services in order that "the early and
safe rescue of the hostages may be achieved."7 ςrν ll

This Memorandum, which was labeled secret on its all pages, also outlined the responsibilities of each of the
party signatories, as follows:

Responsibilities of the Provincial Government: ςη αñ rοbl ε š νιr†υ αl lα ω l ιbrαrÿ

1) The Provincial Government shall source the funds and logistics needed for the activation of the CEF;

2) The Provincial Government shall identify the Local Government Units which shall participate in the
operations and to propose them for the approval of the parties to this agreement;

3) The Provincial Government shall ensure that there will be no unilateral action(s) by the CEF without the
knowledge and approval by both parties.
chanrobles vi rt ual law li bra ry

Responsibilities of AFP/PNP/ TF ICRC (Task Force ICRC): ςηα ñrοblεš ν ιr†υαl l αω l ιb rα rÿ

1) The AFP/PNP shall remain the authority as prescribed by law in military operations and law enforcement;

2) The AFP/PNP shall ensure the orderly deployment of the CEF in the performance of their assigned task(s);

3) The AFP/PNP shall ensure the safe movements of the CEF in identified areas of operation(s);

4) The AFP/PNP shall provide the necessary support and/or assistance as called for in the course of
operation(s)/movements of the CEF.8

Meanwhile, Ronaldo Puno, then Secretary of the Department of Interior and Local Government, announced
to the media that government troops had cornered some one hundred and twenty (120) Abu Sayyaf
members along with the three (3) hostages.9 However, the ASG made

contact with the authorities and demanded that the military pull its troops back from the jungle area.10The
government troops yielded and went back to their barracks; the Philippine Marines withdrew to their camp,
while police and civilian forces pulled back from the terrorists stronghold by ten (10) to fifteen (15)
kilometers. Threatening that one of the hostages will be beheaded, the ASG further demanded the
evacuation of the military camps and bases in the different barangays in Jolo.11 The authorities were given
no later than 2:00 o clock in the afternoon of 31 March 2009 to comply.12 ς rν ll
On 31 March 2009, Governor Tan issued Proclamation No. 1, Series of 2009 (Proclamation 1-09), declaring
a state of emergency in the province of Sulu.13 It cited the kidnapping incident as a ground for the said
declaration, describing it as a terrorist act pursuant to the Human Security

Act (R.A. 9372). It also invoked Section 465 of the Local Government Code of 1991 (R.A. 7160), which
bestows on the Provincial Governor the power to carry out emergency measures during man-made and
natural disasters and calamities, and to call upon the appropriate national law enforcement agencies to
suppress disorder and lawless violence.

In the same Proclamation, respondent Tan called upon the PNP and the CEF to set up checkpoints and
chokepoints, conduct general search and seizures including arrests, and other actions necessary to ensure
public safety. The pertinent portion of the proclamation states:
ςηα ñrοb lεš ν ιr†υαl l αω lιb rα rÿ

NOW, THEREFORE, BY VIRTUE OF THE POWERS VESTED IN ME BY LAW, I, ABDUSAKUR MAHAIL TAN,
GOVERNOR OF THE PROVINCE OF SULU, DO HEREBY DECLARE A STATE OF EMERGENCY IN THE PROVINCE
OF SULU, AND CALL ON THE PHILIPPINE NATIONAL POLICE WITH THE ASSISTANCE OF THE ARMED FORCES
OF THE PHILIPPINES AND THE CIVILIAN EMERGENCY FORCE TO IMPLEMENT THE FOLLOWING: ςηα ñrοb lε š ν ιr†υ αl lα ω lιbrαrÿ

1. The setting-up of checkpoints and chokepoints in the province;

2. The imposition of curfew for the entire province subject to such Guidelines as may be issued by proper
authorities;

3. The conduct of General Search and Seizure including arrests in the pursuit of the kidnappers and their
supporters; and

4. To conduct such other actions or police operations as may be necessary to ensure public safety.
chanrobles vi rt ual law li bra ry

DONE AT THE PROVINCIAL CAPITOL, PROVINCE OF SULU THIS

31STDAY OF MARCH 2009. Sgd. Abdusakur M. Tan Governor.14 ς rνll

chanrobles vi rt ual law li bra ry

On 1 April 2009, SPO1 Sattal Jadjuli was instructed by his superior to report to respondent P/SUPT. Julasirim
Kasim.15 Upon arriving at the police station, he was booked, and interviewed about his relationship to Musin,
Jaiton, and Julamin, who were all his deceased relatives. Upon admitting that he was indeed related to the
three, he was detained. After a few hours, former Punong Barangay Juljahan Awadi, Hadji Hadjirul Bambra,
Abdugajir Hadjirul, as well as PO2 Marcial Hajan, SPO3 Muhilmi Ismula, Punong Barangay Alano Mohammad
and jeepney driver Abduhadi Sabdani, were also arrested.16 The affidavit17 of the apprehending officer
alleged that they were suspected ASG supporters and were being arrested under Proclamation 1-09. The
following day, 2 April 2009, the hostage Mary Jane Lacaba was released by the ASG.

On 4 April 2009, the office of Governor Tan distributed to civic organizations, copies of the "Guidelines for
the Implementation of Proclamation No. 1, Series of 2009 Declaring a State of Emergency in the Province of
Sulu."18 These Guidelines suspended all Permits to Carry

Firearms Outside of Residence (PTCFORs) issued by the Chief of the PNP, and allowed civilians to seek
exemption from the gun ban only by applying to the Office of the Governor and obtaining the appropriate
identification cards. The said guidelines also allowed general searches and seizures in designated
checkpoints and chokepoints.

On 16 April 2009, Jamar M. Kulayan, Temogen S. Tulawie, Hadji Mohammad Yusop Ismi, Ahajan Awadi, and
SPO1 Sattal H. Jadjuli, residents of Patikul, Sulu, filed the present Petition for Certiorari and
Prohibition,19 claiming that Proclamation 1-09 was issued with grave abuse of discretion amounting to lack
or excess of jurisdiction, as it threatened fundamental freedoms guaranteed under Article III of the 1987
Constitution.
Petitioners contend that Proclamation No. 1 and its Implementing Guidelines were issued ultra vires, and
thus null and void, for violating Sections 1 and 18, Article VII of the Constitution, which grants the President
sole authority to exercise emergency powers and calling-out powers as the chief executive of the Republic
and commander-in-chief of the armed forces.20 Additionally, petitioners claim that the Provincial Governor is
not authorized by any law to create civilian armed forces under his command, nor regulate and limit the
issuances of PTCFORs to his own private army.

In his Comment, Governor Tan contended that petitioners violated the doctrine on hierarchy of courts when
they filed the instant petition directly in the court of last resort, even if both the Court of Appeals (CA) and
the Regional Trial Courts (RTC) possessed concurrent jurisdiction with the

Supreme Court under Rule 65.21 This is the only procedural defense raised by respondent Tan. Respondents
Gen. Juancho Saban, Col. Eugenio Clemen, P/SUPT. Julasirim Kasim, and P/SUPT. Bienvenido Latag did not
file their respective Comments.

On the substantive issues, respondents deny that Proclamation 1-09 was issued ultra vires, as Governor Tan
allegedly acted pursuant to Sections 16 and 465 of the Local Government Code, which empowers the
Provincial Governor to carry out emergency measures during calamities and disasters, and to call upon the
appropriate national law enforcement agencies to suppress disorder, riot, lawless violence, rebellion or
sedition.22 Furthermore, the Sangguniang Panlalawigan of Sulu authorized the declaration of a state of
emergency as evidenced by Resolution No. 4, Series of 2009 issued on 31 March 2009 during its regular
session.23 ς rν ll

The threshold issue in the present case is whether or not Section 465, in relation to Section 16, of the Local
Government Code authorizes the respondent governor to declare a state of emergency, and exercise the
powers enumerated under Proclamation 1-09, specifically the conduct of general searches and seizures.
Subsumed herein is the secondary question of whether or not the provincial governor is similarly clothed
with authority to convene the CEF under the said provisions.

We grant the petition.

I. Transcendental public Importance warrants a relaxation of the Doctrine of Hierarchy of Courts

We first dispose of respondents invocation of the doctrine of hierarchy of courts which allegedly prevents
judicial review by this Court in the present case, citing for this specific purpose, Montes v. Court of Appeals
and Purok Bagong Silang Association, Inc. v. Yuipco.24 Simply put, the

doctrine provides that where the issuance of an extraordinary writ is also within the competence of the CA
or the RTC, it is in either of these courts and not in the Supreme Court, that the specific action for the
issuance of such writ must be sought unless special and important laws are clearly and specifically set forth
in the petition. The reason for this is that this Court is a court of last resort and must so remain if it is to
perform the functions assigned to it by the Constitution and immemorial tradition. It cannot be burdened
with deciding cases in the first instance.25 ςrν ll

The said rule, however, is not without exception. In Chavez v. PEA-Amari,26 the Court stated: ςη αñ rοbl ε š νιr†υαl l αω l ιb rα rÿ

PEA and AMARI claim petitioner ignored the judicial hierarchy by seeking relief directly from the Court. The
principle of hierarchy of courts applies generally to cases involving factual questions. As it is not a trier of
facts, the Court cannot entertain cases involving factual issues. The instant case, however, raises
constitutional questions of transcendental importance to the public. The Court can resolve this case without
determining any factual issue related to the case. Also, the instant case is a petition for mandamus which
falls under the original jurisdiction of the Court under Section 5, Article VIII of the Constitution. We resolve
to exercise primary jurisdiction over the instant case.27 ςrνll

chanrobles vi rt ual law li bra ry

The instant case stems from a petition for certiorari and prohibition, over which the Supreme Court
possesses original jurisdiction.28 More crucially, this case involves acts of a public official which pertain to
restrictive custody, and is thus impressed with transcendental public importance that would warrant the
relaxation of the general rule. The Court would be remiss in its constitutional duties were it to dismiss the
present petition solely due to claims of judicial hierarchy.

In David v. Macapagal-Arroyo,29 the Court highlighted the transcendental public importance involved in
cases that concern restrictive custody, because judicial review in these cases serves as "a manifestation of
the crucial defense of civilians in police power cases due to the diminution of their basic liberties under the
guise of a state of emergency."30 Otherwise, the importance of the high tribunal as the court of last resort
would be put to naught, considering the nature of "emergency" cases, wherein the proclamations and
issuances are inherently short-lived. In finally disposing of the claim that the issue had become moot and
academic, the Court also cited transcendental public importance as an exception, stating: ςη αñ rοbl ε š νιr⠀ υα l lα ω l ιbrαrÿ

Sa kabila ng pagiging akademiko na lamang ng mga isyu tungkol sa mahigpit na pangangalaga (restrictive
custody) at pagmonitor ng galaw (monitoring of movements) ng nagpepetisyon, dedesisyunan namin ito (a)
dahil sa nangingibabaw na interes ng madla na nakapaloob dito,
chanrobles vi rt ual law li bra ry

(b) dahil sa posibilidad na maaaring maulit ang pangyayari at (c) dahil kailangang maturuan ang kapulisan
tungkol dito. ςη αñrοblε š νιr†υαl l αω l ιb rα rÿ

The moot and academic principle is not a magical formula that can automatically dissuade the courts in
resolving a case. Courts will decide cases, otherwise moot and academic, if: first, there is a grave violation
of the Constitution; second, the exceptional character of the situation and the paramount public interest is
involved; third, when [the] constitutional issue raised requires formulation of controlling principles to guide
the bench, the bar, and the public; and fourth, the case is capable of repetition yet evading review.

There is no question that the issues being raised affect the public interest, involving as they do the people s
basic rights to freedom of expression, of assembly and of the press. Moreover, the

Court has the duty to formulate guiding and controlling constitutional precepts, doctrines or rules. It has the
symbolic function of educating the bench and the bar, and in the present petitions, the military and the
police, on the extent of the protection given by constitutional guarantees. And lastly, respondents contested
actions are capable of repetition. Certainly, the petitions are subject to judicial review.

Evidently, the triple reasons We advanced at the start of Our ruling are justified under the foregoing
exceptions. Every bad, unusual incident where police officers figure in generates public interest and people
watch what will be done or not done to them. Lack of disciplinary steps taken against them erode public
confidence in the police institution. As petitioners themselves assert, the restrictive custody of policemen
under investigation is an existing practice, hence, the issue is bound to crop up every now and then. The
matter is capable of repetition or susceptible of recurrence. It better be resolved now for the education and
guidance of all concerned.31 (Emphasis supplied) c ralawl ibra ry

chanrobles vi rt ual law li bra ry

Hence, the instant petition is given due course, impressed as it is with transcendental public importance.

II. Only the President is vested with calling-out powers, as the commander-in-chief of the Republic

i. One executive, one commander-in-chief

As early as Villena v. Secretary of Interior,32 it has already been established that there is one repository of
executive powers, and that is the President of the Republic. This means that when Section 1, Article VII of
the Constitution speaks of executive power, it is granted to the President and no one else.33 As emphasized
by Justice Jose P. Laurel, in his ponencia in Villena: ς ηα ñrοb lεš ν ιr†υαl l αω lιb rαrÿ

With reference to the Executive Department of the government, there is one purpose which is crystal-clear
and is readily visible without the projection of judicial searchlight, and that is the establishment of a single,
not plural, Executive. The first section of Article VII of the Constitution, dealing with the Executive
Department, begins with the enunciation of the principle that "The executive power shall be vested in a
President of the Philippines." This means that the President of the Philippines is the Executive of the
Government of the Philippines, and no other.34 ςrν ll

chanrobles vi rt ual law li bra ry

Corollarily, it is only the President, as Executive, who is authorized to exercise emergency powers as
provided under Section 23, Article VI, of the Constitution, as well as what became known as the calling-out
powers under Section 7, Article VII thereof.

ii. The exceptional character of Commander-in-Chief powers dictate that they are exercised by one president

Springing from the well-entrenched constitutional precept of One President is the notion that there are
certain acts which, by their very nature, may only be performed by the president as the Head of the State.
One of these acts or prerogatives is the bundle of Commander-in-Chief powers to which the "calling-out"
powers constitutes a portion. The President s Emergency Powers, on the other hand, is balanced only by the
legislative act of Congress, as embodied in the second paragraph of Section 23, Article 6 of the
Constitution: ςηα ñrοblεš ν ιr†υαl l αω lιb rα rÿ

Article 6, Sec 23(2). In times of war or other national emergency, the Congress may, by law, authorize the
President, for a limited period and subject to such restrictions as it may prescribe, to exercise powers
necessary and proper to carry out a declared national policy. Unless sooner withdrawn by resolution of the
Congress, such powers shall cease upon the next adjournment thereof.35 ςrνl l

Article 7, Sec 18. The President shall be the Commander-in-Chief of all armed forces of the Philippines and
whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence,
invasion or rebellion. In case of invasion or rebellion, when the public safety requires it, he may, for a period
not exceeding sixty days, suspend the privilege of the writ of habeas corpus or place the Philippines or any
part thereof under martial law. Within forty-eight hours from the proclamation of martial law or the
suspension of the privilege of the writ of habeas corpus, the President shall submit a report in person or in
writing to the Congress. The Congress, voting jointly, by a vote of at least a majority of all its Members in
regular or special session, may revoke such proclamation or suspension, which revocation shall not be set
aside by the President. Upon the initiative of the President, the Congress may, in the same manner, extend
such proclamation or suspension for a period to be determined by the Congress, if the invasion or rebellion
shall persist and public safety requires it.

The Congress, if not in session, shall, within twenty-four hours following such proclamation or suspension,
convene in accordance with its rules without need of a call.36 ς rνll

chanrobles vi rt ual law li bra ry

The power to declare a state of martial law is subject to the Supreme Court s authority to review the factual
basis thereof.37 By constitutional fiat, the calling-out powers, which is of lesser gravity than the power to
declare martial law, is bestowed upon the President alone. As noted in Villena, "(t)here are certain
constitutional powers and prerogatives of the Chief Executive of the Nation which must be exercised by him
in person and no amount of approval or ratification will validate the exercise of any of those powers by any
other person. Such, for instance, is his power to suspend the writ of habeas corpusand proclaim martial law
x x x.38 ςrνll

Indeed, while the President is still a civilian, Article II, Section 339 of the Constitution mandates that civilian
authority is, at all times, supreme over the military, making the civilian president the nation s supreme
military leader. The net effect of Article II, Section 3, when read with Article VII,

Section 18, is that a civilian President is the ceremonial, legal and administrative head of the armed forces.
The Constitution does not require that the President must be possessed of military training and talents, but
as Commander-in-Chief, he has the power to direct military operations and to determine military strategy.
Normally, he would be expected to delegate the actual command of the armed forces to military experts;
but the ultimate power is his.40 As Commander-in-Chief, he is authorized to direct the movements of the
naval and military forces placed by law at his command, and to employ them in the manner he may deem
most effectual.41 ςrνll
In the case of Integrated Bar of the Philippines v. Zamora,42 the Court had occasion to rule that the calling-
out powers belong solely to the President as commander-in-chief: ςη αñ rοbl ε š νιr⠀ υα l lα ω l ιbrαrÿ

When the President calls the armed forces to prevent or suppress lawless violence, invasion or rebellion, he
necessarily exercises a discretionary power solely vested in his wisdom. This is clear from the intent of the
framers and from the text of the Constitution itself. The Court, thus, cannot be called upon to overrule the
President s wisdom or substitute its own. However, this does not prevent an examination of whether such
power was exercised within permissible constitutional limits or whether it was exercised in a manner
constituting grave abuse of discretion. In view of the constitutional intent to give the President full
discretionary power to determine the necessity of calling out the armed forces, it is incumbent upon the
petitioner to show that the President s decision is totally bereft of factual basis.

There is a clear textual commitment under the Constitution to bestow on the President full discretionary
power to call out the armed forces and to determine the necessity for the exercise of such
power.43 (Emphasis supplied) cralawl ib rary

chanrobles vi rt ual law li bra ry

Under the foregoing provisions, Congress may revoke such proclamation or suspension and the Court may
review the sufficiency of the factual basis thereof. However, there is no such equivalent provision dealing
with the revocation or review of the President s action to call out the armed forces. The distinction places
the calling out power in a different category from the power to declare martial law and the power to suspend
the privilege of the writ of habeas corpus, otherwise, the framers of the Constitution would have simply
lumped together the three powers and provided for their revocation and review without any qualification.44 ς rν ll

That the power to call upon the armed forces is discretionary on the president is clear from the deliberation
of the Constitutional Commission: ςηα ñrοbl ε š ν ιr†υ αl lα ω lιbrαrÿ

FR. BERNAS. It will not make any difference. I may add that there is a graduated power of the President as
Commander-in-Chief. First, he can call out such Armed Forces as may be necessary to suppress lawless
violence; then he can suspend the privilege of the writ of habeas corpus, then he can impose martial law.
This is a graduated sequence.

When he judges that it is necessary to impose martial law or suspend the privilege of the writ of habeas
corpus, his judgment is subject to review. We are making it subject to review by the Supreme Court and
subject to concurrence by the National Assembly. But when he exercises this lesser power of calling on the
Armed Forces, when he says it is necessary, it is my opinion that his judgment cannot be reviewed by
anybody.

xxx xxx xxx

MR. REGALADO. That does not require any concurrence by the legislature nor is it subject to judicial review.

The reason for the difference in the treatment of the aforementioned powers highlights the intent to grant
the President the widest leeway and broadest discretion in using the power to call out because it is
considered as the lesser and more benign power compared to the power to suspend the privilege of the writ
of habeas corpus and the power to impose martial law, both of which involve the curtailment and
suppression of certain basic civil rights and individual freedoms, and thus necessitating safeguards by
Congress and review by this Court.

x x x Thus, it is the unclouded intent of the Constitution to vest upon the President, as Commander-in-Chief
of the Armed Forces, full discretion to call forth the military when in his judgment it is necessary to do so in
order to prevent or suppress lawless violence, invasion or rebellion.45 (Emphasis Supplied)
chanrobles vi rt ual law li bra ry

In the more recent case of Constantino, Jr. v. Cuisia,46 the Court characterized these powers as exclusive to
the President, precisely because they are of exceptional import: ς ηα ñrοblεš ν ιr†υαl l αω l ιb rα rÿ
These distinctions hold true to this day as they remain embodied in our fundamental law. There are certain
presidential powers which arise out of exceptional circumstances, and if exercised, would involve the
suspension of fundamental freedoms, or at least call for the supersedence of executive prerogatives over
those exercised by co-equal branches of government. The declaration of martial law, the suspension of the
writ of habeas corpus, and the exercise of the pardoning power, notwithstanding the judicial determination
of guilt of the accused, all fall within this special class that demands the exclusive exercise by the President
of the constitutionally vested power. The list is by no means exclusive, but there must be a showing that the
executive power in question is of similar gravitas and exceptional import.47 ςrνl l

chanrobles vi rt ual law li bra ry

In addition to being the commander-in-chief of the armed forces, the President also acts as the leader of the
country s police forces, under the mandate of Section 17, Article VII of the Constitution, which provides
that, "The President shall have control of all the executive departments, bureaus, and offices. He shall
ensure that the laws be faithfully executed." During the deliberations of the Constitutional Commission on
the framing of this provision, Fr. Bernas defended the retention of the word "control," employing the same
rationale of singularity of the office of the president, as the only Executive under the presidential form of
government.48 ς rν ll

Regarding the country s police force, Section 6, Article XVI of the Constitution states that: "The State shall
establish and maintain one police force, which shall be national in scope and civilian in character, to be
administered and controlled by a national police commission. The authority of local executives over the
police units in their jurisdiction shall be provided by law."49 ςrνl l

A local chief executive, such as the provincial governor, exercises operational supervision over the
police,50 and may exercise control only in day-to-day operations, viz: ς ηα ñrοb lε š ν ιr†υ αl l αω lιb rαrÿ

Mr. Natividad: By experience, it is not advisable to provide either in our Constitution or by law full control of
the police by the local chief executive and local executives, the mayors. By our experience, this has spawned
warlordism, bossism and sanctuaries for vices and abuses. If the national government does not have a
mechanism to supervise these 1,500 legally, technically separate police forces, plus 61 city police forces,
fragmented police system, we will have a lot of difficulty in presenting a modern professional police force. So
that a certain amount of supervision and control will have to be exercised by the national government.

For example, if a local government, a town cannot handle its peace and order problems or police problems,
such as riots, conflagrations or organized crime, the national government may come in, especially if
requested by the local executives. Under that situation, if they come in under such an extraordinary
situation, they will be in control. But if the day-to-day business of police investigation of crime, crime
prevention, activities, traffic control, is all lodged in the mayors, and if they are in complete operational
control of the day-to-day business of police service, what the national government would control would be
the administrative aspect.

xxx xxx xxx

Mr. de los Reyes: so the operational control on a day-to-day basis, meaning, the usual duties being
performed by the ordinary policemen, will be under the supervision of the local executives? chanro blesvi rtua lawlib rary

Mr. Natividad: Yes, Madam President.

xxx xxx xxx

Mr. de los Reyes: But in exceptional cases, even the operational control can be taken over by the National
Police Commission? chanroblesv irt ualawli bra ry

Mr. Natividad: If the situation is beyond the capacity of the local governments.51(Emphases supplied)
chanrobles vi rt ual law li bra ry
Furthermore according to the framers, it is still the President who is authorized to exercise supervision and
control over the police, through the National Police Commission: ς ηα ñrοblεš ν ιr†υαl l αω lιb rα rÿ

Mr. Rodrigo: Just a few questions. The President of the Philippines is the Commander-in-Chief of all the
armed forces.

Mr. Natividad: Yes, Madam President.

Mr. Rodrigo: Since the national police is not integrated with the armed forces, I do not suppose they come
under the Commander-in-Chief powers of the President of the Philippines.

Mr. Natividad: They do, Madam President. By law, they are under the supervision and control of the
President of the Philippines.

Mr. Rodrigo: Yes, but the President is not the Commander-in-Chief of the national police.

Mr. Natividad: He is the President.

Mr. Rodrigo: Yes, the Executive. But they do not come under that specific provision that the President is the
Commander-in-Chief of all the armed forces.

Mr. Natividad: No, not under the Commander-in-Chief provision.

Mr. Rodrigo: There are two other powers of the President. The

President has control over ministries, bureaus and offices, and supervision over local governments. Under
which does the police fall, under control or under supervision? chan roblesv irtualawli bra ry

Mr. Natividad: Both, Madam President.

Mr. Rodrigo: Control and supervision.

Mr. Natividad: Yes, in fact, the National Police Commission is under the Office of the President.52 ς rνll

chanrobles vi rt ual law li bra ry

In the discussions of the Constitutional Commission regarding the above provision it is clear that the framers
never intended for local chief executives to exercise unbridled control over the police in emergency
situations. This is without prejudice to their authority over police units in their jurisdiction as provided by
law, and their prerogative to seek assistance from the police in day to day situations, as contemplated by
the Constitutional Commission. But as a civilian agency of the government, the police, through the
NAPOLCOM, properly comes within, and is subject to, the exercise by the President of the power of
executive control.53 ςrνl l

iii. The provincial governor does not possess the same calling-out powers as the President

Given the foregoing, respondent provincial governor is not endowed with the power to call upon the armed
forces at his own bidding. In issuing the assailed proclamation, Governor Tan exceeded his authority when
he declared a state of emergency and called upon the Armed Forces, the police, and his own Civilian
Emergency Force. The calling-out powers contemplated under the Constitution is exclusive to the President.
An exercise by another official, even if he is the local chief executive, is ultra vires, and may not be justified
by the invocation of Section 465 of the Local Government Code, as will be discussed subsequently.

Respondents, however, justify this stance by stating that nowhere in the seminal case of David v. Arroyo,
which dealt squarely with the issue of the declaration of a state of emergency, does it limit the said
authority to the President alone. Respondents contend that the ruling in David expressly limits the authority
to declare a national emergency, a condition which covers the entire country, and does not include
emergency situations in local government units.54 This claim is belied by the clear intent of the framers that
in all situations involving threats to security, such as lawless violence, invasion or rebellion, even in localized
areas, it is still the President who possesses the sole authority to exercise calling-out powers. As reflected in
the Journal of the Constitutional Commission: ςηα ñrοblεš ν ιr†υαl l αω lιb rα rÿ

Thereafter, Mr. Padilla proposed on line 29 to insert the phrase OR PUBLIC DISORDER in lieu of "invasion or
rebellion." Mr. Sumulong stated that the committee could not accept the amendment because under the first
section of Section 15, the President may call out and make use of the armed forces to prevent or suppress
not only lawless violence but even invasion or rebellion without declaring martial law. He observed that by
deleting "invasion or rebellion" and substituting PUBLIC DISORDER, the President would have to declare
martial law before he can make use of the armed forces to prevent or suppress lawless invasion or rebellion.

Mr. Padilla, in reply thereto, stated that the first sentence contemplates a lighter situation where there is
some lawless violence in a small portion of the country or public disorder in another at which times, the
armed forces can be called to prevent or suppress these incidents. He noted that the Commander-in-Chief
can do so in a minor degree but he can also exercise such powers should the situation worsen. The words
"invasion or rebellion" to be eliminated on line 14 are covered by the following sentence which provides for
"invasion or rebellion." He maintained that the proposed amendment does not mean that under such
circumstances, the President cannot call on the armed forces to prevent or suppress the same.55 (Emphasis
supplied) cra lawlib rary

chanrobles vi rt ual law li bra ry

III. Section 465 of the Local

Government Code cannot be invoked to justify the powers enumerated under Proclamation 1-09

Respondent governor characterized the kidnapping of the three ICRC workers as a terroristic act, and used
this incident to justify the exercise of the powers enumerated under Proclamation 1-09.56 He invokes Section
465, in relation to Section 16, of the Local Government Code, which purportedly allows the governor to carry
out emergency measures and call upon the appropriate national law enforcement agencies for assistance.
But a closer look at the said proclamation shows that there is no provision in the Local Government Code nor
in any law on which the broad and unwarranted powers granted to the Governor may be based.

Petitioners cite the implementation of "General Search and Seizure including arrests in the pursuit of the
kidnappers and their supporters,"57 as being violative of the constitutional proscription on general search
warrants and general seizures. Petitioners rightly assert that this alone would be sufficient to render the
proclamation void, as general searches and seizures are proscribed, for being violative of the rights
enshrined in the Bill of Rights, particularly: ς ηα ñrοb lε š ν ιr†υ αl lα ω lιbrαrÿ

The right of the people to be secure in their persons, houses, papers, and effects against unreasonable
searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or
warrant of arrest shall issue except upon probable cause to be determined personally by the judge after
examination under oath or affirmation of the complainant and the witnesses he may produce, and
particularly describing the place to be searched and the persons or things to be seized.58 ς rνll

chanrobles vi rt ual law li bra ry

In fact, respondent governor has arrogated unto himself powers exceeding even the martial law powers of
the President, because as the Constitution itself declares, "A state of martial law does not suspend the
operation of the Constitution, nor supplant the functioning of the civil courts or legislative assemblies, nor
authorize the conferment of the jurisdiction on military courts and agencies over civilians where civil courts
are able to function, nor automatically suspend the privilege of the writ."59 ς rν ll

We find, and so hold, that there is nothing in the Local Government Code which justifies the acts sanctioned
under the said Proclamation. Not even Section 465 of the said Code, in relation to Section 16, which
states: ςηα ñrοb lεš ν ιr†υαl l αω lιb rα rÿ

Section 465. The Chief Executive: Powers, Duties, Functions, and Compensation.
 xxx xxx xxx

(b) For efficient, effective and economical governance the purpose of which is the general welfare of the
province and its inhabitants pursuant to Section 16 of this Code, the provincial governor shall: ς rαl αω

(1) Exercise general supervision and control over all programs, projects, services, and activities of the
provincial government, and in this connection, shall:

xxx xxx xxx

(vii) Carry out such emergency measures as may be necessary during and in the aftermath of man-made
and natural disasters and calamities;

(2) Enforce all laws and ordinances relative to the governance of the province and the exercise of the
appropriate corporate powers provided for under Section 22 of this Code, implement all approved policies,
programs, projects, services and activities of the province and, in addition to the foregoing, shall:

xxx xxx xxx

(vi) Call upon the appropriate national law enforcement agencies to suppress disorder, riot, lawless violence,
rebellion or sedition or to apprehend violators of the law when public interest so requires and the police
forces of the component city or municipality where the disorder or violation is happening are inadequate to
cope with the situation or the violators.
chanrobles vi rt ual law li bra ry

Section 16. General Welfare. - Every local government unit shall exercise the powers expressly granted,
those necessarily implied therefrom, as well as powers necessary, appropriate, or incidental for its efficient
and effective governance, and those which are essential to the promotion of the general welfare. Within
their respective territorial jurisdictions, local government units shall ensure and support, among other
things, the preservation and enrichment of culture, promote health and safety, enhance the right of the
people to a balanced ecology, encourage and support the development of appropriate and self-reliant
scientific and technological capabilities, improve public morals, enhance economic prosperity and social
justice, promote full employment among their residents, maintain peace and order, and preserve the
comfort and convenience of their inhabitants. (Emphases supplied)

Respondents cannot rely on paragraph 1, subparagraph (vii) of Article 465 above, as the said provision
expressly refers to calamities and disasters, whether man-made or natural. The governor, as local chief
executive of the province, is certainly empowered to enact and implement emergency measures during
these occurrences. But the kidnapping incident in the case at bar cannot be considered as a calamity or a
disaster. Respondents cannot find any legal mooring under this provision to justify their actions.

Paragraph 2, subparagraph (vi) of the same provision is equally inapplicable for two reasons. First, the
Armed Forces of the Philippines does not fall under the category of a "national law enforcement agency," to
which the National Police Commission (NAPOLCOM) and its departments belong.

Its mandate is to uphold the sovereignty of the Philippines, support the Constitution, and defend the
Republic against all enemies, foreign and domestic. Its aim is also to secure the integrity of the national
territory.60 ςrν ll

Second, there was no evidence or even an allegation on record that the local police forces were inadequate
to cope with the situation or apprehend the violators. If they were inadequate, the recourse of the provincial
governor was to ask the assistance of the Secretary of Interior and Local Government, or such other
authorized officials, for the assistance of national law enforcement agencies.

The Local Government Code does not involve the diminution of central powers inherently vested in the
National Government, especially not the prerogatives solely granted by the Constitution to the President in
matters of security and defense.
The intent behind the powers granted to local government units is fiscal, economic, and administrative in
nature. The Code is concerned only with powers that would make the delivery of basic services more
effective to the constituents,61 and should not be unduly stretched to confer calling-out powers on local
executives.

In the sponsorship remarks for Republic Act 7160, it was stated that the devolution of powers is a step
towards the autonomy of local government units (LGUs), and is actually an experiment whose success
heavily relies on the power of taxation of the LGUs. The underpinnings of the Code can be found in Section
5, Article II of the 1973 Constitution, which allowed LGUs to create their own sources of revenue.62 During
the interpellation made by Mr. Tirol addressed to Mr. de Pedro, the latter emphasized that "Decentralization
is an administrative concept and the process of shifting and delegating power from a central point to
subordinate levels to promote independence, responsibility, and quicker decision-making. (I)t does not
involve any transfer of final authority from the national to field levels, nor diminution of central office powers
and responsibilities. Certain government agencies, including the police force, are exempted from the
decentralization process because their functions are not inherent in local government units."63 ςrν ll

IV. Provincial governor is not authorized to convene CEF

Pursuant to the national policy to establish one police force, the organization of private citizen armies is
proscribed. Section 24 of Article XVIII of the Constitution mandates that: ςηαñ rοbl ε š νιr⠀ υαl lαω l ιbrαrÿ

Private armies and other armed groups not recognized by duly constituted authority shall be dismantled. All
paramilitary forces including Civilian Home Defense Forces (CHDF) not consistent with the citizen armed
force established in this Constitution, shall be dissolved or, where appropriate, converted into the regular
force.
chanrobles vi rt ual law li bra ry

Additionally, Section 21of Article XI states that, "The preservation of peace and order within the regions
shall be the responsibility of the local police agencies which shall be organized, maintained, supervised, and
utilized in accordance with applicable laws. The defense and security of the regions shall be the
responsibility of the National Government."

Taken in conjunction with each other, it becomes clear that the Constitution does not authorize the
organization of private armed groups similar to the CEF convened by the respondent Governor. The framers
of the Constitution were themselves wary of armed citizens groups, as shown in the following
proceedings: ς ηα ñrοbl ε š ν ιr†υ αl lα ω lιbrαrÿ

MR. GARCIA: I think it is very clear that the problem we have here is a paramilitary force operating under
the cloak, under the mantle of legality is creating a lot of problems precisely by being able to operate as an
independent private army for many regional warlords. And at the same time, this I think has been the
thrust, the intent of many of the discussions and objections to the paramilitary units and the armed groups.

MR. PADILLA: My proposal covers two parts: the private armies of political warlords and other armed torces
not recognized by constituted authority which shall be dismantled and dissolved. In my trips to the
provinces, I heard of many abuses committed by the CHDF (Civilian Home Defense Forces), specially in
Escalante, Negros Occidental. But I do not know whether a particular CHDF is approved or authorized by
competent authority. If it is not authorized, then the CHDF will have to be dismantled. If some CHDFs, say
in other provinces, are authorized by constituted authority, by the Armed Forces of the Philippines, through
the Chief of Staff or the Minister of National Defense, if they are recognized and authorized, then they will
not be dismantled. But I cannot give a categorical answer to any specific CHDF unit, only the principle that if
they are armed forces which are not authorized, then they should be dismantled.64 (Emphasis supplied) c ralawli bra ry

chanrobles vi rt ual law li bra ry

Thus, with the discussions in the Constitutional Commission as guide, the creation of the Civilian Emergency
Force (CEF) in the present case, is also invalid.

WHEREFORE, the instant petition is GRANTED. Judgment is rendered commanding respondents to desist
from further proceedings m implementing Proclamation No. 1, Series of 2009, and its Implementing
Guidelines. The said proclamation and guidelines are hereby declared NULL and VOID for having been issued
in grave abuse of discretion, amounting to lack or excess of jurisdiction.

SO ORDERED.

EN BANC

[G.R. No. 122156. February 3, 1997.]

MANILA PRINCE HOTEL, Petitioner, v. GOVERNMENT SERVICE INSURANCE SYSTEM,

MANILA HOTEL CORPORATION, COMMITTEE ON PRIVATIZATION and OFFICE OF THE
GOVERNMENT CORPORATE COUNSEL, Respondents.

SYLLABUS

1. POLITICAL LAW; CONSTITUTION; DEFINED. — A constitution is a system of fundamental laws

for the governance and administration of a nation. It is supreme, imperious, absolute and
unalterable except by the authority from which it emanates. It has been defined as the
fundamental and paramount law of the nation. It prescribes the permanent framework of a system
of government, assigns to the different departments their respective powers and duties, and
establishes certain fixed principles on which government is founded. The fundamental conception
in other words is that it is a supreme law to which all other laws must conform and in accordance
with which all private rights must be determined and all public authority administered.

2. ID.; ID.; DEEMED WRITTEN IN EVERY STATUTE AND CONTRACT. — Under the doctrine of
constitutional supremacy, if a law or contract violates any norm of the constitution that law or
contract whether promulgated by the legislative or by the executive branch or entered into by
private persons for private purposes is null and void and without any force and effect. Thus, since
the Constitution is the fundamental, paramount and supreme law of the nation, it is deemed
written in every statute and contract. Adhering to the doctrine of constitutional supremacy, the
subject constitutional provision is, as it should be, impliedly written in the bidding rules issued by
respondent GSIS, lest the bidding rules be nullified for being violative of the Constitution. It is a
basic principle in constitutional law that all laws and contracts must conform with the fundamental
law of the land. Those which violate the Constitution lose their reason for being.

3. ID.; ID.; CONSIDERED SELF-EXECUTING RATHER THAN NON-SELF-EXECUTING. — In case of

doubt, the Constitution should be considered self-executing rather than non-self-executing . . .
Unless the contrary is clearly intended, the provisions of the Constitution should be considered
self-executing, as a contrary rule would give the legislature discretion to determine when, or
whether, they shall be effective. These provisions would be subordinated to the will of the
lawmaking body, which could make them entirely meaningless by simply refusing to pass the
needed implementing statute. (Cruz, Isagani A., Constitutional Law, 1993 ed., pp. 8-10)

4. ID.; ID.; SELF-EXECUTING PROVISIONS; LEGISLATURE NOT PRECLUDED FROM ENACTING

LAWS ENFORCING PROVISIONS. — Quite apparently, Sec. 10, second par., of Art. XII is couched
in such a way as not to make it appear that it is non-self-executing but simply for purposes of
style. But, certainly, the legislature is not precluded from enacting further laws to enforce the
constitutional provision so long as the contemplated statute squares with the Constitution. Minor
details may be left to the legislature without the self-executing nature of constitutional provisions.
The omission from a constitution of any express provision for a remedy for enforcing a right or
liability is not necessarily an indication that it was not intended to be self-executing. The rule is
that a self-executing provision of the constitution does not necessarily exhaust legislative power on
the subject, but any legislation must be in harmony with the constitution, further the exercise of
constitutional right and make it more available. Subsequent legislation however does not
necessarily mean that the subject constitutional provision is not, by itself, fully enforceable.

5. ID.; ID.; ID.; A PROVISION MAY BE SELF-EXECUTING IN ONE PART AND NON-SELF-
EXECUTING IN ANOTHER. — Respondents also argue that the non-self-executing nature of Sec.
10, second par., of Art. XII is implied from the tenor of the first and third paragraphs of the same
section which undoubtedly are not self-executing. The argument is flawed. If the first and third
paragraphs are not self-executing because Congress is still to enact measures to encourage the
formation and operation of enterprises fully owned by Filipinos, as in the first paragraph, and the
State still needs legislation to regulate and exercise authority over foreign investments within its
national jurisdiction, as in the third paragraph, then a fortiori, by the same logic, the second
paragraph can only be self-executing as it does not by its language require any legislation in order
to give preference to qualified Filipinos in the grant of rights, privileges and concessions covering
the national economy and patrimony. A constitutional provision may be self-executing in one part
and non-self-executing in another.

6. ID.; ID.; NATIONAL PATRIMONY; PROVISION ON PREFERENCE TO QUALIFIED FILIPINOS, SELF-

EXECUTING. — Sec. 10, second par., Art. XII of the 1987 Constitution is a mandatory, positive
command which is complete in itself and which needs no further guidelines or implementing laws
or rules for its enforcement. From its very words the provision does not require any legislation to
put it in operation. It is per se judicially enforceable. When our Constitution mandates that [i]n the
grant of rights, privileges, and concessions covering national economy and patrimony, the State
shall give preference to qualified Filipinos, it means just that — qualified Filipinos shall be
preferred. And when our Constitution declares that a right exists in certain specified circumstances
an action may be maintained to enforce such right notwithstanding the absence of any legislation
on the subject; consequently, if there is no statute especially enacted to enforce such
constitutional right, such right enforces itself by its own inherent potency and puissance and from
which all legislations must take their bearings. Where there is a right there is a remedy. Ubi jus ibi
remedium.

7. ID.; ID.; ID.; INCLUDES THE NATIONAL, RESOURCES AND CULTURAL, HERITAGE. — When the
Constitution speaks of national patrimony, it refers not only to the natural resources of the
Philippines, as the Constitution could have very well used the term natural resources, but also to
the cultural heritage of the Filipinos.

8. ID.; ID.; ID.; MANILA HOTEL CORPORATION, EMBRACED THEREIN; FILIPINO FIRST POLICY
PROVISION, APPLICABLE IN SALES OF HOTEL STOCKS. — For more than eight (8) decades Manila
Hotel has bore mute witness to the triumphs and failures, loves and frustrations of the Filipinos; its
existence is impressed with public interest; its own historicity associated with our struggle for
sovereignty, independence and nationhood. Verily, Manila Hotel has become part of our national
economy and patrimony. For sure, 51% of the equity of the MHC comes within the purview of the
constitutional shelter for it comprises the majority and controlling stock, so that anyone who
acquires or owns the 51% will have actual control and management of the hotel. In this instance,
51% of the MHC cannot be disassociated from the hotel and the land on which the hotel edifice
stands. Consequently, we cannot sustain respondents’ claim that the Filipino First Policy provision
is not applicable since what is being sold is only 51% of the outstanding shares of the corporation,
not the Hotel building nor the land upon which the building stands.

9. ID.; STATE; SALE BY THE GSIS OF 51% OF ITS SHARE IN MANILA HOTEL CORP., A STATE
ACTION, SUBJECT TO CONSTITUTIONAL COMMAND. — In constitutional jurisprudence, the acts of
persons distinct from the government are considered "state action" covered by the Constitution (1)
when the activity it engages in is a" public function", (2) when the government is so-significantly
involved with the private actor as to make the government responsible for his action; and. (3)
when the government has approved or authorized the action. It is evident that the act of
respondent GSIS in selling 51% of its share in respondent MHC comes under the second and third
categories of "state action." Without doubt therefore the transaction, although entered into by
respondent GSIS, is in fact a transaction of the State and therefore subject to the constitutional
command.

10. ID.; CONSTITUTION; WHEN THE CONSTITUTION ADDRESSES THE STATE, IT REFERS TO
BOTH PEOPLE AND GOVERNMENT. — When the Constitution addresses the State it refers not only
to the people but also to the government as elements of the State. After all, government is
composed of three (3) divisions of power — legislative, executive and judicial. Accordingly, a
constitutional mandate directed to the State is correspondingly directed to the three (3) branches
of government. It is undeniable that in this case the subject constitutional injunction is addressed
among others to the Executive Department and respondent GSIS, a government instrumentality
deriving its authority from the State.

11. ID.; ID.; NATIONAL PATRIMONY; PREFERENCE TO QUALIFIED FILIPINOS; SALE OF STOCKS
OF MANILA HOTEL CORPORATION BY THE GSIS; FILIPINOS ALLOWED TO MATCH THE BID OF
FOREIGN ENTITY. — In the instant case, where a foreign firm submits the highest bid in a public
bidding concerning the grant of rights, privileges and concessions covering the national economy
and patrimony, thereby exceeding the bid of a Filipino, there is no question that the Filipino will
have to be allowed to match the bid of the foreign entity. And if the Filipino matches the bid of a
foreign firm the award should go to the Filipino. It must be so if we are to give life and meaning to
the Filipino First Policy provision of the 1987 Constitution. For, while this may neither be expressly
stated nor contemplated in the bidding rules, the constitutional fiat is omnipresent to be simply
disregarded. To ignore it would be to sanction a perilous skirting of the basic law.

12. REMEDIAL LAW; ACTIONS; FOREIGN BIDDERS WITHOUT CAUSE OF ACTION AGAINST GSIS
BEFORE ACCEPTANCE OF BID. — The argument of respondents that petitioner is now estopped
from questioning the sale to Renong Berhad since petitioner was well aware from the beginning
that a foreigner could participate in the bidding is meritless. Undoubtedly, Filipinos and foreigners
alike were invited to the bidding. But foreigners may be awarded the sale only if no Filipino
qualifies, or if the qualified Filipino fails to match the highest bid tendered by the foreign entity. In
the case before us, while petitioner was already preferred at the inception of the bidding because
of the constitutional mandate, petitioner had not yet matched the bid offered by Renong Berhad.
Thus it did not have the right or personality then to compel respondent GSIS to accept its earlier
bid. Rightly, only after it had matched the bid of the foreign firm and the apparent disregard by
respondent GSIS of petitioner’s matching bid did the latter have a cause of action.

13. ID.; SPECIAL CIVIL ACTION, CERTIORARI; FAILURE OF THE GSIS TO EXECUTE
CORRESPONDING DOCUMENTS WHERE PETITIONER HAD MATCHED THE BID PRICE BY FOREIGN
BIDDER, A GRAVE ABUSE OF DISCRETION. — Since petitioner has already matched the bid price
tendered by Renong Berhad pursuant to the bidding rules, respondent GSIS is left with no
alternative but to award to petitioner the block of shares of MHC and to execute the necessary
agreements and documents to effect the sale in accordance not only with the bidding guidelines
and procedures but with the Constitution as well. The refusal of respondent GSIS to execute the
corresponding documents with petitioner as provided in the bidding rules after the latter has
matched the bid of the Malaysian firm clearly constitutes grave abuse of discretion.

14. ID.; SUPREME COURT; DUTY BOUND TO MAKE SURE THAT CONTRACTS DO NOT VIOLATE THE
CONSTITUTION OR THE LAWS. — While it is no business of the Court to intervene in contracts of
the kind referred to or set itself up as the judge of whether they are viable or attainable, it is its
bounden duty to make sure that they do not violate the Constitution or the laws, or are not
adopted or implemented with grave abuse of discretion amounting to lack or excess of jurisdiction.
It will never shirk that duty, no matter how buffeted by winds of unfair and ill-informed criticism.
Indeed, the Court will always defer to the Constitution in the proper governance of a free society;
after all, there is nothing so sacrosanct in any economic policy as to draw itself beyond judicial
review when the Constitution is involved.

PADILLA, J., concurring opinion: chan rob1e s virtual 1aw lib rary
1. POLITICAL LAW; CONSTITUTION; PATRIMONY OF THE NATION, CONSTRUED. — A study of the
1935 Constitution, where the concept of "national patrimony" originated, would show that its
framers decided to adopt the even more comprehensive expression "Patrimony of the Nation" in
the belief that the phrase encircles a concept embracing not only the natural resources of the
country but practically everything that belongs to the Filipino people, the tangible and the material
as well as the intangible and the spiritual assets and possessions of the people. It is to be noted
that the framers did not stop with conservation. They knew that conservation alone does not spell
progress; and that this may be achieved only through development as a correlative factor to
assure to the people not only the exclusive ownership, but also the exclusive benefits of their
national patrimony. Moreover, the concept of national patrimony has been viewed as referring not
only to our rich natural resources but also to the cultural heritage of our race. There is no doubt in
my mind that the Manila Hotel is very much a part of our national patrimony and, as such
deserves constitutional protection as to who shall own it and benefit from its operation. This
institution has played an important role in our nation’s history, having been the venue of many a
historical event, and serving as it did, and as it does, as the Philippine Guest House for visiting
foreign heads of state, dignitaries, celebrities, and others.

2. ID.; ID.; MANILA HOTEL, PART OF OUR NATIONAL PATRIMONY. — There is no doubt in my
mind that the Manila Hotel is very much a part of our national patrimony and, as such, deserves
constitutional protection as to who shall own it and benefit from its operation. This institution has
played an important role in our nation’s history, having been the venue of many a historical event,
and serving as it did, and as it does, as the Philippine Guest House for visiting foreign heads of
state, dignitaries. celebrities, and others.

3. ID.; ID.; PREFERENCE TO QUALIFIED FILIPINOS; APPLIED TO SALES OF SHARE OF STOCKS OF

MANILA HOTEL. — "Preference to qualified Filipinos," to be meaningful, must refer not only to
things that are peripheral, collateral, or tangential. It must touch and affect the very "heart of the
existing order." In the field of public bidding in the acquisition of things that pertain to the national
patrimony, preference to qualified Filipinos must allow a qualified Filipino to match or equal the
higher bid of a non-Filipino, the preference shall not operate only when the bids of the qualified
Filipino and the non-Filipino are equal in which case, the award should undisputedly be made to
the qualified Filipino. The Constitutional preference should give the qualified Filipino an opportunity
to match or equal the higher bid of the non-Filipino bidder if the preference of the qualified Filipino
bidder is to be significant at all. While government agencies, including the courts should re-
condition their thinking to such a trend, and make it easy and even attractive for foreign investors
to come to our shores, yet we should not preclude ourselves from reserving to us Filipinos certain
areas where our national identity, culture and heritage are involved. In the hotel industry, for
instance, foreign investors have established themselves creditably, such as in the Shangri-La, the
Nikko, the Peninsula, and Mandarin Hotels. This should not stop us from retaining 51% of the
capital stock of the Manila Hotel Corporation in the hands of Filipinos. This would be in keeping
with the intent of the Filipino people to preserve our national patrimony, including our historical
and cultural heritage in the hands of Filipinos.

VITUG, J., separate opinion: ch anrob1e s virtual 1aw lib rary

1. POLITICAL LAW; CONSTITUTION; NATIONAL PATRIMONY; PROVISION GIVING PREFERENCE TO

QUALIFIED FILIPINOS, SELF-EXECUTORY. — The provision in our fundamental law which provides
that" (i)n the grant of rights, privileges, and concessions covering the national economy and
patrimony, the State shall give preference to qualified Filipinos" is self-executory. The provision
verily does not need, although it can obviously be amplified or regulated by, an enabling law or a
set of rules.

2. ID.; ID.; ID.; PATRIMONY INCLUDES CULTURAL HERITAGE OF THE COUNTRY; MANILA HOTEL,
EMBRACED THEREIN. — The term "patrimony" does not merely refer to the country’s natural
resources but also to its cultural heritage. A "historical landmark," to use the words of Mr. Justice
Justo P. Torres, Jr., Manila Hotel has now indeed become part of Philippine heritage.

3. ADMINISTRATIVE LAW; GOVERNMENT SERVICE INSURANCE SYSTEM; SALE OF ITS SHARE IN

MANILA HOTEL CORPORATION, AN ACT OF THE STATE; CONSTITUTIONAL REQUIREMENT SHOULD
BE COMPLIED WITH. — The act of the Government Service Insurance System ("GSIS"), a
government entity which derives its authority from the State, in selling 51% of its share in MHC
should be considered an act of the State subject to the Constitutional mandate.

4. POLITICAL LAW; CONSTITUTION; NATIONAL PATRIMONY; PREFERENCE TO QUALIFIED

FILIPINOS; DOES NOT REFER TO ALLOWING QUALIFIED FILIPINOS TO MATCH FOREIGN BID. —
On the pivotal issue of the degree of "preference to qualified Filipinos" I find it somewhat difficult
to take the same path traversed by the forceful reasoning of Justice Puno. In the particular case
before us, the only meaningful preference, it seems, would really be to allow the qualified Filipino
to match the foreign bid for, as a practical matter, I cannot see any bid that literally calls for
millions of dollars to be at par (to the last cent) with another. The magnitude of the bids is such
that it becomes hardly possible for the competing bids to stand exactly "equal" which alone, under
the dissenting view, could trigger the right of preference.

MENDOZA, J., separate opinion: chan rob1e s virtual 1aw lib rary

POLITICAL LAW; CONSTITUTION; NATIONAL PATRIMONY; PREFERENCE TO QUALIFIED FILIPINOS;

FILIPINO BIDDERS SHOULD BE ALLOWED TO EQUAL BID OF FOREIGN FIRM IN SALE OF STOCKS
OF MANILA HOTEL CORPORATION. — I take the view that in the context of the present
controversy the only way to enforce the constitutional mandate that" [i]n the grant of rights,
privileges and concessions covering the national patrimony the State shall give preference to
qualified Filipinos" is to allow petitioner Philippine corporation to equal the bid of the Malaysian
firm Renong Berhad for the purchase of the controlling shares of stocks in the Manila Hotel
Corporation. Indeed, it is the only way a qualified Filipino or Philippine corporation can be given
preference in the enjoyment of a right, privilege or concession given by the State, by favoring it
over a foreign national or corporation. Under the rules on public bidding of the Government
Service and Insurance System, if petitioner and the Malaysian firm had offered the same price per
share, "priority [would be given] to the bidder seeking the larger ownership interest in MHC," so
that if petitioner bid for more shares, it would be preferred to the Malaysian corporation for that
reason and not because it is a Philippine corporation. Consequently, it is only in cases like the
present one, where an alien corporation is the highest bidder, that preferential treatment of the
Philippine corporation is mandated not by declaring it winner but by allowing it "to match the
highest bid in terms of price per share" before it is awarded the shares of stocks. That, to me, is
what "preference to qualified Filipinos" means in the context of this case — by favoring Filipinos
whenever they are at a disadvantage vis-a-vis foreigners.

TORRES, JR., J., separate opinion: cha nro b1es vi rtua l 1aw lib ra ry

POLITICAL LAW; CONSTITUTION; PATRIMONY OF THE NATION; MANILA HOTEL, EMBRACED

WITHIN THE MEANING THEREOF; SALE OF ITS STOCKS SHOULD BE LIMITED TO QUALIFIED
FILIPINOS. — Section 10, Article XII of the 1987 Constitution should be read in conjunction with
Article II of the same Constitution pertaining to "Declaration of Principles and State Policies" which
ordain — "The State shall develop a self-reliant and independent national economy, effectively
controlled by Filipinos." (Sec. 19), Interestingly, the matter of giving preference to "qualified
Filipinos" was one of the highlights in the 1987 Constitution Commission proceedings. The
nationalistic provisions of the 1987 Constitution reflect the history and spirit of the Malolos
Constitution of 1898, the 1935 Constitution and the 1973 Constitution. I subscribe to the view that
history, culture, heritage, and tradition are not legislated and is the product of events, customs,
usages and practices. It is actually a product of growth and acceptance by the collective mores of
a race. It is the spirit and soul of a people. The Manila Hotel is part of our history, culture and
heritage. Every inch of the Manila Hotel is witness to historic events (too numerous to mention)
which shaped our history for almost 84 years. The history of the Manila Hotel should not be placed
in the auction block of a purely business transaction, where profit subverts the cherished historical
values of our people. The Filipino should be first under his Constitution and in his own land.

PUNO, J., dissenting opinion: chan rob1es v irt ual 1aw l ibra ry

1. POLITICAL LAW; CONSTITUTION; AS A RULE PROVISIONS THEREOF ARE SELF-EXECUTING. —

A Constitution provides the guiding policies and principles upon which is built the substantial
foundation and general framework of the law and government. As a rule, its provisions are
deemed self-executing and can be enforced without further legislative action. Some of its
provisions, however, can be implemented only through appropriate laws enacted by the
Legislature, hence not self-executing. Courts as a rule consider the provisions of the Constitution
as self-executing, rather than as requiring future legislation for their enforcement. The reason is
not difficult to discern For if they are not treated as self-executing, the mandate of the
fundamental law ratified by the sovereign people can be easily ignored and nullified by Congress.
Suffused with wisdom of the ages is the unyielding rule that legislative actions may give breath to
constitutional rights but congressional inaction should not suffocate them.

2. ID.; ID.; PROVISIONS ARE NOT SELF-EXECUTING WHERE IT MERELY ANNOUNCES A POLICY
AND EMPOWERS THE LEGISLATURE TO ENACT LAWS TO CARRY THE POLICY INTO EFFECT. —
Contrariwise, case law lays down the rule that a constitutional provision is not self-executing
where it merely announces a policy and its language empowers the Legislature to prescribe the
means by which the policy shall be carried into effect.

3. ID.; ID.; FIRST PARAGRAPH OF SECTION 10, ARTICLE 12 NOT SELF-EXECUTING. — The first
paragraph directs Congress to reserve certain areas of investments in the country to Filipino
citizens or to corporations sixty per cent of whose capital stock is owned by Filipinos. It further
commands Congress to enact laws that will encourage the formation and operation of one hundred
percent Filipino-owned enterprises. In checkered contrast, the second paragraph orders the entire
State to give preference to qualified Filipinos in the grant of rights and privileges covering the
national economy and patrimony. The third paragraph also directs the State to regulate foreign
investments in line with our national goals and well-set priorities. The first paragraph of Section 10
is not self-executing. By its express text, there is a categorical command for Congress to enact
laws restricting foreign ownership in certain areas of investments in the country and to encourage
the formation and operation of wholly-owned Filipino enterprises.

4. ID.; ID.; NATIONAL PATRIMONY; PREFERENCE TO QUALIFIED FILIPINOS UNDER PARAGRAPHS

2 AND 3 OF SECTION 10, ARTICLE 12, SELF-EXECUTING. — The second and third paragraphs of
Section 10 are different. They are directed to the State and not to Congress alone which is but one
of the three great branches of our government. Their coverage is also broader for they cover "the
national economy and patrimony" and "foreign investments within [the] national jurisdiction" and
not merely "certain areas of investments." Beyond debate, they cannot be read as granting
Congress the exclusive power to implement by law the policy of giving preference to qualified
Filipinos in the conferral of rights and privileges covering our national economy and patrimony.
Their language does not suggest that any of the State agency or instrumentality has the privilege
to hedge or to refuse its implementation for any reason whatsoever. Their duty to implement is
unconditional and it is now. The second and the third paragraphs of Section 10, Article XII are thus
self-executing.

5. ID.; ID.; ID.; MANILA HOTEL CORPORATION, PART OF THE NATIONAL PATRIMONY. — The
second issue is whether the sale of a majority of the stocks of the Manila Hotel Corporation
involves the disposition of part of our national patrimony. The records of the Constitutional
Commission show that the Commissioners entertained the same view as to its meaning. According
to Commissioner Nolledo, "patrimony" refers not only to our rich natural resources but also to the
cultural heritage of our race. By this yardstick, the sale of Manila Hotel falls within the coverage of
the constitutional provision giving preferential treatment to qualified Filipinos in the grant of rights
involving our national patrimony.

6. ID.; STATE; GSIS, EMBRACED WITHIN THE MEANING THEREOF. — The third issue is whether
the constitutional command to the State includes the respondent GSIS. A look at its charter will
reveal that GSIS is a government-owned and controlled corporation that administers funds that
come from the monthly contributions of government employees and the government. The funds
are held in trust for a distinct purpose which cannot be disposed of indifferently. They are to be
used to finance the retirement, disability and life insurance benefits of the employees and the
administrative and operational expenses of the GSIS. Excess funds, however, are allowed to be
invested in business and other ventures for the benefit of the employees. The GSIS is not a pure
private corporation. It is essentially a public corporation created by Congress and granted an
original charter to serve a public purpose. It is subject to the jurisdictions of the Civil Service
Commission and the Commission on Audit. As a state-owned and controlled corporation, it is skin-
bound to adhere to the policies spelled out in the Constitution especially those designed to
promote the general welfare of the people. One of these policies is the Filipino First policy which
the people elevated as a constitutional command.

7. ID.; CONSTITUTION; PROVISIONS THEREOF DEEMED INCLUDED IN ALL LEGISLATIONS AND

ALL STATE ACTIONS. — The constitutional command to enforce the Filipino First policy is
addressed to the State and not to Congress alone. Hence, the word "laws" should not be
understood as limited to legislations but all state actions which include applicable rules and
regulations adopted by agencies and instrumentalities of the State in the exercise of their rule-
making power.

8. ID.; ID.; NATIONAL PATRIMONY; PREFERENCE TO QUALIFIED FILIPINOS; STATE NOT

PROHIBITED FROM GRANTING RIGHTS TO FOREIGN FIRM IN THE ABSENCE OF QUALIFIED
FILIPINOS. — In the absence of qualified Filipinos, the State is not prohibited from granting these
rights, privileges and concessions to foreigners if the act will promote the weal of the nation.

9. ID.; ID.; ID.; ID.; CASE AT BAR. — The right of preference of petitioner arises only if it tied the
bid of Renong Berhad. In that instance, all things stand equal, and petitioner, as a qualified Filipino
bidder, should be preferred. It is with deep regret that I cannot subscribe to the view that
petitioner has a right to match the bid of Renong Berhad. Petitioner’s submission must be
supported by the rules but even if we examine the rules inside-out a thousand times, they can not
justify the claimed right. Under the rules, the right to match the highest bid arises only "if for any
reason, the highest bidder cannot be awarded the block of shares . . ." No reason has arisen that
will prevent the award to Renong Berhad. It deserves the award as a matter of right for the rules
clearly did not give to the petitioner as a qualified Filipino the privilege to match the higher bid of a
foreigner. What the rules did not grant, petitioner cannot demand. Our sympathies may be with
petitioner but the court has no power to extend the latitude and longtitude of the right of
preference as defined by the rules. We are duty-bound to respect that determination even if we
differ with the wisdom of their judgment. The right they grant may be little but we must uphold
the grant for as long as the right of preference is not denied. It is only when a State action
amounts to a denial of the right that the Court can come in and strike down the denial as
unconstitutional.

10. REMEDIAL LAW; ACTIONS; ESTOPPEL; PARTY ESTOPPED FROM ASSAILING THE WINNING BID
OF FOREIGN FIRM FROM BEING AWARE OF THE RULES AND REGULATIONS OF THE BIDDINGS IT
AGREED TO RESPECT. — I submit that petitioner is estopped from assailing the winning bid of
Renong Berhad. Petitioner was aware of the rules and regulations of the bidding. It knew that the
rules and regulations do not provide that a qualified Filipino bidder can match the winning bid after
submitting an inferior bid. It knew that the bid was open to foreigners and that foreigners qualified
even during the first bidding. Petitioner cannot be allowed to repudiate the rules which it agreed to
respect. It cannot be allowed to obey the rules when it wins and disregard them when it loses. If
sustained, petitioners’ stance will wreak havoc on the essence of bidding.

PANGANIBAN, J., separate dissenting opinion: chan rob1e s virtual 1aw l ibrary

POLITICAL LAW; CONSTITUTION; PATRIMONY OF THE NATION; PREFERENCE TO QUALIFIED

FILIPINOS; LOSING FILIPINO NOT GIVEN RIGHT TO EQUAL THE HIGHEST FOREIGN BID. — The
majority contends the Constitution should be interpreted to mean that, after a bidding process is
concluded, the losing Filipino bidder should be given the right to equal the highest foreign bid, and
thus to win. However, the Constitution [Sec. 10 (2), Art. XII] simply states that "in the grant of
rights . . . covering the national economy and patrimony, the State shall give preference to
qualified Filipinos." The majority concedes that there is no law defining the extent or degree of
such preference. Specifically, no statute empowers a losing Filipino bidder to increase his bid and
equal that of the winning foreigner. In the absence of such empowering law, the majority’s
strained interpretation, I respectfully submit, constitutes unadulterated judicial legislation, which
makes bidding a ridiculous sham where no Filipino can lose and where no foreigner can win. Only
in the Philippines! Aside from being prohibited by the Constitution, such judicial legislation is short-
sighted and, viewed properly, gravely prejudicial to long-term Filipino interests. In the absence of
a law specifying the degree or extent of the "Filipino First" policy of the Constitution, the
constitutional preference for the "qualified Filipinos" may be allowed only where all the bids are
equal. In this manner, we put the Filipino ahead without self-destructing him and without being
unfair to the foreigner. In short, the Constitution mandates a victory for the qualified Filipino only
when the scores are tied. But not when the ballgame is over and the foreigner clearly posted the
highest score.

DECISION
 BELLOSILLO, J.:

The Filipino First Policy enshrined in the 1987 Constitution, i.e., in the grant of rights, privileges,
and concessions covering the national economy and patrimony, the State shall give preference to
qualified Filipinos, 1 is invoked by petitioner in its bid to acquire 51% of the shares of the Manila
Hotel Corporation (MHC) which owns the historic Manila Hotel. Opposing, respondents maintain
that the provision is not self-executing but requires an implementing legislation for its
enforcement. Corollarily, they ask whether the 51% shares form part of the national economy and
patrimony covered by the protective mantle of the Constitution.

The controversy arose when respondent Government Service Insurance System (GSIS), pursuant
to the privatization program of the Philippine Government under Proclamation No. 50 dated 8
December 1986, decided to sell through public bidding 30% to 51% of the issued and outstanding
shares of respondent MHC. The winning bidder, or the eventual "strategic partner," is to provide
management expertise and/or an international marketing/ reservation system, and financial
support to strengthen the profitability and performance of the Manila Hotel. 2 In a close bidding
held on 18 September 1995 only two (2) bidders participated: petitioner Manila Prince Hotel
Corporation, a Filipino corporation, which offered to buy 51% of the MHC or 15,300,000 shares at
P41.58 per share, and Renong Berhad, a Malaysian firm, with ITT-Sheraton as its hotel operator,
which bid for the same number of shares at P44.00 per share, or P2.42 more than the bid of
petitioner.

Pertinent provisions of the bidding rules prepared by respondent GSIS state —

I. EXECUTION OF THE NECESSARY CONTRACTS WITH GSIS/MHC —

1. The Highest Bidder must comply with the conditions set forth below by October 23, 1995 (reset
to November 3, 1995) or the Highest Bidder will lose the right to purchase the Block of Shares and
GSIS will instead offer the Block of Shares to the other Qualified Bidders: chan rob1e s virtual 1aw lib rary

a. The Highest Bidder must negotiate and execute with the GSIS/MHC the Management Contract,
International Marketing/Reservation System Contract or other type of contract specified by the
Highest Bidder in its strategic plan for the Manila Hotel . . . .

b. The Highest Bidder must execute the Stock Purchase and Sale Agreement with GSIS . . . .

K. DECLARATION OF THE WINNING BIDDER/STRATEGIC PARTNER —

The Highest Bidder will be declared the Winning Bidder/Strategic Partner after the following
conditions are met

a. Execution of the necessary contracts with GSIS/MHC not later than October 23, 1995 (reset to
November 3, 1995); and

b. Requisite approvals from the GSIS/MHC and COP (Committee on Privatization)/ OGCC (Office of
the Government Corporate Counsel) are obtained." 3

Pending the declaration of Renong Berhard as the winning bidder/strategic partner and the
execution of the necessary contracts, petitioner in a letter to respondent GSIS dated 28
September 1995 matched the bid price of P44.00 per share tendered by Renong Berhad. 4 In a
subsequent letter dated 10 October 1995 petitioner sent a manager’s check issued by Philtrust
Bank for Thirty-three Million Pesos (P33,000,000.00) as Bid Security to match the bid of the
Malaysian Group, Messrs. Renong Berhad . . . . 5 which respondent GSIS refused to accept.

On 17 October 1995, perhaps apprehensive that respondent GSIS has disregarded the tender of
the matching bid and that the sale of 51% of the MHC may be hastened by respondent GSIS and
consummated with Renong Berhad, petitioner came to this Court on prohibition and mandamus.
On 18 October 1995 the Court issued a temporary restraining order enjoining respondents from
perfecting and consummating the sale to the Malaysian firm.
On 10 September 1996 the instant case was accepted by the Court En Banc after it was referred
to it by the First Division. The case was then set for oral arguments with former Chief Justice
Enrique M. Fernando and Fr. Joaquin G. Bernas, S.J., as amici curiae.

In the main, petitioner invokes Sec. 10, second par., Art. XII, of the 1987 Constitution and
submits that the Manila Hotel has been identified with the Filipino nation and has practically
become a historical monument which reflects the vibrancy of Philippine heritage and culture. It is a
proud legacy of an earlier generation of Filipinos who believed in the nobility and sacredness of
independence and its power and capacity to release the full potential of the Filipino people. To all
intents and purposes, it has become a part of the national patrimony. 6 Petitioner also argues that
since 51% of the shares of the MHC carries with it the ownership of the business of the hotel which
is owned by respondent GSIS, a government-owned and controlled corporation, the hotel business
of respondent GSIS being a part of the tourism industry is unquestionably a part of the national
economy. Thus, any transaction involving 51% of the shares of stock of the MHC is clearly covered
by the term national economy, to which Sec. 10, second par., Art. XII, 1987 Constitution, applies.
7

It is also the thesis of petitioner that since Manila Hotel is part of the national patrimony and its
business also unquestionably part of the national economy petitioner should be preferred after it
has matched the bid offer of the Malaysian firm. For the bidding rules mandate that if for any
reason, the Highest Bidder cannot be awarded the Block of Shares, GSIS may offer this to the
other Qualified Bidders that have validly submitted bids provided that these Qualified Bidders are
willing to match the highest bid in terms of price per share. 8

Respondents except. They maintain that: First, Sec. 10, second par., Art. XII, of the 1987
Constitution is merely a statement of principle and policy since it is not a self-executing provision
and requires implementing legislation(s). . . . Thus, for the said provision to operate, there must
be existing laws "to lay down conditions under which business may be done." 9

Second, granting that this provision is self-executing, Manila Hotel does not fall under the term
national patrimony which only refers to lands of the public domain, waters, minerals, coal,
petroleum and other mineral oils, all forces of potential energy, fisheries, forests or timber,
wildlife, flora and fauna and all marine wealth in its territorial sea, and exclusive marine zone as
cited in the first and second paragraphs of Sec. 2, Art. XII, 1987 Constitution. According to
respondents, while petitioner speaks of the guests who have slept in the hotel and the events that
have transpired therein which make the hotel historic, these alone do not make the hotel fall under
the patrimony of the nation. What is more, the mandate of the Constitution is addressed to the
State, not to respondent GSIS which possesses a personality of its own separate and distinct from
the Philippines as a State.chanrobles

Third, granting that the Manila Hotel forms part of the national patrimony, the constitutional
provision invoked is still inapplicable since what is being sold is only 51% of the outstanding
shares of the corporation, not the hotel building nor the land upon which the building stands.
Certainly, 51% of the equity of the MHC cannot be considered part of the national patrimony.
Moreover, if the disposition of the shares of the MHC is really contrary to the Constitution,
petitioner should have questioned it right from the beginning and not after it had lost in the
bidding.

Fourth, the reliance by petitioner on par. V., subpar. J. 1, of the bidding rules which provides that
if for any reason, the Highest Bidder cannot be awarded the Block of Shares, GSIS may offer this
to the other Qualified Bidders that have validly submitted bids provided that these Qualified
Bidders are willing to match the highest bid in terms of price per share, is misplaced. Respondents
postulate that the privilege of submitting a matching bid has not yet arisen since it only takes
place if for any reason, the Highest Bidder cannot be awarded the Block of Shares. Thus the
submission by petitioner of a matching bid is premature since Renong Berhad could still very well
be awarded the block of shares and the condition giving rise to the exercise of the privilege to
submit a matching bid had not yet taken place.

Finally, the prayer for prohibition grounded on grave abuse of discretion should fail since
respondent GSIS did not exercise its discretion in a capricious, whimsical manner, and if ever it did
abuse its discretion it was not so patent and gross as to amount to an evasion of a positive duty or
a virtual refusal to perform a duty enjoined by law. Similarly, the petition for mandamus should
fail as petitioner has no clear legal right to what it demands and respondents do not have an
imperative duty to perform the act required of them by petitioner.

We now resolve. A constitution is a system of fundamental laws for the governance and
administration of a nation. It is supreme, imperious, absolute and unalterable except by the
authority from which it emanates. It has been defined as the fundamental and paramount law of
the nation. 10 It prescribes the permanent framework of a system of government, assigns to the
different departments their respective powers and duties, and establishes certain fixed principles
on which government is founded. The fundamental conception in other words is that it is a
supreme law to which all other laws must conform and in accordance with which all private rights
must be determined and all public authority administered. 11 Under the doctrine of constitutional
supremacy, if a law or contract violates any norm of the constitution that law or contract whether
promulgated by the legislative or by the executive branch or entered into by private persons for
private purposes is null and void and without any force and effect. Thus, since the Constitution is
the fundamental paramount and supreme law of the nation, it is deemed written in every statute
and contract.

Admittedly, some constitutions are merely declarations of policies and principles. Their provisions
command the legislature to enact laws and carry out the purposes of the framers who merely
establish an outline of government providing for the different departments of the governmental
machinery and securing certain fundamental and inalienable rights of citizens. 12 A provision
which lays down a general principle, such as those found in Art. II of the 1987 Constitution, is
usually not self-executing. But a provision which is complete in itself and becomes operative
without the aid of supplementary or enabling legislation, or that which supplies sufficient rule by
means of which the right it grants may be enjoyed or protected, is self-executing. Thus a
constitutional provision is self-executing if the nature and extent of the right conferred and the
liability imposed are fixed by the constitution itself, so that they can be determined by an
examination and construction of its terms, and there is no language indicating that the subject is
referred to the legislature for action. 13

As against constitutions of the past, modern constitutions have been generally drafted upon a
different principle and have often become in effect extensive codes of laws intended to operate
directly upon the people in a manner similar to that of statutory enactments, and the function of
constitutional conventions has evolved into one more like that of a legislative body. Hence, unless
it is expressly provided that a legislative act is necessary to enforce a constitutional mandate, the
presumption now is that all provisions of the constitution are self-executing. If the constitutional
provisions are treated as requiring legislation instead of self-executing, the legislature would have
the power to ignore and practically nullify the mandate of the fundamental law. 14 This can be
cataclysmic. That is why the prevailing view is, as it has always been, that —

. . . in case of doubt, the Constitution should be considered self-executing rather than non-self-
executing. . . . Unless the contrary is clearly intended, the provisions of the Constitution should be
considered self-executing, as a contrary rule would give the legislature discretion to determine
when, or whether, they shall be effective. These provisions would be subordinated to the will of
the lawmaking body, which could make them entirely meaningless by simply refusing to pass the
needed implementing statute. 15

Respondents argue that Sec. 10, second par., Art. XII, of the 1987 Constitution is clearly not self-
executing, as they quote from discussions on the floor of the 1986 Constitutional Commission —

MR. RODRIGO. Madam President, I am asking this question as the Chairman of the Committee on
Style. If the wording of "PREFERENCE" is given to "QUALIFIED FILIPINOS," can it be understood as
a preference to qualified Filipinos vis-a-vis Filipinos who are not qualified. So, why do we not make
it clear? To qualified Filipinos as against aliens?

THE PRESIDENT. What is the question of Commissioner Rodrigo? Is it to remove the word
"QUALIFIED?"

MR. RODRIGO. No, no, but say definitely "TO QUALIFIED FILIPINOS" as against whom? As against
aliens or over aliens?
MR. NOLLEDO. Madam President, I think that is understood. We use the word "QUALIFIED"
because the existing laws or prospective laws will always lay down conditions under which
business may be done. For example, qualifications on capital, qualifications on the setting up of
other financial structures, et cetera (Emphasis supplied by respondents).

MR RODRIGO. It is just a matter of style.

MR. NOLLEDO. Yes. 16

Quite apparently, Sec. 10, second par., of Art. XII is couched in such a way as not to make it
appear that it is non-self-executing but simply for purposes of style. But, certainly, the legislature
is not precluded from enacting further laws to enforce the constitutional provision so long as the
contemplated statute squares with the Constitution. Minor details may be left to the legislature
without the self-executing nature of constitutional provisions.

In self-executing constitutional provisions, the legislature may still enact legislation to facilitate the
exercise of powers directly granted by the constitution, further the operation of such a provision,
prescribe a practice to be used for its enforcement, provide a convenient remedy for the protection
of the rights secured or the determination thereof, or place reasonable safeguards around the
exercise of the right. The mere fact that legislation may supplement and add to or prescribe a
penalty for the violation of a self-executing constitutional provision does not render such a
provision ineffective in the absence of such legislation. The omission from a constitution of any
express provision for a remedy for enforcing a right or liability is not necessarily an indication that
it was not intended to be self-executing. The rule is that a self-executing provision of the
constitution does not necessarily exhaust legislative power on the subject, but any legislation must
be in harmony with the constitution, further the exercise of constitutional right and make it more
available. 17 Subsequent legislation however does not necessarily mean that the subject
constitutional provision is not, by itself, fully enforceable.

Respondents also argue that the non-self-executing nature of Sec. 10, second par., of Art. XII is
implied from the tenor of the first and third paragraphs of the same section which undoubtedly are
not self-executing. 18 The argument is flawed. If the first and third paragraphs are not self-
executing because Congress is still to enact measures to encourage the formation and operation of
enterprises fully owned by Filipinos, as in the first paragraph, and the State still needs legislation
to regulate and exercise authority over foreign investments within its national jurisdiction, as in
the third paragraph, then a fortiori, by the same logic, the second paragraph can only be self-
executing as it does not by its language require any legislation in order to give preference to
qualified Filipinos in the grant of rights, privileges and concessions covering the national economy
and patrimony. A constitutional provision may be self-executing in one part and non-self-executing
in another. 19

Even the cases cited by respondents holding that certain constitutional provisions are merely
statements of principles and policies, which are basically not self-executing and only placed in the
Constitution as moral incentives to legislation, not as judicially enforceable rights — are simply not
in point. Basco v. Philippine Amusements and Gaming Corporation 20 speaks of constitutional
provisions on personal dignity, 21 the sanctity of family life, 22 the vital role of the youth in
nation-building, 23 the promotion of social justice, 24 and the values of education. 25 Tolentino v.
Secretary of Finance 26 refers to constitutional provisions on social justice and human rights 27
and on education. 28 Lastly, Kilosbayan, Inc. v. Morato 29 cites provisions on the promotion of
general welfare, 30 the sanctity of family life, 31 the vital role of the youth in nation-building 32
and the promotion of total human liberation and development. 33 A reading of these provisions
indeed clearly shows that they are not judicially enforceable constitutional rights but merely
guidelines for legislation. The very terms of the provisions manifest that they are only principles
upon which legislations must be based. Res ipsa loquitur.

On the other hand, Sec. 10, second par., Art. XII of the 1987 Constitution is a mandatory, positive
command which is complete in itself and which needs no further guidelines or implementing laws
or rules for its enforcement. From its very words the provision does not require any legislation to
put it in operation. It is per se judicially enforceable. When our Constitution mandates that [i]n the
grant of rights, privileges, and concessions covering national economy and patrimony, the State
shall give preference to qualified Filipinos, it means just that — qualified Filipinos shall be
preferred. And when our Constitution declares that a right exists in certain specified circumstances
an action may be maintained to enforce such right notwithstanding the absence of any legislation
on the subject; consequently, if there is no statute especially enacted to enforce such
constitutional right, such right enforces itself by its own inherent potency and puissance, and from
which all legislations must take their bearings. Where there is a right there is a remedy. Ubi jus ibi
remedium.

As regards our national patrimony, a member of the 1986 Constitutional Commission 34 explains
—

The patrimony of the Nation that should be conserved and developed refers not only to our rich
natural resources but also to the cultural heritage of our race. It also refers to our intelligence in
arts, sciences and letters. Therefore, we should develop not only our lands, forests, mines and
other natural resources but also the mental ability or faculty of our people.

We agree. In its plain and ordinary meaning, the term patrimony pertains to heritage. 35 When
the Constitution speaks of national patrimony, it refers not only to the natural resources of the
Philippines, as the Constitution could have very well used the term natural resources, but also to
the cultural heritage of the Filipinos.

Manila Hotel has become a landmark — a living testimonial of Philippine heritage. While it was
restrictively an American hotel when it first opened in 1912, it immediately evolved to be truly
Filipino. Formerly a concourse for the elite, it has since then become the venue of various
significant events which have shaped Philippine history. It was called the Cultural Center of the
1930’s. It was the site of the festivities during the inauguration of the Philippine Commonwealth.
Dubbed as the Official Guest House of the Philippine Government it plays host to dignitaries and
official visitors who are accorded the traditional Philippine hospitality. 36

The history of the hotel has been chronicled in the book The Manila Hotel: The Heart and Memory
of a City. 37 During World War II the hotel was converted by the Japanese Military Administration
into a military headquarters. When the American forces returned to recapture Manila the hotel was
selected by the Japanese together with Intramuros as the two (2) places for their final stand.
Thereafter, in the 1950’s and 1960’s, the hotel became the center of political activities, playing
host to almost every political convention. In 1970 the hotel reopened after a renovation and
reaped numerous international recognitions, an acknowledgment of the Filipino talent and
ingenuity. In 1986 the hotel was the site of a failed coup d’etat where an aspirant for vice-
president was "proclaimed" President of the Philippine Republic.

For more than eight (8) decades Manila Hotel has bore mute witness to the triumphs and failures,
loves and frustrations of the Filipinos; its existence is impressed with public interest; its own
historicity associated with our struggle for sovereignty, independence and nationhood. Verily,
Manila Hotel has become part of our national economy and patrimony. For sure, 51% of the equity
of the MHC comes within the purview of the constitutional shelter for it comprises the majority and
controlling stock, so that anyone who acquires or owns the 51% will have actual control and
management of the hotel. In this instance, 51% of the MHC cannot be disassociated from the hotel
and the land on which the hotel edifice stands. Consequently, we cannot sustain respondents’
claim that the Filipino First Policy provision is not applicable since what is being sold is only 51% of
the outstanding shares of the corporation, not the Hotel building nor the land upon which the
building stands. 38

The argument is pure sophistry. The term qualified Filipinos as used in our Constitution also
includes corporations at least 60% of which is owned by Filipinos. This is very clear from the
proceedings of the 1986 Constitutional Commission —

THE PRESIDENT.

Commissioner Davide is recognized.

MR. DAVIDE.

I would like to introduce an amendment to the Nolledo amendment. And the amendment would
consist in substituting the words "QUALIFIED FILIPINOS" with the following: "CITIZENS OF THE
PHILIPPINES OR CORPORATIONS OR ASSOCIATIONS WHOSE CAPITAL OR CONTROLLING STOCK
IS WHOLLY OWNED BY SUCH CITIZENS." cralaw virtua1aw lib rary

x x x

MR. MONSOD.

Madam President, apparently the proponent is agreeable, but we have to raise a question.
Suppose it is a corporation that is 80-percent Filipino, do we not give it preference?

MR. DAVIDE.

The Nolledo amendment would refer to an individual Filipino. What about a corporation wholly
owned by Filipino citizens?

MR. MONSOD.

At least 60 percent, Madam President.

MR. DAVIDE.

Is that the intention?

MR MONSOD.

Yes, because, in fact, we would be limiting it if we say that the preference should only be 100-
percent Filipino.

MR. DAVIDE.

I want to get that meaning clear because "QUALIFIED FILIPINOS" may refer only to individuals
and not to juridical personalities or entities.

MR. MONSOD.

We agree, Madam President. 39

x x x

MR. RODRIGO.

Before we vote, may I request that the amendment be read again.

MR. NOLLEDO.

The amendment will read: "IN THE GRANT OF RIGHTS, PRIVILEGES AND CONCESSIONS
COVERING THE NATIONAL ECONOMY AND PATRIMONY, THE STATE SHALL GIVE PREFERENCE TO
QUALIFIED FILIPINOS." And the word "Filipinos" here, as intended by the proponents, will include
not only individual Filipinos but also Filipino-controlled entities or entities fully-controlled by
Filipinos. 40

The phrase preference to qualified Filipinos was explained thus —

MR. FOZ.

Madam President, I would like to request Commissioner Nolledo to please restate his amendment
so that I can ask a question.

MR. NOLLEDO.
"IN THE GRANT OF RIGHTS, PRIVILEGES AND CONCESSIONS COVERING THE NATIONAL
ECONOMY AND PATRIMONY, THE STATE SHALL GIVE PREFERENCE TO QUALIFIED FILIPINOS." cralaw virt ua1aw lib rary

MR. FOZ.

In connection with that amendment, if a foreign enterprise is qualified and a Filipino enterprise is
also qualified, will the Filipino enterprise still be given a preference?

MR. NOLLEDO.

Obviously.

MR. FOZ.

If the foreigner is more qualified in some aspects than the Filipino enterprise, will the Filipino still
be preferred?

MR. NOLLEDO.

The answer is "yes." cralaw virt ua1aw lib rary

MR. FOZ.

Thank you. 41

Expounding further on the Filipino First Policy provision Commissioner Nolledo continues —

MR NOLLEDO.

Yes, Madam President. Instead of "MUST," it will be "SHALL — THE STATE SHALL GIVE
PREFERENCE TO QUALIFIED FILIPINOS." This embodies the so-called "Filipino First" policy. That
means that Filipinos should be given preference in the grant of concessions, privileges and rights
covering the national patrimony. 42

The exchange of views in the sessions of the Constitutional Commission regarding the subject
provision was still further clarified by Commissioner Nolledo 43 —

"Paragraph 2 of Section 10 explicitly mandates the "Pro-Filipino" bias in all economic concerns. It
is better known as the FILIPINO FIRST Policy. . . . This provision was never found in previous
Constitutions. . . .

The term "qualified Filipinos" simply means that preference shall be given to those citizens who
can make a viable contribution to the common good, because of credible competence and
efficiency. It certainly does NOT mandate the pampering and preferential treatment to Filipino
citizens or organizations that are incompetent or inefficient, since such an indiscriminate
preference would be counterproductive and inimical to the common good.

In the granting of economic rights, privileges, and concessions, when a choice has to be made
between a "qualified foreigner" and a "qualified Filipino," the latter shall be chosen over the
former."cralaw virtua1aw l ibra ry

Lastly, the word qualified is also determinable. Petitioner was so considered by respondent GSIS
and selected as one of the qualified bidders. It was pre-qualified by respondent GSIS in
accordance with its own guidelines so that the sole inference here is that petitioner has been found
to be possessed of proven management expertise in the hotel industry, or it has significant equity
ownership in another hotel company, or it has an overall management and marketing proficiency
to successfully operate the Manila Hotel. 44

The penchant to try to whittle away the mandate of the Constitution by arguing that the subject
provision is not self-executory and requires implementing legislation is quite disturbing. The
attempt to violate a clear constitutional provision — by the government itself — is only too
distressing. To adopt such a line of reasoning is to renounce the duty to ensure faithfulness to the
Constitution. For, even some of the provisions of the Constitution which evidently need
implementing legislation have juridical life of their own and can be the source of a judicial remedy.
We cannot simply afford the government a defense that arises out of the failure to enact further
enabling, implementing or guiding legislation. In fine, the discourse of Fr. Joaquin G. Bernas, S.J.,
on constitutional government is apt —

The executive department has a constitutional duty to implement laws, including the Constitution,
even before Congress acts — provided that there are discoverable legal standards for executive
action. When the executive acts, it must be guided by its own understanding of the constitutional
command and of applicable laws. The responsibility for reading and understanding the Constitution
and the laws is not the sole prerogative of Congress. If it were, the executive would have to ask
Congress, or perhaps the Court, for an interpretation every time the executive is confronted by a
constitutional command. That is not how constitutional government operates. 45

Respondents further argue that the constitutional provision is addressed to the State, not to
respondent GSIS which by itself possesses a separate and distinct personality. This argument
again is at best specious. It is undisputed that the sale of 51% of the MHC could only be carried
out with the prior approval of the State acting through respondent Committee on Privatization. As
correctly pointed out by Fr. Joaquin G. Bernas, S.J., this fact alone makes the sale of the assets of
respondents GSIS and MHC a "state action." In constitutional jurisprudence, the acts of persons
distinct from the government are considered "state action" covered by the Constitution (1) when
the activity it engages in is a "public function;" (2) when the government is so-significantly
involved with the private actor as to make the government responsible for his action; and, (3)
when the government has approved or authorized the action. It is evident that the act of
respondent GSIS in selling 51% of its share in respondent MHC comes under the second and third
categories of "state action." Without doubt therefore the transaction, although entered into by
respondent GSIS, is in fact a transaction of the State and therefore subject to the constitutional
command. 46

When the Constitution addresses the State it refers not only to the people but also to the
government as elements of the State. After all, government is composed of three (3) divisions of
power — legislative, executive and judicial. Accordingly, a constitutional mandate directed to the
State is correspondingly directed to the three (3) branches of government. It is undeniable that in
this case the subject constitutional injunction is addressed among others to the Executive
Department and respondent GSIS, a government instrumentality deriving its authority from the
State.

It should be stressed that while the Malaysian firm offered the higher bid it is not yet the winning
bidder. The bidding rules expressly provide that the highest bidder shall only be declared the
winning bidder after it has negotiated and executed the necessary contracts, and secured the
requisite approvals. Since the Filipino First Policy provision of the Constitution bestows preference
on qualified Filipinos the mere tending of the highest bid is not an assurance that the highest
bidder will be declared the winning bidder. Resultantly, respondents are not bound to make the
award yet, nor are they under obligation to enter into one with the highest bidder. For in choosing
the awardee respondents are mandated to abide by the dictates of the 1987 Constitution the
provisions of which are presumed to be known to all the bidders and other interested parties.

Adhering to the doctrine of constitutional supremacy, the subject constitutional provision is, as it
should be, impliedly written in the bidding rules issued by respondent GSIS, lest the bidding rules
be nullified for being violative of the Constitution. It is a basic principle in constitutional law that all
laws and contracts must conform with the fundamental law of the land. Those which violate the
Constitution lose their reason for being.

Paragraph V. J. 1 of the bidding rules provides that [i]f for any reason the Highest Bidder cannot
be awarded the Block of Shares, GSIS may offer this to other Qualified Bidders that have validly
submitted bids provided that these Qualified Bidders are willing to match the highest bid in terms
of price per share. 47 Certainly, the constitutional mandate itself is reason enough not to award
the block of shares immediately to the foreign bidder notwithstanding its submission of a higher,
or even the highest, bid. In fact, we cannot conceive of a stronger reason than the constitutional
injunction itself.

In the instant case, where a foreign firm submits the highest bid in a public bidding concerning the
grant of rights, privileges and concessions covering the national economy and patrimony, thereby
exceeding the bid of a Filipino, there is no question that the Filipino will have to be allowed to
match the bid of the foreign entity. And if the Filipino matches the bid of a foreign firm the award
should go to the Filipino. It must be so if we are to give life and meaning to the Filipino First Policy
provision of the 1987 Constitution. For, while this may neither be expressly stated nor
contemplated in the bidding rules, the constitutional fiat is omnipresent to be simply disregarded.
To ignore it would be to sanction a perilous skirting of the basic law.

This Court does not discount the apprehension that this policy may discourage foreign investors.
But the Constitution and laws of the Philippines are understood to be always open to public
scrutiny. These are given factors which investors must consider when venturing into business in a
foreign jurisdiction. Any person therefore desiring to do business in the Philippines or with any of
its agencies or instrumentalities is presumed to know his rights and obligations under the
Constitution and the laws of the forum

The argument of respondents that petitioner is now estopped from questioning the sale to Renong
Berhad since petitioner was well aware from the beginning that a foreigner could participate in the
bidding is meritless. Undoubtedly, Filipinos and foreigners alike were invited to the bidding. But
foreigners may be awarded the sale only if no Filipino qualifies, or if the qualified Filipino fails to
match the highest bid tendered by the foreign entity. In the case before us, while petitioner was
already preferred at the inception of the bidding because of the constitutional mandate, petitioner
had not yet matched the bid offered by Renong Berhad. Thus it did not have the right or
personality then to compel respondent GSIS to accept its earlier bid. Rightly, only after it had
matched the bid of the foreign firm and the apparent disregard by respondent GSIS of petitioner’s
matching bid did the latter have a cause of action.

Besides, there is no time frame for invoking the constitutional safeguard unless perhaps the award
has been finally made. To insist on selling the Manila Hotel to foreigners when there is a Filipino
group willing to match the bid of the foreign group is to insist that government be treated as any
other ordinary market player, and bound by its mistakes or gross errors of judgment, regardless of
the consequences to the Filipino people. The miscomprehension of the Constitution is regrettable.
Thus we would rather remedy the indiscretion while there is still an opportunity to do so than let
the government develop the habit of forgetting that the Constitution lays down the basic
conditions and parameters for its actions.

Since petitioner has already matched the bid price tendered by Renong Berhad pursuant to the
bidding rules, respondent GSIS is left with no alternative but to award to petitioner the block of
shares of MHC and to execute the necessary agreements and documents to effect the sale in
accordance not only with the bidding guidelines and procedures but with the Constitution as well.
The refusal of respondent GSIS to execute the corresponding documents with petitioner as
provided in the bidding rules after the latter has matched the bid of the Malaysian firm clearly
constitutes grave abuse of discretion.

The Filipino First Policy is a product of Philippine nationalism. It is embodied in the 1987
Constitution not merely to be used as a guideline for future legislation but primarily to be
enforced; so must it be enforced. This Court as the ultimate guardian of the Constitution will never
shun, under any reasonable circumstance, the duty of upholding the majesty of the Constitution
which it is tasked to defend. It is worth emphasizing that it is not the intention of this Court to
impede and diminish, much less undermine, the influx of foreign investments. Far from it, the
Court encourages and welcomes more business opportunities but avowedly sanctions the
preference for Filipinos whenever such preference is ordained by the Constitution. The position of
the Court on this matter could have not been more appropriately articulated by Chief Justice
Narvasa —

As scrupulously as it has tried to observe that it is not its function to substitute its judgment for
that of the legislature or the executive about the wisdom and feasibility of legislation economic in
nature, the Supreme Court has not been spared criticism for decisions perceived as obstacles to
economic progress and development . . . in connection with a temporary injunction issued by the
Court’s First Division against the sale of the Manila Hotel to a Malaysian Firm and its partner,
certain statements were published in a major daily to the effect that that injunction "again
demonstrates that the Philippine legal system can be a major obstacle to doing business here." cralaw virt ua1aw li bra ry
Let it be stated for the record once again that while it is no business of the Court to intervene in
contracts of the kind referred to or set itself up as the judge of whether they are viable or
attainable, it is its bounden duty to make sure that they do not violate the Constitution or the
laws, or are not adopted or implemented with grave abuse of discretion amounting to lack or
excess of jurisdiction. It will never shirk that duty, no matter how buffeted by winds of unfair and
ill-informed criticism. 48

Privatization of a business asset for purposes of enhancing its business viability and preventing
further losses, regardless of the character of the asset, should not take precedence over non-
material values. A commercial, nay even a budgetary, objective should not be pursued at the
expense of national pride and dignity. For the Constitution enshrines higher and nobler non-
material values. Indeed, the Court will always defer to the Constitution in the proper governance
of a free society; after all, there is nothing so sacrosanct in any economic policy as to draw itself
beyond judicial review when the Constitution is involved. 49

Nationalism is inherent in the very concept of the Philippines being a democratic and republican
state, with sovereignty residing in the Filipino people and from whom all government authority
emanates. In nationalism, the happiness and welfare of the people must be the goal. The nation-
state can have no higher purpose. Any interpretation of any constitutional provision must adhere
to such basic concept. Protection of foreign investments, while laudable, is merely a policy. It
cannot override the demands of nationalism. 50

The Manila Hotel or, for that matter, 51% of the MHC, is not just any commodity to be sold to the
highest bidder solely for the sake of privatization. We are not talking about an ordinary piece of
property in a commercial district. We are talking about a historic relic that has hosted many of the
most important events in the short history of the Philippines as a nation. We are talking about a
hotel where heads of states would prefer to be housed as a strong manifestation of their desire to
cloak the dignity of the highest state function to their official visits to the Philippines. Thus the
Manila Hotel has played and continues to play a significant role as an authentic repository of
twentieth century Philippine history and culture. In this sense, it has become truly a reflection of
the Filipino soul — a place with a history of grandeur; a most historical setting that has played a
part in the shaping of a country. 51 chanrob lesvi rtua llawlib ra ry:red

This Court cannot extract rhyme nor reason from the determined efforts of respondents to sell the
historical landmark — this Grand Old Dame of hotels in Asia — to a total stranger. For, indeed, the
conveyance of this epic exponent of the Filipino psyche to alien hands cannot be less than
mephistophelian for it is, in whatever manner viewed, a veritable alienation of a nation’s soul for
some pieces of foreign silver. And so we ask: What advantage, which cannot be equally drawn
from a qualified Filipino, can be gained by the Filipinos if Manila Hotel — and all that it stands for
— is sold to a non-Filipino? How much of national pride will vanish if the nation’s cultural heritage
is entrusted to a foreign entity? On the other hand, how much dignity will be preserved and
realized if the national patrimony is safekept in the hands of a qualified, zealous and well-meaning
Filipino? This is the plain and simple meaning of the Filipino First Policy provision of the Philippine
Constitution. And this Court, heeding the clarion call of the Constitution and accepting the duty of
being the elderly watchman of the nation, will continue to respect and protect the sanctity of the
Constitution.

WHEREFORE, respondents GOVERNMENT SERVICE INSURANCE SYSTEM, MANILA HOTEL

CORPORATION, COMMITTEE ON PRIVATIZATION and OFFICE OF THE GOVERNMENT CORPORATE
COUNSEL are directed to CEASE and DESIST from selling 51% of the shares of the Manila Hotel
Corporation to RENONG BERHAD, and to ACCEPT the matching bid of petitioner MANILA PRINCE
HOTEL CORPORATION to purchase the subject 51% of the shares of the Manila Hotel Corporation
at P44.00 per share and thereafter to execute the necessary agreements and documents to effect
the sale, to issue the necessary clearances and to do such other acts and deeds as may be
necessary for the purpose.

SO ORDERED
G.R. No. 96754 June 22, 1995

CONGRESSMAN JAMES L. CHIONGBIAN (Third District, South Cotobato) ADELBERT W.

ANTONINO (First District, South Cotobato), WILFREDO G. CAINGLET (Third District,
Zamboanga del Norte), HILARION RAMIRO, JR. (Second Division, Misamis Occidental),
ERNESTO S. AMATONG (Second District, Zamboanga del Norte), ALVIN G. DANS (Lone
District, Basilan), ABDULLAH M. DIMAPORO (Second District, Lanao del Norte), and
CONGRESSWOMAN MARIA CLARA A. LOBREGAT (Lone District, Zamboanga
City) petitioners,
vs.
HON. OSCAR M. ORBOS, Executive Secretary; COMMITTEE CHAIRMAN SEC. FIDEL V.
RAMOS, CABINET OFFICERS FOR REGIONAL DEVELOPMENT FOR REGIONS X AND XII,
CHAIRMAN OF THE REGIONAL DEVELOPMENT COUNCIL FOR REGION X, CHAIRMAN
JESUS V. AYALA, CABINET OFFICERS FOR REGIONAL DEVELOPMENT FOR REGIONS XI
and XII, DEPARTMENT OF LOCAL GOVERNMENT, NATIONAL ECONOMIC AND
DEVELOPMENT AUTHORITY SECRETARIAT, PRESIDENTIAL MANAGEMENT STAFF, HON.
GUILLERMO CARAGUE, Secretary of the DEPARTMENT OF BUDGET and MANAGEMENT;
and HON. ROSALINA S. CAJUCUM, OIC National Treasurer, respondents.

IMMANUEL JALDON, petitioner,

vs.
HON. EXECUTIVE SECRETARY OSCAR M. ORBOS, HON. FIDEL RAMOS, HON. SECRETARY
LUIS SANTOS, AND HON. NATIONAL TREASURER ROSALINA CAJUCOM, respondents.

MENDOZA, J.:

These suits challenge the validity of a provision of the Organic Act for the Autonomous Region in
Muslim Mindanao (R.A. No. 6734), authorizing the President of the Philippines to "merge" by
administrative determination the regions remaining after the establishment of the Autonomous
Region, and the Executive Order issued by the President pursuant to such authority, "Providing for
the Reorganization of Administrative Regions in Mindanao." A temporary restraining order prayed for
by the petitioners was issued by this Court on January 29, 1991, enjoining the respondents from
enforcing the Executive Order and statute in question.

The facts are as follows:

Pursuant to Art. X, §18 of the 1987 Constitution, Congress passed R.A. No. 6734, the Organic Act
for the Autonomous Region in Muslim Mindanao, calling for a plebiscite to be held in the provinces of
Basilan, Cotobato, Davao del Sur, Lanao del Norte, Lanao del Sur, Maguindanao, Palawan, South
Cotabato, Sultan Kudarat, Sulu, Tawi-Tawi, Zamboanga del Norte, and Zamboanga del Sur, and the
cities of Cotabato, Dapitan, Dipolog, General Santos, Iligan, Marawi, Pagadian, Puerto Princesa and
Zamboanga. In the ensuing plebiscite held on November 16, 1989, four provinces voted in favor of
creating an autonomous region. These are the provinces of Lanao del Sur, Maguindanao, Sulu and
Tawi-Tawi. In accordance with the constitutional provision, these provinces became the Autonomous
Region in Muslim Mindanao.
On the other hand, with respect to provinces and cities not voting in favor of the Autonomous
Region, Art. XIX, § 13 of R.A. No. 6734 provides,

That only the provinces and cities voting favorably in such plebiscites shall be
included in the Autonomous Region in Muslim Mindanao. The provinces and cities
which in the plebiscite do not vote for inclusion in the Autonomous Region shall
remain in the existing administrative regions. Provided, however, that the President
may, by administrative determination, merge the existing regions.

Pursuant to the authority granted by this provision, then President Corazon C. Aquino issued on
October 12, 1990 Executive Order No. 429, "providing for the Reorganization of the Administrative
Regions in Mindanao." Under this Order, as amended by E.O. No. 439 —

(1) Misamis Occidental, at present part of Region X, will become part of Region IX.

(2) Oroquieta City, Tangub City and Ozamiz City, at present parts of Region X will
become parts of Region IX.

(3) South Cotobato, at present a part of Region XI, will become part of Region XII.

(4) General Santos City, at present part of Region XI, will become part of Region XII.

(5) Lanao del Norte, at present part of Region XII, will become part of Region IX.

(6) Iligan City and Marawi City, at present part of Region XII, will become part of
Region IX.

Petitioners in G.R. No. 96754 are, or at least at the time of the filing of their petition, members of
Congress representing various legislative districts in South Cotobato, Zamboanga del Norte,
Basilan, Lanao del Norte and Zamboanga City. On November 12, 1990, they wrote then President
Aquino protesting E.O. No. 429. They contended that

There is no law which authorizes the President to pick certain provinces and cities
within the existing regions — some of which did not even take part in the plebiscite
as in the case of the province of Misamis Occidental and the cities of Oroquieta,
Tangub and Ozamiz — and restructure them to new administrative regions. On the
other hand, the law (Sec. 13, Art. XIX, R.A. 6734) is specific to the point, that is, that
"the provinces and cities which in the plebiscite do not vote for inclusion in the
Autonomous Region shall remain in the existing administrative regions."

The transfer of the provinces of Misamis Occidental from Region X to Region IX;
Lanao del Norte from Region XII to Region IX, and South Cotobato from Region XI to
Region XII are alterations of the existing structures of governmental units, in other
words, reorganization. This can be gleaned from Executive Order No. 429, thus

Whereas, there is an urgent need to reorganize the administrative

regions in Mindanao to guarantee the effective delivery of field
services of government agencies taking into consideration the
formation of the Autonomous Region in Muslim Mindanao.
 With due respect to Her Excellency, we submit that while the authority necessarily
includes the authority to merge, the authority to merge does not include the authority
to reorganize. Therefore, the President's authority under RA 6734 to "merge existing
regions" cannot be construed to include the authority to reorganize them. To do so
will violate the rules of statutory construction.

The transfer of regional centers under Executive Order 429 is actually a restructuring
(reorganization) of administrative regions. While this reorganization, as in Executive
Order 429, does not affect the apportionment of congressional representatives, the
same is not valid under the penultimate paragraph of Sec. 13, Art. XIX of R.A. 6734
and Ordinance appended to the 1986 Constitution apportioning the seats of the
House of Representatives of Congress of the Philippines to the different legislative
districts in provinces and cities.1

As their protest went unheeded, while Inauguration Ceremonies of the New Administrative Region IX
were scheduled on January 26, 1991, petitioners brought this suit for certiorari and prohibition.

On the other hand, the petitioner in G.R. No. 96673, Immanuel Jaldon, is a resident of Zamboanga
City, who is suing in the capacity of taxpayer and citizen of the Republic of the Philippines.

Petitioners in both cases contend that Art. XIX, §13 of R.A. No. 6734 is unconstitutional because (1)
it unduly delegates legislative power to the President by authorizing him to "merge [by administrative
determination] the existing regions" or at any rate provides no standard for the exercise of the power
delegated and (2) the power granted is not expressed in the title of the law.

In addition, petitioner in G.R. No. 96673 challenges the validity of E.O. No. 429 on the ground that
the power granted by Art. XIX, §13 to the President is only to "merge regions IX and XII" but not to
reorganize the entire administrative regions in Mindanao and certainly not to transfer the regional
center of Region IX from Zamboanga City to Pagadian City.

The Solicitor General defends the reorganization of regions in Mindanao by E.O. No. 429 as merely
the exercise of a power "traditionally lodged in the President," as held in Abbas v. Comelec,2 and as
a mere incident of his power of general supervision over local governments and control of executive
departments, bureaus and offices under Art. X, §16 and Art. VII, §17, respectively, of the
Constitution.

He contends that there is no undue delegation of legislative power but only a grant of the power to
"fill up" or provide the details of legislation because Congress did not have the facility to provide for
them. He cites by analogy the case of Municipality of Cardona v. Municipality of Binangonan,3 in
which the power of the Governor-General to fix municipal boundaries was sustained on the ground
that —

[such power] is simply a transference of certain details with respect to provinces,

municipalities, and townships, many of them newly created, and all of them subject to
a more or less rapid change both in development and centers of population, the
proper regulation of which might require not only prompt action but action of such a
detailed character as not to permit the legislative body, as such, to take it efficiently.

The Solicitor General justifies the grant to the President of the power "to merge the existing regions"
as something fairly embraced in the title of R.A. No. 6734, to wit, "An Act Providing for an Organic
Act for the Autonomous Region in Muslim Mindanao," because it is germane to it.
He argues that the power is not limited to the merger of those regions in which the provinces and
cities which took part in the plebiscite are located but that it extends to all regions in Mindanao as
necessitated by the establishment of the autonomous region.

Finally, he invokes P.D. No. 1416, as amended by P.D. No. 1772 which provides:

1. The President of the Philippines shall have the continuing authority to reorganize
the National Government. In exercising this authority, the President shall be guided
by generally acceptable principles of good government and responsive national
government, including but not limited to the following guidelines for a more efficient,
effective, economical and development-oriented governmental framework:

(a) More effective planning implementation, and review functions;

(b) Greater decentralization and responsiveness in decision-making

process;

(c) Further minimization, if not, elimination, of duplication or

overlapping of purposes, functions, activities, and programs;

(d) Further development of as standardized as possible ministerial,

sub-ministerial and corporate organizational structures;

(e) Further development of the regionalization process; and

(f) Further rationalization of the functions of and administrative

relationships among government entities.

For purposes of this Decree, the coverage of the continuing authority

of the President to reorganize shall be interpreted to encompass all
agencies, entities, instrumentalities, and units of the National
Government, including all government owned or controlled
corporations as well as the entire range of the powers, functions,
authorities, administrative relationships, acid related aspects
pertaining to these agencies, entities, instrumentalities, and units.

2. [T]he President may, at his discretion, take the following actions:

xxx xxx xxx

f. Create, abolish, group, consolidate, merge, or integrate entities,

agencies, instrumentalities, and units of the National Government, as
well as expand, amend, change, or otherwise modify their powers,
functions and authorities, including, with respect to government-
owned or controlled corporations, their corporate life, capitalization,
and other relevant aspects of their charters.

g. Take such other related actions as may be necessary to carry out

the purposes and objectives of this Decree.

Considering the arguments of the parties, the issues are:

(1) whether the power to "merge" administrative regions is legislative in character, as petitioners
contend, or whether it is executive in character, as respondents claim it is, and, in any event,
whether Art. XIX, §13 is invalid because it contains no standard to guide the President's discretion;

(2) whether the power given is fairly expressed in the title of the statute; and

(3) whether the power granted authorizes the reorganization even of regions the provinces and cities
in which either did not take part in the plebiscite on the creation of the Autonomous Region or did not
vote in favor of it; and

(4) whether the power granted to the President includes the power to transfer the regional center of
Region IX from Zamboanga City to Pagadian City.

It will be useful to recall first the nature of administrative regions and the basis and purpose for their
creation. On September 9, 1968, R.A. No. 5435 was passed "authorizing the President of the
Philippines, with the help of a Commission on Reorganization, to reorganize the different executive
departments, bureaus, offices, agencies and instrumentalities of the government, including banking
or financial institutions and corporations owned or controlled by it." The purpose was to promote
"simplicity, economy and efficiency in the government."4 The Commission on Reorganization created
under the law was required to submit an integrated reorganization plan not later than December 31,
1969 to the President who was in turn required to submit the plan to Congress within forty days after
the opening of its next regular session. The law provided that any reorganization plan submitted
would become effective only upon the approval of Congress.5

Accordingly, the Reorganization Commission prepared an Integrated Reorganization Plan which

divided the country into eleven administrative regions. 6 By P.D. No. 1, the Plan was approved and
made part of the law of the land on September 24, 1972. P.D. No. 1 was twice amended in 1975,
first by P.D. No. 742 which "restructur[ed] the regional organization of Mindanao, Basilan, Sulu and
Tawi-Tawi" and later by P.D. No. 773 which further "restructur[ed] the regional organization of
Mindanao and divid[ed] Region IX into two sub-regions." In 1978, P.D. No. 1555 transferred the
regional center of Region IX from Jolo to Zamboanga City.

Thus the creation and subsequent reorganization of administrative regions have been by the
President pursuant to authority granted to him by law. In conferring on the President the power "to
merge [by administrative determination] the existing regions" following the establishment of the
Autonomous Region in Muslim Mindanao, Congress merely followed the pattern set in previous
legislation dating back to the initial organization of administrative regions in 1972. The choice of the
President as delegate is logical because the division of the country into regions is intended to
facilitate not only the administration of local governments but also the direction of executive
departments which the law requires should have regional offices. As this Court observed in Abbas,
"while the power to merge administrative regions is not expressly provided for in the Constitution, it
is a power which has traditionally been lodged with the President to facilitate the exercise of the
power of general supervision over local governments [seeArt. X, §4 of the Constitution]." The regions
themselves are not territorial and political divisions like provinces, cities, municipalities and
barangays but are "mere groupings of contiguous provinces for administrative purposes."7 The
power conferred on the President is similar to the power to adjust municipal boundaries8 which has
been described in Pelaez v. Auditor General9 or as "administrative in nature."

There is, therefore, no abdication by Congress of its legislative power in conferring on the President
the power to merge administrative regions. The question is whether Congress has provided a
sufficient standard by which the President is to be guided in the exercise of the power granted and
whether in any event the grant of power to him is included in the subject expressed in the title of the
law.

First, the question of standard. A legislative standard need not be expressed. It may simply be
gathered or implied. 10 Nor need it be found in the law challenged because it may be embodied in
other statutes on the same subject as that of the challenged legislation. 11

With respect to the power to merge existing administrative regions, the standard is to be found in the
same policy underlying the grant to the President in R.A. No. 5435 of the power to reorganize the
Executive Department, to wit: "to promote simplicity, economy and efficiency in the government to
enable it to pursue programs consistent with national goals for accelerated social and economic
development and to improve the service in the transaction of the public business."12 Indeed, as the
original eleven administrative regions were established in accordance with this policy, it is logical to
suppose that in authorizing the President to "merge [by administrative determination] the existing
regions" in view of the withdrawal from some of those regions of the provinces now constituting the
Autonomous Region, the purpose of Congress was to reconstitute the original basis for the
organization of administrative regions.

Nor is Art. XIX, §13 susceptible to charge that its subject is not embraced in the title of R.A. No.
6734. The constitutional requirement that "every bill passed by the Congress shall embrace only one
subject which shall be expressed in the title thereof" 13 has always been given a practical rather than
a technical construction. The title is not required to be an index of the content of the bill. It is a
sufficient compliance with the constitutional requirement if the title expresses the general subject and
all provisions of the statute are germane to that subject. 14 Certainly the reorganization of the
remaining administrative regions is germane to the general subject of R.A. No. 6734, which is the
establishment of the Autonomous Region in Muslim Mindanao.

Finally, it is contended that the power granted to the President is limited to the reorganization of
administrative regions in which some of the provinces and cities which voted in favor of regional
autonomy are found, because Art. XIX, §13 provides that those which did not vote for autonomy
"shall remain in the existing administrative regions." More specifically, petitioner in G.R. No. 96673
claims:

The questioned Executive Order No. 429 distorted and, in fact, contravened the clear
intent of this provision by moving out or transferring certain political subdivisions
(provinces/cities) out of their legally designated regions. Aggravating this
unacceptable or untenable situation is EO No. 429's effecting certain movements on
areas which did not even participate in the November 19, 1989 plebiscite. The
unauthorized action of the President, as effected by and under the questioned EO
No. 429, is shown by the following dispositions: (1) Misamis Occidental, formerly of
Region X and which did not even participate in the plebiscite, was moved from said
Region X to Region IX; (2) the cities of Ozamis, Oroquieta, and Tangub, all formerly
belonging to Region X, which likewise did not participate in the said plebiscite, were
transferred to Region IX; (3) South Cotobato, from Region XI to Region XII; (4)
General Santos City: from Region XI to Region XII; (5) Lanao del Norte, from Region
XII to Region IX; and (6) the cities of Marawi and Iligan from Region XII to Region IX.
All of the said provinces and cities voted "NO", and thereby rejected their entry into
the Autonomous Region in Muslim Mindanao, as provided under RA No. 6734. 15

The contention has no merit. While Art. XIX, §13 provides that "The provinces and cities which do
not vote for inclusion in the Autonomous Region shall remain in the existing administrative regions,"
this provision is subject to the qualification that "the President may by administrative determination
merge the existing regions." This means that while non-assenting provinces and cities are to remain
in the regions as designated upon the creation of the Autonomous Region, they may nevertheless
be regrouped with contiguous provinces forming other regions as the exigency of administration may
require.

The regrouping is done only on paper. It involves no more than are definition or redrawing of the
lines separating administrative regions for the purpose of facilitating the administrative supervision of
local government units by the President and insuring the efficient delivery of essential services.
There will be no "transfer" of local governments from one region to another except as they may thus
be regrouped so that a province like Lanao del Norte, which is at present part of Region XII, will
become part of Region IX.

The regrouping of contiguous provinces is not even analogous to a redistricting or to the division or
merger of local governments, which all have political consequences on the right of people residing in
those political units to vote and to be voted for. It cannot be overemphasized that administrative
regions are mere groupings of contiguous provinces for administrative purposes, not for political
representation.

Petitioners nonetheless insist that only those regions, in which the provinces and cities which voted
for inclusion in the Autonomous Region are located, can be "merged" by the President.

To be fundamental reason Art. XIX, §13 is not so limited. But the more fundamental reason is that
the President's power cannot be so limited without neglecting the necessities of administration. It is
noteworthy that the petitioners do not claim that the reorganization of the regions in E.O. No. 429 is
irrational. The fact is that, as they themselves admit, the reorganization of administrative regions in
E.O. No. 429 is based on relevant criteria, to wit: (1) contiguity and geographical features; (2)
transportation and communication facilities; (3) cultural and language groupings; (4) land area and
population; (5) existing regional centers adopted by several agencies; (6) socio-economic
development programs in the regions and (7) number of provinces and cities.

What has been said above applies to the change of the regional center from Zamboanga City to
Pagadian City. Petitioners contend that the determination of provincial capitals has always been by
act of Congress. But as, this Court said in Abbas, 16 administrative regions are mere "groupings of
contiguous provinces for administrative purposes, . . . [They] are not territorial and political
subdivisions like provinces, cities, municipalities and barangays." There is, therefore, no basis for
contending that only Congress can change or determine regional centers. To the contrary, the
examples of P.D. Nos. 1, 742, 773 and 1555 suggest that the power to reorganize administrative
regions carries with it the power to determine the regional center.

It may be that the transfer of the regional center in Region IX from Zamboanga City to Pagadian City
may entail the expenditure of large sums of money for the construction of buildings and other
infrastructure to house regional offices. That contention is addressed to the wisdom of the transfer
rather than to its legality and it is settled that courts are not the arbiters of the wisdom or expediency
of legislation. In any event this is a question that we will consider only if fully briefed and upon a
more adequate record than that presented by petitioners.

WHEREFORE, the petitions for certiorari and prohibition are DISMISSED for lack of merit.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-7995 May 31, 1957

LAO H. ICHONG, in his own behalf and in behalf of other alien residents, corporations and
partnerships adversely affected. by Republic Act No. 1180, petitioner,
vs.
JAIME HERNANDEZ, Secretary of Finance, and MARCELINO SARMIENTO, City Treasurer of
Manila,respondents.

Ozaeta, Lichauco and Picazo and Sycip, Quisumbing, Salazar and Associates for petitioner.
Office of the Solicitor General Ambrosio Padilla and Solicitor Pacifico P. de Castro for respondent
Secretary of Finance.
City Fiscal Eugenio Angeles and Assistant City Fiscal Eulogio S. Serrano for respondent City
Treasurer.
Dionisio Reyes as Amicus Curiae.
Marcial G. Mendiola as Amicus Curiae.
Emiliano R. Navarro as Amicus Curiae.

LABRADOR, J.:

I. The case and issue, in general

This Court has before it the delicate task of passing upon the validity and constitutionality of a
legislative enactment, fundamental and far-reaching in significance. The enactment poses questions
of due process, police power and equal protection of the laws. It also poses an important issue of
fact, that is whether the conditions which the disputed law purports to remedy really or actually exist.
Admittedly springing from a deep, militant, and positive nationalistic impulse, the law purports to
protect citizen and country from the alien retailer. Through it, and within the field of economy it
regulates, Congress attempts to translate national aspirations for economic independence and
national security, rooted in the drive and urge for national survival and welfare, into a concrete and
tangible measures designed to free the national retailer from the competing dominance of the alien,
so that the country and the nation may be free from a supposed economic dependence and
bondage. Do the facts and circumstances justify the enactment?

II. Pertinent provisions of Republic Act No. 1180

Republic Act No. 1180 is entitled "An Act to Regulate the Retail Business." In effect it nationalizes
the retail trade business. The main provisions of the Act are: (1) a prohibition against persons, not
citizens of the Philippines, and against associations, partnerships, or corporations the capital of
which are not wholly owned by citizens of the Philippines, from engaging directly or indirectly in the
retail trade; (2) an exception from the above prohibition in favor of aliens actually engaged in said
business on May 15, 1954, who are allowed to continue to engaged therein, unless their licenses are
forfeited in accordance with the law, until their death or voluntary retirement in case of natural
persons, and for ten years after the approval of the Act or until the expiration of term in case of
juridical persons; (3) an exception therefrom in favor of citizens and juridical entities of the United
States; (4) a provision for the forfeiture of licenses (to engage in the retail business) for violation of
the laws on nationalization, control weights and measures and labor and other laws relating to trade,
commerce and industry; (5) a prohibition against the establishment or opening by aliens actually
engaged in the retail business of additional stores or branches of retail business, (6) a provision
requiring aliens actually engaged in the retail business to present for registration with the proper
authorities a verified statement concerning their businesses, giving, among other matters, the nature
of the business, their assets and liabilities and their offices and principal offices of judicial entities;
and (7) a provision allowing the heirs of aliens now engaged in the retail business who die, to
continue such business for a period of six months for purposes of liquidation.

III. Grounds upon which petition is based-Answer thereto

Petitioner, for and in his own behalf and on behalf of other alien residents corporations and
partnerships adversely affected by the provisions of Republic Act. No. 1180, brought this action to
obtain a judicial declaration that said Act is unconstitutional, and to enjoin the Secretary of Finance
and all other persons acting under him, particularly city and municipal treasurers, from enforcing its
provisions. Petitioner attacks the constitutionality of the Act, contending that: (1) it denies to alien
residents the equal protection of the laws and deprives of their liberty and property without due
process of law ; (2) the subject of the Act is not expressed or comprehended in the title thereof; (3)
the Act violates international and treaty obligations of the Republic of the Philippines; (4) the
provisions of the Act against the transmission by aliens of their retail business thru hereditary
succession, and those requiring 100% Filipino capitalization for a corporation or entity to entitle it to
engage in the retail business, violate the spirit of Sections 1 and 5, Article XIII and Section 8 of
Article XIV of the Constitution.

In answer, the Solicitor-General and the Fiscal of the City of Manila contend that: (1) the Act was
passed in the valid exercise of the police power of the State, which exercise is authorized in the
Constitution in the interest of national economic survival; (2) the Act has only one subject embraced
in the title; (3) no treaty or international obligations are infringed; (4) as regards hereditary
succession, only the form is affected but the value of the property is not impaired, and the institution
of inheritance is only of statutory origin.

IV. Preliminary consideration of legal principles involved

a. The police power. —

There is no question that the Act was approved in the exercise of the police power, but petitioner
claims that its exercise in this instance is attended by a violation of the constitutional requirements of
due process and equal protection of the laws. But before proceeding to the consideration and
resolution of the ultimate issue involved, it would be well to bear in mind certain basic and
fundamental, albeit preliminary, considerations in the determination of the ever recurrent conflict
between police power and the guarantees of due process and equal protection of the laws. What is
the scope of police power, and how are the due process and equal protection clauses related to it?
What is the province and power of the legislature, and what is the function and duty of the courts?
These consideration must be clearly and correctly understood that their application to the facts of the
case may be brought forth with clarity and the issue accordingly resolved.

It has been said the police power is so far - reaching in scope, that it has become almost impossible
to limit its sweep. As it derives its existence from the very existence of the State itself, it does not
need to be expressed or defined in its scope; it is said to be co-extensive with self-protection and
survival, and as such it is the most positive and active of all governmental processes, the most
essential, insistent and illimitable. Especially is it so under a modern democratic framework where
the demands of society and of nations have multiplied to almost unimaginable proportions; the field
and scope of police power has become almost boundless, just as the fields of public interest and
public welfare have become almost all-embracing and have transcended human foresight.
Otherwise stated, as we cannot foresee the needs and demands of public interest and welfare in this
constantly changing and progressive world, so we cannot delimit beforehand the extent or scope of
police power by which and through which the State seeks to attain or achieve interest or welfare. So
it is that Constitutions do not define the scope or extent of the police power of the State; what they
do is to set forth the limitations thereof. The most important of these are the due process clause and
the equal protection clause.

b. Limitations on police power. —

The basic limitations of due process and equal protection are found in the following provisions of our
Constitution:

SECTION 1.(1) No person shall be deprived of life, liberty or property without due process of
law, nor any person be denied the equal protection of the laws. (Article III, Phil. Constitution)

These constitutional guarantees which embody the essence of individual liberty and freedom in
democracies, are not limited to citizens alone but are admittedly universal in their application, without
regard to any differences of race, of color, or of nationality. (Yick Wo vs. Hopkins, 30, L. ed. 220,
226.)

c. The, equal protection clause. —

The equal protection of the law clause is against undue favor and individual or class privilege, as
well as hostile discrimination or the oppression of inequality. It is not intended to prohibit legislation,
which is limited either in the object to which it is directed or by territory within which is to operate. It
does not demand absolute equality among residents; it merely requires that all persons shall be
treated alike, under like circumstances and conditions both as to privileges conferred and liabilities
enforced. The equal protection clause is not infringed by legislation which applies only to those
persons falling within a specified class, if it applies alike to all persons within such class, and
reasonable grounds exists for making a distinction between those who fall within such class and
those who do not. (2 Cooley, Constitutional Limitations, 824-825.)

d. The due process clause. —

The due process clause has to do with the reasonableness of legislation enacted in pursuance of the
police power. Is there public interest, a public purpose; is public welfare involved? Is the Act
reasonably necessary for the accomplishment of the legislature's purpose; is it not unreasonable,
arbitrary or oppressive? Is there sufficient foundation or reason in connection with the matter
involved; or has there not been a capricious use of the legislative power? Can the aims conceived
be achieved by the means used, or is it not merely an unjustified interference with private interest?
These are the questions that we ask when the due process test is applied.

The conflict, therefore, between police power and the guarantees of due process and equal
protection of the laws is more apparent than real. Properly related, the power and the guarantees
are supposed to coexist. The balancing is the essence or, shall it be said, the indispensable means
for the attainment of legitimate aspirations of any democratic society. There can be no absolute
power, whoever exercise it, for that would be tyranny. Yet there can neither be absolute liberty, for
that would mean license and anarchy. So the State can deprive persons of life, liberty and property,
provided there is due process of law; and persons may be classified into classes and groups,
provided everyone is given the equal protection of the law. The test or standard, as always, is
reason. The police power legislation must be firmly grounded on public interest and welfare, and a
reasonable relation must exist between purposes and means. And if distinction and classification
has been made, there must be a reasonable basis for said distinction.

e. Legislative discretion not subject to judicial review. —

Now, in this matter of equitable balancing, what is the proper place and role of the courts? It must
not be overlooked, in the first place, that the legislature, which is the constitutional repository of
police power and exercises the prerogative of determining the policy of the State, is by force of
circumstances primarily the judge of necessity, adequacy or reasonableness and wisdom, of any law
promulgated in the exercise of the police power, or of the measures adopted to implement the public
policy or to achieve public interest. On the other hand, courts, although zealous guardians of
individual liberty and right, have nevertheless evinced a reluctance to interfere with the exercise of
the legislative prerogative. They have done so early where there has been a clear, patent or
palpable arbitrary and unreasonable abuse of the legislative prerogative. Moreover, courts are not
supposed to override legitimate policy, and courts never inquire into the wisdom of the law.

V. Economic problems sought to be remedied

With the above considerations in mind, we will now proceed to delve directly into the issue involved.
If the disputed legislation were merely a regulation, as its title indicates, there would be no question
that it falls within the legitimate scope of legislative power. But it goes further and prohibits a group of
residents, the aliens, from engaging therein. The problem becomes more complex because its
subject is a common, trade or occupation, as old as society itself, which from the immemorial has
always been open to residents, irrespective of race, color or citizenship.

a. Importance of retail trade in the economy of the nation. —

In a primitive economy where families produce all that they consume and consume all that they
produce, the dealer, of course, is unknown. But as group life develops and families begin to live in
communities producing more than what they consume and needing an infinite number of things they
do not produce, the dealer comes into existence. As villages develop into big communities and
specialization in production begins, the dealer's importance is enhanced. Under modern conditions
and standards of living, in which man's needs have multiplied and diversified to unlimited extents
and proportions, the retailer comes as essential as the producer, because thru him the infinite variety
of articles, goods and needed for daily life are placed within the easy reach of consumers. Retail
dealers perform the functions of capillaries in the human body, thru which all the needed food and
supplies are ministered to members of the communities comprising the nation.

There cannot be any question about the importance of the retailer in the life of the community. He
ministers to the resident's daily needs, food in all its increasing forms, and the various little gadgets
and things needed for home and daily life. He provides his customers around his store with the rice
or corn, the fish, the salt, the vinegar, the spices needed for the daily cooking. He has cloths to sell,
even the needle and the thread to sew them or darn the clothes that wear out. The retailer,
therefore, from the lowly peddler, the owner of a small sari-sari store, to the operator of a department
store or, a supermarket is so much a part of day-to-day existence.

b. The alien retailer's trait. —

The alien retailer must have started plying his trades in this country in the bigger centers of
population (Time there was when he was unknown in provincial towns and villages). Slowly but
gradually be invaded towns and villages; now he predominates in the cities and big centers of
population. He even pioneers, in far away nooks where the beginnings of community life appear,
ministering to the daily needs of the residents and purchasing their agricultural produce for sale in
the towns. It is an undeniable fact that in many communities the alien has replaced the native
retailer. He has shown in this trade, industry without limit, and the patience and forbearance of a
slave.

Derogatory epithets are hurled at him, but he laughs these off without murmur; insults of ill-bred and
insolent neighbors and customers are made in his face, but he heeds them not, and he forgets and
forgives. The community takes note of him, as he appears to be harmless and extremely useful.

c. Alleged alien control and dominance. —

There is a general feeling on the part of the public, which appears to be true to fact, about the
controlling and dominant position that the alien retailer holds in the nation's economy. Food and
other essentials, clothing, almost all articles of daily life reach the residents mostly through him. In
big cities and centers of population he has acquired not only predominance, but apparent control
over distribution of almost all kinds of goods, such as lumber, hardware, textiles, groceries, drugs,
sugar, flour, garlic, and scores of other goods and articles. And were it not for some national
corporations like the Naric, the Namarco, the Facomas and the Acefa, his control over principal
foods and products would easily become full and complete.

Petitioner denies that there is alien predominance and control in the retail trade. In one breath it is
said that the fear is unfounded and the threat is imagined; in another, it is charged that the law is
merely the result of radicalism and pure and unabashed nationalism. Alienage, it is said, is not an
element of control; also so many unmanageable factors in the retail business make control virtually
impossible. The first argument which brings up an issue of fact merits serious consideration. The
others are matters of opinion within the exclusive competence of the legislature and beyond our
prerogative to pass upon and decide.
The best evidence are the statistics on the retail trade, which put down the figures in black and
white. Between the constitutional convention year (1935), when the fear of alien domination and
control of the retail trade already filled the minds of our leaders with fears and misgivings, and the
year of the enactment of the nationalization of the retail trade act (1954), official statistics
unmistakably point out to the ever-increasing dominance and control by the alien of the retail trade,
as witness the following tables:

Assets Gross Sales

Year and
No.- Per cent Per cent
Retailers Pesos Pesos
Establishments Distribution Distribution
Nationality
1941:
Filipino 106,671 200,323,138 55.82 174,181,924 51.74
..........
Chinese 15,356 118,348,692 32.98 148,813,239 44.21
...........
Others 1,646 40,187,090 11.20 13,630,239 4.05
............
1947:
Filipino 111,107 208,658,946 65.05 279,583,333 57.03
..........
Chinese 13,774 106,156,218 33.56 205,701,134 41.96
...........
Others 354 8,761,260 .49 4,927,168 1.01
...........
1948: (Census)
Filipino 113,631 213,342,264 67.30 467,161,667 60.51
..........
Chinese 12,087 93,155,459 29.38 294,894,227 38.20
..........
Others 422 10,514,675 3.32 9,995,402 1.29
..........
1949:
Filipino 113,659 213,451,602 60.89 462,532,901 53.47
..........
Chinese 16,248 125,223,336 35.72 392,414,875 45.36
..........
Others 486 12,056,365 3.39 10,078,364 1.17
..........
1951:
Filipino 119,352 224,053,620 61.09 466,058,052 53.07
.........
Chinese 17,429 134,325,303 36.60 404,481,384 46.06
..........
Others 347 8,614,025 2.31 7,645,327 87
..........
 AVERAGE
ASSETS AND GROSS SALES PER ESTABLISHMENT
Item Gross
Year and Retailer's
Assets Sales
Nationality
(Pesos) (Pesos)
1941:
Filipino ............................................. 1,878 1,633
Chinese 7,707 9,691
..............................................
Others ............................................... 24,415 8,281
1947:
Filipino ............................................. 1,878 2,516
Chinese ........................................... 7,707 14,934
Others .............................................. 24,749 13,919
1948: (Census)
Filipino ............................................. 1,878 4,111
Chinese ............................................. 7,707 24,398
Others .............................................. 24,916 23,686
1949:
Filipino ............................................. 1,878 4,069
Chinese 7,707 24,152
..............................................
Others .............................................. 24,807 20,737
1951:
Filipino ............................................. 1,877 3,905
Chinese ............................................. 7,707 33,207
Others ............................................... 24,824 22,033

(Estimated Assets and Gross Sales of Retail Establishments, By Year and Nationality of
Owners, Benchmark: 1948 Census, issued by the Bureau of Census and Statistics,
Department of Commerce and Industry; pp. 18-19 of Answer.)

The above statistics do not include corporations and partnerships, while the figures on Filipino
establishments already include mere market vendors, whose capital is necessarily small..

The above figures reveal that in percentage distribution of assests and gross sales, alien
participation has steadily increased during the years. It is true, of course, that Filipinos have the
edge in the number of retailers, but aliens more than make up for the numerical gap through their
assests and gross sales which average between six and seven times those of the very many Filipino
retailers. Numbers in retailers, here, do not imply superiority; the alien invests more capital, buys and
sells six to seven times more, and gains much more. The same official report, pointing out to the
known predominance of foreign elements in the retail trade, remarks that the Filipino retailers were
largely engaged in minor retailer enterprises. As observed by respondents, the native investment is
thinly spread, and the Filipino retailer is practically helpless in matters of capital, credit, price and
supply.

d. Alien control and threat, subject of apprehension in Constitutional convention. —

It is this domination and control, which we believe has been sufficiently shown to exist, that is the
legislature's target in the enactment of the disputed nationalization would never have been adopted.
The framers of our Constitution also believed in the existence of this alien dominance and control
when they approved a resolution categorically declaring among other things, that "it is the sense of
the Convention that the public interest requires the nationalization of the retail trade; . . . ." (II
Aruego, The Framing of the Philippine Constitution, 662-663, quoted on page 67 of Petitioner.) That
was twenty-two years ago; and the events since then have not been either pleasant or comforting.
Dean Sinco of the University of the Philippines College of Law, commenting on the patrimony clause
of the Preamble opines that the fathers of our Constitution were merely translating the general
preoccupation of Filipinos "of the dangers from alien interests that had already brought under their
control the commercial and other economic activities of the country" (Sinco, Phil. Political Law, 10th
ed., p. 114); and analyzing the concern of the members of the constitutional convention for the
economic life of the citizens, in connection with the nationalistic provisions of the Constitution, he
says:

But there has been a general feeling that alien dominance over the economic life of the
country is not desirable and that if such a situation should remain, political independence
alone is no guarantee to national stability and strength. Filipino private capital is not big
enough to wrest from alien hands the control of the national economy. Moreover, it is but of
recent formation and hence, largely inexperienced, timid and hesitant. Under such
conditions, the government as the instrumentality of the national will, has to step in and
assume the initiative, if not the leadership, in the struggle for the economic freedom of the
nation in somewhat the same way that it did in the crusade for political freedom. Thus . . . it
(the Constitution) envisages an organized movement for the protection of the nation not only
against the possibilities of armed invasion but also against its economic subjugation by alien
interests in the economic field. (Phil. Political Law by Sinco, 10th ed., p. 476.)

Belief in the existence of alien control and predominance is felt in other quarters. Filipino
businessmen, manufacturers and producers believe so; they fear the dangers coming from alien
control, and they express sentiments of economic independence. Witness thereto is Resolution No.
1, approved on July 18, 1953, of the Fifth National convention of Filipino Businessmen, and a similar
resolution, approved on March 20, 1954, of the Second National Convention of Manufacturers and
Producers. The man in the street also believes, and fears, alien predominance and control; so our
newspapers, which have editorially pointed out not only to control but to alien stranglehold. We,
therefore, find alien domination and control to be a fact, a reality proved by official statistics, and felt
by all the sections and groups that compose the Filipino community.

e. Dangers of alien control and dominance in retail. —

But the dangers arising from alien participation in the retail trade does not seem to lie in the
predominance alone; there is a prevailing feeling that such predominance may truly endanger the
national interest. With ample capital, unity of purpose and action and thorough organization, alien
retailers and merchants can act in such complete unison and concert on such vital matters as the
fixing of prices, the determination of the amount of goods or articles to be made available in the
market, and even the choice of the goods or articles they would or would not patronize or distribute,
that fears of dislocation of the national economy and of the complete subservience of national
economy and of the consuming public are not entirely unfounded. Nationals, producers and
consumers alike can be placed completely at their mercy. This is easily illustrated. Suppose an
article of daily use is desired to be prescribed by the aliens, because the producer or importer does
not offer them sufficient profits, or because a new competing article offers bigger profits for its
introduction. All that aliens would do is to agree to refuse to sell the first article, eliminating it from
their stocks, offering the new one as a substitute. Hence, the producers or importers of the
prescribed article, or its consumers, find the article suddenly out of the prescribed article, or its
consumers, find the article suddenly out of circulation. Freedom of trade is thus curtailed and free
enterprise correspondingly suppressed.

We can even go farther than theoretical illustrations to show the pernicious influences of alien
domination. Grave abuses have characterized the exercise of the retail trade by aliens. It is a fact
within judicial notice, which courts of justice may not properly overlook or ignore in the interests of
truth and justice, that there exists a general feeling on the part of the public that alien participation in
the retail trade has been attended by a pernicious and intolerable practices, the mention of a few of
which would suffice for our purposes; that at some time or other they have cornered the market of
essential commodities, like corn and rice, creating artificial scarcities to justify and enhance profits to
unreasonable proportions; that they have hoarded essential foods to the inconvenience and
prejudice of the consuming public, so much so that the Government has had to establish the
National Rice and Corn Corporation to save the public from their continuous hoarding practices and
tendencies; that they have violated price control laws, especially on foods and essential
commodities, such that the legislature had to enact a law (Sec. 9, Republic Act No. 1168),
authorizing their immediate and automatic deportation for price control convictions; that they have
secret combinations among themselves to control prices, cheating the operation of the law of supply
and demand; that they have connived to boycott honest merchants and traders who would not cater
or yield to their demands, in unlawful restraint of freedom of trade and enterprise. They are believed
by the public to have evaded tax laws, smuggled goods and money into and out of the land, violated
import and export prohibitions, control laws and the like, in derision and contempt of lawful authority.
It is also believed that they have engaged in corrupting public officials with fabulous bribes, indirectly
causing the prevalence of graft and corruption in the Government. As a matter of fact appeals to
unscrupulous aliens have been made both by the Government and by their own lawful diplomatic
representatives, action which impliedly admits a prevailing feeling about the existence of many of the
above practices.

The circumstances above set forth create well founded fears that worse things may come in the
future. The present dominance of the alien retailer, especially in the big centers of population,
therefore, becomes a potential source of danger on occasions of war or other calamity. We do not
have here in this country isolated groups of harmless aliens retailing goods among nationals; what
we have are well organized and powerful groups that dominate the distribution of goods and
commodities in the communities and big centers of population. They owe no allegiance or loyalty to
the State, and the State cannot rely upon them in times of crisis or emergency. While the national
holds his life, his person and his property subject to the needs of his country, the alien may even
become the potential enemy of the State.

f. Law enacted in interest of national economic survival and security. —

We are fully satisfied upon a consideration of all the facts and circumstances that the disputed law is
not the product of racial hostility, prejudice or discrimination, but the expression of the legitimate
desire and determination of the people, thru their authorized representatives, to free the nation from
the economic situation that has unfortunately been saddled upon it rightly or wrongly, to its
disadvantage. The law is clearly in the interest of the public, nay of the national security itself, and
indisputably falls within the scope of police power, thru which and by which the State insures its
existence and security and the supreme welfare of its citizens.

VI. The Equal Protection Limitation

a. Objections to alien participation in retail trade. — The next question that now poses solution is,
Does the law deny the equal protection of the laws? As pointed out above, the mere fact of alienage
is the root and cause of the distinction between the alien and the national as a trader. The alien
resident owes allegiance to the country of his birth or his adopted country; his stay here is for
personal convenience; he is attracted by the lure of gain and profit. His aim or purpose of stay, we
admit, is neither illegitimate nor immoral, but he is naturally lacking in that spirit of loyalty and
enthusiasm for this country where he temporarily stays and makes his living, or of that spirit of
regard, sympathy and consideration for his Filipino customers as would prevent him from taking
advantage of their weakness and exploiting them. The faster he makes his pile, the earlier can the
alien go back to his beloved country and his beloved kin and countrymen. The experience of the
country is that the alien retailer has shown such utter disregard for his customers and the people on
whom he makes his profit, that it has been found necessary to adopt the legislation, radical as it may
seem.

Another objection to the alien retailer in this country is that he never really makes a genuine
contribution to national income and wealth. He undoubtedly contributes to general distribution, but
the gains and profits he makes are not invested in industries that would help the country's economy
and increase national wealth. The alien's interest in this country being merely transient and
temporary, it would indeed be ill-advised to continue entrusting the very important function of retail
distribution to his hands.

The practices resorted to by aliens in the control of distribution, as already pointed out above, their
secret manipulations of stocks of commodities and prices, their utter disregard of the welfare of their
customers and of the ultimate happiness of the people of the nation of which they are mere guests,
which practices, manipulations and disregard do not attend the exercise of the trade by the
nationals, show the existence of real and actual, positive and fundamental differences between an
alien and a national which fully justify the legislative classification adopted in the retail trade
measure. These differences are certainly a valid reason for the State to prefer the national over the
alien in the retail trade. We would be doing violence to fact and reality were we to hold that no
reason or ground for a legitimate distinction can be found between one and the other.

b. Difference in alien aims and purposes sufficient basis for distinction. —

The above objectionable characteristics of the exercise of the retail trade by the aliens, which are
actual and real, furnish sufficient grounds for legislative classification of retail traders into nationals
and aliens. Some may disagree with the wisdom of the legislature's classification. To this we answer,
that this is the prerogative of the law-making power. Since the Court finds that the classification is
actual, real and reasonable, and all persons of one class are treated alike, and as it cannot be said
that the classification is patently unreasonable and unfounded, it is in duty bound to declare that the
legislature acted within its legitimate prerogative and it can not declare that the act transcends the
limit of equal protection established by the Constitution.

Broadly speaking, the power of the legislature to make distinctions and classifications among
persons is not curtailed or denied by the equal protection of the laws clause. The legislative power
admits of a wide scope of discretion, and a law can be violative of the constitutional limitation only
when the classification is without reasonable basis. In addition to the authorities we have earlier
cited, we can also refer to the case of Linsey vs. Natural Carbonic Fas Co. (1911), 55 L. ed., 369,
which clearly and succinctly defined the application of equal protection clause to a law sought to be
voided as contrary thereto:

. . . . "1. The equal protection clause of the Fourteenth Amendment does not take from the
state the power to classify in the adoption of police laws, but admits of the exercise of the
wide scope of discretion in that regard, and avoids what is done only when it is without any
reasonable basis, and therefore is purely arbitrary. 2. A classification having some
reasonable basis does not offend against that clause merely because it is not made with
mathematical nicety, or because in practice it results in some inequality. 3. When the
classification in such a law is called in question, if any state of facts reasonably can be
conceived that would sustain it, the existence of that state of facts at the time the law was
enacted must be assumed. 4. One who assails the classification in such a law must carry the
burden of showing that it does not rest upon any reasonable basis but is essentially
arbitrary."

c. Authorities recognizing citizenship as basis for classification. —

The question as to whether or not citizenship is a legal and valid ground for classification has
already been affirmatively decided in this jurisdiction as well as in various courts in the United
States. In the case of Smith Bell & Co. vs. Natividad, 40 Phil. 136, where the validity of Act No. 2761
of the Philippine Legislature was in issue, because of a condition therein limiting the ownership of
vessels engaged in coastwise trade to corporations formed by citizens of the Philippine Islands or
the United States, thus denying the right to aliens, it was held that the Philippine Legislature did not
violate the equal protection clause of the Philippine Bill of Rights. The legislature in enacting the law
had as ultimate purpose the encouragement of Philippine shipbuilding and the safety for these
Islands from foreign interlopers. We held that this was a valid exercise of the police power, and all
presumptions are in favor of its constitutionality. In substance, we held that the limitation of domestic
ownership of vessels engaged in coastwise trade to citizens of the Philippines does not violate the
equal protection of the law and due process or law clauses of the Philippine Bill of Rights. In
rendering said decision we quoted with approval the concurring opinion of Justice Johnson in the
case of Gibbons vs. Ogden, 9 Wheat., I, as follows:

"Licensing acts, in fact, in legislation, are universally restraining acts; as, for example, acts
licensing gaming houses, retailers of spirituous liquors, etc. The act, in this instance, is
distinctly of that character, and forms part of an extensive system, the object of which is to
encourage American shipping, and place them on an equal footing with the shipping of other
nations. Almost every commercial nation reserves to its own subjects a monopoly of its
coasting trade; and a countervailing privilege in favor of American shipping is contemplated,
in the whole legislation of the United States on this subject. It is not to give the vessel an
American character, that the license is granted; that effect has been correctly attributed to
the act of her enrollment. But it is to confer on her American privileges, as contra
distinguished from foreign; and to preserve the Government from fraud by foreigners; in
surreptitiously intruding themselves into the American commercial marine, as well as frauds
upon the revenue in the trade coastwise, that this whole system is projected."

The rule in general is as follows:

Aliens are under no special constitutional protection which forbids a classification otherwise
justified simply because the limitation of the class falls along the lines of nationality. That
would be requiring a higher degree of protection for aliens as a class than for similar classes
 than for similar classes of American citizens. Broadly speaking, the difference in status
between citizens and aliens constitutes a basis for reasonable classification in the exercise
of police power. (2 Am., Jur. 468-469.)

In Commonwealth vs. Hana, 81 N. E. 149 (Massachusetts, 1907), a statute on the licensing of

hawkers and peddlers, which provided that no one can obtain a license unless he is, or has declared
his intention, to become a citizen of the United States, was held valid, for the following reason: It
may seem wise to the legislature to limit the business of those who are supposed to have regard for
the welfare, good order and happiness of the community, and the court cannot question this
judgment and conclusion. In Bloomfield vs. State, 99 N. E. 309 (Ohio, 1912), a statute which
prevented certain persons, among them aliens, from engaging in the traffic of liquors, was found not
to be the result of race hatred, or in hospitality, or a deliberate purpose to discriminate, but was
based on the belief that an alien cannot be sufficiently acquainted with "our institutions and our life
as to enable him to appreciate the relation of this particular business to our entire social fabric", and
was not, therefore, invalid. In Ohio ex rel. Clarke vs. Deckebach, 274 U. S. 392, 71 L. ed. 115
(1926), the U.S. Supreme Court had under consideration an ordinance of the city of Cincinnati
prohibiting the issuance of licenses (pools and billiard rooms) to aliens. It held that plainly irrational
discrimination against aliens is prohibited, but it does not follow that alien race and allegiance may
not bear in some instances such a relation to a legitimate object of legislation as to be made the
basis of permitted classification, and that it could not state that the legislation is clearly wrong; and
that latitude must be allowed for the legislative appraisement of local conditions and for the
legislative choice of methods for controlling an apprehended evil. The case of State vs. Carrol, 124
N. E. 129 (Ohio, 1919) is a parallel case to the one at bar. In Asakura vs. City of Seattle, 210 P. 30
(Washington, 1922), the business of pawn brooking was considered as having tendencies injuring
public interest, and limiting it to citizens is within the scope of police power. A similar statute denying
aliens the right to engage in auctioneering was also sustained in Wright vs. May, L.R.A., 1915 P. 151
(Minnesota, 1914). So also in Anton vs. Van Winkle, 297 F. 340 (Oregon, 1924), the court said that
aliens are judicially known to have different interests, knowledge, attitude, psychology and loyalty,
hence the prohibitions of issuance of licenses to them for the business of pawnbroker, pool, billiard,
card room, dance hall, is not an infringement of constitutional rights. In Templar vs. Michigan State
Board of Examiners, 90 N.W. 1058 (Michigan, 1902), a law prohibiting the licensing of aliens as
barbers was held void, but the reason for the decision was the court's findings that the exercise of
the business by the aliens does not in any way affect the morals, the health, or even the
convenience of the community. In Takahashi vs. Fish and Game Commission, 92 L. ed. 1479
(1947), a California statute banning the issuance of commercial fishing licenses to person ineligible
to citizenship was held void, because the law conflicts with Federal power over immigration, and
because there is no public interest in the mere claim of ownership of the waters and the fish in them,
so there was no adequate justification for the discrimination. It further added that the law was the
outgrowth of antagonism toward the persons of Japanese ancestry. However, two Justices
dissented on the theory that fishing rights have been treated traditionally as natural resources.
In Fraser vs. McConway & Tarley Co., 82 Fed. 257 (Pennsylvania, 1897), a state law which imposed
a tax on every employer of foreign-born unnaturalized male persons over 21 years of age, was
declared void because the court found that there was no reason for the classification and the tax
was an arbitrary deduction from the daily wage of an employee.

d. Authorities contra explained. —

It is true that some decisions of the Federal court and of the State courts in the United States hold
that the distinction between aliens and citizens is not a valid ground for classification. But in this
decision the laws declared invalid were found to be either arbitrary, unreasonable or capricious, or
were the result or product of racial antagonism and hostility, and there was no question of public
interest involved or pursued. In Yu Cong Eng vs. Trinidad, 70 L. ed. 1059 (1925), the United States
Supreme Court declared invalid a Philippine law making unlawful the keeping of books of account in
any language other than English, Spanish or any other local dialect, but the main reasons for the
decisions are: (1) that if Chinese were driven out of business there would be no other system of
distribution, and (2) that the Chinese would fall prey to all kinds of fraud, because they would be
deprived of their right to be advised of their business and to direct its conduct. The real reason for
the decision, therefore, is the court's belief that no public benefit would be derived from the
operations of the law and on the other hand it would deprive Chinese of something indispensable for
carrying on their business. In Yick Wo vs. Hopkins, 30 L. ed 220 (1885) an ordinance conferring
powers on officials to withhold consent in the operation of laundries both as to persons and place,
was declared invalid, but the court said that the power granted was arbitrary, that there was no
reason for the discrimination which attended the administration and implementation of the law, and
that the motive thereof was mere racial hostility. In State vs. Montgomery, 47 A. 165 (Maine, 1900),
a law prohibiting aliens to engage as hawkers and peddlers was declared void, because the
discrimination bore no reasonable and just relation to the act in respect to which the classification
was proposed.

The case at bar is radically different, and the facts make them so. As we already have said, aliens
do not naturally possess the sympathetic consideration and regard for the customers with whom
they come in daily contact, nor the patriotic desire to help bolster the nation's economy, except in so
far as it enhances their profit, nor the loyalty and allegiance which the national owes to the land.
These limitations on the qualifications of the aliens have been shown on many occasions and
instances, especially in times of crisis and emergency. We can do no better than borrow the
language of Anton vs. Van Winkle, 297 F. 340, 342, to drive home the reality and significance of the
distinction between the alien and the national, thus:

. . . . It may be judicially known, however, that alien coming into this country are without the
intimate knowledge of our laws, customs, and usages that our own people have. So it is
likewise known that certain classes of aliens are of different psychology from our fellow
countrymen. Furthermore, it is natural and reasonable to suppose that the foreign born,
whose allegiance is first to their own country, and whose ideals of governmental environment
and control have been engendered and formed under entirely different regimes and political
systems, have not the same inspiration for the public weal, nor are they as well disposed
toward the United States, as those who by citizenship, are a part of the government itself.
Further enlargement, is unnecessary. I have said enough so that obviously it cannot be
affirmed with absolute confidence that the Legislature was without plausible reason for
making the classification, and therefore appropriate discriminations against aliens as it
relates to the subject of legislation. . . . .

VII. The Due Process of Law Limitation.

a. Reasonability, the test of the limitation; determination by legislature decisive. —

We now come to due process as a limitation on the exercise of the police power. It has been stated
by the highest authority in the United States that:

. . . . And the guaranty of due process, as has often been held, demands only that the law
shall not be unreasonable, arbitrary or capricious, and that the means selected shall have a
real and substantial relation to the subject sought to be attained. . . . .

xxx xxx xxx

So far as the requirement of due process is concerned and in the absence of other
constitutional restriction a state is free to adopt whatever economic policy may reasonably be
 deemed to promote public welfare, and to enforce that policy by legislation adapted to its
purpose. The courts are without authority either to declare such policy, or, when it is declared
by the legislature, to override it. If the laws passed are seen to have a reasonable relation to
a proper legislative purpose, and are neither arbitrary nor discriminatory, the requirements of
due process are satisfied, and judicial determination to that effect renders a court functus
officio. . . . (Nebbia vs. New York, 78 L. ed. 940, 950, 957.)

Another authority states the principle thus:

. . . . Too much significance cannot be given to the word "reasonable" in considering the
scope of the police power in a constitutional sense, for the test used to determine the
constitutionality of the means employed by the legislature is to inquire whether the restriction
it imposes on rights secured to individuals by the Bill of Rights are unreasonable, and not
whether it imposes any restrictions on such rights. . . .

xxx xxx xxx

. . . . A statute to be within this power must also be reasonable in its operation upon the
persons whom it affects, must not be for the annoyance of a particular class, and must not
be unduly oppressive. (11 Am. Jur. Sec. 302., 1:1)- 1074-1075.)

In the case of Lawton vs. Steele, 38 L. ed. 385, 388. it was also held:

. . . . To justify the state in thus interposing its authority in behalf of the public, it must appear,
first, that the interests of the public generally, as distinguished from those of a particular
class, require such interference; and second, that the means are reasonably necessary for
the accomplishment of the purpose, and not unduly oppressive upon individuals. . . .

Prata Undertaking Co. vs. State Board of Embalming, 104 ALR, 389, 395, fixes this test of
constitutionality:

In determining whether a given act of the Legislature, passed in the exercise of the police
power to regulate the operation of a business, is or is not constitutional, one of the first
questions to be considered by the court is whether the power as exercised has a sufficient
foundation in reason in connection with the matter involved, or is an arbitrary, oppressive,
and capricious use of that power, without substantial relation to the health, safety, morals,
comfort, and general welfare of the public.

b. Petitioner's argument considered. —

Petitioner's main argument is that retail is a common, ordinary occupation, one of those privileges
long ago recognized as essential to the orderly pursuant of happiness by free men; that it is a gainful
and honest occupation and therefore beyond the power of the legislature to prohibit and penalized.
This arguments overlooks fact and reality and rests on an incorrect assumption and premise, i.e.,
that in this country where the occupation is engaged in by petitioner, it has been so engaged by him,
by the alien in an honest creditable and unimpeachable manner, without harm or injury to the
citizens and without ultimate danger to their economic peace, tranquility and welfare. But the
Legislature has found, as we have also found and indicated, that the privilege has been so grossly
abused by the alien, thru the illegitimate use of pernicious designs and practices, that he now enjoys
a monopolistic control of the occupation and threatens a deadly stranglehold on the nation's
economy endangering the national security in times of crisis and emergency.
The real question at issue, therefore, is not that posed by petitioner, which overlooks and ignores the
facts and circumstances, but this, Is the exclusion in the future of aliens from the retail trade
unreasonable. Arbitrary capricious, taking into account the illegitimate and pernicious form and
manner in which the aliens have heretofore engaged therein? As thus correctly stated the answer is
clear. The law in question is deemed absolutely necessary to bring about the desired legislative
objective, i.e., to free national economy from alien control and dominance. It is not necessarily
unreasonable because it affects private rights and privileges (11 Am. Jur. pp. 1080-1081.) The test
of reasonableness of a law is the appropriateness or adequacy under all circumstances of the
means adopted to carry out its purpose into effect (Id.) Judged by this test, disputed legislation,
which is not merely reasonable but actually necessary, must be considered not to have infringed the
constitutional limitation of reasonableness.

The necessity of the law in question is explained in the explanatory note that accompanied the bill,
which later was enacted into law:

This bill proposes to regulate the retail business. Its purpose is to prevent persons who are
not citizens of the Philippines from having a strangle hold upon our economic life. If the
persons who control this vital artery of our economic life are the ones who owe no allegiance
to this Republic, who have no profound devotion to our free institutions, and who have no
permanent stake in our people's welfare, we are not really the masters of our destiny. All
aspects of our life, even our national security, will be at the mercy of other people.

In seeking to accomplish the foregoing purpose, we do not propose to deprive persons who
are not citizens of the Philippines of their means of livelihood. While this bill seeks to take
away from the hands of persons who are not citizens of the Philippines a power that can be
wielded to paralyze all aspects of our national life and endanger our national security it
respects existing rights.

The approval of this bill is necessary for our national survival.

If political independence is a legitimate aspiration of a people, then economic independence is none

the less legitimate. Freedom and liberty are not real and positive if the people are subject to the
economic control and domination of others, especially if not of their own race or country. The
removal and eradication of the shackles of foreign economic control and domination, is one of the
noblest motives that a national legislature may pursue. It is impossible to conceive that legislation
that seeks to bring it about can infringe the constitutional limitation of due process. The attainment of
a legitimate aspiration of a people can never be beyond the limits of legislative authority.

c. Law expressly held by Constitutional Convention to be within the sphere of legislative action. —

The framers of the Constitution could not have intended to impose the constitutional restrictions of
due process on the attainment of such a noble motive as freedom from economic control and
domination, thru the exercise of the police power. The fathers of the Constitution must have given to
the legislature full authority and power to enact legislation that would promote the supreme
happiness of the people, their freedom and liberty. On the precise issue now before us, they
expressly made their voice clear; they adopted a resolution expressing their belief that the legislation
in question is within the scope of the legislative power. Thus they declared the their Resolution:

That it is the sense of the Convention that the public interest requires the nationalization of
retail trade; but it abstain from approving the amendment introduced by the Delegate for
Manila, Mr. Araneta, and others on this matter because it is convinced that the National
Assembly is authorized to promulgate a law which limits to Filipino and American citizens the
 privilege to engage in the retail trade. (11 Aruego, The Framing of the Philippine Constitution,
quoted on pages 66 and 67 of the Memorandum for the Petitioner.)

It would do well to refer to the nationalistic tendency manifested in various provisions of the
Constitution. Thus in the preamble, a principle objective is the conservation of the patrimony of the
nation and as corollary the provision limiting to citizens of the Philippines the exploitation,
development and utilization of its natural resources. And in Section 8 of Article XIV, it is provided that
"no franchise, certificate, or any other form of authorization for the operation of the public utility shall
be granted except to citizens of the Philippines." The nationalization of the retail trade is only a
continuance of the nationalistic protective policy laid down as a primary objective of the Constitution.
Can it be said that a law imbued with the same purpose and spirit underlying many of the provisions
of the Constitution is unreasonable, invalid and unconstitutional?

The seriousness of the Legislature's concern for the plight of the nationals as manifested in the
approval of the radical measures is, therefore, fully justified. It would have been recreant to its duties
towards the country and its people would it view the sorry plight of the nationals with the
complacency and refuse or neglect to adopt a remedy commensurate with the demands of public
interest and national survival. As the repository of the sovereign power of legislation, the Legislature
was in duty bound to face the problem and meet, through adequate measures, the danger and threat
that alien domination of retail trade poses to national economy.

d. Provisions of law not unreasonable. —

A cursory study of the provisions of the law immediately reveals how tolerant, how reasonable the
Legislature has been. The law is made prospective and recognizes the right and privilege of those
already engaged in the occupation to continue therein during the rest of their lives; and similar
recognition of the right to continue is accorded associations of aliens. The right or privilege is denied
to those only upon conviction of certain offenses. In the deliberations of the Court on this case,
attention was called to the fact that the privilege should not have been denied to children and heirs
of aliens now engaged in the retail trade. Such provision would defeat the law itself, its aims and
purposes. Beside, the exercise of legislative discretion is not subject to judicial review. It is well
settled that the Court will not inquire into the motives of the Legislature, nor pass upon general
matters of legislative judgment. The Legislature is primarily the judge of the necessity of an
enactment or of any of its provisions, and every presumption is in favor of its validity, and though the
Court may hold views inconsistent with the wisdom of the law, it may not annul the legislation if not
palpably in excess of the legislative power. Furthermore, the test of the validity of a law attacked as
a violation of due process, is not its reasonableness, but its unreasonableness, and we find the
provisions are not unreasonable. These principles also answer various other arguments raised
against the law, some of which are: that the law does not promote general welfare; that thousands of
aliens would be thrown out of employment; that prices will increase because of the elimination of
competition; that there is no need for the legislation; that adequate replacement is problematical; that
there may be general breakdown; that there would be repercussions from foreigners; etc. Many of
these arguments are directed against the supposed wisdom of the law which lies solely within the
legislative prerogative; they do not import invalidity.

VIII. Alleged defect in the title of the law

A subordinate ground or reason for the alleged invalidity of the law is the claim that the title thereof is
misleading or deceptive, as it conceals the real purpose of the bill which is to nationalize the retail
business and prohibit aliens from engaging therein. The constitutional provision which is claimed to
be violated in Section 21 (1) of Article VI, which reads:
 No bill which may be enacted in the law shall embrace more than one subject which shall be
expressed in the title of the bill.

What the above provision prohibits is duplicity, that is, if its title completely fails to appraise the
legislators or the public of the nature, scope and consequences of the law or its operation (I
Sutherland, Statutory Construction, Sec. 1707, p. 297.) A cursory consideration of the title and the
provisions of the bill fails to show the presence of duplicity. It is true that the term "regulate" does not
and may not readily and at first glance convey the idea of "nationalization" and "prohibition", which
terms express the two main purposes and objectives of the law. But "regulate" is a broader term than
either prohibition or nationalization. Both of these have always been included within the term
regulation.

Under the title of an act to "regulate", the sale of intoxicating liquors, the Legislature may
prohibit the sale of intoxicating liquors. (Sweet vs. City of Wabash, 41 Ind., 7; quoted in page
41 of Answer.)

Within the meaning of the Constitution requiring that the subject of every act of the
Legislature shall be stated in the tale, the title to regulate the sale of intoxicating liquors, etc."
sufficiently expresses the subject of an actprohibiting the sale of such liquors to minors and
to persons in the habit of getting intoxicated; such matters being properly included within the
subject of regulating the sale. (Williams vs. State, 48 Ind. 306, 308, quoted in p. 42 of
Answer.)

The word "regulate" is of broad import, and necessarily implies some degree of restraint and
prohibition of acts usually done in connection with the thing to be regulated. While word
regulate does not ordinarily convey meaning of prohibit, there is no absolute reason why it
should not have such meaning when used in delegating police power in connection with a
thing the best or only efficacious regulation of which involves suppression. (State vs. Morton,
162 So. 718, 182 La. 887, quoted in p. 42 of Answer.)

The general rule is for the use of general terms in the title of a bill; it has also been said that the title
need not be an index to the entire contents of the law (I Sutherland, Statutory Construction, See.
4803, p. 345.) The above rule was followed the title of the Act in question adopted the more general
term "regulate" instead of "nationalize" or "prohibit". Furthermore, the law also contains other rules
for the regulation of the retail trade which may not be included in the terms "nationalization" or
"prohibition"; so were the title changed from "regulate" to "nationalize" or "prohibit", there would have
been many provisions not falling within the scope of the title which would have made the Act invalid.
The use of the term "regulate", therefore, is in accord with the principle governing the drafting of
statutes, under which a simple or general term should be adopted in the title, which would include all
other provisions found in the body of the Act.

One purpose of the constitutional directive that the subject of a bill should be embraced in its title is
to apprise the legislators of the purposes, the nature and scope of its provisions, and prevent the
enactment into law of matters which have received the notice, action and study of the legislators or
of the public. In the case at bar it cannot be claimed that the legislators have been appraised of the
nature of the law, especially the nationalization and the prohibition provisions. The legislators took
active interest in the discussion of the law, and a great many of the persons affected by the
prohibitions in the law conducted a campaign against its approval. It cannot be claimed, therefore,
that the reasons for declaring the law invalid ever existed. The objection must therefore, be
overruled.

IX. Alleged violation of international treaties and obligations

Another subordinate argument against the validity of the law is the supposed violation thereby of the
Charter of the United Nations and of the Declaration of the Human Rights adopted by the United
Nations General Assembly. We find no merit in the Nations Charter imposes no strict or legal
obligations regarding the rights and freedom of their subjects (Hans Kelsen, The Law of the United
Nations, 1951 ed. pp. 29-32), and the Declaration of Human Rights contains nothing more than a
mere recommendation or a common standard of achievement for all peoples and all nations (Id. p.
39.) That such is the import of the United Nations Charter aid of the Declaration of Human Rights
can be inferred the fact that members of the United Nations Organizations, such as Norway and
Denmark, prohibit foreigners from engaging in retail trade, and in most nations of the world laws
against foreigners engaged in domestic trade are adopted.

The Treaty of Amity between the Republic of the Philippines and the Republic of China of April 18,
1947 is also claimed to be violated by the law in question. All that the treaty guarantees is equality of
treatment to the Chinese nationals "upon the same terms as the nationals of any other country." But
the nationals of China are not discriminating against because nationals of all other countries, except
those of the United States, who are granted special rights by the Constitution, are all prohibited from
engaging in the retail trade. But even supposing that the law infringes upon the said treaty, the treaty
is always subject to qualification or amendment by a subsequent law (U. S. vs. Thompson, 258, Fed.
257, 260), and the same may never curtail or restrict the scope of the police power of the State
(plaston vs. Pennsylvania, 58 L. ed. 539.)

X. Conclusion

Resuming what we have set forth above we hold that the disputed law was enacted to remedy a real
actual threat and danger to national economy posed by alien dominance and control of the retail
business and free citizens and country from dominance and control; that the enactment clearly falls
within the scope of the police power of the State, thru which and by which it protects its own
personality and insures its security and future; that the law does not violate the equal protection
clause of the Constitution because sufficient grounds exist for the distinction between alien and
citizen in the exercise of the occupation regulated, nor the due process of law clause, because the
law is prospective in operation and recognizes the privilege of aliens already engaged in the
occupation and reasonably protects their privilege; that the wisdom and efficacy of the law to carry
out its objectives appear to us to be plainly evident — as a matter of fact it seems not only
appropriate but actually necessary — and that in any case such matter falls within the prerogative of
the Legislature, with whose power and discretion the Judicial department of the Government may
not interfere; that the provisions of the law are clearly embraced in the title, and this suffers from no
duplicity and has not misled the legislators or the segment of the population affected; and that it
cannot be said to be void for supposed conflict with treaty obligations because no treaty has actually
been entered into on the subject and the police power may not be curtailed or surrendered by any
treaty or any other conventional agreement.

Some members of the Court are of the opinion that the radical effects of the law could have been
made less harsh in its impact on the aliens. Thus it is stated that the more time should have been
given in the law for the liquidation of existing businesses when the time comes for them to close. Our
legal duty, however, is merely to determine if the law falls within the scope of legislative authority
and does not transcend the limitations of due process and equal protection guaranteed in the
Constitution. Remedies against the harshness of the law should be addressed to the Legislature;
they are beyond our power and jurisdiction.

The petition is hereby denied, with costs against petitioner.

Paras, C.J., Bengzon, Reyes, A., Bautista Angelo, Concepcion, Reyes, J.B.L., Endencia and Felix,
JJ., concur.

EN BANC

G.R. No. 141284 August 15, 2000

INTEGRATED BAR OF THE PHILIPPINES, petitioner,

vs.
HON. RONALDO B. ZAMORA, GEN. PANFILO M. LACSON, GEN. EDGAR B. AGLIPAY, and
GEN. ANGELO REYES, respondents.

DECISION

KAPUNAN, J.:

At bar is a special civil action for certiorari and prohibition with prayer for issuance of a temporary
restraining order seeking to nullify on constitutional grounds the order of President Joseph Ejercito
Estrada commanding the deployment of the Philippine Marines (the "Marines") to join the Philippine
National Police (the "PNP") in visibility patrols around the metropolis.

In view of the alarming increase in violent crimes in Metro Manila, like robberies, kidnappings and
carnappings, the President, in a verbal directive, ordered the PNP and the Marines to conduct joint
visibility patrols for the purpose of crime prevention and suppression. The Secretary of National
Defense, the Chief of Staff of the Armed Forces of the Philippines (the "AFP"), the Chief of the PNP
and the Secretary of the Interior and Local Government were tasked to execute and implement the
said order. In compliance with the presidential mandate, the PNP Chief, through Police Chief
Superintendent Edgar B. Aglipay, formulated Letter of Instruction 02/20001 (the "LOI") which detailed
the manner by which the joint visibility patrols, called Task Force Tulungan, would be
conducted.2 Task Force Tulungan was placed under the leadership of the Police Chief of Metro
Manila.
Subsequently, the President confirmed his previous directive on the deployment of the Marines in a
Memorandum, dated 24 January 2000, addressed to the Chief of Staff of the AFP and the PNP
Chief.3 In the Memorandum, the President expressed his desire to improve the peace and order
situation in Metro Manila through a more effective crime prevention program including increased
police patrols.4 The President further stated that to heighten police visibility in the metropolis,
augmentation from the AFP is necessary.5 Invoking his powers as Commander-in-Chief under
Section 18, Article VII of the Constitution, the President directed the AFP Chief of Staff and PNP
Chief to coordinate with each other for the proper deployment and utilization of the Marines to assist
the PNP in preventing or suppressing criminal or lawless violence.6 Finally, the President declared
that the services of the Marines in the anti-crime campaign are merely temporary in nature and for a
reasonable period only, until such time when the situation shall have improved.7

The LOI explains the concept of the PNP-Philippine Marines joint visibility patrols as follows:

xxx

2. PURPOSE:

The Joint Implementing Police Visibility Patrols between the PNP NCRPO and the Philippine
Marines partnership in the conduct of visibility patrols in Metro Manila for the suppression of crime
prevention and other serious threats to national security.

3. SITUATION:

Criminal incidents in Metro Manila have been perpetrated not only by ordinary criminals but also by
organized syndicates whose members include active and former police/military personnel whose
training, skill, discipline and firepower prove well-above the present capability of the local police
alone to handle. The deployment of a joint PNP NCRPO-Philippine Marines in the conduct of police
visibility patrol in urban areas will reduce the incidence of crimes specially those perpetrated by
active or former police/military personnel.

4. MISSION:

The PNP NCRPO will organize a provisional Task Force to conduct joint NCRPO-PM visibility
patrols to keep Metro Manila streets crime-free, through a sustained street patrolling to minimize or
eradicate all forms of high-profile crimes especially those perpetrated by organized crime syndicates
whose members include those that are well-trained, disciplined and well-armed active or former
PNP/Military personnel.

5. CONCEPT IN JOINT VISIBILITY PATROL OPERATIONS:

a. The visibility patrols shall be conducted jointly by the NCRPO [National Capital
Regional Police Office] and the Philippine Marines to curb criminality in Metro Manila
and to preserve the internal security of the state against insurgents and other serious
threat to national security, although the primary responsibility over Internal Security
Operations still rests upon the AFP.

b. The principle of integration of efforts shall be applied to eradicate all forms of high-
profile crimes perpetrated by organized crime syndicates operating in Metro Manila.
This concept requires the military and police to work cohesively and unify efforts to
ensure a focused, effective and holistic approach in addressing crime prevention.
 Along this line, the role of the military and police aside from neutralizing crime
syndicates is to bring a wholesome atmosphere wherein delivery of basic services to
the people and development is achieved. Hand-in-hand with this joint NCRPO-
Philippine Marines visibility patrols, local Police Units are responsible for the
maintenance of peace and order in their locality.

c. To ensure the effective implementation of this project, a provisional Task Force

"TULUNGAN" shall be organized to provide the mechanism, structure, and
procedures for the integrated planning, coordinating, monitoring and assessing the
security situation.

xxx.8

The selected areas of deployment under the LOI are: Monumento Circle, North Edsa (SM City),
Araneta Shopping Center, Greenhills, SM Megamall, Makati Commercial Center, LRT/MRT Stations
and the NAIA and Domestic Airport.9

On 17 January 2000, the Integrated Bar of the Philippines (the "IBP") filed the instant petition to
annul LOI 02/2000 and to declare the deployment of the Philippine Marines, null and void and
unconstitutional, arguing that:

THE DEPLOYMENT OF THE PHILIPPINE MARINES IN METRO MANILA IS VIOLATIVE OF THE

CONSTITUTION, IN THAT:

A) NO EMERGENCY SITUATION OBTAINS IN METRO MANILA AS WOULD

JUSTIFY, EVEN ONLY REMOTELY, THE DEPLOYMENT OF SOLDIERS FOR LAW
ENFORCEMENT WORK; HENCE, SAID DEPLOYMENT IS IN DEROGATION OF
ARTICLE II, SECTION 3 OF THE CONSTITUTION;

B) SAID DEPLOYMENT CONSTITUTES AN INSIDIOUS INCURSION BY THE

MILITARY IN A CIVILIAN FUNCTION OF GOVERNMENT (LAW ENFORCEMENT)
IN DEROGATION OF ARTICLE XVI, SECTION 5 (4), OF THE CONSTITUTION;

C) SAID DEPLOYMENT CREATES A DANGEROUS TENDENCY TO RELY ON

THE MILITARY TO PERFORM THE CIVILIAN FUNCTIONS OF THE
GOVERNMENT.

II

IN MILITARIZING LAW ENFORCEMENT IN METRO MANILA, THE ADMINISTRATION IS

UNWITTINGLY MAKING THE MILITARY MORE POWERFUL THAN WHAT IT SHOULD REALLY
BE UNDER THE CONSTITUTION.10

Asserting itself as the official organization of Filipino lawyers tasked with the bounden duty to uphold
the rule of law and the Constitution, the IBP questions the validity of the deployment and utilization of
the Marines to assist the PNP in law enforcement.
Without granting due course to the petition, the Court in a Resolution,11 dated 25 January 2000,
required the Solicitor General to file his Comment on the petition. On 8 February 2000, the Solicitor
General submitted his Comment.

The Solicitor General vigorously defends the constitutionality of the act of the President in deploying
the Marines, contending, among others, that petitioner has no legal standing; that the question of
deployment of the Marines is not proper for judicial scrutiny since the same involves a political
question; that the organization and conduct of police visibility patrols, which feature the team-up of
one police officer and one Philippine Marine soldier, does not violate the civilian supremacy clause in
the Constitution.

The issues raised in the present petition are: (1) Whether or not petitioner has legal standing; (2)
Whether or not the President’s factual determination of the necessity of calling the armed forces is
subject to judicial review; and, (3) Whether or not the calling of the armed forces to assist the PNP in
joint visibility patrols violates the constitutional provisions on civilian supremacy over the military and
the civilian character of the PNP.

The petition has no merit.

First, petitioner failed to sufficiently show that it is in possession of the requisites of standing to raise
the issues in the petition. Second, the President did not commit grave abuse of discretion amounting
to lack or excess of jurisdiction nor did he commit a violation of the civilian supremacy clause of the
Constitution.

The power of judicial review is set forth in Section 1, Article VIII of the Constitution, to wit:

Section 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may
be established by law.

Judicial power includes the duty of the courts of justice to settle actual controversies involving rights
which are legally demandable and enforceable, and to determine whether or not there has been
grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government.

When questions of constitutional significance are raised, the Court can exercise its power of judicial
review only if the following requisites are complied with, namely: (1) the existence of an actual and
appropriate case; (2) a personal and substantial interest of the party raising the constitutional
question; (3) the exercise of judicial review is pleaded at the earliest opportunity; and (4) the
constitutional question is the lis mota of the case.12

The IBP has not sufficiently complied with the requisites of standing in this case.

"Legal standing" or locus standi has been defined as a personal and substantial interest in the case
such that the party has sustained or will sustain direct injury as a result of the governmental act that
is being challenged.13 The term "interest" means a material interest, an interest in issue affected by
the decree, as distinguished from mere interest in the question involved, or a mere incidental
interest.14 The gist of the question of standing is whether a party alleges "such personal stake in the
outcome of the controversy as to assure that concrete adverseness which sharpens the presentation
of issues upon which the court depends for illumination of difficult constitutional questions."15
In the case at bar, the IBP primarily anchors its standing on its alleged responsibility to uphold the
rule of law and the Constitution. Apart from this declaration, however, the IBP asserts no other basis
in support of its locus standi. The mere invocation by the IBP of its duty to preserve the rule of law
and nothing more, while undoubtedly true, is not sufficient to clothe it with standing in this case. This
is too general an interest which is shared by other groups and the whole citizenry. Based on the
standards above-stated, the IBP has failed to present a specific and substantial interest in the
resolution of the case. Its fundamental purpose which, under Section 2, Rule 139-A of the Rules of
Court, is to elevate the standards of the law profession and to improve the administration of justice is
alien to, and cannot be affected by the deployment of the Marines. It should also be noted that the
interest of the National President of the IBP who signed the petition, is his alone, absent a formal
board resolution authorizing him to file the present action. To be sure, members of the BAR, those in
the judiciary included, have varying opinions on the issue. Moreover, the IBP, assuming that it has
duly authorized the National President to file the petition, has not shown any specific injury which it
has suffered or may suffer by virtue of the questioned governmental act. Indeed, none of its
members, whom the IBP purportedly represents, has sustained any form of injury as a result of the
operation of the joint visibility patrols. Neither is it alleged that any of its members has been arrested
or that their civil liberties have been violated by the deployment of the Marines. What the IBP
projects as injurious is the supposed "militarization" of law enforcement which might threaten
Philippine democratic institutions and may cause more harm than good in the long run. Not only is
the presumed "injury" not personal in character, it is likewise too vague, highly speculative and
uncertain to satisfy the requirement of standing. Since petitioner has not successfully established a
direct and personal injury as a consequence of the questioned act, it does not possess the
personality to assail the validity of the deployment of the Marines. This Court, however, does not
categorically rule that the IBP has absolutely no standing to raise constitutional issues now or in the
future. The IBP must, by way of allegations and proof, satisfy this Court that it has sufficient stake to
obtain judicial resolution of the controversy.

Having stated the foregoing, it must be emphasized that this Court has the discretion to take
cognizance of a suit which does not satisfy the requirement of legal standing when paramount
interest is involved.16 In not a few cases, the Court has adopted a liberal attitude on the locus
standi of a petitioner where the petitioner is able to craft an issue of transcendental significance to
the people.17 Thus, when the issues raised are of paramount importance to the public, the Court may
brush aside technicalities of procedure.18 In this case, a reading of the petition shows that the IBP has
advanced constitutional issues which deserve the attention of this Court in view of their seriousness,
novelty and weight as precedents. Moreover, because peace and order are under constant threat
and lawless violence occurs in increasing tempo, undoubtedly aggravated by the Mindanao
insurgency problem, the legal controversy raised in the petition almost certainly will not go away. It
will stare us in the face again. It, therefore, behooves the Court to relax the rules on standing and to
resolve the issue now, rather than later.

The President did not commit grave abuse of discretion in calling out the Marines.

In the case at bar, the bone of contention concerns the factual determination of the President of the
necessity of calling the armed forces, particularly the Marines, to aid the PNP in visibility patrols. In
this regard, the IBP admits that the deployment of the military personnel falls under the Commander-
in-Chief powers of the President as stated in Section 18, Article VII of the Constitution, specifically,
the power to call out the armed forces to prevent or suppress lawless violence, invasion or rebellion.
What the IBP questions, however, is the basis for the calling of the Marines under the aforestated
provision. According to the IBP, no emergency exists that would justify the need for the calling of the
military to assist the police force. It contends that no lawless violence, invasion or rebellion exist to
warrant the calling of the Marines. Thus, the IBP prays that this Court "review the sufficiency of the
factual basis for said troop [Marine] deployment."19
The Solicitor General, on the other hand, contends that the issue pertaining to the necessity of
calling the armed forces is not proper for judicial scrutiny since it involves a political question and the
resolution of factual issues which are beyond the review powers of this Court.

As framed by the parties, the underlying issues are the scope of presidential powers and limits, and
the extent of judicial review. But, while this Court gives considerable weight to the parties’
formulation of the issues, the resolution of the controversy may warrant a creative approach that
goes beyond the narrow confines of the issues raised. Thus, while the parties are in agreement that
the power exercised by the President is the power to call out the armed forces, the Court is of the
view that the power involved may be no more than the maintenance of peace and order and
promotion of the general welfare.20 For one, the realities on the ground do not show that there exist a
state of warfare, widespread civil unrest or anarchy. Secondly, the full brunt of the military is not
brought upon the citizenry, a point discussed in the latter part of this decision. In the words of the
late Justice Irene Cortes in Marcos v. Manglapus:

More particularly, this case calls for the exercise of the President’s powers as protector of the peace.
[Rossiter, The American Presidency]. The power of the President to keep the peace is not limited
merely to exercising the commander-in-chief powers in times of emergency or to leading the State
against external and internal threats to its existence. The President is not only clothed with
extraordinary powers in times of emergency, but is also tasked with attending to the day-to-day
problems of maintaining peace and order and ensuring domestic tranquility in times when no foreign
foe appears on the horizon. Wide discretion, within the bounds of law, in fulfilling presidential duties
in times of peace is not in any way diminished by the relative want of an emergency specified in the
commander-in-chief provision. For in making the President commander-in-chief the enumeration of
powers that follow cannot be said to exclude the President’s exercising as Commander-in-Chief
powers short of the calling of the armed forces, or suspending the privilege of the writ of habeas
corpus or declaring martial law, in order to keep the peace, and maintain public order and security.

xxx21

Nonetheless, even if it is conceded that the power involved is the President’s power to call out the
armed forces to prevent or suppress lawless violence, invasion or rebellion, the resolution of the
controversy will reach a similar result.

We now address the Solicitor General’s argument that the issue involved is not susceptible to review
by the judiciary because it involves a political question, and thus, not justiciable.

As a general proposition, a controversy is justiciable if it refers to a matter which is appropriate for

court review.22 It pertains to issues which are inherently susceptible of being decided on grounds
recognized by law. Nevertheless, the Court does not automatically assume jurisdiction over actual
constitutional cases brought before it even in instances that are ripe for resolution. One class of
cases wherein the Court hesitates to rule on are "political questions." The reason is that political
questions are concerned with issues dependent upon the wisdom, not the legality, of a particular act
or measure being assailed. Moreover, the political question being a function of the separation of
powers, the courts will not normally interfere with the workings of another co-equal branch unless the
case shows a clear need for the courts to step in to uphold the law and the Constitution.

As Tañada v. Cuenco23 puts it, political questions refer "to those questions which, under the
Constitution, are to be decided by the people in their sovereign capacity, or in regard to which full
discretionary authority has been delegated to the legislative or executive branch of government."
Thus, if an issue is clearly identified by the text of the Constitution as matters for discretionary action
by a particular branch of government or to the people themselves then it is held to be a political
question. In the classic formulation of Justice Brennan in Baker v. Carr,24 "[p]rominent on the surface
of any case held to involve a political question is found a textually demonstrable constitutional
commitment of the issue to a coordinate political department; or a lack of judicially discoverable and
manageable standards for resolving it; or the impossibility of deciding without an initial policy
determination of a kind clearly for nonjudicial discretion; or the impossibility of a court’s undertaking
independent resolution without expressing lack of the respect due coordinate branches of
government; or an unusual need for unquestioning adherence to a political decision already made;
or the potentiality of embarassment from multifarious pronouncements by various departments on
the one question."

The 1987 Constitution expands the concept of judicial review by providing that "(T)he Judicial power
shall be vested in one Supreme Court and in such lower courts as may be established by law.
Judicial power includes the duty of the courts of justice to settle actual controversies involving rights
which are legally demandable and enforceable, and to determine whether or not there has been a
grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government."25 Under this definition, the Court cannot agree with the Solicitor
General that the issue involved is a political question beyond the jurisdiction of this Court to review.
When the grant of power is qualified, conditional or subject to limitations, the issue of whether the
prescribed qualifications or conditions have been met or the limitations respected, is justiciable - the
problem being one of legality or validity, not its wisdom.26 Moreover, the jurisdiction to delimit
constitutional boundaries has been given to this Court.27 When political questions are involved, the
Constitution limits the determination as to whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of the official whose action is being
questioned.28

By grave abuse of discretion is meant simply capricious or whimsical exercise of judgment that is
patent and gross as to amount to an evasion of positive duty or a virtual refusal to perform a duty
enjoined by law, or to act at all in contemplation of law, as where the power is exercised in an
arbitrary and despotic manner by reason of passion or hostility.29 Under this definition, a court is
without power to directly decide matters over which full discretionary authority has been delegated.
But while this Court has no power to substitute its judgment for that of Congress or of the President,
it may look into the question of whether such exercise has been made in grave abuse of
discretion.30A showing that plenary power is granted either department of government, may not be an
obstacle to judicial inquiry, for the improvident exercise or abuse thereof may give rise to justiciable
controversy.31

When the President calls the armed forces to prevent or suppress lawless violence, invasion or
rebellion, he necessarily exercises a discretionary power solely vested in his wisdom. This is clear
from the intent of the framers and from the text of the Constitution itself. The Court, thus, cannot be
called upon to overrule the President’s wisdom or substitute its own. However, this does not prevent
an examination of whether such power was exercised within permissible constitutional limits or
whether it was exercised in a manner constituting grave abuse of discretion. In view of the
constitutional intent to give the President full discretionary power to determine the necessity of
calling out the armed forces, it is incumbent upon the petitioner to show that the President’s decision
is totally bereft of factual basis. The present petition fails to discharge such heavy burden as there is
no evidence to support the assertion that there exist no justification for calling out the armed forces.
There is, likewise, no evidence to support the proposition that grave abuse was committed because
the power to call was exercised in such a manner as to violate the constitutional provision on civilian
supremacy over the military. In the performance of this Court’s duty of "purposeful hesitation"32 before
declaring an act of another branch as unconstitutional, only where such grave abuse of discretion is
clearly shown shall the Court interfere with the President’s judgment. To doubt is to sustain.
There is a clear textual commitment under the Constitution to bestow on the President full
discretionary power to call out the armed forces and to determine the necessity for the exercise of
such power. Section 18, Article VII of the Constitution, which embodies the powers of the President
as Commander-in-Chief, provides in part:

The President shall be the Commander-in-Chief of all armed forces of the Philippines and whenever
it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence,
invasion or rebellion. In case of invasion or rebellion, when the public safety requires it, he may, for a
period not exceeding sixty days, suspend the privilege of the writ of habeas corpus, or place the
Philippines or any part thereof under martial law.

xxx

The full discretionary power of the President to determine the factual basis for the exercise of the
calling out power is also implied and further reinforced in the rest of Section 18, Article VII which
reads, thus:

xxx

Within forty-eight hours from the proclamation of martial law or the suspension of the privilege of the
writ of habeas corpus, the President shall submit a report in person or in writing to the Congress.
The Congress, voting jointly, by a vote of at least a majority of all its Members in regular or special
session, may revoke such proclamation or suspension, which revocation shall not be set aside by
the President. Upon the initiative of the President, the Congress may, in the same manner, extend
such proclamation or suspension for a period to be determined by the Congress, if the invasion or
rebellion shall persist and public safety requires it.

The Congress, if not in session, shall within twenty-four hours following such proclamation or
suspension, convene in accordance with its rules without need of a call.

The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of
the factual basis of the proclamation of martial law or the suspension of the privilege of the writ or
the extension thereof, and must promulgate its decision thereon within thirty days from its filing.

A state of martial law does not suspend the operation of the Constitution, nor supplant the
functioning of the civil courts or legislative assemblies, nor authorize the conferment of jurisdiction on
military courts and agencies over civilians where civil courts are able to function, nor automatically
suspend the privilege of the writ.

The suspension of the privilege of the writ shall apply only to persons judicially charged for rebellion
or offenses inherent in or directly connected with invasion.

During the suspension of the privilege of the writ, any person thus arrested or detained shall be
judicially charged within three days, otherwise he shall be released.

Under the foregoing provisions, Congress may revoke such proclamation or suspension and the
Court may review the sufficiency of the factual basis thereof. However, there is no such equivalent
provision dealing with the revocation or review of the President’s action to call out the armed forces.
The distinction places the calling out power in a different category from the power to declare martial
law and the power to suspend the privilege of the writ of habeas corpus, otherwise, the framers of
the Constitution would have simply lumped together the three powers and provided for their
revocation and review without any qualification. Expressio unius est exclusio alterius. Where the
terms are expressly limited to certain matters, it may not, by interpretation or construction, be
extended to other matters.33 That the intent of the Constitution is exactly what its letter says, i.e., that
the power to call is fully discretionary to the President, is extant in the deliberation of the
Constitutional Commission, to wit:

FR. BERNAS. It will not make any difference. I may add that there is a graduated power of the
President as Commander-in-Chief. First, he can call out such Armed Forces as may be necessary to
suppress lawless violence; then he can suspend the privilege of the writ of habeas corpus, then he
can impose martial law. This is a graduated sequence.

When he judges that it is necessary to impose martial law or suspend the privilege of the writ
of habeas corpus, his judgment is subject to review. We are making it subject to review by the
Supreme Court and subject to concurrence by the National Assembly. But when he exercises this
lesser power of calling on the Armed Forces, when he says it is necessary, it is my opinion that his
judgment cannot be reviewed by anybody.

xxx

FR. BERNAS. Let me just add that when we only have imminent danger, the matter can be handled
by the first sentence: "The President may call out such armed forces to prevent or suppress lawless
violence, invasion or rebellion." So we feel that that is sufficient for handling imminent danger.

MR. DE LOS REYES. So actually, if a President feels that there is imminent danger, the matter can
be handled by the First Sentence: "The President....may call out such Armed Forces to prevent or
suppress lawless violence, invasion or rebellion." So we feel that that is sufficient for handling
imminent danger, of invasion or rebellion, instead of imposing martial law or suspending the writ
of habeas corpus, he must necessarily have to call the Armed Forces of the Philippines as their
Commander-in-Chief. Is that the idea?

MR. REGALADO. That does not require any concurrence by the legislature nor is it subject to
judicial review.34

The reason for the difference in the treatment of the aforementioned powers highlights the intent to
grant the President the widest leeway and broadest discretion in using the power to call out because
it is considered as the lesser and more benign power compared to the power to suspend the
privilege of the writ of habeas corpus and the power to impose martial law, both of which involve the
curtailment and suppression of certain basic civil rights and individual freedoms, and thus
necessitating safeguards by Congress and review by this Court.

Moreover, under Section 18, Article VII of the Constitution, in the exercise of the power to suspend
the privilege of the writ of habeas corpus or to impose martial law, two conditions must concur: (1)
there must be an actual invasion or rebellion and, (2) public safety must require it. These conditions
are not required in the case of the power to call out the armed forces. The only criterion is that
"whenever it becomes necessary," the President may call the armed forces "to prevent or suppress
lawless violence, invasion or rebellion." The implication is that the President is given full discretion
and wide latitude in the exercise of the power to call as compared to the two other powers.

If the petitioner fails, by way of proof, to support the assertion that the President acted without factual
basis, then this Court cannot undertake an independent investigation beyond the pleadings. The
factual necessity of calling out the armed forces is not easily quantifiable and cannot be objectively
established since matters considered for satisfying the same is a combination of several factors
which are not always accessible to the courts. Besides the absence of textual standards that the
court may use to judge necessity, information necessary to arrive at such judgment might also prove
unmanageable for the courts. Certain pertinent information might be difficult to verify, or wholly
unavailable to the courts. In many instances, the evidence upon which the President might decide
that there is a need to call out the armed forces may be of a nature not constituting technical proof.

On the other hand, the President as Commander-in-Chief has a vast intelligence network to gather
information, some of which may be classified as highly confidential or affecting the security of the
state. In the exercise of the power to call, on-the-spot decisions may be imperatively necessary in
emergency situations to avert great loss of human lives and mass destruction of property. Indeed,
the decision to call out the military to prevent or suppress lawless violence must be done swiftly and
decisively if it were to have any effect at all. Such a scenario is not farfetched when we consider the
present situation in Mindanao, where the insurgency problem could spill over the other parts of the
country. The determination of the necessity for the calling out power if subjected to unfettered
judicial scrutiny could be a veritable prescription for disaster, as such power may be unduly
straitjacketed by an injunction or a temporary restraining order every time it is exercised.

Thus, it is the unclouded intent of the Constitution to vest upon the President, as Commander-in-
Chief of the Armed Forces, full discretion to call forth the military when in his judgment it is
necessary to do so in order to prevent or suppress lawless violence, invasion or rebellion. Unless the
petitioner can show that the exercise of such discretion was gravely abused, the President’s
exercise of judgment deserves to be accorded respect from this Court.

The President has already determined the necessity and factual basis for calling the armed forces.
In his Memorandum, he categorically asserted that, "[V]iolent crimes like bank/store robberies,
holdups, kidnappings and carnappings continue to occur in Metro Manila..."35 We do not doubt the
veracity of the President’s assessment of the situation, especially in the light of present
developments. The Court takes judicial notice of the recent bombings perpetrated by lawless
elements in the shopping malls, public utilities, and other public places. These are among the areas
of deployment described in the LOI 2000. Considering all these facts, we hold that the President has
sufficient factual basis to call for military aid in law enforcement and in the exercise of this
constitutional power.

The deployment of the Marines does not violate the civilian supremacy clause nor does it infringe the
civilian character of the police force.

Prescinding from its argument that no emergency situation exists to justify the calling of the Marines,
the IBP asserts that by the deployment of the Marines, the civilian task of law enforcement is
"militarized" in violation of Section 3, Article II36 of the Constitution.

We disagree. The deployment of the Marines does not constitute a breach of the civilian supremacy
clause. The calling of the Marines in this case constitutes permissible use of military assets for
civilian law enforcement. The participation of the Marines in the conduct of joint visibility patrols is
appropriately circumscribed. The limited participation of the Marines is evident in the provisions of
the LOI itself, which sufficiently provides the metes and bounds of the Marines’ authority. It is
noteworthy that the local police forces are the ones in charge of the visibility patrols at all times, the
real authority belonging to the PNP. In fact, the Metro Manila Police Chief is the overall leader of the
PNP-Philippine Marines joint visibility patrols.37 Under the LOI, the police forces are tasked to brief or
orient the soldiers on police patrol procedures.38 It is their responsibility to direct and manage the
deployment of the Marines.39 It is, likewise, their duty to provide the necessary equipment to the
Marines and render logistical support to these soldiers.40 In view of the foregoing, it cannot be
properly argued that military authority is supreme over civilian authority. Moreover, the deployment
of the Marines to assist the PNP does not unmake the civilian character of the police force. Neither
does it amount to an "insidious incursion" of the military in the task of law enforcement in violation of
Section 5(4), Article XVI of the Constitution.41

In this regard, it is not correct to say that General Angelo Reyes, Chief of Staff of the AFP, by his
alleged involvement in civilian law enforcement, has been virtually appointed to a civilian post in
derogation of the aforecited provision. The real authority in these operations, as stated in the LOI, is
lodged with the head of a civilian institution, the PNP, and not with the military. Such being the case,
it does not matter whether the AFP Chief actually participates in the Task Force Tulungan since he
does not exercise any authority or control over the same. Since none of the Marines was
incorporated or enlisted as members of the PNP, there can be no appointment to civilian position to
speak of. Hence, the deployment of the Marines in the joint visibility patrols does not destroy the
civilian character of the PNP.

Considering the above circumstances, the Marines render nothing more than assistance required in
conducting the patrols. As such, there can be no "insidious incursion" of the military in civilian affairs
nor can there be a violation of the civilian supremacy clause in the Constitution.

It is worth mentioning that military assistance to civilian authorities in various forms persists in
Philippine jurisdiction. The Philippine experience reveals that it is not averse to requesting the
assistance of the military in the implementation and execution of certain traditionally "civil" functions.
As correctly pointed out by the Solicitor General, some of the multifarious activities wherein military
aid has been rendered, exemplifying the activities that bring both the civilian and the military together
in a relationship of cooperation, are:

1. Elections;42

2. Administration of the Philippine National Red Cross;43

3. Relief and rescue operations during calamities and disasters;44

4. Amateur sports promotion and development;45

5. Development of the culture and the arts;46

6. Conservation of natural resources;47

7. Implementation of the agrarian reform program;48

8. Enforcement of customs laws;49

9. Composite civilian-military law enforcement activities;50

10. Conduct of licensure examinations;51

11. Conduct of nationwide tests for elementary and high school students;52

12. Anti-drug enforcement activities;53

13. Sanitary inspections;54

 14. Conduct of census work;55

15. Administration of the Civil Aeronautics Board;56

16. Assistance in installation of weather forecasting devices;57

17. Peace and order policy formulation in local government units.58

This unquestionably constitutes a gloss on executive power resulting from a systematic, unbroken,
executive practice, long pursued to the knowledge of Congress and, yet, never before
questioned.59 What we have here is mutual support and cooperation between the military and civilian
authorities, not derogation of civilian supremacy.

In the United States, where a long tradition of suspicion and hostility towards the use of military force
for domestic purposes has persisted,60 and whose Constitution, unlike ours, does not expressly
provide for the power to call, the use of military personnel by civilian law enforcement officers is
allowed under circumstances similar to those surrounding the present deployment of the Philippine
Marines. Under the Posse Comitatus Act61 of the US, the use of the military in civilian law
enforcement is generally prohibited, except in certain allowable circumstances. A provision of the Act
states:

§ 1385. Use of Army and Air Force as posse comitatus

Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act
of Congress, willfully uses any part of the Army or the Air Force as posse comitatus or otherwise to
execute the laws shall be fined not more than $10,000 or imprisoned not more than two years, or
both.62

To determine whether there is a violation of the Posse Comitatus Act in the use of military personnel,
the US courts63 apply the following standards, to wit:

Were Army or Air Force personnel used by the civilian law enforcement officers at Wounded Knee in
such a manner that the military personnel subjected the citizens to the exercise of military power
which was regulatory, proscriptive, or compulsory64 George Washington Law Review, pp. 404-433
(1986), which discusses the four divergent standards for assessing acceptable involvement of
military personnel in civil law enforcement. See likewise HONORED IN THE BREECH:
PRESIDENTIAL AUTHORITY TO EXECUTE THE LAWS WITH MILITARY FORCE, 83 Yale Law
Journal, pp. 130-152, 1973. 64 in nature, either presently or prospectively?

xxx

When this concept is transplanted into the present legal context, we take it to mean that military
involvement, even when not expressly authorized by the Constitution or a statute, does not violate
the Posse Comitatus Act unless it actually regulates, forbids or compels some conduct on the part of
those claiming relief. A mere threat of some future injury would be insufficient. (emphasis supplied)
1âw phi 1

Even if the Court were to apply the above rigid standards to the present case to determine whether
there is permissible use of the military in civilian law enforcement, the conclusion is inevitable that no
violation of the civilian supremacy clause in the Constitution is committed. On this point, the Court
agrees with the observation of the Solicitor General:
3. The designation of tasks in Annex A65 does not constitute the exercise of regulatory, proscriptive,
or compulsory military power. First, the soldiers do not control or direct the operation. This is evident
from Nos. 6,66 8(k)67 and 9(a)68of Annex A. These soldiers, second, also have no power to prohibit or
condemn. In No. 9(d)69 of Annex A, all arrested persons are brought to the nearest police stations for
proper disposition. And last, these soldiers apply no coercive force. The materials or equipment
issued to them, as shown in No. 8(c)70 of Annex A, are all low impact and defensive in character. The
conclusion is that there being no exercise of regulatory, proscriptive or compulsory military power,
the deployment of a handful of Philippine Marines constitutes no impermissible use of military power
for civilian law enforcement.71

It appears that the present petition is anchored on fear that once the armed forces are deployed, the
military will gain ascendancy, and thus place in peril our cherished liberties. Such apprehensions,
however, are unfounded. The power to call the armed forces is just that - calling out the armed
forces. Unless, petitioner IBP can show, which it has not, that in the deployment of the Marines, the
President has violated the fundamental law, exceeded his authority or jeopardized the civil liberties
of the people, this Court is not inclined to overrule the President’s determination of the factual basis
for the calling of the Marines to prevent or suppress lawless violence.

One last point. Since the institution of the joint visibility patrol in January, 2000, not a single citizen
has complained that his political or civil rights have been violated as a result of the deployment of the
Marines. It was precisely to safeguard peace, tranquility and the civil liberties of the people that the
joint visibility patrol was conceived. Freedom and democracy will be in full bloom only when people
feel secure in their homes and in the streets, not when the shadows of violence and anarchy
constantly lurk in their midst.

WHEREFORE, premises considered, the petition is hereby DISMISSED.

SO ORDERED.

FIRST DIVISION

[G.R. No. 47800. December 2, 1940.]

MAXIMO CALALANG, Petitioner, v. A. D. WILLIAMS, ET AL., Respondents.

Maximo Calalang in his own behalf.

Solicitor General Ozaeta and Assistant Solicitor General Amparo for respondents
Williams, Fragante and Bayan

City Fiscal Mabanag for the other respondents.

 SYLLABUS

1. CONSTITUTIONAL LAW; CONSTITUTIONALITY OF COMMONWEALTH ACT No. 648; DELEGATION

OF LEGISLATIVE POWER; AUTHORITY OF DIRECTOR OF PUBLIC WORKS AND SECRETARY OF
PUBLIC WORKS AND COMMUNICATIONS TO PROMULGATE RULES AND REGULATIONS. — The
provisions of section 1 of Commonwealth Act No. 648 do not confer legislative power upon the
Director of Public Works and the Secretary of Public Works and Communications. The authority
therein conferred upon them and under which they promulgated the rules and regulations now
complained of is not to determine what public policy demands but merely to carry out the
legislative policy laid down by the National Assembly in said Act, to wit, "to promote safe transit
upon, and avoid obstructions on, roads and streets designated as national roads by acts of the
National Assembly or by executive orders of the President of the Philippines" and to close them
temporarily to any or all classes of traffic "whenever the condition of the road or the traffic thereon
makes such action necessary or advisable in the public convenience and interest." The delegated
power, if at all, therefore, is not the determination of what the law shall be, but merely the
ascertainment of the facts and circumstances upon which the application of said law is to be
predicated. To promulgate rules and regulations on the use of national roads and to determine
when and how long a national road should be closed to traffic, in view of the condition of the road
or the traffic thereon and the requirements of public convenience and interest, is an administrative
function which cannot be directly discharged by the National Assembly. It must depend on the
discretion of some other government official to whom is confided the duty of determining whether
the proper occasion exists for executing the law. But it cannot be said that the exercise of such
discretion is the making of the law.

2. ID.; ID.; POLICE POWER; PERSONAL LIBERTY; GOVERNMENTAL AUTHORITY. — Commonwealth

Act No. 548 was passed by the National Assembly in the exercise of the paramount police power of
the state. Said Act, by virtue of which the rules and regulations complained of were promulgated,
aims to promote safe transit upon and avoid obstructions on national roads, in the interest and
convenience of the public. In enacting said law, therefore, the National Assembly was prompted by
considerations of public convenience and welfare. It was inspired by a desire to relieve congestion
of traffic, which is, to say the least, a menace to public safety. Public welfare, then, lies at the
bottom of the enactment of said law, and the state in order to promote the general welfare may
interfere with personal liberty, with property, and with business and occupations. Persons and
property may be subjected to all kinds of restraints and burdens, in order to secure the general
comfort, health, and prosperity of the state (U.S. v. Gomer Jesus, 31 Phil., 218). To this
fundamental aim of our Government the rights of the individual are subordinated. Liberty is a
blessing without which life is a misery, but liberty should not be made to prevail over authority
because then society will fall into anarchy. Neither should authority be made to prevail over liberty
because then the individual will fall into slavery. The citizen should achieve the required balance of
liberty and authority in his mind through education and, personal discipline, so that there may be
established the resultant equilibrium, which means peace and order and happiness for all. The
moment greater authority is conferred upon the government, logically so much is withdrawn from
the residuum of liberty which resides in the people. The paradox lies in the fact that the apparent
curtailment of liberty is precisely the very means of insuring its preservation.

3. ID.; ID.; SOCIAL JUSTICE. — Social justice is "neither communism, nor despotism, nor
atomism, nor anarchy," but the humanization of laws and the equalization of social and economic
forces by the State so that justice in its rational and objectively secular conception may at least be
approximated. Social justice means the promotion of the welfare of all the people, the adoption by
the Government of measures calculated to insure economic stability of all the competent elements
of society, through the maintenance of a proper economic and social equilibrium in the
interrelations of the members of the community, constitutionally, through the adoption of
measures legally justifiable, or extra-constitutionally, through the exercise of powers underlying
the existence of all governments on the time-honored principle of salus populi est suprema lex.
Social justice, therefore, must be founded on the recognition of the necessity of interdependence
among divers and diverse units of a society and of the protection that should be equally and
evenly extended to all groups as a combined force in our social and economic life, consistent with
the fundamental and paramount objective of the state of promoting the health, comfort, and quiet
of all persons, and of bringing about "the greatest good to the greatest number."
 DECISION

LAUREL, J.:

Maximo Calalang, in his capacity as a private citizen and as a taxpayer of Manila, brought before
this court this petition for a writ of prohibition against the respondents, A. D. Williams, as
Chairman of the National Traffic Commission; Vicente Fragante, as Director of Public Works;
Sergio Bayan, as Acting Secretary of Public Works and Communications; Eulogio Rodriguez, as
Mayor of the City of Manila; and Juan Dominguez, as Acting Chief of Police of Manila.

It is alleged in the petition that the National Traffic Commission, in its resolution of July 17, 1940,
resolved to recommend to the Director of Public Works and to the Secretary of Public Works and
Communications that animal-drawn vehicles be prohibited from passing along Rosario Street
extending from Plaza Calderon de la Barca to Dasmariñas Street, from 7:30 a.m. to 12:30 p.m.
and from 1:30 p.m. to 5:30 p.m.; and along Rizal Avenue extending from the railroad crossing at
Antipolo Street to Echague Street, from 7 a.m. to 11 p.m., from a period of one year from the
date of the opening of the Colgante Bridge to traffic; that the Chairman of the National Traffic
Commission, on July 18, 1940 recommended to the Director of Public Works the adoption of the
measure proposed in the resolution aforementioned, in pursuance of the provisions of
Commonwealth Act No. 548 which authorizes said Director of Public Works, with the approval of
the Secretary of Public Works and Communications, to promulgate rules and regulations to
regulate and control the use of and traffic on national roads; that on August 2, 1940, the Director
of Public Works, in his first indorsement to the Secretary of Public Works and Communications,
recommended to the latter the approval of the recommendation made by the Chairman of the
National Traffic Commission as aforesaid, with the modification that the closing of Rizal Avenue to
traffic to animal-drawn vehicles be limited to the portion thereof extending from the railroad
crossing at Antipolo Street to Azcarraga Street; that on August 10, 1940, the Secretary of Public
Works and Communications, in his second indorsement addressed to the Director of Public Works,
approved the recommendation of the latter that Rosario Street and Rizal Avenue be closed to
traffic of animal-drawn vehicles, between the points and during the hours as above indicated, for a
period of one year from the date of the opening of the Colgante Bridge to traffic; that the Mayor of
Manila and the Acting Chief of Police of Manila have enforced and caused to be enforced the rules
and regulations thus adopted; that as a consequence of such enforcement, all animal-drawn
vehicles are not allowed to pass and pick up passengers in the places above-mentioned to the
detriment not only of their owners but of the riding public as well.

It is contended by the petitioner that Commonwealth Act No. 548 by which the Director of Public
Works, with the approval of the Secretary of Public Works and Communications, is authorized to
promulgate rules and regulations for the regulation and control of the use of and traffic on national
roads and streets is unconstitutional because it constitutes an undue delegation of legislative
power. This contention is untenable. As was observed by this court in Rubi v. Provincial Board of
Mindoro (39 Phil, 660, 700), "The rule has nowhere been better stated than in the early Ohio case
decided by Judge Ranney, and since followed in a multitude of cases, namely: ’The true distinction
therefore is between the delegation of power to make the law, which necessarily involves a
discretion as to what it shall be, and conferring an authority or discretion as to its execution, to be
exercised under and in pursuance of the law. The first cannot be done; to the latter no valid
objection can be made.’ (Cincinnati, W. & Z. R. Co. v. Comm’rs. Clinton County, 1 Ohio St., 88.)
Discretion, as held by Chief Justice Marshall in Wayman v. Southard (10 Wheat., 1) may be
committed by the Legislature to an executive department or official. The Legislature may make
decisions of executive departments or subordinate officials thereof, to whom it has committed the
execution of certain acts, final on questions of fact. (U.S. v. Kinkead, 248 Fed., 141.) The growing
tendency in the decisions is to give prominence to the ’necessity’ of the case." cralaw virtua1aw l ibra ry

Section 1 of Commonwealth Act No. 548 reads as follows: jgc:chan roble s.com.p h

"SECTION 1. To promote safe transit upon, and avoid obstructions on, roads and streets
designated as national roads by acts of the National Assembly or by executive orders of the
President of the Philippines, the Director of Public Works, with the approval of the Secretary of
Public Works and Communications, shall promulgate the necessary rules and regulations to
regulate and control the use of and traffic on such roads and streets. Such rules and regulations,
with the approval of the President, may contain provisions controlling or regulating the
construction of buildings or other structures within a reasonable distance from along the national
roads. Such roads may be temporarily closed to any or all classes of traffic by the Director of
Public Works and his duly authorized representatives whenever the condition of the road or the
traffic thereon makes such action necessary or advisable in the public convenience and interest, or
for a specified period, with the approval of the Secretary of Public Works and Communications." cralaw virtua1aw lib rary

The above provisions of law do not confer legislative power upon the Director of Public Works and
the Secretary of Public Works and Communications. The authority therein conferred upon them
and under which they promulgated the rules and regulations now complained of is not to
determine what public policy demands but merely to carry out the legislative policy laid down by
the National Assembly in said Act, to wit, "to promote safe transit upon and avoid obstructions on,
roads and streets designated as national roads by acts of the National Assembly or by executive
orders of the President of the Philippines" and to close them temporarily to any or all classes of
traffic "whenever the condition of the road or the traffic makes such action necessary or advisable
in the public convenience and interest." The delegated power, if at all, therefore, is not the
determination of what the law shall be, but merely the ascertainment of the facts and
circumstances upon which the application of said law is to be predicated. To promulgate rules and
regulations on the use of national roads and to determine when and how long a national road
should be closed to traffic, in view of the condition of the road or the traffic thereon and the
requirements of public convenience and interest, is an administrative function which cannot be
directly discharged by the National Assembly. It must depend on the discretion of some other
government official to whom is confided the duty of determining whether the proper occasion
exists for executing the law. But it cannot be said that the exercise of such discretion is the
making of the law. As was said in Locke’s Appeal (72 Pa. 491): "To assert that a law is less than a
law, because it is made to depend on a future event or act, is to rob the Legislature of the power
to act wisely for the public welfare whenever a law is passed relating to a state of affairs not yet
developed, or to things future and impossible to fully know." The proper distinction the court said
was this: "The Legislature cannot delegate its power to make the law; but it can make a law to
delegate a power to determine some fact or state of things upon which the law makes, or intends
to make, its own action depend. To deny this would be to stop the wheels of government. There
are many things upon which wise and useful legislation must depend which cannot be known to
the law-making power, and, must, therefore, be a subject of inquiry and determination outside of
the halls of legislation." (Field v. Clark, 143 U. S. 649, 694; 36 L. Ed. 294.)

In the case of People v. Rosenthal and Osmeña, G.R. Nos. 46076 and 46077, promulgated June
12, 1939, and in Pangasinan Transportation v. The Public Service Commission, G.R. No. 47065,
promulgated June 26, 1940, this Court had occasion to observe that the principle of separation of
powers has been made to adapt itself to the complexities of modern governments, giving rise to
the adoption, within certain limits, of the principle of "subordinate legislation," not only in the
United States and England but in practically all modern governments. Accordingly, with the
growing complexity of modern life, the multiplication of the subjects of governmental regulations,
and the increased difficulty of administering the laws, the rigidity of the theory of separation of
governmental powers has, to a large extent, been relaxed by permitting the delegation of greater
powers by the legislative and vesting a larger amount of discretion in administrative and executive
officials, not only in the execution of the laws, but also in the promulgation of certain rules and
regulations calculated to promote public interest.

The petitioner further contends that the rules and regulations promulgated by the respondents
pursuant to the provisions of Commonwealth Act No. 548 constitute an unlawful interference with
legitimate business or trade and abridge the right to personal liberty and freedom of locomotion.
Commonwealth Act No. 548 was passed by the National Assembly in the exercise of the
paramount police power of the state.

Said Act, by virtue of which the rules and regulations complained of were promulgated, aims to
promote safe transit upon and avoid obstructions on national roads, in the interest and
convenience of the public. In enacting said law, therefore, the National Assembly was prompted by
considerations of public convenience and welfare. It was inspired by a desire to relieve congestion
of traffic. which is, to say the least, a menace to public safety. Public welfare, then, lies at the
bottom of the enactment of said law, and the state in order to promote the general welfare may
interfere with personal liberty, with property, and with business and occupations. Persons and
property may be subjected to all kinds of restraints and burdens, in order to secure the general
comfort, health, and prosperity of the state (U.S. v. Gomez Jesus, 31 Phil., 218). To this
fundamental aim of our Government the rights of the individual are subordinated. Liberty is a
blessing without which life is a misery, but liberty should not be made to prevail over authority
because then society will fall into anarchy. Neither should authority be made to prevail over liberty
because then the individual will fall into slavery. The citizen should achieve the required balance of
liberty and authority in his mind through education and personal discipline, so that there may be
established the resultant equilibrium, which means peace and order and happiness for all. The
moment greater authority is conferred upon the government, logically so much is withdrawn from
the residuum of liberty which resides in the people. The paradox lies in the fact that the apparent
curtailment of liberty is precisely the very means of insuring its preservation.

The scope of police power keeps expanding as civilization advances. As was said in the case of
Dobbins v. Los Angeles (195 U.S. 223, 238; 49 L. ed. 169), "the right to exercise the police power
is a continuing one, and a business lawful today may in the future, because of the changed
situation, the growth of population or other causes, become a menace to the public health and
welfare, and be required to yield to the public good." And in People v. Pomar (46 Phil., 440), it was
observed that "advancing civilization is bringing within the police power of the state today things
which were not thought of as being within such power yesterday. The development of civilization,
the rapidly increasing population, the growth of public opinion, with an increasing desire on the
part of the masses and of the government to look after and care for the interests of the individuals
of the state, have brought within the police power many questions for regulation which formerly
were not so considered." cralaw vi rtua 1aw lib rary

The petitioner finally avers that the rules and regulations complained of infringe upon the
constitutional precept regarding the promotion of social justice to insure the well-being and
economic security of all the people. The promotion of social justice, however, is to be achieved not
through a mistaken sympathy towards any given group. Social justice is "neither communism, nor
despotism, nor atomism, nor anarchy," but the humanization of laws and the equalization of social
and economic forces by the State so that justice in its rational and objectively secular conception
may at least be approximated. Social justice means the promotion of the welfare of all the people,
the adoption by the Government of measures calculated to insure economic stability of all the
competent elements of society, through the maintenance of a proper economic and social
equilibrium in the interrelations of the members of the community, constitutionally, through the
adoption of measures legally justifiable, or extra-constitutionally, through the exercise of powers
underlying the existence of all governments on the time-honored principle of salus populi est
suprema lex.

Social justice, therefore, must be founded on the recognition of the necessity of interdependence
among divers and diverse units of a society and of the protection that should be equally and
evenly extended to all groups as a combined force in our social and economic life, consistent with
the fundamental and paramount objective of the state of promoting the health, comfort, and quiet
of all persons, and of bringing about "the greatest good to the greatest number." cralaw virtua1 aw lib rary

In view of the foregoing, the writ of prohibition prayed for is hereby denied, with costs against the
petitioner. So ordered.

Avanceña, C.J., Imperial, Diaz. and Horrilleno. JJ. concur.