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,20 docketed 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
"internal waters," 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.131 Envisioned to be corollary to the twin rights to information and disclosure is the design for feedback
mechanisms.

MS. ROSARIO BRAID. Yes. And lastly, Mr. Presiding Officer, will the people be able to participate?
Will the government provide feedback mechanisms so that the people can participate and can
react where the existing media facilities are not able to provide full feedback mechanisms to the
government? I suppose this will be part of the government implementing operational
mechanisms.

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

xxxx

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

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

The imperative of a public consultation, as a species of the right to information, is evident in the "marching
orders" to respondents. The mechanics for the duty to disclose information and to conduct public consultation
regarding the peace agenda and process is manifestly provided by E.O. No. 3.133 The preambulatory clause of
E.O. No. 3 declares that there is a need to further enhance the contribution of civil society to the
comprehensive peace process by institutionalizing the people's participation.
One of the three underlying principles of the comprehensive peace process is that it "should be community-
based, reflecting the sentiments, values and principles important to all Filipinos" and "shall be defined not by
the government alone, nor by the different contending groups only, but by all Filipinos as one
community."134 Included as a component of the comprehensive peace process is consensus-building and
empowerment for peace, which includes "continuing consultations on both national and local levels to build
consensus for a peace agenda and process, and the mobilization and facilitation of people's participation in the
peace process."135

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

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

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

PAPP Esperon committed grave abuse of discretion

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

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

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

As for respondents' invocation of the doctrine of executive privilege, it is not tenable under the premises. The
argument defies sound reason when contrasted with E.O. No. 3's explicit provisions on continuing consultation
and dialogue on 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 unless the consultations mentioned in Sections 2 (c) and 26 hereof are complied with, and
prior approval of the sanggunian concerned is obtained: Provided, That occupants in areas where such
projects are to be implemented shall not be evicted unless appropriate relocation sites have been
provided, in accordance with the provisions of the Constitution.143 (Italics and underscoring supplied)

In Lina, Jr. v. Hon. 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 people constitute 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 integrity of the Republic of the Philippines." (Emphasis supplied) Establishing an associative
relationship between the BJE and the Central Government is, for the reasons already discussed, a preparation
for independence, or worse, an implicit acknowledgment of an independent status already prevailing.

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

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

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

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

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

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

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

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

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

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

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

. . . unstated residual powers which are implied from the grant of executive power and
which 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
guarantee to any third party that the required amendments will eventually be put in place, nor even be
submitted to a plebiscite. The most she could do is submit these proposals as recommendations either to
Congress or the people, in whom constituent powers are vested.

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

G.R. No. 155650 July 20, 2006

MANILA INTERNATIONAL AIRPORT AUTHORITY, petitioner,

vs.
COURT OF APPEALS, CITY OF PARAÑAQUE, CITY MAYOR OF PARAÑAQUE, SANGGUNIANG
PANGLUNGSOD NG PARAÑAQUE, CITY ASSESSOR OF PARAÑAQUE, and CITY TREASURER OF
PARAÑAQUE, respondents.

DECISION

CARPIO, J.:

The Antecedents

Petitioner Manila International Airport Authority (MIAA) operates the Ninoy Aquino International Airport (NAIA)
Complex in Parañaque City under Executive Order No. 903, otherwise known as the Revised Charter of the
Manila International Airport Authority ("MIAA Charter"). Executive Order No. 903 was issued on 21 July 1983
by then President Ferdinand E. Marcos. Subsequently, Executive Order Nos. 9091 and 2982 amended the
MIAA Charter.

As operator of the international airport, MIAA administers the land, improvements and equipment within the
NAIA Complex. The MIAA Charter transferred to MIAA approximately 600 hectares of land,3 including the
runways and buildings ("Airport Lands and Buildings") then under the Bureau of Air Transportation.4 The MIAA
Charter further provides that no portion of the land transferred to MIAA shall be disposed of through sale or any
other mode unless specifically approved by the President of the Philippines.5
On 21 March 1997, the Office of the Government Corporate Counsel (OGCC) issued Opinion No. 061. The
OGCC opined that the Local Government Code of 1991 withdrew the exemption from real estate tax granted to
MIAA under Section 21 of the MIAA Charter. Thus, MIAA negotiated with respondent City of Parañaque to pay
the real estate tax imposed by the City. MIAA then paid some of the real estate tax already due.

On 28 June 2001, MIAA received Final Notices of Real Estate Tax Delinquency from the City of Parañaque for
the taxable years 1992 to 2001. MIAA's real estate tax delinquency is broken down as follows:

TAX TAXABLE
TAX DUE PENALTY TOTAL
DECLARATION YEAR
E-016-01370 1992-2001 19,558,160.00 11,201,083.20 30,789,243.20
E-016-01374 1992-2001 111,689,424.90 68,149,479.59 179,838,904.49
E-016-01375 1992-2001 20,276,058.00 12,371,832.00 32,647,890.00
E-016-01376 1992-2001 58,144,028.00 35,477,712.00 93,621,740.00
E-016-01377 1992-2001 18,134,614.65 11,065,188.59 29,199,803.24
E-016-01378 1992-2001 111,107,950.40 67,794,681.59 178,902,631.99
E-016-01379 1992-2001 4,322,340.00 2,637,360.00 6,959,700.00
E-016-01380 1992-2001 7,776,436.00 4,744,944.00 12,521,380.00
*E-016-013-85 1998-2001 6,444,810.00 2,900,164.50 9,344,974.50
*E-016-01387 1998-2001 34,876,800.00 5,694,560.00 50,571,360.00
*E-016-01396 1998-2001 75,240.00 33,858.00 109,098.00
GRAND TOTAL P392,435,861.95 P232,070,863.47 P 624,506,725.42

1992-1997 RPT was paid on Dec. 24, 1997 as per O.R.#9476102 for P4,207,028.75

#9476101 for P28,676,480.00

#9476103 for P49,115.006

On 17 July 2001, the City of Parañaque, through its City Treasurer, issued notices of levy and warrants of levy
on the Airport Lands and Buildings. The Mayor of the City of Parañaque threatened to sell at public auction the
Airport Lands and Buildings should MIAA fail to pay the real estate tax delinquency. MIAA thus sought a
clarification of OGCC Opinion No. 061.

On 9 August 2001, the OGCC issued Opinion No. 147 clarifying OGCC Opinion No. 061. The OGCC pointed
out that Section 206 of the Local Government Code requires persons exempt from real estate tax to show
proof of exemption. The OGCC opined that Section 21 of the MIAA Charter is the proof that MIAA is exempt
from real estate tax.

On 1 October 2001, MIAA filed with the Court of Appeals an original petition for prohibition and injunction, with
prayer for preliminary injunction or temporary restraining order. The petition sought to restrain the City of
Parañaque from imposing real estate tax on, levying against, and auctioning for public sale the Airport Lands
and Buildings. The petition was docketed as CA-G.R. SP No. 66878.

On 5 October 2001, the Court of Appeals dismissed the petition because MIAA filed it beyond the 60-day
reglementary period. The Court of Appeals also denied on 27 September 2002 MIAA's motion for
reconsideration and supplemental motion for reconsideration. Hence, MIAA filed on 5 December 2002 the
present petition for review.7

Meanwhile, in January 2003, the City of Parañaque posted notices of auction sale at the Barangay Halls of
Barangays Vitalez, Sto. Niño, and Tambo, Parañaque City; in the public market of Barangay La Huerta; and in
the main lobby of the Parañaque City Hall. The City of Parañaque published the notices in the 3 and 10
January 2003 issues of the Philippine Daily Inquirer, a newspaper of general circulation in the Philippines. The
notices announced the public auction sale of the Airport Lands and Buildings to the highest bidder on 7
February 2003, 10:00 a.m., at the Legislative Session Hall Building of Parañaque City.

A day before the public auction, or on 6 February 2003, at 5:10 p.m., MIAA filed before this Court an
Urgent Ex-Parte and Reiteratory Motion for the Issuance of a Temporary Restraining Order. The motion sought
to restrain respondents — the City of Parañaque, City Mayor of Parañaque, Sangguniang Panglungsod ng
Parañaque, City Treasurer of Parañaque, and the City Assessor of Parañaque ("respondents") — from
auctioning the Airport Lands and Buildings.

On 7 February 2003, this Court issued a temporary restraining order (TRO) effective immediately. The Court
ordered respondents to cease and desist from selling at public auction the Airport Lands and Buildings.
Respondents received the TRO on the same day that the Court issued it. However, respondents received the
TRO only at 1:25 p.m. or three hours after the conclusion of the public auction.

On 10 February 2003, this Court issued a Resolution confirming nunc pro tunc the TRO.

On 29 March 2005, the Court heard the parties in oral arguments. In compliance with the directive issued
during the hearing, MIAA, respondent City of Parañaque, and the Solicitor General subsequently submitted
their respective Memoranda.

MIAA admits that the MIAA Charter has placed the title to the Airport Lands and Buildings in the name of
MIAA. However, MIAA points out that it cannot claim ownership over these properties since the real owner of
the Airport Lands and Buildings is the Republic of the Philippines. The MIAA Charter mandates MIAA to devote
the Airport Lands and Buildings for the benefit of the general public. Since the Airport Lands and Buildings are
devoted to public use and public service, the ownership of these properties remains with the State. The Airport
Lands and Buildings are thus inalienable and are not subject to real estate tax by local governments.

MIAA also points out that Section 21 of the MIAA Charter specifically exempts MIAA from the payment of real
estate tax. MIAA insists that it is also exempt from real estate tax under Section 234 of the Local Government
Code because the Airport Lands and Buildings are owned by the Republic. To justify the exemption, MIAA
invokes the principle that the government cannot tax itself. MIAA points out that the reason for tax exemption of
public property is that its taxation would not inure to any public advantage, since in such a case the tax debtor
is also the tax creditor.

Respondents invoke Section 193 of the Local Government Code, which expressly withdrew the tax
exemption privileges of "government-owned and-controlled corporations" upon the effectivity of the Local
Government Code. Respondents also argue that a basic rule of statutory construction is that the express
mention of one person, thing, or act excludes all others. An international airport is not among the exceptions
mentioned in Section 193 of the Local Government Code. Thus, respondents assert that MIAA cannot claim
that the Airport Lands and Buildings are exempt from real estate tax.

Respondents also cite the ruling of this Court in Mactan International Airport v. Marcos8 where we held that
the Local Government Code has withdrawn the exemption from real estate tax granted to international airports.
Respondents further argue that since MIAA has already paid some of the real estate tax assessments, it is
now estopped from claiming that the Airport Lands and Buildings are exempt from real estate tax.

The Issue

This petition raises the threshold issue of whether the Airport Lands and Buildings of MIAA are exempt from
real estate tax under existing laws. If so exempt, then the real estate tax assessments issued by the City of
Parañaque, and all proceedings taken pursuant to such assessments, are void. In such event, the other issues
raised in this petition become moot.

The Court's Ruling

We rule that MIAA's Airport Lands and Buildings are exempt from real estate tax imposed by local
governments.

First, MIAA is not a government-owned or controlled corporation but an instrumentality of the National
Government and thus exempt from local taxation. Second, the real properties of MIAA are owned by the
Republic of the Philippines and thus exempt from real estate tax.

1. MIAA is Not a Government-Owned or Controlled Corporation

Respondents argue that MIAA, being a government-owned or controlled corporation, is not exempt from real
estate tax. Respondents claim that the deletion of the phrase "any government-owned or controlled so exempt
by its charter" in Section 234(e) of the Local Government Code withdrew the real estate tax exemption of
government-owned or controlled corporations. The deleted phrase appeared in Section 40(a) of the 1974 Real
Property Tax Code enumerating the entities exempt from real estate tax.

There is no dispute that a government-owned or controlled corporation is not exempt from real estate tax.
However, MIAA is not a government-owned or controlled corporation. Section 2(13) of the Introductory
Provisions of the Administrative Code of 1987 defines a government-owned or controlled corporation as
follows:

SEC. 2. General Terms Defined. – x x x x

(13) Government-owned or controlled corporation refers to any agency organized as a stock or non-
stock corporation, vested with functions relating to public needs whether governmental or proprietary
in nature, and owned by the Government directly or through its instrumentalities either wholly, or, where
applicable as in the case of stock corporations, to the extent of at least fifty-one (51) percent of its
capital stock: x x x. (Emphasis supplied)

A government-owned or controlled corporation must be "organized as a stock or non-stock corporation."

MIAA is not organized as a stock or non-stock corporation. MIAA is not a stock corporation because it has no
capital stock divided into shares. MIAA has no stockholders or voting shares. Section 10 of the MIAA
Charter9 provides:

SECTION 10. Capital. — The capital of the Authority to be contributed by the National Government
shall be increased from Two and One-half Billion (P2,500,000,000.00) Pesos to Ten Billion
(P10,000,000,000.00) Pesos to consist of:

(a) The value of fixed assets including airport facilities, runways and equipment and such other
properties, movable and immovable[,] which may be contributed by the National Government or
transferred by it from any of its agencies, the valuation of which shall be determined jointly with the
Department of Budget and Management and the Commission on Audit on the date of such contribution
or transfer after making due allowances for depreciation and other deductions taking into account the
loans and other liabilities of the Authority at the time of the takeover of the assets and other properties;

(b) That the amount of P605 million as of December 31, 1986 representing about seventy percentum
(70%) of the unremitted share of the National Government from 1983 to 1986 to be remitted to the
National Treasury as provided for in Section 11 of E. O. No. 903 as amended, shall be converted into
the equity of the National Government in the Authority. Thereafter, the Government contribution to the
capital of the Authority shall be provided in the General Appropriations Act.

Clearly, under its Charter, MIAA does not have capital stock that is divided into shares.

Section 3 of the Corporation Code10 defines a stock corporation as one whose "capital stock is divided into
shares and x x x authorized to distribute to the holders of such shares dividends x x x." MIAA has
capital but it is not divided into shares of stock. MIAA has no stockholders or voting shares. Hence, MIAA is not
a stock corporation.

MIAA is also not a non-stock corporation because it has no members. Section 87 of the Corporation Code
defines a non-stock corporation as "one where no part of its income is distributable as dividends to its
members, trustees or officers." A non-stock corporation must have members. Even if we assume that the
Government is considered as the sole member of MIAA, this will not make MIAA a non-stock corporation. Non-
stock corporations cannot distribute any part of their income to their members. Section 11 of the MIAA Charter
mandates MIAA to remit 20% of its annual gross operating income to the National Treasury.11 This prevents
MIAA from qualifying as a non-stock corporation.

Section 88 of the Corporation Code provides that non-stock corporations are "organized for charitable,
religious, educational, professional, cultural, recreational, fraternal, literary, scientific, social, civil service, or
similar purposes, like trade, industry, agriculture and like chambers." MIAA is not organized for any of these
purposes. MIAA, a public utility, is organized to operate an international and domestic airport for public use.

Since MIAA is neither a stock nor a non-stock corporation, MIAA does not qualify as a government-owned or
controlled corporation. What then is the legal status of MIAA within the National Government?

MIAA is a government instrumentality vested with corporate powers to perform efficiently its governmental
functions. MIAA is like any other government instrumentality, the only difference is that MIAA is vested with
corporate powers. Section 2(10) of the Introductory Provisions of the Administrative Code defines a
government "instrumentality" as follows:

SEC. 2. General Terms Defined. –– x x x x

(10) Instrumentality refers to any agency of the National Government, not integrated within the
department framework, vested with special functions or jurisdiction by law, endowed with some if not
all corporate powers, administering special funds, and enjoying operational autonomy, usually
through a charter. x x x (Emphasis supplied)

When the law vests in a government instrumentality corporate powers, the instrumentality does not become a
corporation. Unless the government instrumentality is organized as a stock or non-stock corporation, it remains
a government instrumentality exercising not only governmental but also corporate powers. Thus, MIAA
exercises the governmental powers of eminent domain,12 police authority13 and the levying of fees and
charges.14 At the same time, MIAA exercises "all the powers of a corporation under the Corporation Law,
insofar as these powers are not inconsistent with the provisions of this Executive Order."15

Likewise, when the law makes a government instrumentality operationally autonomous, the instrumentality
remains part of the National Government machinery although not integrated with the department framework.
The MIAA Charter expressly states that transforming MIAA into a "separate and autonomous body"16 will make
its operation more "financially viable."17

Many government instrumentalities are vested with corporate powers but they do not become stock or non-
stock corporations, which is a necessary condition before an agency or instrumentality is deemed a
government-owned or controlled corporation. Examples are the Mactan International Airport Authority, the
Philippine Ports Authority, the University of the Philippines and Bangko Sentral ng Pilipinas. All these
government instrumentalities exercise corporate powers but they are not organized as stock or non-stock
corporations as required by Section 2(13) of the Introductory Provisions of the Administrative Code. These
government instrumentalities are sometimes loosely called government corporate entities. However, they are
not government-owned or controlled corporations in the strict sense as understood under the Administrative
Code, which is the governing law defining the legal relationship and status of government entities.

A government instrumentality like MIAA falls under Section 133(o) of the Local Government Code, which
states:
 SEC. 133. Common Limitations on the Taxing Powers of Local Government Units. – Unless otherwise
provided herein, the exercise of the taxing powers of provinces, cities, municipalities, and
barangays shall not extend to the levy of the following:

xxxx

(o) Taxes, fees or charges of any kind on the National Government, its agencies and
instrumentalities and local government units.(Emphasis and underscoring supplied)

Section 133(o) recognizes the basic principle that local governments cannot tax the national government,
which historically merely delegated to local governments the power to tax. While the 1987 Constitution now
includes taxation as one of the powers of local governments, local governments may only exercise such power
"subject to such guidelines and limitations as the Congress may provide."18

When local governments invoke the power to tax on national government instrumentalities, such power is
construed strictly against local governments. The rule is that a tax is never presumed and there must be clear
language in the law imposing the tax. Any doubt whether a person, article or activity is taxable is resolved
against taxation. This rule applies with greater force when local governments seek to tax national government
instrumentalities.

Another rule is that a tax exemption is strictly construed against the taxpayer claiming the exemption. However,
when Congress grants an exemption to a national government instrumentality from local taxation, such
exemption is construed liberally in favor of the national government instrumentality. As this Court declared
in Maceda v. Macaraig, Jr.:

The reason for the rule does not apply in the case of exemptions running to the benefit of the
government itself or its agencies. In such case the practical effect of an exemption is merely to reduce
the amount of money that has to be handled by government in the course of its operations. For these
reasons, provisions granting exemptions to government agencies may be construed liberally, in favor of
non tax-liability of such agencies.19

There is, moreover, no point in national and local governments taxing each other, unless a sound and
compelling policy requires such transfer of public funds from one government pocket to another.

There is also no reason for local governments to tax national government instrumentalities for rendering
essential public services to inhabitants of local governments. The only exception is when the legislature
clearly intended to tax government instrumentalities for the delivery of essential public services for
sound and compelling policy considerations. There must be express language in the law empowering local
governments to tax national government instrumentalities. Any doubt whether such power exists is resolved
against local governments.

Thus, Section 133 of the Local Government Code states that "unless otherwise provided" in the Code, local
governments cannot tax national government instrumentalities. As this Court held in Basco v. Philippine
Amusements and Gaming Corporation:

The states have no power by taxation or otherwise, to retard, impede, burden or in any manner
control the operation of constitutional laws enacted by Congress to carry into execution the
powers vested in the federal government. (MC Culloch v. Maryland, 4 Wheat 316, 4 L Ed. 579)

This doctrine emanates from the "supremacy" of the National Government over local governments.

"Justice Holmes, speaking for the Supreme Court, made reference to the entire absence of
power on the part of the States to touch, in that way (taxation) at least, the instrumentalities of
the United States (Johnson v. Maryland, 254 US 51) and it can be agreed that no state or
political subdivision can regulate a federal instrumentality in such a way as to prevent it from
 consummating its federal responsibilities, or even to seriously burden it in the accomplishment
of them." (Antieau, Modern Constitutional Law, Vol. 2, p. 140, emphasis supplied)

Otherwise, mere creatures of the State can defeat National policies thru extermination of what local
authorities may perceive to be undesirable activities or enterprise using the power to tax as "a tool for
regulation" (U.S. v. Sanchez, 340 US 42).

The power to tax which was called by Justice Marshall as the "power to destroy" (Mc Culloch v.
Maryland, supra) cannot be allowed to defeat an instrumentality or creation of the very entity which has
the inherent power to wield it. 20

2. Airport Lands and Buildings of MIAA are Owned by the Republic

a. Airport Lands and Buildings are of Public Dominion

The Airport Lands and Buildings of MIAA are property of public dominion and therefore owned by the State
or the Republic of the Philippines. The Civil Code provides:

ARTICLE 419. Property is either of public dominion or of private ownership.

ARTICLE 420. The following things are property of public dominion:

(1) Those 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;

(2) Those 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. (Emphasis supplied)

ARTICLE 421. All other property of the State, which is not of the character stated in the preceding
article, is patrimonial property.

ARTICLE 422. Property of public dominion, when no longer intended for public use or for public service,
shall form part of the patrimonial property of the State.

No one can dispute that properties of public dominion mentioned in Article 420 of the Civil Code, like "roads,
canals, rivers, torrents, ports and bridges constructed by the State," are owned by the State. The term
"ports" includes seaports and airports. The MIAA Airport Lands and Buildings constitute a "port"
constructed by the State. Under Article 420 of the Civil Code, the MIAA Airport Lands and Buildings are
properties of public dominion and thus owned by the State or the Republic of the Philippines.

The Airport Lands and Buildings are devoted to public use because they are used by the public for
international and domestic travel and transportation. The fact that the MIAA collects terminal fees and
other charges from the public does not remove the character of the Airport Lands and Buildings as properties
for public use. The operation by the government of a tollway does not change the character of the road as one
for public use. Someone must pay for the maintenance of the road, either the public indirectly through the
taxes they pay the government, or only those among the public who actually use the road through the toll fees
they pay upon using the road. The tollway system is even a more efficient and equitable manner of taxing the
public for the maintenance of public roads.

The charging of fees to the public does not determine the character of the property whether it is of public
dominion or not. Article 420 of the Civil Code defines property of public dominion as one "intended for public
use." Even if the government collects toll fees, the road is still "intended for public use" if anyone can use the
road under the same terms and conditions as the rest of the public. The charging of fees, the limitation on the
kind of vehicles that can use the road, the speed restrictions and other conditions for the use of the road do not
affect the public character of the road.
The terminal fees MIAA charges to passengers, as well as the landing fees MIAA charges to airlines, constitute
the bulk of the income that maintains the operations of MIAA. The collection of such fees does not change the
character of MIAA as an airport for public use. Such fees are often termed user's tax. This means taxing those
among the public who actually use a public facility instead of taxing all the public including those who never
use the particular public facility. A user's tax is more equitable — a principle of taxation mandated in the 1987
Constitution.21

The Airport Lands and Buildings of MIAA, which its Charter calls the "principal airport of the Philippines for both
international and domestic air traffic,"22 are properties of public dominion because they are intended for public
use. As properties of public dominion, they indisputably belong to the State or the Republic of the
Philippines.

b. Airport Lands and Buildings are Outside the Commerce of Man

The Airport Lands and Buildings of MIAA are devoted to public use and thus are properties of public
dominion. As properties of public dominion, the Airport Lands and Buildings are outside the commerce
of man. The Court has ruled repeatedly that properties of public dominion are outside the commerce of man.
As early as 1915, this Court already ruled in Municipality of Cavite v. Rojas that properties devoted to public
use are outside the commerce of man, thus:

According to article 344 of the Civil Code: "Property for public use in provinces and in towns comprises
the provincial and town roads, the squares, streets, fountains, and public waters, the promenades, and
public works of general service supported by said towns or provinces."

The said Plaza Soledad being a promenade for public use, the municipal council of Cavite could not in
1907 withdraw or exclude from public use a portion thereof in order to lease it for the sole benefit of the
defendant Hilaria Rojas. In leasing a portion of said plaza or public place to the defendant for private
use the plaintiff municipality exceeded its authority in the exercise of its powers by executing a contract
over a thing of which it could not dispose, nor is it empowered so to do.

The Civil Code, article 1271, prescribes that everything which is not outside the commerce of man may
be the object of a contract, and plazas and streets are outside of this commerce, as was decided by
the supreme court of Spain in its decision of February 12, 1895, which says: "Communal things that
cannot be sold because they are by their very nature outside of commerce are those for public
use, such as the plazas, streets, common lands, rivers, fountains, etc." (Emphasis supplied) 23

Again in Espiritu v. Municipal Council, the Court declared that properties of public dominion are outside the
commerce of man:

xxx Town plazas are properties of public dominion, to be devoted to public use and to be made
available to the public in general. They are outside the commerce of man and cannot be disposed of
or even leased by the municipality to private parties. While in case of war or during an emergency, town
plazas may be occupied temporarily by private individuals, as was done and as was tolerated by the
Municipality of Pozorrubio, when the emergency has ceased, said temporary occupation or use must
also cease, and the town officials should see to it that the town plazas should ever be kept open to the
public and free from encumbrances or illegal private constructions.24 (Emphasis supplied)

The Court has also ruled that property of public dominion, being outside the commerce of man, cannot be the
subject of an auction sale.25

Properties of public dominion, being for public use, are not subject to levy, encumbrance or disposition through
public or private sale. Any encumbrance, levy on execution or auction sale of any property of public dominion
is void for being contrary to public policy. Essential public services will stop if properties of public dominion are
subject to encumbrances, foreclosures and auction sale. This will happen if the City of Parañaque can
foreclose and compel the auction sale of the 600-hectare runway of the MIAA for non-payment of real estate
tax.

Before MIAA can encumber26 the Airport Lands and Buildings, the President must first withdraw from public
use the Airport Lands and Buildings. Sections 83 and 88 of the Public Land Law or Commonwealth Act No.
141, which "remains to this day the existing general law governing the classification and disposition of lands of
the public domain other than timber and mineral lands,"27 provide:

SECTION 83. Upon the recommendation of the Secretary of Agriculture and Natural Resources, the
President may designate by proclamation any tract or tracts of land of the public domain as
reservations for the use of the Republic of the Philippines or of any of its branches, or of the inhabitants
thereof, in accordance with regulations prescribed for this purposes, or for quasi-public uses or
purposes when the public interest requires it, including reservations for highways, rights of way for
railroads, hydraulic power sites, irrigation systems, communal pastures or lequas communales, public
parks, public quarries, public fishponds, working men's village and other improvements for the public
benefit.

SECTION 88. The tract or tracts of land reserved under the provisions of Section eighty-three
shall be non-alienable and shall not be subject to occupation, entry, sale, lease, or other
disposition until again declared alienable under the provisions of this Act or by proclamation of
the President. (Emphasis and underscoring supplied)

Thus, unless the President issues a proclamation withdrawing the Airport Lands and Buildings from public use,
these properties remain properties of public dominion and are inalienable. Since the Airport Lands and
Buildings are inalienable in their present status as properties of public dominion, they are not subject to levy on
execution or foreclosure sale. As long as the Airport Lands and Buildings are reserved for public use, their
ownership remains with the State or the Republic of the Philippines.

The authority of the President to reserve lands of the public domain for public use, and to withdraw such public
use, is reiterated in Section 14, Chapter 4, Title I, Book III of the Administrative Code of 1987, which states:

SEC. 14. Power to Reserve Lands of the Public and Private Domain of the Government. — (1) The
President shall have the power to reserve for settlement or public use, and for specific public
purposes, any of the lands of the public domain, the use of which is not otherwise directed by
law. The reserved land shall thereafter remain subject to the specific public purpose indicated
until otherwise provided by law or proclamation;

x x x x. (Emphasis supplied)

There is no question, therefore, that unless the Airport Lands and Buildings are withdrawn by law or
presidential proclamation from public use, they are properties of public dominion, owned by the Republic and
outside the commerce of man.

c. MIAA is a Mere Trustee of the Republic

MIAA is merely holding title to the Airport Lands and Buildings in trust for the Republic. Section 48, Chapter 12,
Book I of the Administrative Code allows instrumentalities like MIAA to hold title to real properties
owned by the Republic, thus:

SEC. 48. Official Authorized to Convey Real Property. — Whenever real property of the Government is
authorized by law to be conveyed, the deed of conveyance shall be executed in behalf of the
government by the following:

(1) For property belonging to and titled in the name of the Republic of the Philippines, by the President,
unless the authority therefor is expressly vested by law in another officer.
 (2) For property belonging to the Republic of the Philippines but titled in the name of any
political subdivision or of any corporate agency or instrumentality, by the executive head of the
agency or instrumentality. (Emphasis supplied)

In MIAA's case, its status as a mere trustee of the Airport Lands and Buildings is clearer because even its
executive head cannot sign the deed of conveyance on behalf of the Republic. Only the President of the
Republic can sign such deed of conveyance.28

d. Transfer to MIAA was Meant to Implement a Reorganization

The MIAA Charter, which is a law, transferred to MIAA the title to the Airport Lands and Buildings from the
Bureau of Air Transportation of the Department of Transportation and Communications. The MIAA Charter
provides:

SECTION 3. Creation of the Manila International Airport Authority. — x x x x

The land where the Airport is presently located as well as the surrounding land area of
approximately six hundred hectares, are hereby transferred, conveyed and assigned to the
ownership and administration of the Authority, subject to existing rights, if any. The Bureau of
Lands and other appropriate government agencies shall undertake an actual survey of the area
transferred within one year from the promulgation of this Executive Order and the corresponding title to
be issued in the name of the Authority. Any portion thereof shall not be disposed through sale or
through any other mode unless specifically approved by the President of the Philippines.
(Emphasis supplied)

SECTION 22. Transfer of Existing Facilities and Intangible Assets. — All existing public airport
facilities, runways, lands, buildings and other property, movable or immovable, belonging to the
Airport, and all assets, powers, rights, interests and privileges belonging to the Bureau of Air
Transportation relating to airport works or air operations, including all equipment which are necessary
for the operation of crash fire and rescue facilities, are hereby transferred to the Authority. (Emphasis
supplied)

SECTION 25. Abolition of the Manila International Airport as a Division in the Bureau of Air
Transportation and Transitory Provisions. — The Manila International Airport including the Manila
Domestic Airport as a division under the Bureau of Air Transportation is hereby abolished.

x x x x.

The MIAA Charter transferred the Airport Lands and Buildings to MIAA without the Republic receiving cash,
promissory notes or even stock since MIAA is not a stock corporation.

The whereas clauses of the MIAA Charter explain the rationale for the transfer of the Airport Lands and
Buildings to MIAA, thus:

WHEREAS, the Manila International Airport as the principal airport of the Philippines for both
international and domestic air traffic, is required to provide standards of airport accommodation and
service comparable with the best airports in the world;

WHEREAS, domestic and other terminals, general aviation and other facilities, have to be upgraded to
meet the current and future air traffic and other demands of aviation in Metro Manila;

WHEREAS, a management and organization study has indicated that the objectives of providing
high standards of accommodation and service within the context of a financially viable
operation, will best be achieved by a separate and autonomous body; and
 WHEREAS, under Presidential Decree No. 1416, as amended by Presidential Decree No. 1772, the
President of the Philippines is given continuing authority to reorganize the National Government,
which authority includes the creation of new entities, agencies and instrumentalities of the
Government[.] (Emphasis supplied)

The transfer of the Airport Lands and Buildings from the Bureau of Air Transportation to MIAA was not meant
to transfer beneficial ownership of these assets from the Republic to MIAA. The purpose was merely
to reorganize a division in the Bureau of Air Transportation into a separate and autonomous body. The
Republic remains the beneficial owner of the Airport Lands and Buildings. MIAA itself is owned solely by the
Republic. No party claims any ownership rights over MIAA's assets adverse to the Republic.

The MIAA Charter expressly provides that the Airport Lands and Buildings "shall not be disposed through
sale or through any other mode unless specifically approved by the President of the Philippines." This
only means that the Republic retained the beneficial ownership of the Airport Lands and Buildings because
under Article 428 of the Civil Code, only the "owner has the right to x x x dispose of a thing." Since MIAA
cannot dispose of the Airport Lands and Buildings, MIAA does not own the Airport Lands and Buildings.

At any time, the President can transfer back to the Republic title to the Airport Lands and Buildings without the
Republic paying MIAA any consideration. Under Section 3 of the MIAA Charter, the President is the only one
who can authorize the sale or disposition of the Airport Lands and Buildings. This only confirms that the Airport
Lands and Buildings belong to the Republic.

e. Real Property Owned by the Republic is Not Taxable

Section 234(a) of the Local Government Code exempts from real estate tax any "[r]eal property owned by the
Republic of the Philippines." Section 234(a) provides:

SEC. 234. Exemptions from Real Property Tax. — The following are 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 or otherwise, to a
taxable person;

x x x. (Emphasis supplied)

This exemption should be read in relation with Section 133(o) of the same Code, which prohibits local
governments from imposing "[t]axes, fees or charges of any kind on the National Government, its agencies
and instrumentalities x x x." The real properties owned by the Republic are titled either in the name of the
Republic itself or in the name of agencies or instrumentalities of the National Government. The Administrative
Code allows real property owned by the Republic to be titled in the name of agencies or instrumentalities of the
national government. Such real properties remain owned by the Republic and continue to be exempt from real
estate tax.

The Republic may grant the beneficial use of its real property to an agency or instrumentality of the national
government. This happens when title of the real property is transferred to an agency or instrumentality even as
the Republic remains the owner of the real property. Such arrangement does not result in the loss of the tax
exemption. Section 234(a) of the Local Government Code states that real property owned by the Republic
loses its tax exemption only if the "beneficial use thereof has been granted, for consideration or otherwise, to
a taxable person." MIAA, as a government instrumentality, is not a taxable person under Section 133(o) of the
Local Government Code. Thus, even if we assume that the Republic has granted to MIAA the beneficial use of
the Airport Lands and Buildings, such fact does not make these real properties subject to real estate tax.

However, portions of the Airport Lands and Buildings that MIAA leases to private entities are not exempt from
real estate tax. For example, the land area occupied by hangars that MIAA leases to private corporations is
subject to real estate tax. In such a case, MIAA has granted the beneficial use of such land area for a
consideration to a taxable person and therefore such land area is subject to real estate tax. In Lung Center
of the Philippines v. Quezon City, the Court ruled:

Accordingly, we hold that the portions of the land leased to private entities as well as those parts of the
hospital leased to private individuals are not exempt from such taxes. On the other hand, the portions of
the land occupied by the hospital and portions of the hospital used for its patients, whether paying or
non-paying, are exempt from real property taxes.29

3. Refutation of Arguments of Minority

The minority asserts that the MIAA is not exempt from real estate tax because Section 193 of the Local
Government Code of 1991 withdrew the tax exemption of "all persons, whether natural or juridical" upon
the effectivity of the Code. Section 193 provides:

SEC. 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, non-stock and non-profit hospitals and educational
institutions are hereby withdrawn upon effectivity of this Code. (Emphasis supplied)

The minority states that MIAA is indisputably a juridical person. The minority argues that since the Local
Government Code withdrew the tax exemption of all juridical persons, then MIAA is not exempt from real
estate tax. Thus, the minority declares:

It is evident from the quoted provisions of the Local Government Code that the withdrawn
exemptions from realty tax cover not just GOCCs, but all persons. To repeat, the provisions lay
down the explicit proposition that the withdrawal of realty tax exemption applies to all persons. The
reference to or the inclusion of GOCCs is only clarificatory or illustrative of the explicit provision.

The term "All persons" encompasses the two classes of persons recognized under our laws,
natural and juridical persons. Obviously, MIAA is not a natural person. Thus, the determinative
test is not just whether MIAA is a GOCC, but whether MIAA is a juridical person at all. (Emphasis
and underscoring in the original)

The minority posits that the "determinative test" whether MIAA is exempt from local taxation is its status —
whether MIAA is a juridical person or not. The minority also insists that "Sections 193 and 234 may be
examined in isolation from Section 133(o) to ascertain MIAA's claim of exemption."

The argument of the minority is fatally flawed. Section 193 of the Local Government Code expressly withdrew
the tax exemption of all juridical persons "[u]nless otherwise provided in this Code." Now, Section 133(o) of
the Local Government Code expressly provides otherwise, specifically prohibiting local governments from
imposing any kind of tax on national government instrumentalities. Section 133(o) states:

SEC. 133. Common Limitations on the Taxing Powers of Local Government Units. – Unless otherwise
provided herein, the exercise of the taxing powers of provinces, cities, municipalities, and barangays
shall not extend to the levy of the following:

xxxx

(o) Taxes, fees or charges of any kinds on the National Government, its agencies and instrumentalities,
and local government units. (Emphasis and underscoring supplied)

By express mandate of the Local Government Code, local governments cannot impose any kind of tax on
national government instrumentalities like the MIAA. Local governments are devoid of power to tax the national
government, its agencies and instrumentalities. The taxing powers of local governments do not extend to the
national government, its agencies and instrumentalities, "[u]nless otherwise provided in this Code" as stated in
the saving clause of Section 133. The saving clause refers to Section 234(a) on the exception to the exemption
from real estate tax of real property owned by the Republic.

The minority, however, theorizes that unless exempted in Section 193 itself, all juridical persons are subject to
tax by local governments. The minority insists that the juridical persons exempt from local taxation are limited
to the three classes of entities specifically enumerated as exempt in Section 193. Thus, the minority states:

x x x Under Section 193, the exemption is limited to (a) local water districts; (b) cooperatives duly
registered under Republic Act No. 6938; and (c) non-stock and non-profit hospitals and educational
institutions. It would be belaboring the obvious why the MIAA does not fall within any of the exempt
entities under Section 193. (Emphasis supplied)

The minority's theory directly contradicts and completely negates Section 133(o) of the Local Government
Code. This theory will result in gross absurdities. It will make the national government, which itself is a juridical
person, subject to tax by local governments since the national government is not included in the enumeration
of exempt entities in Section 193. Under this theory, local governments can impose any kind of local tax, and
not only real estate tax, on the national government.

Under the minority's theory, many national government instrumentalities with juridical personalities will also be
subject to any kind of local tax, and not only real estate tax. Some of the national government instrumentalities
vested by law with juridical personalities are: Bangko Sentral ng Pilipinas,30 Philippine Rice Research
Institute,31 Laguna Lake

Development Authority,32 Fisheries Development Authority,33 Bases Conversion Development

Authority,34 Philippine Ports Authority,35 Cagayan de Oro Port Authority,36 San Fernando Port Authority,37 Cebu
Port Authority,38 and Philippine National Railways.39

The minority's theory violates Section 133(o) of the Local Government Code which expressly prohibits local
governments from imposing any kind of tax on national government instrumentalities. Section 133(o) does not
distinguish between national government instrumentalities with or without juridical personalities. Where the law
does not distinguish, courts should not distinguish. Thus, Section 133(o) applies to all national government
instrumentalities, with or without juridical personalities. The determinative test whether MIAA is exempt from
local taxation is not whether MIAA is a juridical person, but whether it is a national government instrumentality
under Section 133(o) of the Local Government Code. Section 133(o) is the specific provision of law prohibiting
local governments from imposing any kind of tax on the national government, its agencies and
instrumentalities.

Section 133 of the Local Government Code starts with the saving clause "[u]nless otherwise provided in this
Code." This means that unless the Local Government Code grants an express authorization, local
governments have no power to tax the national government, its agencies and instrumentalities. Clearly, the
rule is local governments have no power to tax the national government, its agencies and instrumentalities. As
an exception to this rule, local governments may tax the national government, its agencies and
instrumentalities only if the Local Government Code expressly so provides.

The saving clause in Section 133 refers to the exception to the exemption in Section 234(a) of the Code, which
makes the national government subject to real estate tax when it gives the beneficial use of its real properties
to a taxable entity. Section 234(a) of the Local Government Code provides:

SEC. 234. Exemptions from Real Property Tax – The following are 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 or otherwise, to a taxable person.
 x x x. (Emphasis supplied)

Under Section 234(a), real property owned by the Republic is exempt from real estate tax. The exception to
this exemption is when the government gives the beneficial use of the real property to a taxable entity.

The exception to the exemption in Section 234(a) is the only instance when the national government, its
agencies and instrumentalities are subject to any kind of tax by local governments. The exception to the
exemption applies only to real estate tax and not to any other tax. The justification for the exception to the
exemption is that the real property, although owned by the Republic, is not devoted to public use or public
service but devoted to the private gain of a taxable person.

The minority also argues that since Section 133 precedes Section 193 and 234 of the Local Government Code,
the later provisions prevail over Section 133. Thus, the minority asserts:

x x x Moreover, sequentially Section 133 antecedes Section 193 and 234. Following an accepted rule
of construction, in case of conflict the subsequent provisions should prevail. Therefore, MIAA, as a
juridical person, is subject to real property taxes, the general exemptions attaching to instrumentalities
under Section 133(o) of the Local Government Code being qualified by Sections 193 and 234 of the
same law. (Emphasis supplied)

The minority assumes that there is an irreconcilable conflict between Section 133 on one hand, and Sections
193 and 234 on the other. No one has urged that there is such a conflict, much less has any one presenteda
persuasive argument that there is such a conflict. The minority's assumption of an irreconcilable conflict in the
statutory provisions is an egregious error for two reasons.

First, there is no conflict whatsoever between Sections 133 and 193 because Section 193 expressly admits its
subordination to other provisions of the Code when Section 193 states "[u]nless otherwise provided in this
Code." By its own words, Section 193 admits the superiority of other provisions of the Local Government Code
that limit the exercise of the taxing power in Section 193. When a provision of law grants a power but withholds
such power on certain matters, there is no conflict between the grant of power and the withholding of power.
The grantee of the power simply cannot exercise the power on matters withheld from its power.

Second, Section 133 is entitled "Common Limitations on the Taxing Powers of Local Government Units."
Section 133 limits the grant to local governments of the power to tax, and not merely the exercise of a
delegated power to tax. Section 133 states that the taxing powers of local governments "shall not extend to the
levy" of any kind of tax on the national government, its agencies and instrumentalities. There is no clearer
limitation on the taxing power than this.

Since Section 133 prescribes the "common limitations" on the taxing powers of local governments, Section 133
logically prevails over Section 193 which grants local governments such taxing powers. By their very meaning
and purpose, the "common limitations" on the taxing power prevail over the grant or exercise of the taxing
power. If the taxing power of local governments in Section 193 prevails over the limitations on such taxing
power in Section 133, then local governments can impose any kind of tax on the national government, its
agencies and instrumentalities — a gross absurdity.

Local governments have no power to tax the national government, its agencies and instrumentalities, except
as otherwise provided in the Local Government Code pursuant to the saving clause in Section 133 stating
"[u]nless otherwise provided in this Code." This exception — which is an exception to the exemption of the
Republic from real estate tax imposed by local governments — refers to Section 234(a) of the Code. The
exception to the exemption in Section 234(a) subjects real property owned by the Republic, whether titled in
the name of the national government, its agencies or instrumentalities, to real estate tax if the beneficial use of
such property is given to a taxable entity.
The minority also claims that the definition in the Administrative Code of the phrase "government-owned or
controlled corporation" is not controlling. The minority points out that Section 2 of the Introductory Provisions of
the Administrative Code admits that its definitions are not controlling when it provides:

SEC. 2. General Terms Defined. — Unless the specific words of the text, or the context as a whole, or
a particular statute, shall require a different meaning:

xxxx

The minority then concludes that reliance on the Administrative Code definition is "flawed."

The minority's argument is a non sequitur. True, Section 2 of the Administrative Code recognizes that a statute
may require a different meaning than that defined in the Administrative Code. However, this does not
automatically mean that the definition in the Administrative Code does not apply to the Local Government
Code. Section 2 of the Administrative Code clearly states that "unless the specific words x x x of a particular
statute shall require a different meaning," the definition in Section 2 of the Administrative Code shall apply.
Thus, unless there is specific language in the Local Government Code defining the phrase "government-owned
or controlled corporation" differently from the definition in the Administrative Code, the definition in the
Administrative Code prevails.

The minority does not point to any provision in the Local Government Code defining the phrase "government-
owned or controlled corporation" differently from the definition in the Administrative Code. Indeed, there is
none. The Local Government Code is silent on the definition of the phrase "government-owned or controlled
corporation." The Administrative Code, however, expressly defines the phrase "government-owned or
controlled corporation." The inescapable conclusion is that the Administrative Code definition of the phrase
"government-owned or controlled corporation" applies to the Local Government Code.

The third whereas clause of the Administrative Code states that the Code "incorporates in a unified document
the major structural, functional and procedural principles and rules of governance." Thus, the Administrative
Code is the governing law defining the status and relationship of government departments, bureaus, offices,
agencies and instrumentalities. Unless a statute expressly provides for a different status and relationship for a
specific government unit or entity, the provisions of the Administrative Code prevail.

The minority also contends that the phrase "government-owned or controlled corporation" should apply only to
corporations organized under the Corporation Code, the general incorporation law, and not to corporations
created by special charters. The minority sees no reason why government corporations with special charters
should have a capital stock. Thus, the minority declares:

I submit that the definition of "government-owned or controlled corporations" under the Administrative
Code refer to those corporations owned by the government or its instrumentalities which are created
not by legislative enactment, but formed and organized under the Corporation Code through
registration with the Securities and Exchange Commission. In short, these are GOCCs without original
charters.

xxxx

It might as well be worth pointing out that there is no point in requiring a capital structure for GOCCs
whose full ownership is limited by its charter to the State or Republic. Such GOCCs are not empowered
to declare dividends or alienate their capital shares.

The contention of the minority is seriously flawed. It is not in accord with the Constitution and existing
legislations. It will also result in gross absurdities.
First, the Administrative Code definition of the phrase "government-owned or controlled corporation" does not
distinguish between one incorporated under the Corporation Code or under a special charter. Where the law
does not distinguish, courts should not distinguish.

Second, Congress has created through special charters several government-owned corporations organized as
stock corporations. Prime examples are the Land Bank of the Philippines and the Development Bank of the
Philippines. The special charter40 of the Land Bank of the Philippines provides:

SECTION 81. Capital. — The authorized capital stock of the Bank shall be nine billion pesos, divided
into seven hundred and eighty million common shares with a par value of ten pesos each, which shall
be fully subscribed by the Government, and one hundred and twenty million preferred shares with a par
value of ten pesos each, which shall be issued in accordance with the provisions of Sections seventy-
seven and eighty-three of this Code. (Emphasis supplied)

Likewise, the special charter41 of the Development Bank of the Philippines provides:

SECTION 7. Authorized Capital Stock – Par value. — The capital stock of the Bank shall be Five Billion
Pesos to be divided into Fifty Million common shares with par value of P100 per share. These shares
are available for subscription by the National Government. Upon the effectivity of this Charter, the
National Government shall subscribe to Twenty-Five Million common shares of stock worth Two Billion
Five Hundred Million which shall be deemed paid for by the Government with the net asset values of
the Bank remaining after the transfer of assets and liabilities as provided in Section 30 hereof.
(Emphasis supplied)

Other government-owned corporations organized as stock corporations under their special charters are the
Philippine Crop Insurance Corporation,42 Philippine International Trading Corporation,43 and the Philippine
National Bank44 before it was reorganized as a stock corporation under the Corporation Code. All these
government-owned corporations organized under special charters as stock corporations are subject to real
estate tax on real properties owned by them. To rule that they are not government-owned or controlled
corporations because they are not registered with the Securities and Exchange Commission would remove
them from the reach of Section 234 of the Local Government Code, thus exempting them from real estate tax.

Third, the government-owned or controlled corporations created through special charters are those that meet
the two conditions prescribed in Section 16, Article XII of the Constitution. The first condition is that the
government-owned or controlled corporation must be established for the common good. The second condition
is that the government-owned or controlled corporation must meet the test of economic viability. Section 16,
Article XII of the 1987 Constitution provides:

SEC. 16. The Congress shall not, except by general law, provide for the formation, organization, or
regulation of private corporations. Government-owned or controlled corporations may be created or
established by special charters in the interest of the common good and subject to the test of economic
viability. (Emphasis and underscoring supplied)

The Constitution expressly authorizes the legislature to create "government-owned or controlled corporations"
through special charters only if these entities are required to meet the twin conditions of common good and
economic viability. In other words, Congress has no power to create government-owned or controlled
corporations with special charters unless they are made to comply with the two conditions of common good
and economic viability. The test of economic viability applies only to government-owned or controlled
corporations that perform economic or commercial activities and need to compete in the market place. Being
essentially economic vehicles of the State for the common good — meaning for economic development
purposes — these government-owned or controlled corporations with special charters are usually organized as
stock corporations just like ordinary private corporations.

In contrast, government instrumentalities vested with corporate powers and performing governmental or public
functions need not meet the test of economic viability. These instrumentalities perform essential public services
for the common good, services that every modern State must provide its citizens. These instrumentalities need
not be economically viable since the government may even subsidize their entire operations. These
instrumentalities are not the "government-owned or controlled corporations" referred to in Section 16, Article
XII of the 1987 Constitution.

Thus, the Constitution imposes no limitation when the legislature creates government instrumentalities vested
with corporate powers but performing essential governmental or public functions. Congress has plenary
authority to create government instrumentalities vested with corporate powers provided these instrumentalities
perform essential government functions or public services. However, when the legislature creates through
special charters corporations that perform economic or commercial activities, such entities — known as
"government-owned or controlled corporations" — must meet the test of economic viability because they
compete in the market place.

This is the situation of the Land Bank of the Philippines and the Development Bank of the Philippines and
similar government-owned or controlled corporations, which derive their income to meet operating expenses
solely from commercial transactions in competition with the private sector. The intent of the Constitution is to
prevent the creation of government-owned or controlled corporations that cannot survive on their own in the
market place and thus merely drain the public coffers.

Commissioner Blas F. Ople, proponent of the test of economic viability, explained to the Constitutional
Commission the purpose of this test, as follows:

MR. OPLE: Madam President, the reason for this concern is really that when the government creates a
corporation, there is a sense in which this corporation becomes exempt from the test of economic
performance. We know what happened in the past. If a government corporation loses, then it makes its
claim upon the taxpayers' money through new equity infusions from the government and what is always
invoked is the common good. That is the reason why this year, out of a budget of P115 billion for the
entire government, about P28 billion of this will go into equity infusions to support a few government
financial institutions. And this is all taxpayers' money which could have been relocated to agrarian
reform, to social services like health and education, to augment the salaries of grossly underpaid public
employees. And yet this is all going down the drain.

Therefore, when we insert the phrase "ECONOMIC VIABILITY" together with the "common good," this
becomes a restraint on future enthusiasts for state capitalism to excuse themselves from the
responsibility of meeting the market test so that they become viable. And so, Madam President, I
reiterate, for the committee's consideration and I am glad that I am joined in this proposal by
Commissioner Foz, the insertion of the standard of "ECONOMIC VIABILITY OR THE ECONOMIC
TEST," together with the common good.45

Father Joaquin G. Bernas, a leading member of the Constitutional Commission, explains in his textbook The
1987 Constitution of the Republic of the Philippines: A Commentary:

The second sentence was added by the 1986 Constitutional Commission. The significant addition,
however, is the phrase "in the interest of the common good and subject to the test of economic
viability." The addition includes the ideas that they must show capacity to function efficiently in business
and that they should not go into activities which the private sector can do better. Moreover, economic
viability is more than financial viability but also includes capability to make profit and generate benefits
not quantifiable in financial terms.46 (Emphasis supplied)

Clearly, the test of economic viability does not apply to government entities vested with corporate powers and
performing essential public services. The State is obligated to render essential public services regardless of
the economic viability of providing such service. The non-economic viability of rendering such essential public
service does not excuse the State from withholding such essential services from the public.
However, government-owned or controlled corporations with special charters, organized essentially for
economic or commercial objectives, must meet the test of economic viability. These are the government-
owned or controlled corporations that are usually organized under their special charters as stock corporations,
like the Land Bank of the Philippines and the Development Bank of the Philippines. These are the government-
owned or controlled corporations, along with government-owned or controlled corporations organized under
the Corporation Code, that fall under the definition of "government-owned or controlled corporations" in Section
2(10) of the Administrative Code.

The MIAA need not meet the test of economic viability because the legislature did not create MIAA to compete
in the market place. MIAA does not compete in the market place because there is no competing international
airport operated by the private sector. MIAA performs an essential public service as the primary domestic and
international airport of the Philippines. The operation of an international airport requires the presence of
personnel from the following government agencies:

1. The Bureau of Immigration and Deportation, to document the arrival and departure of passengers,
screening out those without visas or travel documents, or those with hold departure orders;

2. The Bureau of Customs, to collect import duties or enforce the ban on prohibited importations;

3. The quarantine office of the Department of Health, to enforce health measures against the spread of
infectious diseases into the country;

4. The Department of Agriculture, to enforce measures against the spread of plant and animal diseases
into the country;

5. The Aviation Security Command of the Philippine National Police, to prevent the entry of terrorists
and the escape of criminals, as well as to secure the airport premises from terrorist attack or seizure;

6. The Air Traffic Office of the Department of Transportation and Communications, to authorize aircraft
to enter or leave Philippine airspace, as well as to land on, or take off from, the airport; and

7. The MIAA, to provide the proper premises — such as runway and buildings — for the government
personnel, passengers, and airlines, and to manage the airport operations.

All these agencies of government perform government functions essential to the operation of an international
airport.

MIAA performs an essential public service that every modern State must provide its citizens. MIAA derives its
revenues principally from the mandatory fees and charges MIAA imposes on passengers and airlines. The
terminal fees that MIAA charges every passenger are regulatory or administrative fees47 and not income from
commercial transactions.

MIAA falls under the definition of a government instrumentality under Section 2(10) of the Introductory
Provisions of the Administrative Code, which provides:

SEC. 2. General Terms Defined. – x x x x

(10) Instrumentality refers to any agency of the National Government, not integrated within the
department framework, vested with special functions or jurisdiction by law, endowed with some if not all
corporate powers, administering special funds, and enjoying operational autonomy, usually through a
charter. x x x (Emphasis supplied)

The fact alone that MIAA is endowed with corporate powers does not make MIAA a government-owned or
controlled corporation. Without a change in its capital structure, MIAA remains a government instrumentality
under Section 2(10) of the Introductory Provisions of the Administrative Code. More importantly, as long as
MIAA renders essential public services, it need not comply with the test of economic viability. Thus, MIAA is
outside the scope of the phrase "government-owned or controlled corporations" under Section 16, Article XII of
the 1987 Constitution.

The minority belittles the use in the Local Government Code of the phrase "government-owned or controlled
corporation" as merely "clarificatory or illustrative." This is fatal. The 1987 Constitution prescribes explicit
conditions for the creation of "government-owned or controlled corporations." The Administrative Code defines
what constitutes a "government-owned or controlled corporation." To belittle this phrase as "clarificatory or
illustrative" is grave error.

To summarize, MIAA is not a government-owned or controlled corporation under Section 2(13) of the
Introductory Provisions of the Administrative Code because it is not organized as a stock or non-stock
corporation. Neither is MIAA a government-owned or controlled corporation under Section 16, Article XII of the
1987 Constitution because MIAA is not required to meet the test of economic viability. MIAA is a government
instrumentality vested with corporate powers and performing essential public services pursuant to Section
2(10) of the Introductory Provisions of the Administrative Code. As a government instrumentality, MIAA is not
subject to any kind of tax by local governments under Section 133(o) of the Local Government Code. The
exception to the exemption in Section 234(a) does not apply to MIAA because MIAA is not a taxable entity
under the Local Government Code. Such exception applies only if the beneficial use of real property owned by
the Republic is given to a taxable entity.

Finally, the Airport Lands and Buildings of MIAA are properties devoted to public use and thus are properties of
public dominion. Properties of public dominion are owned by the State or the Republic. Article 420 of the Civil
Code provides:

Art. 420. The following things are property of public dominion:

(1) Those 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;

(2) Those 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. (Emphasis supplied)

The term "ports x x x constructed by the State" includes airports and seaports. The Airport Lands and Buildings
of MIAA are intended for public use, and at the very least intended for public service. Whether intended for
public use or public service, the Airport Lands and Buildings are properties of public dominion. As properties of
public dominion, the Airport Lands and Buildings are owned by the Republic and thus exempt from real estate
tax under Section 234(a) of the Local Government Code.

4. Conclusion

Under Section 2(10) and (13) of the Introductory Provisions of the Administrative Code, which governs the
legal relation and status of government units, agencies and offices within the entire government machinery,
MIAA is a government instrumentality and not a government-owned or controlled corporation. Under Section
133(o) of the Local Government Code, MIAA as a government instrumentality is not a taxable person because
it is not subject to "[t]axes, fees or charges of any kind" by local governments. The only exception is when
MIAA leases its real property to a "taxable person" as provided in Section 234(a) of the Local Government
Code, in which case the specific real property leased becomes subject to real estate tax. Thus, only portions of
the Airport Lands and Buildings leased to taxable persons like private parties are subject to real estate tax by
the City of Parañaque.

Under Article 420 of the Civil Code, the Airport Lands and Buildings of MIAA, being devoted to public use, are
properties of public dominion and thus owned by the State or the Republic of the Philippines. Article 420
specifically mentions "ports x x x constructed by the State," which includes public airports and seaports, as
properties of public dominion and owned by the Republic. As properties of public dominion owned by the
Republic, there is no doubt whatsoever that the Airport Lands and Buildings are expressly exempt from real
estate tax under Section 234(a) of the Local Government Code. This Court has also repeatedly ruled that
properties of public dominion are not subject to execution or foreclosure sale.

WHEREFORE, we GRANT the petition. We SET ASIDE the assailed Resolutions of the Court of Appeals of 5
October 2001 and 27 September 2002 in CA-G.R. SP No. 66878. We DECLARE the Airport Lands and
Buildings of the Manila International Airport Authority EXEMPT from the real estate tax imposed by the City of
Parañaque. We declare VOID all the real estate tax assessments, including the final notices of real estate tax
delinquencies, issued by the City of Parañaque on the Airport Lands and Buildings of the Manila International
Airport Authority, except for the portions that the Manila International Airport Authority has leased to private
parties. We also declare VOID the assailed auction sale, and all its effects, of the Airport Lands and Buildings
of the Manila International Airport Authority.

No costs.

SO ORDERED.
 G.R. No. 225442

SAMAHAN NG MGA PROGRESIBONG KABATAAN (SPARK),* JOANNE ROSE SACE LIM, JOHN ARVIN
NAVARRO BUENAAGUA, RONEL BACCUTAN, MARK LEO DELOS REYES, and CLARISSA JOYCE
VILLEGAS, minor, for herself and as represented by her father, JULIAN VILLEGAS, JR., Petitioners,
vs.
QUEZON CITY, as represented by MAYOR HERBERT BAUTISTA, CITY OF MANILA, as represented by
MAYOR JOSEPH ESTRADA, and NAVOTAS CITY, as represented by MAYOR JOHN REY TIANGCO,,
Respondents,

DECISION

PERLAS-BERNABE, J.:

This petition for certiorari and prohibition1 assails the constitutionality of the curfew ordinances issued by the
local governments of Quezon City, Manila, and Navotas. The petition prays that a temporary restraining order
(TRO) be issued ordering respondents Herbert Bautista, Joseph Estrada, and John Rey Tiangco, as Mayors of
their respective local governments, to prohibit, refrain, and desist from implementing and enforcing these
issuances, pending resolution of this case, and eventually, declare the City of Manila's ordinance as ultra
vires for being contrary to Republic Act No. (RA) 9344,2 or the "Juvenile Justice and Welfare Act," as amended,
and all curfew ordinances as unconstitutional for violating the constitutional right of minors to travel, as well as
the right of parents to rear their children.

The Facts

Following the campaign of President Rodrigo Roa Duterte to implement a nationwide curfew for minors,
several local governments in Metro Manila started to strictly implement their curfew ordinances on minors
through police operations which were publicly known as part of "Oplan Rody."3

Among those local governments that implemented curfew ordinances were respondents: (a) Navotas City,
through Pambayang Ordinansa Blg. 99- 02,4 dated August 26, 1999, entitled "Nagtatakdang 'Curfew' ng mga
Kabataan na Wala Pang Labing Walong (18) Taong Gulang sa Bayan ng Navotas, Kalakhang Maynila," as
amended by Pambayang Ordinansa Blg. 2002-13,5 dated June 6, 2002 (Navotas Ordinance); (b) City of
Manila, through Ordinance No. 80466 entitled "An Ordinance Declaring the Hours from 10:00 P.M. to 4:00 A.M.
of the Following Day as 'Barangay Curfew Hours' for Children and Youths Below Eighteen (18) Years of Age;
Prescribing Penalties Therefor; and for Other Purposes" dated October 14, 2002 (Manila Ordinance); and (c)
Quezon City, through Ordinance No. SP- 2301,7 Series of 2014, entitled "An Ordinance Setting for a [sic]
Disciplinary Hours in Quezon City for Minors from 10:00 P.M. to 5:00 A.M., Providing Penalties for
Parent/Guardian, for Violation Thereof and for Other Purposes" dated July 31, 2014 (Quezon City Ordinance;
collectively, Curfew Ordinances).8

Petitioners,9 spearheaded by the Samahan ng mga Progresibong Kabataan (SPARK) - an association of

young adults and minors that aims to forward a free and just society, in particular the protection of the rights
and welfare of the youth and minors10 - filed this present petition, arguing that the Curfew Ordinances are
unconstitutional because they: (a) result in arbitrary and discriminatory enforcement, and thus, fall under the
void for vagueness doctrine; (b) suffer from overbreadth by proscribing or impairing legitimate activities of
minors during curfew hours; (c) deprive minors of the right to liberty and the right to travel without substantive
due process; and (d) deprive parents of their natural and primary right in rearing the youth without substantive
due process.11 In addition, petitioners assert that the Manila Ordinance contravenes RA 9344, as amended by
RA 10630.12

More specifically, petitioners posit that the Curfew Ordinances encourage arbitrary and discriminatory
enforcement as there are no clear provisions or detailed standards on how law enforcers should apprehend
and properly determine the age of the alleged curfew violators.13 They further argue that the law enforcer's
apprehension depends only on his physical assessment, and, thus, subjective and based only on the law
enforcer's visual assessment of the alleged curfew violator.14

While petitioners recognize that the Curfew Ordinances contain provisions indicating the activities exempted
from the operation of the imposed curfews, i.e., exemption of working students or students with evening class,
they contend that the lists of exemptions do not cover the range and breadth of legitimate activities or reasons
as to why minors would be out at night, and, hence, proscribe or impair the legitimate activities of minors
during curfew hours.15

Petitioners likewise proffer that the Curfew Ordinances: (a) are unconstitutional as they deprive minors of the
right to liberty and the right to travel without substantive due process;16 and (b) fail to pass the strict scrutiny
test, for not being narrowly tailored and for employing means that bear no reasonable relation to their
purpose.17 They argue that the prohibition of minors on streets during curfew hours will not per se protect and
promote the social and moral welfare of children of the community.18

Furthermore, petitioners claim that the Manila Ordinance, particularly Section 419 thereof, contravenes Section
57-A20 of RA 9344, as amended, given that the cited curfew provision imposes on minors the penalties of
imprisonment, reprimand, and admonition. They contend that the imposition of penalties contravenes RA
9344's express command that no penalty shall be imposed on minors for curfew violations.21

Lastly, petitioners submit that there is no compelling State interest to impose curfews contrary to the parents'
prerogative to impose them in the exercise of their natural and primary right in the rearing of the youth, and that
even if a compelling interest exists, less restrictive means are available to achieve the same. In this regard,
they suggest massive street lighting programs, installation of CCTV s (closed-circuit televisions) in public
streets, and regular visible patrols by law enforcers as other viable means of protecting children and preventing
crimes at night. They further opine that the government can impose more reasonable
sanctions, i.e., mandatory parental counseling and education seminars informing the parents of the reasons
behind the curfew, and that imprisonment is too harsh a penalty for parents who allowed their children to be
out during curfew hours.22

The Issue Before the Court

The primordial issue for the Court's resolution in this case is whether or not the Curfew Ordinances are
unconstitutional.

The Court's Ruling

The petition is partly granted.

I.

At the onset, the Court addresses the procedural issues raised in this case. Respondents seek the dismissal of
the petition, questioning: (a) the propriety of certiorari and prohibition under Rule 65 of the Rules of Court to
assail the constitutionality of the Curfew Ordinances; (b) petitioners' direct resort to the Court, contrary to the
hierarchy of courts doctrine; and (c) the lack of actual controversy and standing to warrant judicial review.23

A. Propriety of the Petition for

Certiorari and Prohibition.

Under the 1987 Constitution, judicial power includes the duty of the courts of justice not only "to settle actual
controversies involving rights which are legally demandable and enforceable," but also "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."24 Section 1, Article VIII of the 1987 Constitution reads:
 ARTICLE VIII
JUDICIAL DEPARTMENT

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 a grave abuse of
discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of
the Government. (Emphasis and underscoring supplied)

Case law explains that the present Constitution has "expanded the concept of judicial power, which up to then
was confined to its traditional ambit of settling actual controversies involving rights that were legally
demandable and enforceable."25

In Araullo v. Aquino III,26 it was held that petitions for certiorari and prohibition filed before the Court "are the
remedies by which the grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any
branch or instrumentality of the Government may be determined under the Constitution." 27 It was explained
that "[w]ith respect to the Court, x x x the remedies of certiorari and prohibition are necessarily broader in
scope and reach, and the writ of certiorari or prohibition may be issued to correct errors of jurisdiction
committed not only by a tribunal, corporation, board or officer exercising judicial, quasi-judicial or ministerial
functions, but also to set right, undo[,] and restrain any act of grave abuse of discretion amounting to
lack or excess of jurisdiction by any branch or instrumentality of the Government, even if the latter
does not exercise judicial, quasi-judicial or ministerial functions. This application is expressly authorized
by the text of the second paragraph of Section 1, [Article VIII of the 1987 Constitution cited above]."28

In Association of Medical Clinics for Overseas Workers, Inc. v. GCC Approved Medical Centers Association,
Inc.,29 it was expounded that "[ m ]eanwhile that no specific procedural rule has been promulgated to enforce
[the] 'expanded' constitutional definition of judicial power and because of the commonality of 'grave abuse of
discretion' as a ground for review under Rule 65 and the courts' expanded jurisdiction, the Supreme Court -
based on its power to relax its rules - allowed Rule 65 to be used as the medium for petitions invoking the
courts' expanded jurisdiction[. ]"30

In this case, petitioners question the issuance of the Curfew Ordinances by the legislative councils of Quezon
City, Manila, and Navotas in the exercise of their delegated legislative powers on the ground that these
ordinances violate the Constitution, specifically, the provisions pertaining to the right to travel of minors, and
the right of parents to rear their children. They also claim that the Manila Ordinance, by imposing penalties
against minors, conflicts with RA 9344, as amended, which prohibits the imposition of penalties on minors for
status offenses. It has been held that "[t]here is grave abuse of discretion when an act is (1) done contrary to
the Constitution, the law or jurisprudence or (2) executed whimsically, capriciously or arbitrarily, out of malice,
ill will or personal bias. "31 In light of the foregoing, petitioners correctly availed of the remedies of certiorari and
prohibition, although these governmental actions were not made pursuant to any judicial or quasi-judicial
function.

B. Direct Resort to the Court.

Since petitions for certiorari and prohibition are allowed as remedies to assail the constitutionality of legislative
and executive enactments, the next question to be resolved is whether or not petitioners' direct resort to this
Court is justified.

The doctrine of hierarchy of courts "[r]equires that recourse must first be made to the lower-ranked court
exercising concurrent jurisdiction with a higher court. The Supreme Court has original jurisdiction over petitions
for certiorari, prohibition, mandamus, quo warranto, and habeas corpus. While this jurisdiction is shared with
the Court of Appeals [(CA)] and the [Regional Trial Courts], a direct invocation of this Court's jurisdiction is
allowed when there are special and important reasons therefor, clearly and especially set out in the
petition[.]"32 This Court is tasked to resolve "the issue of constitutionality of a law or regulation at the first
instance [if it] is of paramount importance and immediately affects the social, economic, and moral
well-being of the people,"33 as in this case. Hence, petitioners' direct resort to the Court is justified.

C. Requisites of Judicial Review.

"The prevailing rule in constitutional litigation is that no question involving the constitutionality or validity of a
law or governmental act may be heard and decided by the Court unless there is compliance with the legal
requisites for judicial inquiry, namely: (a) there must be an actual case or controversy calling for the exercise
of judicial power; (b) the person challenging the act must have the standing to question the validity of the
subject act or issuance; (c) the question of constitutionality must be raised at the earliest opportunity;
and (d) the issue of constitutionality must be the very lis mota of the case."34 In this case, respondents assail
the existence of the first two (2) requisites.

1. Actual Case or Controversy.

"Basic in the exercise of judicial power - whether under the traditional or in the expanded setting - is the
presence of an actual case or controversy."35 "[A]n actual case or controversy is one which '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.' In other words, 'there must be a contrariety of legal rights
that can be interpreted and enforced on the basis of existing law and jurisprudence."36 According to
recent jurisprudence, in the Court's exercise of its expanded jurisdiction under the 1987 Constitution, this
requirement is simplified "by merely requiring a prima facie showing of grave abuse of discretion in the
assailed governmental act."37

"Corollary 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. For a case to be considered ripe for adjudication, it is a prerequisite that something has then been
accomplished or performed by either branch before a court may come into the picture, and the
petitioner must allege the existence of an immediate or threatened injury to himself as a result of the
challenged action. 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."38

Applying these precepts, this Court finds that there exists an actual justiciable controversy in this case given
the evident clash of the parties' legal claims, particularly on whether the Curfew Ordinances impair the minors'
and parents' constitutional rights, and whether the Manila Ordinance goes against the provisions of RA 9344.
Based on their asseverations, petitioners have - as will be gleaned from the substantive discussions below -
conveyed a prima facie case of grave abuse of discretion, which perforce impels this Court to exercise its
expanded jurisdiction. The case is likewise ripe for adjudication, considering that the Curfew Ordinances were
being implemented until the Court issued the TRO39 enjoining their enforcement. The purported threat or
incidence of injury is, therefore, not merely speculative or hypothetical but rather, real and apparent.

2. Legal Standing.

"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. [Petitioners]
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."40 "' [I]nterest' 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."41

"The gist of the question of [legal] 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. Unless a person is
injuriously affected in any of his constitutional rights by the operation of statute or ordinance, he has no
standing."42

As abovementioned, the petition is anchored on the alleged breach of two (2) constitutional rights, namely: (1)
the right of minors to freely travel within their respective localities; and (2) the primary right of parents to rear
their children. Related to the first is the purported conflict between RA 9344, as amended, and the penal
provisions of the Manila Ordinance.

Among the five (5) individual petitioners, only Clarissa Joyce Villegas (Clarissa) has legal standing to raise the
issue affecting the minor's right to travel,43 because: (a) she was still a minor at the time the petition was filed
before this Court,44 and, hence, a proper subject of the Curfew Ordinances; and (b) as alleged, she travels
from Manila to Quezon City at night after school and is, thus, in imminent danger of apprehension by virtue of
the Curfew Ordinances. On the other hand, petitioners Joanne Rose Sace Lim, John Arvin Navarro
Buenaagua, Ronel Baccutan (Ronel), and Mark Leo Delos Reyes (Mark Leo) admitted in the petition that they
are all of legal age, and therefore, beyond the ordinances' coverage. Thus, they are not proper subjects of the
Curfew Ordinances, for which they could base any direct injury as a consequence thereof.

None of them, however, has standing to raise the issue of whether the Curfew Ordinances violate the parents'
right to rear their children as they have not shown that they stand before this Court as parent/s and/or
guardian/s whose constitutional parental right has been infringed. It should be noted that Clarissa is
represented by her father, Julian Villegas, Jr. (Mr. Villegas), who could have properly filed the petition for
himself for the alleged violation of his parental right. But Mr. Villegas did not question the Curfew Ordinances
based on his primary right as a parent as he only stands as the representative of his minor child, Clarissa,
whose right to travel was supposedly infringed.

As for SPARK, it is an unincorporated association and, consequently, has no legal personality to bring an
action in court.45 Even assuming that it has the capacity to sue, SPARK still has no standing as it failed to
allege that it was authorized by its members who were affected by the Curfew Ordinances, i.e., the minors, to
file this case on their behalf.

Hence, save for Clarissa, petitioners do not have the required personal interest in the controversy. More
particularly, Clarissa has standing only on the issue of the alleged violation of the minors' right to travel, but not
on the alleged violation of the parents' right.

These notwithstanding, this Court finds it proper to relax the standing requirement insofar as all the petitioners
are concerned, in view of the transcendental importance of the issues involved in this case. "In a number of
cases, this Court has 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."46

This is a case of first impression in which the constitutionality of juvenile curfew ordinances is placed under
judicial review. Not only is this Court asked to determine the impact of these issuances on the right of parents
to rear their children and the right of minors to travel, it is also requested to determine the extent of the State's
authority to regulate these rights in the interest of general welfare. Accordingly, this case is of overarching
significance to the public, which, therefore, impels a relaxation of procedural rules, including, among others,
the standing requirement.

That being said, this Court now proceeds to the substantive aspect of this case.

II.

A. Void for Vagueness.

Before resolving the issues pertaining to the rights of minors to travel and of parents to rear their children, this
Court must first tackle petitioners' contention that the Curfew Ordinances are void for vagueness.

In particular, petitioners submit that the Curfew Ordinances are void for not containing sufficient enforcement
parameters, which leaves the enforcing authorities with unbridled discretion to carry out their provisions. They
claim that the lack of procedural guidelines in these issuances led to the questioning of petitioners Ronel and
Mark Leo, even though they were already of legal age. They maintain that the enforcing authorities
apprehended the suspected curfew offenders based only on their physical appearances and, thus, acted
arbitrarily. Meanwhile, although they conceded that the Quezon City Ordinance requires enforcers to determine
the age of the child, they submit that nowhere does the said ordinance require the law enforcers to ask for
proof or identification of the child to show his age.47

The arguments are untenable.

"A statute or act suffers from the defect of vagueness when it lacks comprehensible standards that men of
common intelligence must necessarily guess at its meaning and differ as to its application. It is repugnant to
the Constitution in two (2) respects: (1) it violates due process for failure to accord persons, especially
the parties targeted by it, fair notice of the conduct to avoid; and (2) it leaves law enforcers unbridled
discretion in carrying out its provisions and becomes an arbitrary flexing of the Government muscle."48

In this case, petitioners' invocation of the void for vagueness doctrine is improper, considering that they do not
properly identify any provision in any of the Curfew Ordinances, which, because of its vague terminology, fails
to provide fair warning and notice to the public of what is prohibited or required so that one may act
accordingly.49 The void for vagueness doctrine is premised on due process considerations, which are
absent from this particular claim. In one case, it was opined that:

[T]he vagueness doctrine is a specie of "unconstitutional uncertainty," which may involve "procedural due
process uncertainty cases" and "substantive due process uncertainty cases." "Procedural due process
uncertainty" involves cases where the statutory language was so obscure that it failed to give adequate
warning to those subject to its prohibitions as well as to provide proper standards for adjudication. Such a
definition encompasses the vagueness doctrine. This perspective rightly integrates the vagueness doctrine
with the due process clause, a necessary interrelation since there is no constitutional provision that explicitly
bars statutes that are "void-for-vagueness."50

Essentially, petitioners only bewail the lack of enforcement parameters to guide the local authorities in the
proper apprehension of suspected curfew offenders. They do not assert any confusion as to what conduct
the subject ordinances prohibit or not prohibit but only point to the ordinances' lack of enforcement
guidelines. The mechanisms related to the implementation of the Curfew Ordinances are, however, matters of
policy that are best left for the political branches of government to resolve. Verily, the objective of curbing
unbridled enforcement is not the sole consideration in a void for vagueness analysis; rather, petitioners must
show that this perceived danger of unbridled enforcement stems from an ambiguous provision in the law that
allows enforcement authorities to second-guess if a particular conduct is prohibited or not prohibited. In this
regard, that ambiguous provision of law contravenes due process because agents of the government cannot
reasonably decipher what conduct the law permits and/or forbids. In Bykofsky v. Borough of Middletown, 51 it
was ratiocinated that:

A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on ad
hoc and subjective basis, and vague standards result in erratic and arbitrary application based on individual
impressions and personal predilections.52

As above-mentioned, petitioners fail to point out any ambiguous standard in any of the provisions of the Curfew
Ordinances, but rather, lament the lack of detail on how the age of a suspected minor would be determined.
Thus, without any correlation to any vague legal provision, the Curfew Ordinances cannot be stricken down
under the void for vagueness doctrine.
Besides, petitioners are mistaken in claiming that there are no sufficient standards to identify suspected curfew
violators. While it is true that the Curfew Ordinances do not explicitly state these parameters, law enforcement
agents are still bound to follow the prescribed measures found in statutory law when implementing ordinances.
Specifically, RA 9344, as amended, provides:

Section 7. Determination of Age. - x x x The age of a child may be determined from the child's birth
certificate, baptismal certificate or any other pertinent documents. In the absence of these documents,
age may be based on information from the child himself/herself, testimonies of other persons, the
physical appearance of the child and other relevant evidence. (Emphases supplied)

This provision should be read in conjunction with · the Curfew Ordinances because RA 10630 (the law that
amended RA 9344) repeals all ordinances inconsistent with statutory law.53 Pursuant to Section 57-A of RA
9344, as amended by RA 10630,54 minors caught in violation of curfew ordinances are children at
risk and, therefore, covered by its provisions.55 It is a long-standing principle that "[c]onformity with law is
one of the essential requisites for the validity of a municipal ordinance."56 Hence, by necessary
implication, ordinances should be read and implemented in conjunction with related statutory law.

Applying the foregoing, any person, such as petitioners Ronel and Mark Leo, who was perceived to be a minor
violating the curfew, may therefore prove that he is beyond the application of the Curfew Ordinances by simply
presenting any competent proof of identification establishing their majority age. In the absence of such proof,
the law authorizes enforcement authorities to conduct a visual assessment of the suspect, which - needless to
state - should be done ethically and judiciously under the circumstances. Should law enforcers disregard these
rules, the remedy is to pursue the appropriate action against the erring enforcing authority, and not to have the
ordinances invalidated.

All told, petitioners' prayer to declare the Curfew Ordinances as void for vagueness is denied.

B. Right of Parents to Rear their

Children.

Petitioners submit that the Curfew Ordinances are unconstitutional because they deprive parents of their
natural and primary right in the rearing of the youth without substantive due process. In this regard, they assert
that this right includes the right to determine whether minors will be required to go home at a certain time or will
be allowed to stay late outdoors. Given that the right to impose curfews is primarily with parents and not with
the State, the latter's interest in imposing curfews cannot logically be compelling.57

Petitioners' stance cannot be sustained.

Section 12, Article II of the 1987 Constitution articulates the State's policy relative to the rights of parents in the
rearing of their children:

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. (Emphasis and underscoring supplied.)

As may be gleaned from this provision, the rearing of children (i.e., referred to as the "youth") for civic
efficiency and the development of their moral character are characterized not only as parental rights, but also
as parental duties. This means that parents are not only given the privilege of exercising their authority over
their children; they are equally obliged to exercise this authority conscientiously. The duty aspect of this
provision is a reflection of the State's independent interest to ensure that the youth would eventually grow into
free, independent, and well-developed citizens of this nation. For indeed, it is during childhood that minors are
prepared for additional obligations to society. "[T]he duty to prepare the child for these [obligations] must
be read to include the inculcation of moral standards, religious beliefs, and elements of good
citizenship."58 "This affirmative process of teaching, guiding, and inspiring by precept and example is
essential to the growth of young people into mature, socially responsible citizens."59

By history and tradition, "the parental role implies a substantial measure of authority over one's
children."60 In Ginsberg v. New York,61 the Supreme Court of the United States (US) remarked that
"constitutional interpretation has consistently recognized that the parents' claim to authority in their own
household to direct the rearing of their children is basic in the structure of our society."62 As in our
Constitution, the right and duty of parents to rear their children is not only described as "natural," but also as
"primary." The qualifier "primary" connotes the parents' superior right over the State in the upbringing
of their children.63 The rationale for the State's deference to parental control over their children was explained
by the US Supreme Court in Bellotti v. Baird (Bellotti),64 as follows:

[T]he guiding role of parents in their upbringing of their children justifies limitations on the freedoms of minors.
The State commonly protects its youth from adverse governmental action and from their own immaturity by
requiring parental consent to or involvement in important decisions by minors. But an additional and more
important justification for state deference to parental control over children is that "the child is not [a)
mere creature of the State; those who nurture him and direct his destiny have the right, coupled with
the high duty, to recognize and prepare him for additional obligations."65 (Emphasis and underscoring
supplied)

While parents have the primary role in child-rearing, it should be stressed that "when actions concerning the
child have a relation to the public welfare or the well-being of the child, the [Sltate may act to promote
these legitimate interests."66 Thus, "[i]n cases in which harm to the physical or mental health of the
child or to public safety, peace, order, or welfare is demonstrated, these legitimate state interests may
override the parents' qualified right to control the upbringing of their children."67

As our Constitution itself provides, the State is mandated to support parents in the exercise of these rights and
duties. State authority is therefore, not exclusive of, but rather, complementary to parental
supervision. In Nery v. Lorenzo,68 this Court acknowledged the State's role as parens patriae in protecting
minors, viz. :

[Where minors are involved, the State acts as parens patriae. To it is cast the duty of protecting the
rights of persons or individual who because of age or incapacity are in an unfavorable position, vis-a-
vis other parties. Unable as they are to take due care of what concerns them, they have the political
community to look after their welfare. This obligation the state must live up to. It cannot be recreant to such a
trust. As was set forth in an opinion of the United States Supreme Court: "This prerogative of parens
patriae is inherent in the supreme power of every State, x x x."69 (Emphases and underscoring supplied)

As parens patriae, the State has the inherent right and duty to aid parents in the moral development of
their children,70 and, thus, assumes a supporting role for parents to fulfill their parental obligations. In Bellotti,
it was held that "[I]egal restriction on minors, especially those supportive of the parental role, may be important
to the child's chances for the full growth and maturity that make eventual participation in a free society
meaningful and rewarding. Under the Constitution, the State can properly conclude that parents and
others, teachers for example, who have the primary responsibility for children's well-being are entitled
to the support of the laws designed to aid discharge of that responsibility."71

The Curfew Ordinances are but examples of legal restrictions designed to aid parents in their role of promoting
their children's well-being. As will be later discussed at greater length, these ordinances further compelling
State interests (particularly, the promotion of juvenile safety and the prevention of juvenile crime), which
necessarily entail limitations on the primary right of parents to rear their children. Minors, because of their
peculiar vulnerability and lack of experience, are not only more exposed to potential physical harm by criminal
elements that operate during the night; their moral well-being is likewise imperiled as minor children are prone
to making detrimental decisions during this time.72

At this juncture, it should be emphasized that the Curfew Ordinances apply only when the minors are not -
whether actually or constructively (as will be later discussed) - accompanied by their parents. This serves as
an explicit recognition of the State's deference to the primary nature of parental authority and the importance of
parents' role in child-rearing. Parents are effectively given unfettered authority over their children's conduct
during curfew hours when they are able to supervise them. Thus, in all actuality, the only aspect of parenting
that the Curfew Ordinances affects is the parents' prerogative to allow minors to remain in public
places without parental accompaniment during the curfew hours. 73 In this respect, the ordinances
neither dictate an over-all plan of discipline for the parents to apply to their minors nor force parents to
abdicate their authority to influence or control their minors' activities.74 As such, the Curfew Ordinances
only amount to a minimal - albeit reasonable - infringement upon a parent's right to bring up his or her child.

Finally, it may be well to point out that the Curfew Ordinances positively influence children to spend more time
at home. Consequently, this situation provides parents with better opportunities to take a more active role in
their children's upbringing. In Schleifer v. City of Charlottesvillle (Schleifer),75 the US court observed that the
city government "was entitled to believe x x x that a nocturnal curfew would promote parental involvement in a
child's upbringing. A curfew aids the efforts of parents who desire to protect their children from the perils of the
street but are unable to control the nocturnal behavior of those children."76 Curfews may also aid the "efforts of
parents who prefer their children to spend time on their studies than on the streets."77 Reason dictates that
these realities observed in Schleifer are no less applicable to our local context. Hence, these are additional
reasons which justify the impact of the nocturnal curfews on parental rights.

In fine, the Curfew Ordinances should not be declared unconstitutional for violating the parents' right to rear
their children.

C. Right to Travel.

Petitioners further assail the constitutionality of the Curfew Ordinances based on the minors' right to travel.
They claim that the liberty to travel is a fundamental right, which, therefore, necessitates the application of the
strict scrutiny test. Further, they submit that even if there exists a compelling State interest, such as the
prevention of juvenile crime and the protection of minors from crime, there are other less restrictive means for
achieving the government's interest.78 In addition, they posit that the Curfew Ordinances suffer from
overbreadth by proscribing or impairing legitimate activities of minors during curfew hours. 79

Petitioner's submissions are partly meritorious.

At the outset, the Court rejects petitioners' invocation of the overbreadth doctrine, considering that petitioners
have not claimed any transgression of their rights to free speech or any inhibition of speech-related conduct.
In Southern Hemisphere Engagement Network, Inc. v. AntiTerrorism Council(Southern Hemisphere), 80 this
Court explained that "the application of the overbreadth doctrine is limited to a facial kind of challenge and,
owing to the given rationale of a facial challenge, applicable only to free speech cases,"81 viz.:

By its nature, the overbreadth doctrine has to necessarily apply a facial type of invalidation in order to
plot areas of protected speech, inevitably almost always under situations not before the court, that are
impermissibly swept by the substantially overbroad regulation. Otherwise stated, a statute cannot be properly
analyzed for being substantially overbroad if the court confines itself only to facts as applied to the litigants.

The most distinctive feature of the overbreadth technique is that it marks an exception to some of the usual
rules of constitutional litigation. Ordinarily, a particular litigant claims that a statute is unconstitutional as applied
to him or her; if the litigant prevails, the courts carve away the unconstitutional aspects of the law by
invalidating its improper applications on a case to case basis. Moreover, challengers to a law are not permitted
to raise the rights of third parties and can only assert their own interests. In overbreadth analysis, those rules
give way; challenges are permitted to raise the rights of third parties; and the court invalidates the entire statute
"on its face," not merely "as applied for" so that the overbroad law becomes unenforceable until a properly
authorized court construes it more narrowly. The factor that motivates courts to depart from the normal
adjudicatory rules is the concern with the "chilling;" deterrent effect of the overbroad statute on third
parties not courageous enough to bring suit. The Court assumes that an overbroad law's "very existence
may cause others not before the court to refrain from constitutionally protected speech or expression." An
overbreadth ruling is designed to remove that deterrent effect on the speech of those third
parties.82 (Emphases and underscoring supplied)

In the same case, it was further pointed out that "[i]n restricting the overbreadth doctrine to free speech claims,
the Court, in at least two [(2)] cases, observed that the US Supreme Court has not recognized an overbreadth
doctrine outside the limited context of the First Amendment,83 and that claims of facial overbreadth have been
entertained in cases involving statutes which, by their terms, seek to regulate only spoken words. In Virginia v.
Hicks,84 it was held that rarely, if ever, will an overbreadth challenge succeed against a law or regulation that is
not specifically addressed to speech or speech-related conduct. Attacks on overly broad statutes are justified
by the 'transcendent value to all society of constitutionally protected expression. "'85

In the more recent case of SpousesImbong v. Ochoa, Jr.,86 it was opined that "[f]acial challenges can only
be raised on the basis of overbreadth and not on vagueness. Southern Hemisphere demonstrated how
vagueness relates to violations of due process rights, whereas facial challenges are raised on the basis of
overbreadth and limited to the realm of freedom of expression."87

That being said, this Court finds it improper to undertake an overbreadth analysis in this case, there being no
claimed curtailment of free speech. On the contrary, however, this Court finds proper to examine the assailed
regulations under the strict scrutiny test.

The right to travel is recognized and guaranteed as a fundamental right88 under Section 6, Article III of the
1987 Constitution, to wit:

Section 6. The liberty of abode and of changing the same within the limits prescribed by law shall not be
impaired except upon lawful order of the court. Neither shall the right to travel be impaired except in the
interest of national security, public safety, or public health, as may be provided by law. (Emphases and
underscoring supplied)

Jurisprudence provides that this right refers to the right to move freely from the Philippines to other countries or
within the Philippines.89 It is a right embraced within the general concept of liberty.90 Liberty - a birthright of
every person - includes the power of locomotion91 and the right of citizens to be free to use their faculties in
lawful ways and to live and work where they desire or where they can best pursue the ends of life.92

The right to travel is essential as it enables individuals to access and exercise their other rights, such as the
rights to education, free expression, assembly, association, and religion.93 The inter-relation of the right to
travel with other fundamental rights was briefly rationalized in City of Maquoketa v. Russell,94 as follows:

Whenever the First Amendment rights of freedom of religion, speech, assembly, and association require one to
move about, such movement must necessarily be protected under the First Amendment.

Restricting movement in those circumstances to the extent that First Amendment Rights cannot be
exercised without violating the law is equivalent to a denial of those rights. One court has eloquently
pointed this out:

We would not deny the relatedness of the rights guaranteed by the First Amendment to freedom of
travel and movement. If, for any reason, people cannot walk or drive to their church, their freedom to worship
is impaired. If, for any reason, people cannot walk or drive to the meeting hall, freedom of assembly is
effectively blocked. If, for any reason, people cannot safely walk the sidewalks or drive the streets of a
community, opportunities for freedom of speech are sharply limited. Freedom of movement is inextricably
involved with freedoms set forth in the First Amendment. (Emphases supplied)

Nevertheless, grave and overriding considerations of public interest justify restrictions even if made against
fundamental rights. Specifically on the freedom to move from one place to another, jurisprudence provides that
this right is not absolute.95 As the 1987 Constitution itself reads, the State96 may impose limitations on the
exercise of this right, provided that they: (1) serve the interest of national security, public safety, or public
health; and (2) are provided by law.97

The stated purposes of the Curfew Ordinances, specifically the promotion of juvenile safety and prevention of
juvenile crime, inarguably serve the interest of public safety. The restriction on the minor's movement and
activities within the confines of their residences and their immediate vicinity during the curfew period is
perceived to reduce the probability of the minor becoming victims of or getting involved in crimes and criminal
activities. As to the second requirement, i.e., that the limitation "be provided by law," our legal system is replete
with laws emphasizing the State's duty to afford special protection to children, i.e., RA 7610, 98 as amended, RA
977599 RA 9262100 RA 9851101RA 9344102 RA 10364103 RA 9211104 RA8980,105 RA9288,106 and Presidential
Decree (PD) 603,107 as amended.

Particularly relevant to this case is Article 139 of PD 603, which explicitly authorizes local government units,
through their city or municipal councils, to set curfew hours for children. It reads:

Article 139. Curfew Hours for Children. - City or municipal councils may prescribe such curfew hours for
children as may be warranted by local conditions. The duty to enforce curfew ordinances shall
devolve upon the parents or guardians and the local authorities.

x x x x (Emphasis and underscoring supplied)

As explicitly worded, city councils are authorized to enact curfew ordinances (as what respondents have done
in this case) and enforce the same through their local officials. In other words, PD 603 provides sufficient
statutory basis - as required by the Constitution - to restrict the minors' exercise of the right to travel.

The restrictions set by the Curfew Ordinances that apply solely to minors are likewise constitutionally
permissible. In this relation, this Court recognizes that minors do possess and enjoy constitutional rights, 108 but
the exercise of these rights is not co-extensive as those of adults.109 They are always subject to the
authority or custody of another, such as their parent/s and/or guardian/s, and the State.110 As parens
patriae, the State regulates and, to a certain extent, restricts the minors' exercise of their rights, such as in their
affairs concerning the right to vote,111 the right to execute contracts,112 and the right to engage in gainful
employment.113 With respect to the right to travel, minors are required by law to obtain a clearance from the
Department of Social Welfare and Development before they can travel to a foreign country by themselves or
with a person other than their parents.114 These limitations demonstrate that the State has broader authority
over the minors' activities than over similar actions of adults,115 and overall, reflect the State's general interest
in the well-being of minors.116 Thus, the State may impose limitations on the minors' exercise of rights even
though these limitations do not generally apply to adults.

In Bellotti,117the US Supreme Court identified three (3) justifications for the differential treatment of the minors'
constitutional rights. These are: first, the peculiar vulnerability of children; second, their inability to make
critical decisions in an informed and mature manner; and third, the importance of the parental role in
child rearing:118

[On the first reason,] our cases show that although children generally are protected by the same constitutional
guarantees against governmental deprivations as are adults, the State is entitled to adjust its legal system
to account for children's vulnerability and their needs for 'concern, ... sympathy, and ... paternal attention.x
x x.

[On the second reason, this Court's rulings are] grounded [on] the recognition that, during the formative years
of childhood and adolescence, minors often lack the experience, perspective, and judgment to recognize
and avoid choices that could be detrimental to them. x x x.

xxxx
[On the third reason,] the guiding role of parents in the upbringing of their children justifies limitations on the
freedoms of minors. The State commonly protects its youth from adverse governmental action and from their
own immaturity by requiring parental consent to or involvement in important decisions by minors. x x x.

xxxx

x x x Legal restrictions on minors, especially those supportive of the parental role, may be important to
the child's chances for the full growth and maturity that make eventual participation in a free society
meaningful and rewarding.119 (Emphases and underscoring supplied)

Moreover, in Prince v. Massachusetts,120 the US Supreme Court acknowledged the heightened dangers on the
streets to minors, as compared to adults:

A democratic society rests, for its continuance, upon the healthy, well-rounded growth of young people into full
maturity as citizens, with all that implies. It may secure this against impeding restraints and dangers within a
broad range of selection. Among evils most appropriate for such action are the crippling effects of child
employment, more especially in public places, and the possible harms arising from other activities subject
to all the diverse influences of the [streets]. It is too late now to doubt that legislation appropriately designed
to reach such evils is within the state's police power, whether against the parent's claim to control of the child
or one that religious scruples dictate contrary action.

It is true children have rights, in common with older people, in the primary use of highways. But even in such
use streets afford dangers for them not affecting adults. And in other uses, whether in work or in other
things, this difference may be magnified.121 (Emphases and underscoring supplied)

For these reasons, the State is justified in setting restrictions on the minors' exercise of their travel rights,
provided, they are singled out on reasonable grounds.

Philippine jurisprudence has developed three (3) tests of judicial scrutiny to determine the reasonableness of
classifications.122 The strict scrutiny test applies when a classification either (i) interferes with the exercise of
fundamental rights, including the basic liberties guaranteed under the Constitution, or (ii) burdens suspect
classes.123 The intermediate scrutiny test applies when a classification does not involve suspect classes or
fundamental rights, but requires heightened scrutiny, such as in classifications based on gender and
legitimacy.124 Lastly, the rational basis test applies to all other subjects not covered by the first two tests.125

Considering that the right to travel is a fundamental right in our legal system guaranteed no less by our
Constitution, the strict scrutiny test126 is the applicable test.127 At this juncture, it should be emphasized that
minors enjoy the same constitutional rights as adults; the fact that the State has broader authority over minors
than over adults does not trigger the application of a lower level of scrutiny.128 In Nunez v. City of San Diego
(Nunez),129 the US court illumined that:

Although many federal courts have recognized that juvenile curfews implicate the fundamental rights of minors,
the parties dispute whether strict scrutiny review is necessary. The Supreme Court teaches that rights are
no less "fundamental" for minors than adults, but that the analysis of those rights may differ:

Constitutional rights do not mature and come into being magically only when one attains the state-
defined age of majority.1âwphi1 Minors, as well as adults, are protected by the Constitution and
possess constitutional rights. The Court[,] indeed, however, [has long] recognized that the State has
somewhat broader authority to regulate the activities of children than of adults. xxx. Thus, minors' rights are not
coextensive with the rights of adults because the state has a greater range of interests that justify the
infringement of minors' rights.

The Supreme Court has articulated three specific factors that, when applicable, warrant differential analysis of
the constitutional rights of minors and adults: x x x. The Bellotti test [however] does not establish a lower
level of scrutiny for the constitutional rights of minors in the context of a juvenile curfew. Rather,
the Bellotti framework enables courts to determine whether the state has a compelling state interest justifying
greater restrictions on minors than on adults. x x x.

x x x Although the state may have a compelling interest in regulating minors differently than adults, we
do not believe that [a] lesser degree of scrutiny is appropriate to review burdens on minors'
fundamental rights. x x x.

According, we apply strict scrutiny to our review of the ordinance. x x x.130 (Emphases supplied)

The strict scrutiny test as applied to minors entails a consideration of the peculiar circumstances of minors
as enumerated in Bellotti vis-a-vis the State's duty as parenspatriae to protect and preserve their well-being
with the compelling State interests justifying the assailed government act. Under the strict scrutiny test, a
legislative classification that interferes with the exercise of a fundamental right or operates to the disadvantage
of a suspect class is presumed unconstitutional.131 Thus, the government has the burden of proving that
the classification (1) is necessary to achieve a compelling State interest, and (i1) is the least restrictive
means to protect such interest or the means chosen is narrowly tailored to accomplish the interest.132

a. Compelling State Interest.

Jurisprudence holds that compelling State interests include constitutionally declared policies.133 This Court
has ruled that children's welfare and the State's mandate to protect and care for them
as parenspatriae constitute compelling interests to justify regulations by the State.134 It is akin to the
paramount interest of the state for which some individual liberties must give way.135 As explained in Nunez,
the Bellotti framework shows that the State has a compelling interest in imposing greater restrictions on minors
than on adults. The limitations on minors under Philippine laws also highlight this compelling interest of the
State to protect and care for their welfare.

In this case, respondents have sufficiently established that the ultimate objective of the Curfew Ordinances is
to keep unsupervised minors during the late hours of night time off of public areas, so as to reduce - if not
totally eliminate - their exposure to potential harm, and to insulate them against criminal pressure and
influences which may even include themselves. As denoted in the "whereas clauses" of the Quezon City
Ordinance, the State, in imposing nocturnal curfews on minors, recognizes that:

[b] x x x children, particularly the minors, appear to be neglected of their proper care and guidance, education,
and moral development, which [lead] them into exploitation, drug addiction, and become vulnerable to and at
the risk of committing criminal offenses;

xxxx

[d] as a consequence, most of minor children become out-of-school youth, unproductive by-standers, street
children, and member of notorious gangs who stay, roam around or meander in public or private roads, streets
or other public places, whether singly or in groups without lawful purpose or justification;

xxxx

[f] reports of barangay officials and law enforcement agencies reveal that minor children roaming around,
loitering or wandering in the evening are the frequent personalities involved in various infractions of city
ordinances and national laws;

[g] it is necessary in the interest of public order and safety to regulate the movement of minor children during
night time by setting disciplinary hours, protect them from neglect, abuse or cruelty and exploitation, and other
conditions prejudicial or detrimental to their development;

[h] to strengthen and support parental control on these minor children, there is a need to put a restraint on the
tendency of growing number of youth spending their nocturnal activities wastefully, especially in the face of the
unabated rise of criminality and to ensure that the dissident elements of society are not provided with potent
avenues for furthering their nefarious activities[.]136

The US court's judicial demeanor in Schleifer,137 as regards the information gathered by the City Council to
support its passage of the curfew ordinance subject of that case, may serve as a guidepost to our own eatment
of the present case. Significantly, in Schleifer, the US court recognized the entitlement of elected bodies to
implement policies for a safer community, in relation to the proclivity of children to make dangerous and
potentially life-shaping decisions when left unsupervised during the late hours of night:

Charlottesville was constitutionally justified in believing that its curfew would materially assist its first stated
interest-that of reducing juvenile violence and crime. The City Council acted on the basis of information from
many sources, including records from Charlottesville's police department, a survey of public opinion, news
reports, data from the United States Department of Justice, national crime reports, and police reports from
other localities. On the basis of such evidence, elected bodies are entitled to conclude that keeping
unsupervised juveniles off the streets late at night will make for a safer community. The same streets
may have a more volatile and less wholesome character at night than during the day. Alone on the
streets at night children face a series of dangerous and potentially life-shaping decisions. Drug dealers
may lure them to use narcotics or aid in their sale. Gangs may pressure them into membership or participation
in violence. "[D]uring the formative years of childhood and adolescence, minors often lack the experience,
perspective, and judgment to recognize and avoid choices that could be detrimental to them." Those who
succumb to these criminal influences at an early age may persist in their criminal conduct as
adults. Whether we as judges subscribe to these theories is beside the point. Those elected officials with their
finger on the pulse of their home community clearly did. In attempting to reduce through its curfew the
opportunities for children to come into contact with criminal influences, the City was directly advancing its
first objective of reducing juvenile violence and crime.138 (Emphases and underscoring supplied; citations
omitted)

Similar to the City of Charlottesville in Schleifer, the local governments of Quezon City and Manila presented
statistical data in their respective pleadings showing the alarming prevalence of crimes involving juveniles,
either as victims or perpetrators, in their respective localities.139

Based on these findings, their city councils found it necessary to enact curfew ordinances pursuant to their
police power under the general welfare clause.140 In this light, the Court thus finds that the local governments
have not only conveyed but, in fact, attempted to substantiate legitimate concerns on public welfare,
especially with respect to minors. As such, a compelling State interest exists for the enactment and
enforcement of the Curfew Ordinances.

With the first requirement of the strict scrutiny test satisfied, the Court now proceeds to determine if the
restrictions set forth in· the Curfew Ordinances are narrowly tailored or provide the least restrictive means to
address the cited compelling State interest - the second requirement of the strict scrutiny test.

b. Least Restrictive Means/ Narrowly Drawn.

The second requirement of the strict scrutiny test stems from the fundamental premise that citizens should not
be hampered from pursuing legitimate activities in the exercise of their constitutional rights. While rights may
be restricted, the restrictions must be minimal or only to the extent necessary to achieve the purpose or to
address the State's compelling interest. When it is possible for governmental regulations to be more
narrowly drawn to avoid conflicts with constitutional rights, then they must be so narrowly drawn. 141

Although treated differently from adults, the foregoing standard applies to regulations on minors as they are still
accorded the freedom to participate in any legitimate activity, whether it be social, religious, or civic.142 Thus, in
the present case, each of the ordinances must be narrowly tailored as to ensure minimal constraint not only on
the minors' right to travel but also on their other constitutional rights.143
In In Re Mosier,144 a US court declared a curfew ordinance unconstitutional impliedly for not being narrowly
drawn, resulting in unnecessary curtailment of minors' rights to freely exercise their religion and to free
speech.145 It observed that:

The ordinance prohibits the older minor from attending alone Christmas Eve Midnight Mass at the local
Roman Catholic Church or Christmas Eve services at the various local Protestant Churches. It would
likewise prohibit them from attending the New [Year's] Eve watch services at the various churches. Likewise it
would prohibit grandparents, uncles, aunts or adult brothers and sisters from taking their minor relatives of any
age to the above mentioned services. x x x.

xxxx

Under the ordinance, during nine months of the year a minor could not even attend the city council
meetings if they ran past 10:30 (which they frequently do) to express his views on the necessity to repeal the
curfew ordinance, clearly a deprivation of his First Amendment right to freedom of speech.

xxxx

[In contrast, the ordinance in Bykofsky v. Borough of Middletown (supra note 52)] was [a] very narrowly drawn
ordinance of many pages with eleven exceptions and was very carefully drafted in an attempt to pass
constitutional muster. It specifically excepted [the] exercise of First Amendment rights, travel in a motor
vehicle and returning home by a direct route from religious, school, or voluntary association
activities. (Emphases supplied)

After a thorough evaluation of the ordinances' respective provisions, this Court finds that only the Quezon City
Ordinance meets the above-discussed requirement, while the Manila and Navotas Ordinances do not.

The Manila Ordinance cites only four (4) exemptions from the coverage of the curfew, namely: (a) minors
accompanied by their parents, family members of legal age, or guardian; (b) those running lawful errands such
as buying of medicines, using of telecommunication facilities for emergency purposes and the like; (c) night
school students and those who, by virtue of their employment, are required in the streets or outside their
residence after 10:00 p.m.; and (d) those working at night.146

For its part, the Navotas Ordinance provides more exceptions, to wit: (a) minors with night classes; (b) those
working at night; (c) those who attended a school or church activity, in coordination with a specific barangay
office; (d) those traveling towards home during the curfew hours; (e) those running errands under the
supervision of their parents, guardians, or persons of legal age having authority over them; (j) those involved in
accidents, calamities, and the like. It also exempts minors from the curfew during these specific occasions:
Christmas eve, Christmas day, New Year's eve, New Year's day, the night before the barangay fiesta, the day
of the fiesta, All Saints' and All Souls' Day, Holy Thursday, Good Friday, Black Saturday, and Easter
Sunday.147

This Court observes that these two ordinances are not narrowly drawn in that their exceptions are inadequate
and therefore, run the risk of overly restricting the minors' fundamental freedoms. To be fair, both ordinances
protect the rights to education, to gainful employment, and to travel at night from school or work. 148 However,
even with those safeguards, the Navotas Ordinance and, to a greater extent, the Manila Ordinance still do not
account for the reasonable exercise of the minors' rights of association, free exercise of religion, rights to
peaceably assemble, and of free expression, among others.

The exceptions under the Manila Ordinance are too limited, and thus, unduly trample upon protected liberties.
The Navotas Ordinance is apparently more protective of constitutional rights than the Manila Ordinance;
nonetheless, it still provides insufficient safeguards as discussed in detail below:

First, although it allows minors to engage in school or church activities, it hinders them from engaging in
legitimate non-school or nonchurch activities in the streets or going to and from such activities; thus, their
freedom of association is effectively curtailed. It bears stressing that participation in legitimate activities of
organizations, other than school or church, also contributes to the minors' social, emotional, and intellectual
development, yet, such participation is not exempted under the Navotas Ordinance.

Second, although the Navotas Ordinance does not impose the curfew during Christmas Eve and Christmas
day, it effectively prohibits minors from attending traditional religious activities (such as simbang gabi) at night
without accompanying adults, similar to the scenario depicted in Mosier.149 This legitimate activity done
pursuant to the minors' right to freely exercise their religion is therefore effectively curtailed.

Third, the Navotas Ordinance does not accommodate avenues for minors to engage in political rallies or
attend city council meetings to voice out their concerns in line with their right to peaceably assemble and to
free expression.

Certainly, minors are allowed under the Navotas Ordinance to engage in these activities outside curfew hours,
but the Court finds no reason to prohibit them from participating in these legitimate activities during curfew
hours. Such proscription does not advance the State's compelling interest to protect minors from the dangers
of the streets at night, such as becoming prey or instruments of criminal activity. These legitimate activities are
merely hindered without any reasonable relation to the State's interest; hence, the Navotas Ordinance is not
narrowly drawn. More so, the Manila Ordinance, with its limited exceptions, is also not narrowly drawn.

In sum, the Manila and Navotas Ordinances should be completely stricken down since their exceptions, which
are essentially determinative of the scope and breadth of the curfew regulations, are inadequate to ensure
protection of the above-mentioned fundamental rights. While some provisions may be valid, the same are
merely ancillary thereto; as such, they cannot subsist independently despite the presence150 of any separability
clause.151

The Quezon City Ordinance stands in stark contrast to the first two (2) ordinances as it sufficiently safeguards
the minors' constitutional rights. It provides the following exceptions:

Section 4. EXEMPTIONS - Minor children under the following circumstances shall not be covered by the
provisions of this ordinance;

(a) Those accompanied by their parents or guardian;

(b) Those on their way to or from a party, graduation ceremony, religious mass, and/or
other extra-curricular activities of their school or organization wherein their attendance
are required or otherwise indispensable, or when such minors are out and unable to go
home early due to circumstances beyond their control as verified by the proper
authorities concerned; and

(c) Those attending to, or in experience of, an emergency situation such as conflagration,
earthquake, hospitalization, road accident, law enforcers encounter, and similar incidents[;]

(d) When the minor is engaged in an authorized employment activity, or going to or returning
home from the same place of employment activity without any detour or stop;

(e) When the minor is in [a] motor vehicle or other travel accompanied by an adult in no violation
of this Ordinance;

(f) When the minor is involved in an emergency;

(g) When the minor is out of his/her residence attending an official school, religious,
recreational, educational, social, community or other similar private activity sponsored
by the city, barangay, school, or other similar private civic/religious organization/group
 (recognized by the community) that supervises the activity or when the minor is going to
or returning home from such activity, without any detour or stop; and

(h) When the minor can present papers certifying that he/she is a student and was dismissed
from his/her class/es in the evening or that he/she is a working student.152 (Emphases and
underscoring supplied)

As compared to the first two (2) ordinances, the list of exceptions under the Quezon City Ordinance is more
narrowly drawn to sufficiently protect the minors' rights of association, free exercise of religion, travel, to
peaceably assemble, and of free expression.

Specifically, the inclusion of items (b) and (g) in the list of exceptions guarantees the protection of these
aforementioned rights. These items uphold the right of association by enabling minors to attend both
official and extra-curricular activities not only of their school or church but also of other legitimate
organizations. The rights to peaceably assemble and of free expression are also covered by these
items given that the minors' attendance in the official activities of civic or religious organizations are
allowed during the curfew hours. Unlike in the Navotas Ordinance, the right to the free exercise of religion is
sufficiently safeguarded in the Quezon City Ordinance by exempting attendance at religious masses even
during curfew hours. In relation to their right to ravel, the ordinance allows the minor-participants to move to
and from the places where these activities are held. Thus, with these numerous exceptions, the Quezon
City Ordinance, in truth, only prohibits unsupervised activities that hardly contribute to the well-being
of minors who publicly loaf and loiter within the locality at a time where danger is perceivably more
prominent.

To note, there is no lack of supervision when a parent duly authorizes his/her minor child to run lawful errands
or engage in legitimate activities during the night, notwithstanding curfew hours. As astutely observed by
Senior Associate Justice Antonio T. Carpio and Associate Justice Marvic M.V.F. Leonen during the
deliberations on this case, parental permission is implicitly considered as an exception found in Section 4, item
(a) of the Quezon City Ordinance, i.e., "[t]hose accompanied by their parents or guardian", as accompaniment
should be understood not only in its actual but also in its constructive sense. As the Court sees it, this should
be the reasonable construction of this exception so as to reconcile the juvenile curfew measure with the basic
premise that State interference is not superior but only complementary to parental supervision. After all, as the
Constitution itself prescribes, the parents' right to rear their children is not only natural but primary.

Ultimately, it is important to highlight that this Court, in passing judgment on these ordinances, is dealing with
the welfare of minors who are presumed by law to be incapable of giving proper consent due to their
incapability to fully understand the import and consequences of their actions. In one case it was observed that:

A child cannot give consent to a contract under our civil laws. This is on the rationale that she can easily be the
victim of fraud as she is not capable of fully understanding or knowing the nature or import of her actions. The
State, as parenspatriae, is under the obligation to minimize the risk of harm to those who, because of their
minority, are as yet unable to take care of themselves fully. Those of tender years deserve its protection. 153

Under our legal system's own recognition of a minor's inherent lack of full rational capacity, and balancing the
same against the State's compelling interest to promote juvenile safety and prevent juvenile crime, this Court
finds that the curfew imposed under the Quezon City Ordinance is reasonably justified with its narrowly drawn
exceptions and hence, constitutional. Needless to say, these exceptions are in no way limited or restricted, as
the State, in accordance with the lawful exercise of its police power, is not precluded from crafting, adding, or
modifying exceptions in similar laws/ordinances for as long as the regulation, overall, passes the parameters of
scrutiny as applied in this case.

D. Penal Provisions of the Manila Ordinance.

Going back to the Manila Ordinance, this Court deems it proper - as it was raised - to further discuss the
validity of its penal provisions in relation to RA 9344, as amended.
To recount, the Quezon City Ordinance, while penalizing the parent/s or guardian under Section 8
thereof,154 does not impose any penalty on the minors. For its part, the Navotas Ordinance requires the minor,
along with his or her parent/s or guardian/s, to render social civic duty and community service either in lieu of -
should the parent/s or guardian/s of the minor be unable to pay the fine imposed - or in addition to the fine
imposed therein.155 Meanwhile, the Manila Ordinance imposed various sanctions to the minor based on
the age and frequency of violations, to wit:

SEC. 4. Sanctions and Penalties for Violation. Any child or youth violating this ordinance shall be
sanctioned/punished as follows:

(a) If the offender is Fifteen (15) years of age and below, the sanction shall consist of a
REPRIMAND for the youth offender and ADMONITION to the offender's parent, guardian or
person exercising parental authority.

(b) If the offender is Fifteen (15) years of age and under Eighteen (18) years of age, the
sanction/penalty shall be:

1. For the FIRST OFFENSE, Reprimand and Admonition;

2. For the SECOND OFFENSE, Reprimand and Admonition, and a warning about the
legal impostitions in case of a third and subsequent violation; and

3. For the THIRD AND SUBSEQUENT OFFENSES, Imprisonment of one (1) day to
ten (10) days, or a Fine of TWO THOUSAND PESOS (Php2,000.00), or both at the
discretion of the Court, PROVIDED, That the complaint shall be filed by
the PunongBarangay with the office of the City Prosecutor.156 (Emphases and
underscoring supplied).

Thus springs the question of whether local governments could validly impose on minors these sanctions - i.e.,
(a) community . service; (b) reprimand and admonition; (c) fine; and (d) imprisonment. Pertinently, Sections
57 and 57-A of RA 9344, as amended, prohibit the imposition of penalties on minors for status offenses
such as curfew violations, viz.:

SEC. 57. Status Offenses. - Any conduct not considered an offense or not penalized if committed by an
adult shall not be considered an offense and shall not be punished if committed by a child.

SEC. 57-A. Violations of Local Ordinances. - Ordinances enacted by local governments concerning
juvenile status offenses such as but not limited to, curfew violations, truancy, parental disobedience, anti-
smoking and anti-drinking laws, as well as light offenses and misdemeanors against public order or safety such
as, but not limited to, disorderly conduct, public scandal, harassment, drunkenness, public intoxication, criminal
nuisance, vandalism, gambling, mendicancy, littering, public urination, and trespassing, shall be for the
protection of children. No penalty shall be imposed on children for said violations, and they shall instead
be brought to their residence or to any barangay official at the barangay hall to be released to the custody of
their parents. Appropriate intervention programs shall be provided for in such ordinances. The child
shall also be recorded as a "child at risk" and not as a "child in conflict with the law." The ordinance shall also
provide for intervention programs, such as counseling, attendance in group activities for children, and for the
parents, attendance in parenting education seminars. (Emphases and underscoring supplied.)

To clarify, these provisions do not prohibit the enactment of regulations that curtail the conduct of minors, when
the similar conduct of adults are not considered as an offense or penalized (i.e., status offenses). Instead, what
they prohibit is the imposition of penalties on minors for violations of these regulations. Consequently, the
enactment of curfew ordinances on minors, without penalizing them for violations thereof, is not violative of
Section 57-A.
"Penalty"157 is defined as "[p]unishment imposed on a wrongdoer usually in the form of imprisonment or
fine";158 "[p ]unishment imposed by lawful authority upon a person who commits a deliberate or negligent
act."159 Punishment, in tum, is defined as "[a] sanction - such as fine, penalty, confinement, or loss of property,
right, or privilege - assessed against a person who has violated the law."160

The provisions of RA 9344, as amended, should not be read to mean that all the actions of the minor in
violation of the regulations are without legal consequences. Section 57-A thereof empowers local governments
to adopt appropriate intervention programs, such as community-based programs161 recognized under
Section 54162 of the same law.

In this regard, requiring the minor to perform community service is a valid form of intervention program that a
local government (such as Navotas City in this case) could appropriately adopt in an ordinance to promote the
welfare of minors. For one, the community service programs provide minors an alternative mode of
rehabilitation as they promote accountability for their delinquent acts without the moral and social stigma
caused by jail detention.

In the same light, these programs help inculcate discipline and compliance with the law and legal orders. More
importantly, they give them the opportunity to become productive members of society and thereby promote
their integration to and solidarity with their community.

The sanction of admonition imposed by the City of Manila is likewise consistent with Sections 57 and 57-A of
RA 9344 as it is merely a formal way of giving warnings and expressing disapproval to the minor's
misdemeanor. Admonition is generally defined as a "gentle or friendly reproof' or "counsel or warning against
fault or oversight."163 The Black's Law Dictionary defines admonition as "[a]n authoritatively issued warning or
censure";164 while the Philippine Law Dictionary defines it as a "gentle or friendly reproof, a mild rebuke,
warning or reminder, [counseling], on a fault, error or oversight, an expression of authoritative advice or
warning."165 Notably, the Revised Rules on Administrative Cases in the Civil Service (RRACCS) and our
jurisprudence in administrative cases explicitly declare that "a warning or admonition shall not be considered a
penalty."166

In other words, the disciplinary measures of community-based programs and admonition are clearly not
penalties - as they are not punitive in nature - and are generally less intrusive on the rights and conduct of the
minor. To be clear, their objectives are to formally inform and educate the minor, and for the latter to
understand, what actions must be avoided so as to aid him in his future conduct.

A different conclusion, however, is reached with regard to reprimand and fines and/or imprisonment imposed
by the City of Manila on the minor. Reprimand is generally defined as "a severe or formal reproof." 167 The
Black's Law Dictionary defines it as "a mild form of lawyer discipline that does not restrict the lawyer's ability to
practice law";168 while the Philippine Law Dictionary defines it as a "public and formal censure or severe
reproof, administered to a person in fault by his superior officer or body to which he belongs. It is more than
just a warning or admonition."169 In other words, reprimand is a formal and public pronouncement made to
denounce the error or violation committed, to sharply criticize and rebuke the erring individual, and to sternly
warn the erring individual including the public against repeating or committing the same, and thus, may
unwittingly subject the erring individual or violator to unwarranted censure or sharp disapproval from others. In
fact, the RRACCS and our jurisprudence explicitly indicate that reprimand is a penalty,170 hence, prohibited by
Section 57-A of RA 9344, as amended.

Fines and/or imprisonment, on the other hand, undeniably constitute penalties - as provided in our various
criminal and administrative laws and jurisprudence - that Section 57-A of RA 9344, as amended, evidently
prohibits.

As worded, the prohibition in Section 57-A is clear, categorical, and unambiguous. It states that "[n]o penalty
shall be imposed on children for x x x violations [of] juvenile status offenses]." Thus, for imposing the
sanctions of reprimand, fine, and/or imprisonment on minors for curfew violations, portions of Section 4 of the
Manila Ordinance directly and irreconcilably conflict with the clear language of Section 57-A of RA 9344, as
amended, and hence, invalid. On the other hand, the impositions of community service programs and
admonition on the minors are allowed as they do not constitute penalties.

CONCLUSION

In sum, while the Court finds that all three Curfew Ordinances have passed the first prong of the strict scrutiny
test - that is, that the State has sufficiently shown a compelling interest to promote juvenile safety and prevent
juvenile crime in the concerned localities, only the Quezon City Ordinance has passed the second prong of the
strict scrutiny test, as it is the only issuance out of the three which provides for the least restrictive means to
achieve this interest. In particular, the Quezon City Ordinance provides for adequate exceptions that enable
minors to freely exercise their fundamental rights during the prescribed curfew hours, and therefore, narrowly
drawn to achieve the State's purpose. Section 4 (a) of the said ordinance, i.e., "[t]hose accompanied by their
parents or guardian", has also been construed to include parental permission as a constructive form of
accompaniment and hence, an allowable exception to the curfew measure; the manner of enforcement,
however, is left to the discretion of the local government unit.

In fine, the Manila and Navotas Ordinances are declared unconstitutional and thus, null and void, while the
Quezon City Ordinance is declared as constitutional and thus, valid in accordance with this Decision.

For another, the Court has determined that the Manila Ordinance's penal provisions imposing reprimand and
fines/imprisonment on minors conflict with Section 57-A of RA 9344, as amended. Hence, following the rule
that ordinances should always conform with the law, these provisions must be struck down as invalid.

WHEREFORE, the petition is PARTLYGRANTED. The Court hereby declares Ordinance No. 8046, issued by
the local government of the City of Manila, and Pambayang Ordinansa Blg. No. 99-02, as amended
by Pambayang Ordinansa Blg. 2002-13 issued by the local government of Navotas
City, UNCONSTITUTIONAL and, thus, NULL and VOID; while Ordinance No. SP-2301, Series of 2014, issued
by the local government of the Quezon City is declared CONSTITUTIONAL and, thus, VALID in accordance
with this Decision.

SO ORDERED.
 G.R. No. L-9959 December 13, 1916

THE GOVERNMENT OF THE PHILIPPINE ISLANDS, represented by the Treasurer of the Philippine
Islands, plaintiff-appellee,
vs.
EL MONTE DE PIEDAD Y CAJA DE AHORRAS DE MANILA, defendant-appellant.

William A. Kincaid and Thomas L. Hartigan for appellant.

Attorney-General Avanceña for appellee.

TRENT, J.:

About $400,000, were subscribed and paid into the treasury of the Philippine Islands by the inhabitants of the
Spanish Dominions of the relief of those damaged by the earthquake which took place in the Philippine Islands
on June 3, 1863. Subsequent thereto and on October 6 of that year, a central relief board was appointed, by
authority of the King of Spain, to distribute the moneys thus voluntarily contributed. After a thorough
investigation and consideration, the relief board allotted $365,703.50 to the various sufferers named in its
resolution, dated September 22, 1866, and, by order of the Governor-General of the Philippine Islands, a list of
these allotments, together with the names of those entitled thereto, was published in the Official Gazette of
Manila dated April 7, 1870. There was later distributed, inaccordance with the above-mentioned allotments, the
sum of $30,299.65, leaving a balance of S365,403.85 for distribution. Upon the petition of the governing body
of the Monte de Piedad, dated February 1, 1833, the Philippine Government, by order dated the 1st of that
month, directed its treasurer to turn over to the Monte de Piedad the sum of $80,000 of the relief fund in
installments of $20,000 each. These amounts were received on the following dates: February 15, March 12,
April 14, and June 2, 1883, and are still in the possession of the Monte de Piedad. On account of various
petitions of the persons, and heirs of others to whom the above-mentioned allotments were made by the
central relief board for the payment of those amounts, the Philippine Islands to bring suit against the Monte de
Piedad a recover, "through the Attorney-General and in representation of the Government of the Philippine
Islands," the $80.000, together with interest, for the benefit of those persons or their heirs appearing in the list
of names published in the Official Gazette instituted on May 3, 1912, by the Government of the Philippine
Islands, represented by the Insular Treasurer, and after due trial, judgment was entered in favor of the plaintiff
for the sum of $80,000 gold or its equivalent in Philippine currency, together with legal interest from February
28, 1912, and the costs of the cause. The defendant appealed and makes the following assignment of errors:

1. The court erred in not finding that the eighty thousand dollars ($80,000), give to the Monte de
Piedad y Caja de Ahorros, were so given as a donation subject to one condition, to wit: the return of
such sum of money to the Spanish Government of these Islands, within eight days following the day
when claimed, in case the Supreme Government of Spain should not approve the action taken by the
former government.

2. The court erred in not having decreed that this donation had been cleared; said eighty thousand
dollars ($80,000) being at present the exclusive property of the appellant the Monte de Piedad y Caja
de Ahorros.

3. That the court erred in stating that the Government of the Philippine Islands has subrogated the
Spanish Government in its rights, as regards an important sum of money resulting from a national
subscription opened by reason of the earthquake of June 3, 1863, in these Island.

4. That the court erred in not declaring that Act Numbered 2109, passed by the Philippine Legislature
on January 30, 1912, is unconstitutional.

5. That the court erred in holding in its decision that there is no title for the prescription of this suit
brought by the Insular Government against the Monte de Piedad y Caja de Ahorros for the
reimbursement of the eighty thousand dollars ($80,000) given to it by the late Spanish Government of
these Islands.
 6. That the court erred in sentencing the Monte de Piedad y Caja de Ahorros to reimburse the
Philippine Government in the sum of eighty thousand dollars ($80,000) gold coin, or the equivalent
thereof in the present legal tender currency in circulation, with legal interest thereon from February
28th, 1912, and the costs of this suit.

In the royal order of June 29, 1879, the Governor-General of the Philippine Islands was directed to inform the
home Government in what manner the indemnity might be paid to which, by virtue of the resolutions of the
relief board, the persons who suffered damage by the earthquake might be entitled, in order to perform the
sacred obligation which the Government of Spain had assumed toward the donors.

The next pertinent document in order is the defendant's petition, dated February 1, 1883, addressed to the
Governor-General of the Philippine Islands, which reads:

Board of Directors of the Monte de Piedad of Manila Presidencia.

Excellency: The Board of Directors of the Monte de Piedad y Caja de Ahorros of Manila informs your
Excellency, First: That the funds which it has up to the present been able to dispose of have been
exhausted in loans on jewelry, and there only remains the sum of one thousand and odd pesos, which
will be expended between to-day and day after tomorrow. Second: That, to maintain the credit of the
establishment, which would be greatly injured were its operations suspended, it is necessary to procure
money. Third: That your Excellency has proposed to His Majesty's Government to apply to the funds of
the Monte de Piedad a part of the funds held in the treasury derived form the national subscription for
the relief of the distress caused by the earthquake of 1863. Fourth: That in the public treasury there is
held at the disposal of the central earthquake relief board over $1090,000 which was deposited in the
said treasury by order of your general Government, it having been transferred thereto from the
Spanish-Filipino Bank where it had been held. fifth: That in the straightened circumstances of the
moment, your Excellency can, to avert impending disaster to the Monte de Piedad, order that, out of
that sum of one hundred thousand pesos held in the Treasury at the disposal of the central relief board,
there be transferred to the Monte de Piedad the sum of $80,000, there to be held under the same
conditions as at present in the Treasury, to wit, at the disposal of the Relief Board. Sixth: That should
this transfer not be approved for any reason, either because of the failure of His Majesty's Government
to approve the proposal made by your Excellency relative to the application to the needs of the Monte
de Piedad of a pat of the subscription intended to believe the distress caused by the earthquake of
1863, or for any other reason, the board of directors of the Monte de Piedad obligates itself to return
any sums which it may have received on account of the eighty thousand pesos, or the whole thereof,
should it have received the same, by securing a loan from whichever bank or banks may lend it the
money at the cheapest rate upon the security of pawned jewelry. — This is an urgent measure to save
the Monte de Piedad in the present crisis and the board of directors trusts to secure your Excellency's
entire cooperation and that of the other officials who have take part in the transaction.

The Governor-General's resolution on the foregoing petition is as follows:

GENERAL GOVERNMENT OF THE PHILIPPINES.

MANILA, February 1, 1883.

In view of the foregoing petition addressed to me by the board of directors of the Monte de Piedad of
this city, in which it is stated that the funds which the said institution counted upon are nearly all
invested in loans on jewelry and that the small account remaining will scarcely suffice to cover the
transactions of the next two days, for which reason it entreats the general Government that, in
pursuance of its telegraphic advice to H. M. Government, the latter direct that there be turned over to
said Monte de Piedad $80,000 out of the funds in the public treasury obtained from the national
subscription for the relief of the distress caused by the earthquake of 1863, said board obligating itself
to return this sum should H. M. Government, for any reason, not approve the said proposal, and for this
purpose it will procure funds by means of loans raised on pawned jewelry; it stated further that if the aid
so solicited is not furnished, it will be compelled to suspend operations, which would seriously injure the
credit of so beneficient an institution; and in view of the report upon the matter made by the Intendencia
 General de Hacienda; and considering the fact that the public treasury has on hand a much greater
sum from the source mentioned than that solicited; and considering that this general Government has
submitted for the determination of H. M. Government that the balance which, after strictly applying the
proceeds obtained from the subscription referred to, may remain as a surplus should be delivered to
the Monte de Piedad, either as a donation, or as a loan upon the security of the credit of the institution,
believing that in so doing the wishes of the donors would be faithfully interpreted inasmuch as those
wishes were no other than to relieve distress, an act of charity which is exercised in the highest degree
by the Monte de Piedad, for it liberates needy person from the pernicious effects of usury; and

Considering that the lofty purposes that brought about the creation of the pious institution referred to
would be frustrated, and that the great and laudable work of its establishment, and that the great and
laudable and valuable if the aid it urgently seeks is not granted, since the suspension of its operations
would seriously and regrettably damage the ever-growing credit of the Monte de Piedad; and

Considering that if such a thing would at any time cause deep distress in the public mind, it might be
said that at the present juncture it would assume the nature of a disturbance of public order because of
the extreme poverty of the poorer classes resulting from the late calamities, and because it is the only
institution which can mitigate the effects of such poverty; and

Considering that no reasonable objection can be made to granting the request herein contained, for the
funds in question are sufficiently secured in the unlikely event that H> M. Government does not
approve the recommendation mentioned, this general Government, in the exercise of the extraordinary
powers conferred upon it and in conformity with the report of the Intendencia de Hacienda, resolves as
follows:

First. Authority is hereby given to deliver to the Monte de Piedad, out of the sum held in the public
treasury of these Islands obtained from the national subscription opened by reason of the earthquakes
of 1863, amounts up to the sum $80,000, as its needs may require, in installments of $20,000.

Second. The board of directors of the Monte de Piedad is solemnly bound to return, within eight days
after demand, the sums it may have so received, if H. M. Government does not approve this resolution.

Third. The Intendencia General de Hacienda shall forthwith, and in preference to all other work,
proceed to prepare the necessary papers so that with the least possible delay the payment referred to
may be made and the danger that menaces the Monte de Piedad of having to suspend its operations
may be averted.

H. M. Government shall be advised hereof.lawphi1.net

(Signed) P. DE RIVERA.

By the royal order of December 3, 1892, the Governor-General of the Philippine Islands was ordered to "inform
this ministerio what is the total sum available at the present time, taking into consideration the sums delivered
to the Monte de Piedad pursuant to the decree issued by your general Government on February 1, 1883," and
after the rights of the claimants, whose names were published in the Official Gazette of Manila on April 7,
1870, and their heirs had been established, as therein provided, as such persons "have an unquestionable
right to be paid the donations assigned to them therein, your general Government shall convoke them all within
a reasonable period and shall pay their shares to such as shall identify themselves, without regard to their
financial status," and finally "that when all the proceedings and operations herein mentioned have been
concluded and the Government can consider itself free from all kinds of claims on the part of those interested
in the distribution of the funds deposited in the vaults of the Treasury, such action may be taken as the
circumstances shall require, after first consulting the relief board and your general Government and taking
account of what sums have been delivered to the Monte de Piedad and those that were expended in 1888 to
relieve public calamities," and "in order that all the points in connection with the proceedings had as a result of
the earthquake be clearly understood, it is indispensable that the offices hereinbefore mentioned comply with
the provisions contained in paragraphs 2 and 3 of the royal order of June 25, 1879." On receipt of this Finance
order by the Governor-General, the Department of Finance was called upon for a report in reference to the
$80,000 turned over to the defendant, and that Department's report to the Governor-General dated June 28,
1893, reads:

Intendencia General de Hacienda de Filipinas (General Treasury of the Philippines) — Excellency. —

By Royal Order No. 1044 of December 3, last, it is provided that the persons who sustained losses by
the earthquakes that occurred in your capital in the year 1863 shall be paid the amounts allotted to
them out of the sums sent from Spain for this purpose, with observance of the rules specified in the
said royal order, one of them being that before making the payment to the interested parties the assets
shall be reduced to money. These assets, during the long period of time that has elapsed since they
were turned over to the Treasury of the Philippine Islands, were used to cover the general needs of the
appropriation, a part besides being invested in the relief of charitable institutions and another part to
meet pressing needs occasioned by public calamities. On January 30, last, your Excellency was please
to order the fulfillment of that sovereign mandate and referred the same to this Intendencia for its
information and the purposes desired (that is, for compliance with its directions and, as aforesaid, one
of these being the liquidation, recovery, and deposit with the Treasury of the sums paid out of that fund
and which were expended in a different way from that intended by the donors) and this Intendencia
believed the moment had arrived to claim from the board of directors of the Monte de Piedad y Caja de
Ahorros the sum of 80,000 pesos which, by decree of your general Government of the date of February
1, 1883, was loaned to it out of the said funds, the (Monte de Piedad) obligating itself to return the
same within the period of eight days if H. M. Government did not approve the delivery. On this
Intendencia's demanding from the Monte de Piedad the eighty thousand pesos, thus complying with the
provisions of the Royal Order, it was to be supposed that no objection to its return would be made by
the Monte de Piedad for, when it received the loan, it formally engaged itself to return it; and, besides, it
was indisputable that the moment to do so had arrived, inasmuch as H. M. Government, in ordering
that the assets of the earthquake relief fund should he collected, makes express mention of the 80,000
pesos loaned to the Monte de Piedad, without doubt considering as sufficient the period of ten years
during which it has been using this large sum which lawfully belongs to their persons.
This Intendencia also supposed that the Monte de Piedad no longer needed the amount of that loan,
inasmuch as, far from investing it in beneficient transactions, it had turned the whole amount into the
voluntary deposit funds bearing 5 per cent interests, the result of this operation being that the debtor
loaned to the creditor on interest what the former had gratuitously received. But the Monte de Piedad,
instead of fulfilling the promise it made on receiving the sum, after repeated demands refused to return
the money on the ground that only your Excellency, and not the Intendencia (Treasury), is entitled to
order the reimbursement, taking no account of the fact that this Intendencia was acting in the discharge
of a sovereign command, the fulfillment of which your Excellency was pleased to order; and on the
further ground that the sum of 80,000 pesos which it received from the fund intended for the earthquake
victims was not received as a loan, but as a donation, this in the opinion of this Intendencia,
erroneously interpreting both the last royal order which directed the apportionment of the amount of the
subscription raised in the year 1863 and the superior decree which granted the loan, inasmuch as in
this letter no donation is made to the Monte de Piedad of the 80,000 pesos, but simply a loan; besides,
no donation whatever could be made of funds derived from a private subscription raised for a specific
purpose, which funds are already distributed and the names of the beneficiaries have been published in
the Gaceta, there being lacking only the mere material act of the delivery, which has been unduly
delayed. In view of the unexpected reply made by the Monte de Piedad, and believing it useless to
insist further in the matter of the claim for the aforementioned loan, or to argue in support thereof,
this Intendencia believes the intervention of your Excellency necessary in this matter, if the royal Order
No. 1044 of December 3, last, is to be complied with, and for this purpose I beg your Excellency kindly
to order the Monte de Piedad to reimburse within the period of eight days the 80,000 which it owes, and
that you give this Intendencia power to carry out the provisions of the said royal order. I must call to the
attention of your Excellency that the said pious establishment, during the last few days and after
demand was made upon it, has endorsed to the Spanish-Filipino Bank nearly the whole of the sum
which it had on deposit in the general deposit funds.

The record in the case under consideration fails to disclose any further definite action taken by either the
Philippine Government or the Spanish Government in regard to the $80,000 turned over to the Monte de
Piedad.
In the defendant's general ledger the following entries appear: "Public Treasury: February 15, 1883, $20,000;
March 12, 1883, $20,000; April 14, 1883, $20,000; June 2, 1883, $20,000, total $80,000." The book entry for
this total is as follows: "To the public Treasury derived from the subscription for the earthquake of 1863,
$80,000 received from general Treasury as a returnable loan, and without interest." The account was carried in
this manner until January 1, 1899, when it was closed by transferring the amount to an account called
"Sagrada Mitra," which latter account was a loan of $15,000 made to the defendant by the Archbishop of
Manila, without interest, thereby placing the "Sagrada Mitra" account at $95,000 instead of $15,000. The
above-mentioned journal entry for January 1, 1899, reads: "Sagrada Mitra and subscription, balance of these
two account which on this date are united in accordance with an order of the Exmo. Sr. Presidente of the
Council transmitted verbally to the Presidente Gerente of these institutions, $95,000."

On March 16, 1902, the Philippine government called upon the defendant for information concerning the status
of the $80,000 and received the following reply:

MANILA, March 31, 1902.

To the Attorney-General of the Department of Justice of the Philippine Islands.

SIR: In reply to your courteous letter of the 16th inst., in which you request information from this office
as to when and for what purpose the Spanish Government delivered to the Monte de Piedad eighty
thousand pesos obtained from the subscription opened in connection with the earthquake of 1863, as
well as any other information that might be useful for the report which your office is called upon to
furnish, I must state to your department that the books kept in these Pious Institutions, and which have
been consulted for the purpose, show that on the 15th of February, 1883, they received as a
reimbursable loan and without interest, twenty thousand pesos, which they deposited with their own
funds. On the same account and on each of the dates of March 12, April 14 and June 2 of the said
year, 1883, they also received and turned into their funds a like sum of twenty thousand pesos, making
a total of eighty thousand pesos. — (Signed) Emilio Moreta.

I hereby certify that the foregoing is a literal copy of that found in the letter book No. 2 of those Pious
Institutions.

Manila, November 19, 1913

(Sgd.) EMILIO LAZCANOTEGUI,
Secretary

(Sgd.) O. K. EMILIO MORETA,

Managing Director.

The foregoing documentary evidence shows the nature of the transactions which took place between the
Government of Spain and the Philippine Government on the one side and the Monte de Piedad on the other,
concerning the $80,000. The Monte de Piedad, after setting forth in its petition to the Governor-General its
financial condition and its absolute necessity for more working capital, asked that out of the sum of $100,000
held in the Treasury of the Philippine Islands, at the disposal of the central relief board, there be transferred to
it the sum of $80,000 to be held under the same conditions, to wit, "at the disposal of the relief board." The
Monte de Piedad agreed that if the transfer of these funds should not be approved by the Government of
Spain, the same would be returned forthwith. It did not ask that the $80,000 be given to it as a donation. The
Governor-General, after reciting the substance of the petition, stated that "this general Government has
submitted for the determination of H. M. Government that the balance which, after strictly applying the
proceeds obtained from the subscription referred to, may remain as a surplus, should be delivered to
the Monte de Piedad, either as a donation, or as a loan upon the security of the credit of the institution," and
"considering that no reasonable objection can be made to granting the request herein contained," directed the
transfer of the $80,000 to be made with the understanding that "the Board of Directors of the Monte de
Piedad is solemnly bound to return, within eight days after demand, the sums it may have so received, if H. M.
Government does not approve this resolution." It will be noted that the first and only time the word "donation"
was used in connection with the $80,000 appears in this resolution of the Governor-General. It may be inferred
from the royal orders that the Madrid Government did tacitly approve of the transfer of the $80,000 to the
Monte de Piedad as a loan without interest, but that Government certainly did not approve such transfer as a
donation for the reason that the Governor-General was directed by the royal order of December 3, 1892, to
inform the Madrid Government of the total available sum of the earthquake fund, "taking into consideration the
sums delivered to the Monte de Piedad pursuant to the decree issued by your general Government on
February 1, 1883." This language, nothing else appearing, might admit of the interpretation that the Madrid
Government did not intend that the Governor-General of the Philippine Islands should include the $80,000 in
the total available sum, but when considered in connection with the report of the Department of Finance there
can be no doubt that it was so intended. That report refers expressly to the royal order of December 3d, and
sets forth in detail the action taken in order to secure the return of the $80,000. The Department of Finance,
acting under the orders of the Governor-General, understood that the $80,000 was transferred to the Monte de
Piedad well knew that it received this sum as a loan interest." The amount was thus carried in its books until
January, 1899, when it was transferred to the account of the "Sagrada Mitra" and was thereafter known as the
"Sagrada Mitra and subscription account." Furthermore, the Monte de Piedad recognized and considered as
late as March 31, 1902, that it received the $80,000 "as a returnable loan, and without interest." Therefore,
there cannot be the slightest doubt the fact that the Monte de Piedad received the $80,000 as a mere loan or
deposit and not as a donation. Consequently, the first alleged error is entirely without foundation.

Counsel for the defendant, in support of their third assignment of error, say in their principal brief that:

The Spanish nation was professedly Roman Catholic and its King enjoyed the distinction of being
deputy ex officio of the Holy See and Apostolic Vicar-General of the Indies, and as such it was his duty
to protect all pious works and charitable institutions in his kingdoms, especially those of the Indies;
among the latter was the Monte de Piedad of the Philippines, of which said King and his deputy the
Governor-General of the Philippines, as royal vice-patron, were, in a special and peculiar manner, the
protectors; the latter, as a result of the cession of the Philippine Islands, Implicitly renounced this high
office and tacitly returned it to the Holy See, now represented by the Archbishop of Manila; the national
subscription in question was a kind of foundation or pious work, for a charitable purpose in these
Islands; and the entire subscription not being needed for its original purpose, the royal vice-patron, with
the consent of the King, gave the surplus thereof to an analogous purpose; the fulfillment of all these
things involved, in the majority, if not in all cases, faithful compliance with the duty imposed upon him
by the Holy See, when it conferred upon him the royal patronage of the Indies, a thing that touched him
very closely in his conscience and religion; the cessionary Government though Christian, was not
Roman Catholic and prided itself on its policy of non-interference in religious matters, and inveterately
maintained a complete separation between the ecclesiastical and civil powers.

In view of these circumstances it must be quite clear that, even without the express provisions of the
Treaty of Paris, which apparently expressly exclude such an idea, it did not befit the honor of either of
the contracting parties to subrogate to the American Government in lieu of the Spanish Government
anything respecting the disposition of the funds delivered by the latter to the Monte de Piedad. The
same reasons that induced the Spanish Government to take over such things would result in great
inconvenience to the American Government in attempting to do so. The question was such a delicate
one, for the reason that it affected the conscience, deeply religious, of the King of Spain, that it cannot
be believed that it was ever his intention to confide the exercise thereof to a Government like the
American. (U. S. vs. Arredondo, 6 Pet. [U. S.], 711.)

It is thus seen that the American Government did not subrogate the Spanish Government or rather, the
King of Spain, in this regard; and as the condition annexed to the donation was lawful and possible of
fulfillment at the time the contract was made, but became impossible of fulfillment by the cession made
by the Spanish Government in these Islands, compliance therewith is excused and the contract has
been cleared thereof.

The contention of counsel, as thus stated, in untenable for two reason, (1) because such contention is based
upon the erroneous theory that the sum in question was a donation to the Monte de Piedad and not a loan, and
(2) because the charity founded by the donations for the earthquake sufferers is not and never was intended to
be an ecclesiastical pious work. The first proposition has already been decided adversely to the defendant's
contention. As to the second, the record shows clearly that the fund was given by the donors for a specific and
definite purpose — the relief of the earthquake sufferers — and for no other purpose. The money was turned
over to the Spanish Government to be devoted to that purpose. The Spanish Government remitted the money
to the Philippine Government to be distributed among the suffers. All officials, including the King of Spain and
the Governor-General of the Philippine Islands, who took part in the disposal of the fund, acted in their purely
civil, official capacity, and the fact that they might have belonged to a certain church had nothing to do with
their acts in this matter. The church, as such, had nothing to do with the fund in any way whatever until the
$80,000 reached the coffers of the Monte de Piedad (an institution under the control of the church) as a loan or
deposit. If the charity in question had been founded as an ecclesiastical pious work, the King of Spain and the
Governor-General, in their capacities as vicar-general of the Indies and as royal vice-patron, respectively,
would have disposed of the fund as such and not in their civil capacities, and such functions could not have
been transferred to the present Philippine Government, because the right to so act would have arisen out of
the special agreement between the Government of Spain and the Holy See, based on the union of the church
and state which was completely separated with the change of sovereignty.

And in their supplemental brief counsel say:

By the conceded facts the money in question is part of a charitable subscription. The donors were
persons in Spain, the trustee was the Spanish Government, the donees, the cestuis que trustent, were
certain persons in the Philippine Islands. The whole matter is one of trusteeship. This is undisputed and
indisputable. It follows that the Spanish Government at no time was the owner of the fund. Not being
the owner of the fund it could not transfer the ownership. Whether or not it could transfer its trusteeship
it certainly never has expressly done so and the general terms of property transfer in the Treaty of Paris
are wholly insufficient for such a purpose even could Spain have transferred its trusteeship without the
consent of the donors and even could the United States, as a Government, have accepted such a trust
under any power granted to it by the thirteen original States in the Constitution, which is more than
doubtful. It follows further that this Government is not a proper party to the action. The only persons
who could claim to be damaged by this payment to the Monte, if it was unlawful, are the donors or
the cestuis que trustent, and this Government is neither.

If "the whole matter is one of trusteeship," and it being true that the Spanish Government could not, as counsel
say, transfer the ownership of the fund to the Monte de Piedad, the question arises, who may sue to recover
this loan? It needs no argument to show that the Spanish or Philippine Government, as trustee, could maintain
an action for this purpose had there been no change of sovereignty and if the right of action has not
prescribed. But those governments were something more than mere common law trustees of the fund. In order
to determine their exact status with reference to this fund, it is necessary to examine the law in force at the
time there transactions took place, which are the law of June 20, 1894, the royal decree of April 27. 1875, and
the instructions promulgated on the latter date. These legal provisions were applicable to the Philippine Islands
(Benedicto vs. De la Rama, 3 Phil. Rep., 34)

The funds collected as a result of the national subscription opened in Spain by royal order of the Spanish
Government and which were remitted to the Philippine Government to be distributed among the earthquake
sufferers by the Central Relief Board constituted, under article 1 of the law of June 20, 1894, and article 2 of
the instructions of April 27, 1875, a special charity of a temporary nature as distinguished from a permanent
public charitable institution. As the Spanish Government initiated the creation of the fund and as the donors
turned their contributions over to that Government, it became the duty of the latter, under article 7 of the
instructions, to exercise supervision and control over the moneys thus collected to the end that the will of the
donors should be carried out. The relief board had no power whatever to dispose of the funds confided to its
charge for other purposes than to distribute them among the sufferers, because paragraph 3 of article 11 of the
instructions conferred the power upon the secretary of the interior of Spain, and no other, to dispose of the
surplus funds, should there be any, by assigning them to some other charitable purpose or institution. The
secretary could not dispose of any of the funds in this manner so long as they were necessary for the specific
purpose for which they were contributed. The secretary had the power, under the law above mentioned to
appoint and totally or partially change the personnel of the relief board and to authorize the board to defend the
rights of the charity in the courts. The authority of the board consisted only in carrying out the will of the donors
as directed by the Government whose duty it was to watch over the acts of the board and to see that the funds
were applied to the purposes for which they were contributed .The secretary of the interior, as the
representative of His Majesty's Government, exercised these powers and duties through the Governor-General
of the Philippine Islands. The Governments of Spain and of the Philippine Islands in complying with their duties
conferred upon them by law, acted in their governmental capacities in attempting to carry out the intention of
the contributors. It will this be seen that those governments were something more, as we have said, than mere
trustees of the fund.

It is further contended that the obligation on the part of the Monte de Piedad to return the $80,000 to the
Government, even considering it a loan, was wiped out on the change of sovereignty, or inn other words, the
present Philippine Government cannot maintain this action for that reason. This contention, if true, "must result
from settled principles of rigid law," as it cannot rest upon any title to the fund in the Monte de Piedad acquired
prior to such change. While the obligation to return the $80,000 to the Spanish Government was still pending,
war between the United States and Spain ensued. Under the Treaty of Paris of December 10, 1898, the
Archipelago, known as the Philippine Islands, was ceded to the United States, the latter agreeing to pay Spain
the sum of $20,000,000. Under the first paragraph of the eighth article, Spain relinquished to the United States
"all buildings, wharves, barracks, forts, structures, public highways, and other immovable property which, in
conformity with law, belonged to the public domain, and as such belonged to the crown of Spain." As the
$80,000 were not included therein, it is said that the right to recover this amount did not, therefore, pass to the
present sovereign. This, in our opinion, does not follow as a necessary consequence, as the right to recover
does not rest upon the proposition that the $80,000 must be "other immovable property" mentioned in article 8
of the treaty, but upon contractual obligations incurred before the Philippine Islands were ceded to the United
States. We will not inquire what effect his cession had upon the law of June 20, 1849, the royal decree of April
27, 1875, and the instructions promulgated on the latter date. In Vilas vs. Manila (220 U. S., 345), the court
said:

That there is a total abrogation of the former political relations of the inhabitants of the ceded region is
obvious. That all laws theretofore in force which are in conflict with the political character, constitution,
or institutions of the substituted sovereign, lose their force, is also plain. (Alvarez y Sanchez vs. United
States, 216 U. S., 167.) But it is equally settled in the same public law that the great body of municipal
law which regulates private and domestic rights continues in force until abrogated or changed by the
new ruler.

If the above-mentioned legal provisions are in conflict with the political character, constitution or institutions of
the new sovereign, they became inoperative or lost their force upon the cession of the Philippine Islands to the
United States, but if they are among "that great body of municipal law which regulates private and domestic
rights," they continued in force and are still in force unless they have been repealed by the present
Government. That they fall within the latter class is clear from their very nature and character. They are laws
which are not political in any sense of the word. They conferred upon the Spanish Government the right and
duty to supervise, regulate, and to some extent control charities and charitable institutions. The present
sovereign, in exempting "provident institutions, savings banks, etc.," all of which are in the nature of charitable
institutions, from taxation, placed such institutions, in so far as the investment in securities are concerned,
under the general supervision of the Insular Treasurer (paragraph 4 of section 111 of Act No. 1189; see also
Act No. 701).

Furthermore, upon the cession of the Philippine Islands the prerogatives of he crown of Spain devolved upon
he United States. In Magill vs. Brown (16 Fed. Cas., 408), quoted with approval in Mormon Charch vs. United
States (136 U. S.,1, 57), the court said:

The Revolution devolved on the State all the transcendent power of Parliament, and the prerogative of
the crown, and gave their Acts the same force and effect.

In Fontain vs. Ravenel (17 Hw., 369, 384), Mr. Justice McLean, delivering the opinion of the court in a charity
case, said:

When this country achieved its independence, the prerogatives of the crown devolved upon the people
of the States. And this power still remains with them except so fact as they have delegated a portion of
 it to the Federal Government. The sovereign will is made known to us by legislative enactment. The
State as a sovereign, is the parens patriae.

Chancelor Kent says:

In this country, the legislature or government of the State, as parens patriae, has the right to enforce all
charities of public nature, by virtue of its general superintending authority over the public interests,
where no other person is entrusted with it. (4 Kent Com., 508, note.)

The Supreme Court of the United States in Mormon Church vs. United States, supra, after approving also the
last quotations, said:

This prerogative of parens patriae is inherent in the supreme power of every State, whether that power
is lodged in a royal person or in the legislature, and has no affinity to those arbitrary powers which are
sometimes exerted by irresponsible monarchs to the great detriment of the people and the destruction
of their liberties. On the contrary, it is a most beneficient functions, and often necessary to be exercised
in the interest of humanity, and for the prevention of injury to those who cannot protect themselves.

The court in the same case, after quoting from Sohier vs. Mass. General Hospital (3 Cush., 483, 497), wherein
the latter court held that it is deemed indispensible that there should be a power in the legislature to authorize
the same of the estates of in facts, idiots, insane persons, and persons not known, or not in being, who cannot
act for themselves, said:

These remarks in reference to in facts, insane persons and person not known, or not in being, apply to
the beneficiaries of charities, who are often in capable of vindicating their rights, and justly look for
protection to the sovereign authority, acting as parens patriae. They show that this beneficient functions
has not ceased t exist under the change of government from a monarchy to a republic; but that it now
resides in the legislative department, ready to be called into exercise whenever required for the
purposes of justice and right, and is a clearly capable of being exercised in cases of charities as in any
other cases whatever.

In People vs. Cogswell (113 Cal. 129, 130), it was urged that the plaintiff was not the real party in interest; that
the Attorney-General had no power to institute the action; and that there must be an allegation and proof of a
distinct right of the people as a whole, as distinguished from the rights of individuals, before an action could be
brought by the Attorney-General in the name of the people. The court, in overruling these contentions, held
that it was not only the right but the duty of the Attorney-General to prosecute the action, which related to
charities, and approved the following quotation from Attorney-General vs. Compton (1 Younge & C. C., 417):

Where property affected by a trust for public purposes is in the hands of those who hold it devoted to
that trust, it is the privilege of the public that the crown should be entitled to intervene by its officers for
the purpose of asserting, on behalf on the public generally, the public interest and the public right,
which, probably, no individual could be found effectually to assert, even if the interest were such as to
allow it. (2 Knet's Commentaries, 10th ed., 359; Lewin on Trusts, sec. 732.)

It is further urged, as above indicated, that "the only persons who could claim to be damaged by this payment
to the Monte, if it was unlawful, are the donors or the cestuis que trustent, and this Government is neither.
Consequently, the plaintiff is not the proper party to bring the action." The earthquake fund was the result or
the accumulation of a great number of small contributions. The names of the contributors do not appear in the
record. Their whereabouts are unknown. They parted with the title to their respective contributions. The
beneficiaries, consisting of the original sufferers and their heirs, could have been ascertained. They are quite
numerous also. And no doubt a large number of the original sufferers have died, leaving various heirs. It would
be impracticable for them to institute an action or actions either individually or collectively to recover the
$80,000. The only course that can be satisfactorily pursued is for the Government to again assume control of
the fund and devote it to the object for which it was originally destined.
The impracticability of pursuing a different course, however, is not the true ground upon which the right of the
Government to maintain the action rests. The true ground is that the money being given to a charity became, in
a measure, public property, only applicable, it is true, to the specific purposes to which it was intended to be
devoted, but within those limits consecrated to the public use, and became part of the public resources for
promoting the happiness and welfare of the Philippine Government. (Mormon Church vs. U. S., supra.) To
deny the Government's right to maintain this action would be contrary to sound public policy, as tending to
discourage the prompt exercise of similar acts of humanity and Christian benevolence in like instances in the
future.

As to the question raised in the fourth assignment of error relating to the constitutionality of Act No. 2109, little
need be said for the reason that we have just held that the present Philippine Government is the proper party
to the action. The Act is only a manifestation on the part of the Philippine Government to exercise the power or
right which it undoubtedly had. The Act is not, as contended by counsel, in conflict with the fifth section of the
Act of Congress of July 1, 1902, because it does not take property without due process of law. In fact, the
defendant is not the owner of the $80,000, but holds it as a loan subject to the disposal of the central relief
board. Therefor, there can be nothing in the Act which transcends the power of the Philippine Legislature.

In Vilas vs. Manila, supra, the plaintiff was a creditor of the city of Manila as it existed before the cession of the
Philippine Islands to the United States by the Treaty of Paris of December 10, 1898. The action was brought
upon the theory that the city, under its present charter from the Government of the Philippine Islands, was the
same juristic person, and liable upon the obligations of the old city. This court held that the present municipality
is a totally different corporate entity and in no way liable for the debts of the Spanish municipality. The
Supreme Court of the United States, in reversing this judgment and in holding the city liable for the old debt,
said:

The juristic identity of the corporation has been in no wise affected, and, in law, the present city is, in
every legal sense, the successor of the old. As such it is entitled to the property and property rights of
the predecessor corporation, and is, in law, subject to all of its liabilities.

In support of the fifth assignment of error counsel for the defendant argue that as the Monte de
Piedad declined to return the $80,000 when ordered to do so by the Department of Finance in June, 1893, the
plaintiff's right of action had prescribed at the time this suit was instituted on May 3, 1912, citing and relying
upon article 1961, 1964 and 1969 of the Civil Code. While on the other hand, the Attorney-General contends
that the right of action had not prescribed (a) because the defense of prescription cannot be set up against the
Philippine Government, (b) because the right of action to recover a deposit or trust funds does not prescribe,
and (c) even if the defense of prescription could be interposed against the Government and if the action had, in
fact, prescribed, the same was revived by Act No. 2109.

The material facts relating to this question are these: The Monte de Piedad received the $80,000 in 1883 "to
be held under the same conditions as at present in the treasury, to wit, at the disposal of the relief board." In
compliance with the provisions of the royal order of December 3, 1892, the Department of Finance called upon
the Monte de Piedad in June, 1893, to return the $80,000. The Monte declined to comply with this order upon
the ground that only the Governor-General of the Philippine Islands and not the Department of Finance had the
right to order the reimbursement. The amount was carried on the books of the Monte as a returnable loan until
January 1, 1899, when it was transferred to the account of the "Sagrada Mitra." On March 31, 1902, the Monte,
through its legal representative, stated in writing that the amount in question was received as a reimbursable
loan, without interest. Act No. 2109 became effective January 30, 1912, and the action was instituted on May
3rd of that year.

Counsel for the defendant treat the question of prescription as if the action was one between individuals or
corporations wherein the plaintiff is seeking to recover an ordinary loan. Upon this theory June, 1893, cannot
be taken as the date when the statute of limitations began to run, for the reason that the defendant
acknowledged in writing on March 31, 1902, that the $80,000 were received as a loan, thereby in effect
admitting that it still owed the amount. (Section 50, Code of Civil Procedure.) But if counsels' theory is the
correct one the action may have prescribed on May 3, 1912, because more than ten full years had elapsed
after March 31, 1902. (Sections 38 and 43, Code of Civil Procedure.)
Is the Philippine Government bound by the statute of limitations? The Supreme Court of the United States in U.
S. vs. Nashville, Chattanooga & St. Louis Railway Co. (118 U. S., 120, 125), said:

It is settled beyond doubt or controversy — upon the foundation of the great principle of public policy,
applicable to all governments alike, which forbids that the public interests should be prejudiced by the
negligence of the officers or agents to whose care they are confided — that the United States, asserting
rights vested in it as a sovereign government, is not bound by any statute of limitations, unless
Congress has clearly manifested its intention that it should be so bound. (Lindsey vs. Miller, 6 Pet. 666;
U. S. vs. Knight, 14 Pet., 301; Gibson vs. Chouteau, 13 Wall., 92; U. S. vs. Thompson, 98 U. S., 486;
Fink vs. O'Neil, 106 U. S., 272, 281.)

In Gibson vs. Choteau, supra, the court said:

It is a matter of common knowledge that statutes of limitation do not run against the State. That no
laches can be imputed to the King, and that no time can bar his rights, was the maxim of the common
laws, and was founded on the principle of public policy, that as he was occupied with the cares of
government he ought not to suffer from the negligence of his officer and servants. The principle is
applicable to all governments, which must necessarily act through numerous agents, and is essential to
a preservation of the interests and property of the public. It is upon this principle that in this country the
statutes of a State prescribing periods within which rights must be prosecuted are not held to embrace
the State itself, unless it is expressly designated or the mischiefs to be remedied are of such a nature
that it must necessarily be included. As legislation of a State can only apply to persons and thing over
which the State has jurisdiction, the United States are also necessarily excluded from the operation of
such statutes.

In 25 Cyc., 1006, the rule, supported by numerous authorities, is stated as follows:

In the absence of express statutory provision to the contrary, statute of limitations do not as a general
rule run against the sovereign or government, whether state or federal. But the rule is otherwise where
the mischiefs to be remedied are of such a nature that the state must necessarily be included, where
the state goes into business in concert or in competition with her citizens, or where a party seeks to
enforces his private rights by suit in the name of the state or government, so that the latter is only a
nominal party.

In the instant case the Philippine Government is not a mere nominal party because it, in bringing and
prosecuting this action, is exercising its sovereign functions or powers and is seeking to carry out a trust
developed upon it when the Philippine Islands were ceded to the United States. The United States having in
1852, purchased as trustee for the Chickasaw Indians under treaty with that tribe, certain bonds of the State of
Tennessee, the right of action of the Government on the coupons of such bonds could not be barred by the
statute of limitations of Tennessee, either while it held them in trust for the Indians, or since it became the
owner of such coupons. (U. S. vs. Nashville, etc., R. Co., supra.) So where lands are held in trust by the state
and the beneficiaries have no right to sue, a statute does not run against the State's right of action for trespass
on the trust lands. (Greene Tp. vs. Campbell, 16 Ohio St., 11; see also Atty.-Gen. vs. Midland R. Co., 3 Ont.,
511 [following Reg. vs. Williams, 39 U. C. Q. B., 397].)

These principles being based "upon the foundation of the great principle of public policy" are, in the very nature
of things, applicable to the Philippine Government.

Counsel in their argument in support of the sixth and last assignments of error do not question the amount of
the judgment nor do they question the correctness of the judgment in so far as it allows interest, and directs its
payment in gold coin or in the equivalent in Philippine currency.

For the foregoing reasons the judgment appealed from is affirmed, with costs against the appellant. So
ordered.
 G.R. No. L-25843 July 25, 1974

MELCHORA CABANAS, plaintiff-appellee,

vs.
FRANCISCO PILAPIL, defendant-appellant.

Seno, Mendoza & Associates for plaintiff-appellee.

Emilio Benitez, Jr. for defendant-appellant.

FERNANDO, J.:p

The disputants in this appeal from a question of law from a lower court decision are the mother and the uncle
of a minor beneficiary of the proceeds of an insurance policy issued on the life of her deceased father. The
dispute centers as to who of them should be entitled to act as trustee thereof. The lower court applying the
appropriate Civil Code provisions decided in favor of the mother, the plaintiff in this case. Defendant uncle
appealed. As noted, the lower court acted the way it did following the specific mandate of the law. In addition, it
must have taken into account the principle that in cases of this nature the welfare of the child is the paramount
consideration. It is not an unreasonable assumption that between a mother and an uncle, the former is likely to
lavish more care on and pay greater attention to her. This is all the more likely considering that the child is with
the mother. There are no circumstances then that did militate against what conforms to the natural order of
things, even if the language of the law were not as clear. It is not to be lost sight of either that the judiciary
pursuant to its role as an agency of the State as parens patriae, with an even greater stress on family unity
under the present Constitution, did weigh in the balance the opposing claims and did come to the conclusion
that the welfare of the child called for the mother to be entrusted with such responsibility. We have to affirm.

The appealed decision made clear: "There is no controversy as to the facts. "1 The insured, Florentino Pilapil
had a child, Millian Pilapil, with a married woman, the plaintiff, Melchora Cabanas. She was ten years old at the
time the complaint was filed on October 10, 1964. The defendant, Francisco Pilapil, is the brother of the
deceased. The deceased insured himself and instituted as beneficiary, his child, with his brother to act as
trustee during her minority. Upon his death, the proceeds were paid to him. Hence this complaint by the
mother, with whom the child is living, seeking the delivery of such sum. She filed the bond required by the Civil
Code. Defendant would justify his claim to the retention of the amount in question by invoking the terms of the
insurance policy.2

After trial duly had, the lower court in a decision of May 10, 1965, rendered judgment ordering the defendant to
deliver the proceeds of the policy in question to plaintiff. Its main reliance was on Articles 320 and 321 of the
Civil Code. The former provides: "The father, or in his absence the mother, is the legal administrator of the
property pertaining to the child under parental authority. If the property is worth more than two thousand pesos,
the father or mother shall give a bond subject to the approval of the Court of First Instance."3 The latter states:
"The property which the unemancipated child has acquired or may acquire with his work or industry, or by any
lucrative title, belongs to the child in ownership, and in usufruct to the father or mother under whom he is under
parental authority and whose company he lives; ...4

Conformity to such explicit codal norm is apparent in this portion of the appealed decision: "The insurance
proceeds belong to the beneficiary. The beneficiary is a minor under the custody and parental authority of the
plaintiff, her mother. The said minor lives with plaintiff or lives in the company of the plaintiff. The said minor
acquired this property by lucrative title. Said property, therefore, belongs to the minor child in ownership, and in
usufruct to the plaintiff, her mother. Since under our law the usufructuary is entitled to possession, the plaintiff
is entitled to possession of the insurance proceeds. The trust, insofar as it is in conflict with the above quoted
provision of law, is pro tanto null and void. In order, however, to protect the rights of the minor, Millian Pilapil,
the plaintiff should file an additional bond in the guardianship proceedings, Sp. Proc. No. 2418-R of this Court
to raise her bond therein to the total amount of P5,000.00."5
It is very clear, therefore, considering the above, that unless the applicability of the two cited Civil Code
provisions can be disputed, the decision must stand. There is no ambiguity in the language employed. The
words are rather clear. Their meaning is unequivocal. Time and time again, this Court has left no doubt that
where codal or statutory norms are cast in categorical language, the task before it is not one of interpretation
but of application.6 So it must be in this case. So it was in the appealed decision.

1. It would take more than just two paragraphs as found in the brief for the defendant-appellant7 to blunt the
force of legal commands that speak so plainly and so unqualifiedly. Even if it were a question of policy, the
conclusion will remain unaltered. What is paramount, as mentioned at the outset, is the welfare of the child. It
is in consonance with such primordial end that Articles 320 and 321 have been worded. There is recognition in
the law of the deep ties that bind parent and child. In the event that there is less than full measure of concern
for the offspring, the protection is supplied by the bond required. With the added circumstance that the child
stays with the mother, not the uncle, without any evidence of lack of maternal care, the decision arrived at can
stand the test of the strictest scrutiny. It is further fortified by the assumption, both logical and natural, that
infidelity to the trust imposed by the deceased is much less in the case of a mother than in the case of an
uncle. Manresa, commenting on Article 159 of the Civil Code of Spain, the source of Article 320 of the Civil
Code, was of that view: Thus "El derecho y la obligacion de administrar el Patrimonio de los hijos es una
consecuencia natural y lógica de la patria potestad y de la presunción de que nadie cuidará de los bienes de
acquéllos con mas cariño y solicitude que los padres. En nuestro Derecho antiguo puede decirse que se
hallaba reconocida de una manera indirecta aquelia doctrina, y asi se desprende de la sentencia del Tribunal
Supremeo de 30 de diciembre de 1864, que se refiere a la ley 24, tit. XIII de la Partida 5. De la propia suerte
aceptan en general dicho principio los Codigos extranjeros, con las limitaciones y requisitos de que trataremos
mis adelante."8

2. The appealed decision is supported by another cogent consideration. It is buttressed by its adherence to the
concept that the judiciary, as an agency of the State acting as parens patriae, is called upon whenever a
pending suit of litigation affects one who is a minor to accord priority to his best interest. It may happen, as it
did occur here, that family relations may press their respective claims. It would be more in consonance not only
with the natural order of things but the tradition of the country for a parent to be preferred. it could have been
different if the conflict were between father and mother. Such is not the case at all. It is a mother asserting
priority. Certainly the judiciary as the instrumentality of the State in its role of parens patriae, cannot remain
insensible to the validity of her plea. In a recent case,9 there is this quotation from an opinion of the United
States Supreme Court: "This prerogative of parens patriae is inherent in the supreme power of every State,
whether that power is lodged in a royal person or in the legislature, and has no affinity to those arbitrary
powers which are sometimes exerted by irresponsible monarchs to the great detriment of the people and the
destruction of their liberties." What is more, there is this constitutional provision vitalizing this concept. It reads:
"The State shall strengthen the family as a basic social institution." 10 If, as the Constitution so wisely dictates,
it is the family as a unit that has to be strengthened, it does not admit of doubt that even if a stronger case
were presented for the uncle, still deference to a constitutional mandate would have led the lower court to
decide as it did.

WHEREFORE, the decision of May 10, 1965 is affirmed. Costs against defendant-appellant.
 G.R. No. 164785 April 29, 2009

ELISEO F. SORIANO, Petitioner,

vs.
MA. CONSOLIZA P. LAGUARDIA, in her capacity as Chairperson of the Movie and Television Review
and Classification Board, MOVIE AND TELEVISION REVIEW AND CLASSIFICATION BOARD, JESSIE L.
GALAPON, ANABEL M. DELA CRUZ, MANUEL M. HERNANDEZ, JOSE L. LOPEZ, CRISANTO SORIANO,
BERNABE S. YARIA, JR., MICHAEL M. SANDOVAL, and ROLDAN A. GAVINO, Respondents.

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

G.R. No. 165636 April 29, 2009

ELISEO F. SORIANO Petitioner,

vs.
MOVIE AND TELEVISION REVIEW AND CLASSIFICATION BOARD, ZOSIMO G. ALEGRE, JACKIE
AQUINO-GAVINO, NOEL R. DEL PRADO, EMMANUEL BORLAZA, JOSE E. ROMERO IV, and
FLORIMONDO C. ROUS, in their capacity as members of the Hearing and Adjudication Committee of
the MTRCB, JESSIE L. GALAPON, ANABEL M. DELA CRUZ, MANUEL M. HERNANDEZ, JOSE L.
LOPEZ, CRISANTO SORIANO, BERNABE S. YARIA, JR., MICHAEL M. SANDOVAL, and ROLDAN A.
GAVINO, in their capacity as complainants before the MTRCB Respondents.

DECISION

VELASCO, JR., J.:

In these two petitions for certiorari and prohibition under Rule 65, petitioner Eliseo F. Soriano seeks to nullify
and set aside an order and a decision of the Movie and Television Review and Classification Board (MTRCB)
in connection with certain utterances he made in his television show, Ang Dating Daan.

Facts of the Case

On August 10, 2004, at around 10:00 p.m., petitioner, as host of the program Ang Dating Daan, aired on UNTV
37, made the following remarks:

Lehitimong anak ng demonyo; sinungaling;

Gago ka talaga Michael, masahol ka pa sa putang babae o di ba. Yung putang babae ang gumagana lang
doon yung ibaba, [dito] kay Michael ang gumagana ang itaas, o di ba! O, masahol pa sa putang babae yan.
Sabi ng lola ko masahol pa sa putang babae yan. Sobra ang kasinungalingan ng mga demonyong ito.1 x x x

Two days after, before the MTRCB, separate but almost identical affidavit-complaints were lodged by Jessie L.
Galapon and seven other private respondents, all members of the Iglesia ni Cristo (INC),2 against petitioner in
connection with the above broadcast. Respondent Michael M. Sandoval, who felt directly alluded to in
petitioner’s remark, was then a minister of INC and a regular host of the TV program Ang Tamang
Daan.3 Forthwith, the MTRCB sent petitioner a notice of the hearing on August 16, 2004 in relation to the
alleged use of some cuss words in the August 10, 2004 episode of Ang Dating Daan.4

After a preliminary conference in which petitioner appeared, the MTRCB, by Order of August 16, 2004,
preventively suspended the showing of Ang Dating Daan program for 20 days, in accordance with Section 3(d)
of Presidential Decree No. (PD) 1986, creating the MTRCB, in relation to Sec. 3, Chapter XIII of the 2004
Implementing Rules and Regulations (IRR) of PD 1986 and Sec. 7, Rule VII of the MTRCB Rules of
Procedure.5 The same order also set the case for preliminary investigation.
The following day, petitioner sought reconsideration of the preventive suspension order, praying that
Chairperson Consoliza P. Laguardia and two other members of the adjudication board recuse themselves from
hearing the case.6 Two days after, however, petitioner sought to withdraw7 his motion for reconsideration,
followed by the filing with this Court of a petition for certiorari and prohibition,8 docketed as G.R. No. 164785, to
nullify the preventive suspension order thus issued.

On September 27, 2004, in Adm. Case No. 01-04, the MTRCB issued a decision, disposing as follows:

WHEREFORE, in view of all the foregoing, a Decision is hereby rendered, finding respondent Soriano liable for
his utterances and thereby imposing on him a penalty of three (3) months suspension from his program, "Ang
Dating Daan".

Co-respondents Joselito Mallari, Luzviminda Cruz and UNTV Channel 37 and its owner, PBC, are hereby
exonerated for lack of evidence.

SO ORDERED.9

Petitioner then filed this petition for certiorari and prohibition with prayer for injunctive relief, docketed as G.R.
No. 165636.

In a Resolution dated April 4, 2005, the Court consolidated G.R. No. 164785 with G.R. No. 165636.

In G.R. No. 164785, petitioner raises the following issues:

THE ORDER OF PREVENTIVE SUSPENSION PROMULGATED BY RESPONDENT [MTRCB] DATED 16

AUGUST 2004 AGAINST THE TELEVISION PROGRAM ANG DATING DAAN x x x IS NULL AND VOID FOR
BEING ISSUED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION

(A) BY REASON THAT THE [IRR] IS INVALID INSOFAR AS IT PROVIDES FOR THE ISSUANCE OF
PREVENTIVE SUSPENSION ORDERS;

(B) BY REASON OF LACK OF DUE HEARING IN THE CASE AT BENCH;

(C) FOR BEING VIOLATIVE OF EQUAL PROTECTION UNDER THE LAW;

(D) FOR BEING VIOLATIVE OF FREEDOM OF RELIGION; AND

(E) FOR BEING VIOLATIVE OF FREEDOM OF SPEECH AND EXPRESSION.10

In G.R. No. 165636, petitioner relies on the following grounds:

SECTION 3(C) OF [PD] 1986, IS PATENTLY UNCONSTITUTIONAL AND ENACTED WITHOUT OR IN

EXCESS OF JURISDICTION x x x CONSIDERING THAT:

SECTION 3(C) OF [PD] 1986, AS APPLIED TO PETITIONER, UNDULY INFRINGES ON THE

CONSTITUTIONAL GUARANTEE OF FREEDOM OF RELIGION, SPEECH, AND EXPRESSION AS IT
PARTAKES OF THE NATURE OF A SUBSEQUENT PUNISHMENT CURTAILING THE SAME;
CONSEQUENTLY, THE IMPLEMENTING RULES AND REGULATIONS, RULES OF PROCEDURE, AND
OFFICIAL ACTS OF THE MTRCB PURSUANT THERETO, I.E. DECISION DATED 27 SEPTEMBER 2004
AND ORDER DATED 19 OCTOBER 2004, ARE LIKEWISE CONSTITUTIONALLY INFIRM AS APPLIED IN
THE CASE AT BENCH;
 II

SECTION 3(C) OF [PD] 1986, AS APPLIED TO PETITIONER, UNDULY INFRINGES ON THE

CONSTITUTIONAL GUARANTEE OF DUE PROCESS OF LAW AND EQUAL PROTECTION UNDER THE
LAW; CONSEQUENTLY, THE [IRR], RULES OF PROCEDURE, AND OFFICIAL ACTS OF THE MTRCB
PURSUANT THERETO, I.E., DECISION DATED 27 SEPTEMBER 2004 AND ORDER DATED 19 OCTOBER
2004, ARE LIKEWISE CONSTITUTIONALLY INFIRM AS APPLIED IN THE CASE AT BENCH; AND

III

[PD] 1986 IS NOT COMPLETE IN ITSELF AND DOES NOT PROVIDE FOR A SUFFICIENT STANDARD
FOR ITS IMPLEMENTATION THEREBY RESULTING IN AN UNDUE DELEGATION OF LEGISLATIVE
POWER BY REASON THAT IT DOES NOT PROVIDE FOR THE PENALTIES FOR VIOLATIONS OF ITS
PROVISIONS. CONSEQUENTLY, THE [IRR], RULES OF PROCEDURE, AND OFFICIAL ACTS OF THE
MTRCB PURSUANT THERETO, I.E. DECISION DATED 27 SEPTEMBER 2004 AND ORDER DATED 19
OCTOBER 2004, ARE LIKEWISE CONSTITUTIONALLY INFIRM AS APPLIED IN THE CASE AT BENCH11

G.R. No. 164785

We shall first dispose of the issues in G.R. No. 164785, regarding the assailed order of preventive suspension,
although its implementability had already been overtaken and veritably been rendered moot by the equally
assailed September 27, 2004 decision.

It is petitioner’s threshold posture that the preventive suspension imposed against him and the relevant IRR
provision authorizing it are invalid inasmuch as PD 1986 does not expressly authorize the MTRCB to issue
preventive suspension.

Petitioner’s contention is untenable.

Administrative agencies have powers and functions which may be administrative, investigatory, regulatory,
quasi-legislative, or quasi-judicial, or a mix of the five, as may be conferred by the Constitution or by
statute.12 They have in fine only such powers or authority as are granted or delegated, expressly or impliedly,
by law.13 And in determining whether an agency has certain powers, the inquiry should be from the law itself.
But once ascertained as existing, the authority given should be liberally construed.14

A perusal of the MTRCB’s basic mandate under PD 1986 reveals the possession by the agency of the
authority, albeit impliedly, to issue the challenged order of preventive suspension. And this authority stems
naturally from, and is necessary for the exercise of, its power of regulation and supervision.

Sec. 3 of PD 1986 pertinently provides the following:

Section 3. Powers and Functions.—The BOARD shall have the following functions, powers and duties:

xxxx

c) To approve or disapprove, delete objectionable portions from and/or prohibit the x x x production, x x x
exhibition and/or television broadcast of the motion pictures, television programs and publicity materials
subject of the preceding paragraph, which, in the judgment of the board applying contemporary Filipino cultural
values as standard, are objectionable for being immoral, indecent, contrary to law and/or good customs,
injurious to the prestige of the Republic of the Philippines or its people, or with a dangerous tendency to
encourage the commission of violence or of wrong or crime such as but not limited to:

xxxx
vi) Those which are libelous or defamatory to the good name and reputation of any person, whether living or
dead;

xxxx

(d) To supervise, regulate, and grant, deny or cancel, permits for the x x x production, copying, distribution,
sale, lease, exhibition, and/or television broadcast of all motion pictures, television programs and publicity
materials, to the end that no such pictures, programs and materials as are determined by the BOARD to be
objectionable in accordance with paragraph (c) hereof shall be x x x produced, copied, reproduced, distributed,
sold, leased, exhibited and/or broadcast by television;

xxxx

k) To exercise such powers and functions as may be necessary or incidental to the attainment of the purposes
and objectives of this Act x x x. (Emphasis added.)

The issuance of a preventive suspension comes well within the scope of the MTRCB’s authority and functions
expressly set forth in PD 1986, more particularly under its Sec. 3(d), as quoted above, which empowers the
MTRCB to "supervise, regulate, and grant, deny or cancel, permits for the x x x exhibition, and/or television
broadcast of all motion pictures, television programs and publicity materials, to the end that no such pictures,
programs and materials as are determined by the BOARD to be objectionable in accordance with paragraph
(c) hereof shall be x x x exhibited and/or broadcast by television."

Surely, the power to issue preventive suspension forms part of the MTRCB’s express regulatory and
supervisory statutory mandate and its investigatory and disciplinary authority subsumed in or implied from such
mandate. Any other construal would render its power to regulate, supervise, or discipline illusory.

Preventive suspension, it ought to be noted, is not a penalty by itself, being merely a preliminary step in an
administrative investigation.15 And the power to discipline and impose penalties, if granted, carries with it the
power to investigate administrative complaints and, during such investigation, to preventively suspend the
person subject of the complaint.16

To reiterate, preventive suspension authority of the MTRCB springs from its powers conferred under PD 1986.
The MTRCB did not, as petitioner insinuates, empower itself to impose preventive suspension through the
medium of the IRR of PD 1986. It is true that the matter of imposing preventive suspension is embodied only in
the IRR of PD 1986. Sec. 3, Chapter XIII of the IRR provides:

Sec. 3. PREVENTION SUSPENSION ORDER.––Any time during the pendency of the case, and in order to
prevent or stop further violations or for the interest and welfare of the public, the Chairman of the Board may
issue a Preventive Suspension Order mandating the preventive x x x suspension of the permit/permits
involved, and/or closure of the x x x television network, cable TV station x x x provided that the
temporary/preventive order thus issued shall have a life of not more than twenty (20) days from the date of
issuance.

But the mere absence of a provision on preventive suspension in PD 1986, without more, would not work to
deprive the MTRCB a basic disciplinary tool, such as preventive suspension. Recall that the MTRCB is
expressly empowered by statute to regulate and supervise television programs to obviate the exhibition or
broadcast of, among others, indecent or immoral materials and to impose sanctions for violations and,
corollarily, to prevent further violations as it investigates. Contrary to petitioner’s assertion, the aforequoted
Sec. 3 of the IRR neither amended PD 1986 nor extended the effect of the law. Neither did the MTRCB, by
imposing the assailed preventive suspension, outrun its authority under the law. Far from it. The preventive
suspension was actually done in furtherance of the law, imposed pursuant, to repeat, to the MTRCB’s duty of
regulating or supervising television programs, pending a determination of whether or not there has actually
been a violation. In the final analysis, Sec. 3, Chapter XIII of the 2004 IRR merely formalized a power which
PD 1986 bestowed, albeit impliedly, on MTRCB.
Sec. 3(c) and (d) of PD 1986 finds application to the present case, sufficient to authorize the MTRCB’s
assailed action. Petitioner’s restrictive reading of PD 1986, limiting the MTRCB to functions within the literal
confines of the law, would give the agency little leeway to operate, stifling and rendering it inutile, when Sec.
3(k) of PD 1986 clearly intends to grant the MTRCB a wide room for flexibility in its operation. Sec. 3(k), we
reiterate, provides, "To exercise such powers and functions as may be necessary or incidental to the
attainment of the purposes and objectives of this Act x x x." Indeed, the power to impose preventive
suspension is one of the implied powers of MTRCB. As distinguished from express powers, implied powers are
those that can be inferred or are implicit in the wordings or conferred by necessary or fair implication of the
enabling act.17 As we held in Angara v. Electoral Commission, when a general grant of power is conferred or a
duty enjoined, every particular power necessary for the exercise of one or the performance of the other is also
conferred by necessary implication.18 Clearly, the power to impose preventive suspension pending
investigation is one of the implied or inherent powers of MTRCB.

We cannot agree with petitioner’s assertion that the aforequoted IRR provision on preventive suspension is
applicable only to motion pictures and publicity materials. The scope of the MTRCB’s authority extends beyond
motion pictures. What the acronym MTRCB stands for would suggest as much. And while the law makes
specific reference to the closure of a television network, the suspension of a television program is a far less
punitive measure that can be undertaken, with the purpose of stopping further violations of PD 1986. Again,
the MTRCB would regretfully be rendered ineffective should it be subject to the restrictions petitioner
envisages.

Just as untenable is petitioner’s argument on the nullity of the preventive suspension order on the ground of
lack of hearing. As it were, the MTRCB handed out the assailed order after petitioner, in response to a written
notice, appeared before that Board for a hearing on private respondents’ complaint. No less than petitioner
admitted that the order was issued after the adjournment of the hearing,19 proving that he had already
appeared before the MTRCB. Under Sec. 3, Chapter XIII of the IRR of PD 1986, preventive suspension shall
issue "[a]ny time during the pendency of the case." In this particular case, it was done after MTRCB duly
apprised petitioner of his having possibly violated PD 198620 and of administrative complaints that had been
filed against him for such violation.21

At any event, that preventive suspension can validly be meted out even without a hearing.22

Petitioner next faults the MTRCB for denying him his right to the equal protection of the law, arguing that,
owing to the preventive suspension order, he was unable to answer the criticisms coming from the INC
ministers.

Petitioner’s position does not persuade. The equal protection clause demands that "all persons subject to
legislation should be treated alike, under like circumstances and conditions both in the privileges conferred and
liabilities imposed."23 It guards against undue favor and individual privilege as well as hostile
discrimination.24 Surely, petitioner cannot, under the premises, place himself in the same shoes as the INC
ministers, who, for one, are not facing administrative complaints before the MTRCB. For another, he offers no
proof that the said ministers, in their TV programs, use language similar to that which he used in his own,
necessitating the MTRCB’s disciplinary action. If the immediate result of the preventive suspension order is
that petitioner remains temporarily gagged and is unable to answer his critics, this does not become a
deprivation of the equal protection guarantee. The Court need not belabor the fact that the circumstances of
petitioner, as host of Ang Dating Daan, on one hand, and the INC ministers, as hosts of Ang Tamang Daan, on
the other, are, within the purview of this case, simply too different to even consider whether or not there is a
prima facie indication of oppressive inequality.

Petitioner next injects the notion of religious freedom, submitting that what he uttered was religious speech,
adding that words like "putang babae" were said in exercise of his religious freedom.

The argument has no merit.

The Court is at a loss to understand how petitioner’s utterances in question can come within the pale of Sec. 5,
Article III of the 1987 Constitution on religious freedom. The section reads as follows:
No law shall be made respecting the establishment of a 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. No religious test shall be required for the exercise of civil or political rights.

There is nothing in petitioner’s statements subject of the complaints expressing any particular religious belief,
nothing furthering his avowed evangelical mission. The fact that he came out with his statements in a televised
bible exposition program does not automatically accord them the character of a religious discourse. Plain and
simple insults directed at another person cannot be elevated to the status of religious speech. Even petitioner’s
attempts to place his words in context show that he was moved by anger and the need to seek retribution, not
by any religious conviction. His claim, assuming its veracity, that some INC ministers distorted his statements
respecting amounts Ang Dating Daan owed to a TV station does not convert the foul language used in
retaliation as religious speech. We cannot accept that petitioner made his statements in defense of his
reputation and religion, as they constitute no intelligible defense or refutation of the alleged lies being spread
by a rival religious group. They simply illustrate that petitioner had descended to the level of name-calling and
foul-language discourse. Petitioner could have chosen to contradict and disprove his detractors, but opted for
the low road.

Petitioner, as a final point in G.R. No. 164785, would have the Court nullify the 20-day preventive suspension
order, being, as insisted, an unconstitutional abridgement of the freedom of speech and expression and an
impermissible prior restraint. The main issue tendered respecting the adverted violation and the arguments
holding such issue dovetails with those challenging the three-month suspension imposed under the assailed
September 27, 2004 MTRCB decision subject of review under G.R. No. 165636. Both overlapping issues and
arguments shall be jointly addressed.

G.R. No. 165636

Petitioner urges the striking down of the decision suspending him from hosting Ang Dating Daan for three
months on the main ground that the decision violates, apart from his religious freedom, his freedom of speech
and expression guaranteed under Sec. 4, Art. III of the Constitution, which reads:

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 grievance.

He would also have the Court declare PD 1986, its Sec. 3(c) in particular, unconstitutional for reasons
articulated in this petition.

We are not persuaded as shall be explained shortly. But first, we restate certain general concepts and
principles underlying the freedom of speech and expression.

It is settled that expressions by means of newspapers, radio, television, and motion pictures come within the
broad protection of the free speech and expression clause.25 Each method though, because of its dissimilar
presence in the lives of people and accessibility to children, tends to present its own problems in the area of
free speech protection, with broadcast media, of all forms of communication, enjoying a lesser degree of
protection.26 Just as settled is the rule that restrictions, be it in the form of prior restraint, e.g., judicial injunction
against publication or threat of cancellation of license/franchise, or subsequent liability, whether in libel and
damage suits, prosecution for sedition, or contempt proceedings, are anathema to the freedom of expression.
Prior restraint means official government restrictions on the press or other forms of expression in advance of
actual publication or dissemination.27 The freedom of expression, as with the other freedoms encased in the
Bill of Rights, is, however, not absolute. It may be regulated to some extent to serve important public interests,
some forms of speech not being protected. As has been held, the limits of the freedom of expression are
reached when the expression touches upon matters of essentially private concern.28 In the oft-quoted
expression of Justice Holmes, the constitutional guarantee "obviously was not intended to give immunity for
every possible use of language."29 From Lucas v. Royo comes this line: "[T]he freedom to express one’s
sentiments and belief does not grant one the license to vilify in public the honor and integrity of another. Any
sentiments must be expressed within the proper forum and with proper regard for the rights of others."30
Indeed, as noted in Chaplinsky v. State of New Hampshire,31 "there are certain well-defined and narrowly
limited classes of speech that are harmful, the prevention and punishment of which has never been thought to
raise any Constitutional problems." In net effect, some forms of speech are not protected by the Constitution,
meaning that restrictions on unprotected speech may be decreed without running afoul of the freedom of
speech clause.32 A speech would fall under the unprotected type if the utterances involved are "no essential
part of any exposition of ideas, and are of such slight social value as a step of truth that any benefit that may
be derived from them is clearly outweighed by the social interest in order and morality."33 Being of little or no
value, there is, in dealing with or regulating them, no imperative call for the application of the clear and present
danger rule or the balancing-of-interest test, they being essentially modes of weighing competing values,34 or,
with like effect, determining which of the clashing interests should be advanced.

Petitioner asserts that his utterance in question is a protected form of speech.

The Court rules otherwise. It has been established in this jurisdiction that unprotected speech or low-value
expression refers to libelous statements, obscenity or pornography, false or misleading advertisement,
insulting or "fighting words", i.e., those which by their very utterance inflict injury or tend to incite an immediate
breach of peace and expression endangering national security.

The Court finds that petitioner’s statement can be treated as obscene, at least with respect to the average
child. Hence, it is, in that context, unprotected speech. In Fernando v. Court of Appeals, the Court expressed
difficulty in formulating a definition of obscenity that would apply to all cases, but nonetheless stated the
ensuing observations on the matter:

There is no perfect definition of "obscenity" but the latest word is that of Miller v. California which established
basic guidelines, to wit: (a) whether to the average person, applying contemporary standards would find the
work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently
offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken
as a whole, lacks serious literary, artistic, political, or scientific value. But, it would be a serious misreading of
Miller to conclude that the trier of facts has the unbridled discretion in determining what is "patently offensive."
x x x What remains clear is that obscenity is an issue proper for judicial determination and should be treated on
a case to case basis and on the judge’s sound discretion.35

Following the contextual lessons of the cited case of Miller v. California,36 a patently offensive utterance would
come within the pale of the term obscenity should it appeal to the prurient interest of an average listener
applying contemporary standards.

A cursory examination of the utterances complained of and the circumstances of the case reveal that to an
average adult, the utterances "Gago ka talaga x x x, masahol ka pa sa putang babae x x x. Yung putang
babae ang gumagana lang doon yung ibaba, [dito] kay Michael ang gumagana ang itaas, o di ba!" may not
constitute obscene but merely indecent utterances. They can be viewed as figures of speech or merely a play
on words. In the context they were used, they may not appeal to the prurient interests of an adult. The problem
with the challenged statements is that they were uttered in a TV program that is rated "G" or for general
viewership, and in a time slot that would likely reach even the eyes and ears of children.

While adults may have understood that the terms thus used were not to be taken literally, children could hardly
be expected to have the same discernment. Without parental guidance, the unbridled use of such language as
that of petitioner in a television broadcast could corrupt impressionable young minds. The term "putang babae"
means "a female prostitute," a term wholly inappropriate for children, who could look it up in a dictionary and
just get the literal meaning, missing the context within which it was used. Petitioner further used the terms,
"ang gumagana lang doon yung ibaba," making reference to the female sexual organ and how a female
prostitute uses it in her trade, then stating that Sandoval was worse than that by using his mouth in a similar
manner. Children could be motivated by curiosity and ask the meaning of what petitioner said, also without
placing the phrase in context. They may be inquisitive as to why Sandoval is different from a female prostitute
and the reasons for the dissimilarity. And upon learning the meanings of the words used, young minds, without
the guidance of an adult, may, from their end, view this kind of indecent speech as obscene, if they take these
words literally and use them in their own speech or form their own ideas on the matter. In this particular case,
where children had the opportunity to hear petitioner’s words, when speaking of the average person in the test
for obscenity, we are speaking of the average child, not the average adult. The average child may not have the
adult’s grasp of figures of speech, and may lack the understanding that language may be colorful, and words
may convey more than the literal meaning. Undeniably the subject speech is very suggestive of a female
sexual organ and its function as such. In this sense, we find petitioner’s utterances obscene and not entitled to
protection under the umbrella of freedom of speech.

Even if we concede that petitioner’s remarks are not obscene but merely indecent speech, still the Court rules
that petitioner cannot avail himself of the constitutional protection of free speech. Said statements were made
in a medium easily accessible to children. With respect to the young minds, said utterances are to be treated
as unprotected speech.

No doubt what petitioner said constitutes indecent or offensive utterances. But while a jurisprudential pattern
involving certain offensive utterances conveyed in different mediums has emerged, this case is veritably one of
first impression, it being the first time that indecent speech communicated via television and the applicable
norm for its regulation are, in this jurisdiction, made the focal point. Federal Communications
Commission (FCC) v. Pacifica Foundation,37 a 1978 American landmark case cited in Eastern Broadcasting
Corporation v. Dans, Jr.38 and Chavez v. Gonzales,39 is a rich source of persuasive lessons. Foremost of these
relates to indecent speech without prurient appeal component coming under the category of protected speech
depending on the context within which it was made, irresistibly suggesting that, within a particular context, such
indecent speech may validly be categorized as unprotected, ergo, susceptible to restriction.

In FCC, seven of what were considered "filthy" words40 earlier recorded in a monologue by a satiric humorist
later aired in the afternoon over a radio station owned by Pacifica Foundation. Upon the complaint of a man
who heard the pre-recorded monologue while driving with his son, FCC declared the language used as
"patently offensive" and "indecent" under a prohibiting law, though not necessarily obscene. FCC added,
however, that its declaratory order was issued in a "special factual context," referring, in gist, to an afternoon
radio broadcast when children were undoubtedly in the audience. Acting on the question of whether the FCC
could regulate the subject utterance, the US Supreme Court ruled in the affirmative, owing to two special
features of the broadcast medium, to wit: (1) radio is a pervasive medium and (2) broadcasting is uniquely
accessible to children. The US Court, however, hastened to add that the monologue would be protected
speech in other contexts, albeit it did not expound and identify a compelling state interest in putting FCC’s
content-based regulatory action under scrutiny.

The Court in Chavez41 elucidated on the distinction between regulation or restriction of protected speech that is
content-based and that which is content-neutral. A content-based restraint is aimed at the contents or idea of
the expression, whereas a content-neutral restraint intends to regulate the time, place, and manner of the
expression under well-defined standards tailored to serve a compelling state interest, without restraint on the
message of the expression. Courts subject content-based restraint to strict scrutiny.

With the view we take of the case, the suspension MTRCB imposed under the premises was, in one
perspective, permissible restriction. We make this disposition against the backdrop of the following interplaying
factors: First, the indecent speech was made via television, a pervasive medium that, to borrow from Gonzales
v. Kalaw Katigbak,42 easily "reaches every home where there is a set [and where] [c]hildren will likely be
among the avid viewers of the programs therein shown"; second, the broadcast was aired at the time of the
day when there was a reasonable risk that children might be in the audience; and third, petitioner uttered his
speech on a "G" or "for general patronage" rated program. Under Sec. 2(A) of Chapter IV of the IRR of the
MTRCB, a show for general patronage is "[s]uitable for all ages," meaning that the "material for television x x x
in the judgment of the BOARD, does not contain anything unsuitable for children and minors, and may be
viewed without adult guidance or supervision." The words petitioner used were, by any civilized norm, clearly
not suitable for children. Where a language is categorized as indecent, as in petitioner’s utterances on a
general-patronage rated TV program, it may be readily proscribed as unprotected speech.

A view has been advanced that unprotected speech refers only to pornography,43 false or misleading
advertisement,44 advocacy of imminent lawless action, and expression endangering national security. But this
list is not, as some members of the Court would submit, exclusive or carved in stone. Without going into
specifics, it may be stated without fear of contradiction that US decisional law goes beyond the aforesaid
general exceptions. As the Court has been impelled to recognize exceptions to the rule against censorship in
the past, this particular case constitutes yet another exception, another instance of unprotected speech,
created by the necessity of protecting the welfare of our children. As unprotected speech, petitioner’s
utterances can be subjected to restraint or regulation.

Despite the settled ruling in FCC which has remained undisturbed since 1978, petitioner asserts that his
utterances must present a clear and present danger of bringing about a substantive evil the State has a right
and duty to prevent and such danger must be grave and imminent.45

Petitioner’s invocation of the clear and present danger doctrine, arguably the most permissive of speech tests,
would not avail him any relief, for the application of said test is uncalled for under the premises. The doctrine,
first formulated by Justice Holmes, accords protection for utterances so that the printed or spoken words may
not be subject to prior restraint or subsequent punishment unless its expression creates a clear and present
danger of bringing about a substantial evil which the government has the power to prohibit.46 Under the
doctrine, freedom of speech and of press is susceptible of restriction when and only when necessary to
prevent grave and immediate danger to interests which the government may lawfully protect. As it were, said
doctrine evolved in the context of prosecutions for rebellion and other crimes involving the overthrow of
government.47 It was originally designed to determine the latitude which should be given to speech that
espouses anti-government action, or to have serious and substantial deleterious consequences on the security
and public order of the community.48 The clear and present danger rule has been applied to this
jurisdiction.49 As a standard of limitation on free speech and press, however, the clear and present danger test
is not a magic incantation that wipes out all problems and does away with analysis and judgment in the testing
of the legitimacy of claims to free speech and which compels a court to release a defendant from liability the
moment the doctrine is invoked, absent proof of imminent catastrophic disaster.50 As we observed in Eastern
Broadcasting Corporation, the clear and present danger test "does not lend itself to a simplistic and all
embracing interpretation applicable to all utterances in all forums."51

To be sure, the clear and present danger doctrine is not the only test which has been applied by the courts.
Generally, said doctrine is applied to cases involving the overthrow of the government and even other evils
which do not clearly undermine national security. Since not all evils can be measured in terms of "proximity
and degree" the Court, however, in several cases—Ayer Productions v. Capulong52 and Gonzales v.
COMELEC,53 applied the balancing of interests test. Former Chief Justice Fred Ruiz Castro, in Gonzales v.
COMELEC, elucidated in his Separate Opinion that "where the legislation under constitutional attack interferes
with the freedom of speech and assembly in a more generalized way and where the effect of the speech and
assembly in terms of the probability of realization of a specific danger is not susceptible even of impressionistic
calculation,"54 then the "balancing of interests" test can be applied.

The Court explained also in Gonzales v. COMELEC the "balancing of interests" test:

When particular conduct is regulated in the interest of public order, and the regulation results in an indirect,
conditional, partial abridgment of speech, the duty of the courts is to determine which of the two conflicting
interests demands the greater protection under the particular circumstances presented. x x x We must,
therefore, undertake the "delicate and difficult task x x x to weigh the circumstances and to appraise the
substantiality of the reasons advanced in support of the regulation of the free enjoyment of rights x x x.

In enunciating standard premised on a judicial balancing of the conflicting social values and individual interests
competing for ascendancy in legislation which restricts expression, the court in Douds laid the basis for what
has been called the "balancing-of-interests" test which has found application in more recent decisions of the
U.S. Supreme Court. Briefly stated, the "balancing" test requires a court to take conscious and detailed
consideration of the interplay of interests observable in a given situation or type of situation.

xxxx

Although the urgency of the public interest sought to be secured by Congressional power restricting the
individual’s freedom, and the social importance and value of the freedom so restricted, "are to be judged in the
concrete, not on the basis of abstractions," a wide range of factors are necessarily relevant in ascertaining the
point or line of equilibrium. Among these are (a) the social value and importance of the specific aspect of the
particular freedom restricted by the legislation; (b) the specific thrust of the restriction, i.e., whether the
restriction is direct or indirect, whether or not the persons affected are few; (c) the value and importance of the
public interest sought to be secured by the legislation––the reference here is to the nature and gravity of the
evil which Congress seeks to prevent; (d) whether the specific restriction decreed by Congress is reasonably
appropriate and necessary for the protection of such public interest; and (e) whether the necessary
safeguarding of the public interest involved may be achieved by some other measure less restrictive of the
protected freedom.55

This balancing of interest test, to borrow from Professor Kauper,56 rests on the theory that it is the court’s
function in a case before it when it finds public interests served by legislation, on the one hand, and the free
expression clause affected by it, on the other, to balance one against the other and arrive at a judgment where
the greater weight shall be placed. If, on balance, it appears that the public interest served by restrictive
legislation is of such nature that it outweighs the abridgment of freedom, then the court will find the legislation
valid. In short, the balance-of-interests theory rests on the basis that constitutional freedoms are not absolute,
not even those stated in the free speech and expression clause, and that they may be abridged to some extent
to serve appropriate and important interests.57 To the mind of the Court, the balancing of interest doctrine is the
more appropriate test to follow.

In the case at bar, petitioner used indecent and obscene language and a three (3)-month suspension was
slapped on him for breach of MTRCB rules. In this setting, the assertion by petitioner of his enjoyment of his
freedom of speech is ranged against the duty of the government to protect and promote the development and
welfare of the youth.

After a careful examination of the factual milieu and the arguments raised by petitioner in support of his claim
to free speech, the Court rules that the government’s interest to protect and promote the interests and welfare
of the children adequately buttresses the reasonable curtailment and valid restraint on petitioner’s prayer to
continue as program host of Ang Dating Daan during the suspension period.

No doubt, one of the fundamental and most vital rights granted to citizens of a State is the freedom of speech
or expression, for without the enjoyment of such right, a free, stable, effective, and progressive democratic
state would be difficult to attain. Arrayed against the freedom of speech is the right of the youth to their moral,
spiritual, intellectual, and social being which the State is constitutionally tasked to promote and protect.
Moreover, the State is also mandated to recognize and support the vital role of the youth in nation building as
laid down in Sec. 13, Art. II of the 1987 Constitution.

The Constitution has, therefore, imposed the sacred obligation and responsibility on the State to provide
protection to the youth against illegal or improper activities which may prejudice their general well-being. The
Article on youth, approved on second reading by the Constitutional Commission, explained that the State shall
"extend social protection to minors against all forms of neglect, cruelty, exploitation, immorality, and practices
which may foster racial, religious or other forms of discrimination."58

Indisputably, the State has a compelling interest in extending social protection to minors against all forms of
neglect, exploitation, and immorality which may pollute innocent minds. It has a compelling interest in helping
parents, through regulatory mechanisms, protect their children’s minds from exposure to undesirable materials
and corrupting experiences. The Constitution, no less, in fact enjoins the State, as earlier indicated, to promote
and protect the physical, moral, spiritual, intellectual, and social well-being of the youth to better prepare them
fulfill their role in the field of nation-building.59 In the same way, the State is mandated to support parents in the
rearing of the youth for civic efficiency and the development of moral character.60

Petitioner’s offensive and obscene language uttered in a television broadcast, without doubt, was easily
accessible to the children. His statements could have exposed children to a language that is unacceptable in
everyday use. As such, the welfare of children and the State’s mandate to protect and care for them, as parens
patriae,61 constitute a substantial and compelling government interest in regulating petitioner’s utterances in TV
broadcast as provided in PD 1986.
FCC explains the duty of the government to act as parens patriae to protect the children who, because of age
or interest capacity, are susceptible of being corrupted or prejudiced by offensive language, thus:

[B]roadcasting is uniquely accessible to children, even those too young to read. Although Cohen’s written
message, ["Fuck the Draft"], might have been incomprehensible to a first grader, Pacifica’s broadcast could
have enlarged a child’s vocabulary in an instant. Other forms of offensive expression may be withheld from the
young without restricting the expression at its source. Bookstores and motion picture theaters, for example,
may be prohibited from making indecent material available to children. We held in Ginsberg v. New York that
the government’s interest in the "well-being of its youth" and in supporting "parents’ claim to authority in their
own household" justified the regulation of otherwise protected expression. The ease with which children may
obtain access to broadcast material, coupled with the concerns recognized in Ginsberg, amply justify special
treatment of indecent broadcasting.

Moreover, Gonzales v. Kalaw Katigbak likewise stressed the duty of the State to attend to the welfare of the
young:

x x x It is the consensus of this Court that where television is concerned, a less liberal approach calls for
observance. This is so because unlike motion pictures where the patrons have to pay their way, television
reaches every home where there is a set. Children then will likely will be among the avid viewers of the
programs therein shown. As was observed by Circuit Court of Appeals Judge Jerome Frank, it is hardly the
concern of the law to deal with the sexual fantasies of the adult population. It cannot be denied though that the
State as parens patriae is called upon to manifest an attitude of caring for the welfare of the young.62

The compelling need to protect the young impels us to sustain the regulatory action MTRCB took in the narrow
confines of the case. To reiterate, FCC justified the restraint on the TV broadcast grounded on the following
considerations: (1) the use of television with its unique accessibility to children, as a medium of broadcast of a
patently offensive speech; (2) the time of broadcast; and (3) the "G" rating of the Ang Dating Daan program.
And in agreeing with MTRCB, the court takes stock of and cites with approval the following excerpts from FCC:

It is appropriate, in conclusion, to emphasize the narrowness of our holding. This case does not involve a two-
way radio conversation between a cab driver and a dispatcher, or a telecast of an Elizabethan comedy. We
have not decided that an occasional expletive in either setting would justify any sanction. x x x The [FFC’s]
decision rested entirely on a nuisance rationale under which context is all important. The concept requires
consideration of a host of variables. The time of day was emphasized by the [FFC]. The content of the program
in which the language is used will affect the composition of the audience x x x. As Mr. Justice Sutherland wrote
a ‘nuisance may be merely a right thing in the wrong place, like a pig in the parlor instead of the barnyard.’ We
simply hold that when the [FCC] finds that a pig has entered the parlor, the exercise of its regulatory power
does not depend on proof that the pig is obscene. (Citation omitted.)

There can be no quibbling that the remarks in question petitioner uttered on prime-time television are blatantly
indecent if not outright obscene. It is the kind of speech that PD 1986 proscribes necessitating the exercise by
MTRCB of statutory disciplinary powers. It is the kind of speech that the State has the inherent prerogative,
nay duty, to regulate and prevent should such action served and further compelling state interests. One who
utters indecent, insulting, or offensive words on television when unsuspecting children are in the audience is, in
the graphic language of FCC, a "pig in the parlor." Public interest would be served if the "pig" is reasonably
restrained or even removed from the "parlor."

Ergo, petitioner’s offensive and indecent language can be subjected to prior restraint.

Petitioner theorizes that the three (3)-month suspension is either prior restraint or subsequent punishment that,
however, includes prior restraint, albeit indirectly.

After a review of the facts, the Court finds that what MTRCB imposed on petitioner is an administrative
sanction or subsequent punishment for his offensive and obscene language in Ang Dating Daan.
To clarify, statutes imposing prior restraints on speech are generally illegal and presumed unconstitutional
breaches of the freedom of speech. The exceptions to prior restraint are movies, television, and radio
broadcast censorship in view of its access to numerous people, including the young who must be insulated
from the prejudicial effects of unprotected speech. PD 1986 was passed creating the Board of Review for
Motion Pictures and Television (now MTRCB) and which requires prior permit or license before showing a
motion picture or broadcasting a TV program. The Board can classify movies and television programs and can
cancel permits for exhibition of films or television broadcast.lavvphi1.net

The power of MTRCB to regulate and even impose some prior restraint on radio and television shows, even
religious programs, was upheld in Iglesia Ni Cristo v. Court of Appeals. Speaking through Chief Justice
Reynato S. Puno, the Court wrote:

We thus reject petitioner’s postulate that its religious program is per se beyond review by the respondent
Board. Its public broadcast on TV of its religious program brings it out of the bosom of internal belief. Television
is a medium that reaches even the eyes and ears of children. The Court iterates the rule that the exercise of
religious freedom can be regulated by the State when it will bring about the clear and present danger of some
substantive evil which the State is duty bound to prevent, i.e., serious detriment to the more overriding interest
of public health, public morals, or public welfare. x x x

xxxx

While the thesis has a lot to commend itself, we are not ready to hold that [PD 1986] is unconstitutional for
Congress to grant an administrative body quasi-judicial power to preview and classify TV programs and
enforce its decision subject to review by our courts. As far back as 1921, we upheld this setup in Sotto vs.
Ruiz, viz:

"The use of the mails by private persons is in the nature of a privilege which can be regulated in order to avoid
its abuse. Persons possess no absolute right to put into the mail anything they please, regardless of its
character."63

Bernas adds:

Under the decree a movie classification board is made the arbiter of what movies and television programs or
parts of either are fit for public consumption. It decides what movies are "immoral, indecent, contrary to law
and/or good customs, injurious to the prestige of the Republic of the Philippines or its people," and what "tend
to incite subversion, insurrection, rebellion or sedition," or "tend to undermine the faith and confidence of the
people in their government and/or duly constituted authorities," etc. Moreover, its decisions are executory
unless stopped by a court.64

Moreover, in MTRCB v. ABS-CBN Broadcasting Corporation,65 it was held that the power of review and prior
approval of MTRCB extends to all television programs and is valid despite the freedom of speech guaranteed
by the Constitution. Thus, all broadcast networks are regulated by the MTRCB since they are required to get a
permit before they air their television programs. Consequently, their right to enjoy their freedom of speech is
subject to that requirement. As lucidly explained by Justice Dante O. Tinga, government regulations through
the MTRCB became "a necessary evil" with the government taking the role of assigning bandwidth to individual
broadcasters. The stations explicitly agreed to this regulatory scheme; otherwise, chaos would result in the
television broadcast industry as competing broadcasters will interfere or co-opt each other’s signals. In this
scheme, station owners and broadcasters in effect waived their right to the full enjoyment of their right to
freedom of speech in radio and television programs and impliedly agreed that said right may be subject to prior
restraint—denial of permit or subsequent punishment, like suspension or cancellation of permit, among others.

The three (3) months suspension in this case is not a prior restraint on the right of petitioner to continue with
the broadcast of Ang Dating Daan as a permit was already issued to him by MTRCB for such broadcast.
Rather, the suspension is in the form of permissible administrative sanction or subsequent punishment for the
offensive and obscene remarks he uttered on the evening of August 10, 2004 in his television program, Ang
Dating Daan. It is a sanction that the MTRCB may validly impose under its charter without running afoul of the
free speech clause. And the imposition is separate and distinct from the criminal action the Board may take
pursuant to Sec. 3(i) of PD 1986 and the remedies that may be availed of by the aggrieved private party under
the provisions on libel or tort, if applicable. As FCC teaches, the imposition of sanctions on broadcasters who
indulge in profane or indecent broadcasting does not constitute forbidden censorship. Lest it be overlooked,
the sanction imposed is not per se for petitioner’s exercise of his freedom of speech via television, but for the
indecent contents of his utterances in a "G" rated TV program.

More importantly, petitioner is deemed to have yielded his right to his full enjoyment of his freedom of speech
to regulation under PD 1986 and its IRR as television station owners, program producers, and hosts have
impliedly accepted the power of MTRCB to regulate the broadcast industry.

Neither can petitioner’s virtual inability to speak in his program during the period of suspension be plausibly
treated as prior restraint on future speech. For viewed in its proper perspective, the suspension is in the nature
of an intermediate penalty for uttering an unprotected form of speech. It is definitely a lesser punishment than
the permissible cancellation of exhibition or broadcast permit or license. In fine, the suspension meted was
simply part of the duties of the MTRCB in the enforcement and administration of the law which it is tasked to
implement. Viewed in its proper context, the suspension sought to penalize past speech made on prime-time
"G" rated TV program; it does not bar future speech of petitioner in other television programs; it is a
permissible subsequent administrative sanction; it should not be confused with a prior restraint on speech.
While not on all fours, the Court, in MTRCB,66 sustained the power of the MTRCB to penalize a broadcast
company for exhibiting/airing a pre-taped TV episode without Board authorization in violation of Sec. 7 of PD
1986.

Any simplistic suggestion, however, that the MTRCB would be crossing the limits of its authority were it to
regulate and even restrain the prime-time television broadcast of indecent or obscene speech in a "G" rated
program is not acceptable. As made clear in Eastern Broadcasting Corporation, "the freedom of television and
radio broadcasting is somewhat lesser in scope than the freedom accorded to newspaper and print media."
The MTRCB, as a regulatory agency, must have the wherewithal to enforce its mandate, which would not be
effective if its punitive actions would be limited to mere fines. Television broadcasts should be subject to some
form of regulation, considering the ease with which they can be accessed, and violations of the regulations
must be met with appropriate and proportional disciplinary action. The suspension of a violating television
program would be a sufficient punishment and serve as a deterrent for those responsible. The prevention of
the broadcast of petitioner’s television program is justified, and does not constitute prohibited prior restraint. It
behooves the Court to respond to the needs of the changing times, and craft jurisprudence to reflect these
times.

Petitioner, in questioning the three-month suspension, also tags as unconstitutional the very law creating the
MTRCB, arguing that PD 1986, as applied to him, infringes also upon his freedom of religion. The Court has
earlier adequately explained why petitioner’s undue reliance on the religious freedom cannot lend justification,
let alone an exempting dimension to his licentious utterances in his program. The Court sees no need to
address anew the repetitive arguments on religious freedom. As earlier discussed in the disposition of the
petition in G.R. No. 164785, what was uttered was in no way a religious speech. Parenthetically, petitioner’s
attempt to characterize his speech as a legitimate defense of his religion fails miserably. He tries to place his
words in perspective, arguing evidently as an afterthought that this was his method of refuting the alleged
distortion of his statements by the INC hosts of Ang Tamang Daan. But on the night he uttered them in his
television program, the word simply came out as profane language, without any warning or guidance for
undiscerning ears.

As to petitioner’s other argument about having been denied due process and equal protection of the law,
suffice it to state that we have at length debunked similar arguments in G.R. No. 164785. There is no need to
further delve into the fact that petitioner was afforded due process when he attended the hearing of the
MTRCB, and that he was unable to demonstrate that he was unjustly discriminated against in the MTRCB
proceedings.
Finally, petitioner argues that there has been undue delegation of legislative power, as PD 1986 does not
provide for the range of imposable penalties that may be applied with respect to violations of the provisions of
the law.

The argument is without merit.

In Edu v. Ericta, the Court discussed the matter of undue delegation of legislative power in the following wise:

It is a fundamental principle flowing from the doctrine of separation of powers that Congress may not delegate
its legislative power to the two other branches of the government, subject to the exception that local
governments may over local affairs participate in its exercise. What cannot be delegated is the authority under
the Constitution to make laws and to alter and repeal them; the test is the completeness of the statute in all its
term and provisions when it leaves the hands of the legislature. To determine whether or not there is an undue
delegation of legislative power, the inquiry must be directed to the scope and definiteness of the measure
enacted. The legislature does not abdicate its functions when it describes what job must be done, who is to do
it, and what is the scope of his authority. For a complex economy, that may indeed be the only way in which
the legislative process can go forward. A distinction has rightfully been made between delegation of power to
make laws which necessarily involves a discretion as to what it shall be, which constitutionally may not be
done, and delegation of authority or discretion as to its execution to be exercised under and in pursuance of
the law, to which no valid objection can be made. The Constitution is thus not to be regarded as denying the
legislature the necessary resources of flexibility and practicability.

To avoid the taint of unlawful delegation, there must be a standard, which implies at the very least that the
legislature itself determines matters of principle and lays down fundamental policy. Otherwise, the charge of
complete abdication may be hard to repel. A standard thus defines legislative policy, marks its limits, maps out
its boundaries and specifies the public agency to apply it. It indicates the circumstances under which the
legislative command is to be effected. It is the criterion by which legislative purpose may be carried out.
Thereafter, the executive or administrative office designated may in pursuance of the above guidelines
promulgate supplemental rules and regulations.67

Based on the foregoing pronouncements and analyzing the law in question, petitioner’s protestation about
undue delegation of legislative power for the sole reason that PD 1986 does not provide for a range of
penalties for violation of the law is untenable. His thesis is that MTRCB, in promulgating the IRR of PD 1986,
prescribing a schedule of penalties for violation of the provisions of the decree, went beyond the terms of the
law.

Petitioner’s posture is flawed by the erroneous assumptions holding it together, the first assumption being that
PD 1986 does not prescribe the imposition of, or authorize the MTRCB to impose, penalties for violators of PD
1986. As earlier indicated, however, the MTRCB, by express and direct conferment of power and functions, is
charged with supervising and regulating, granting, denying, or canceling permits for the exhibition and/or
television broadcast of all motion pictures, television programs, and publicity materials to the end that no such
objectionable pictures, programs, and materials shall be exhibited and/or broadcast by television.
Complementing this provision is Sec. 3(k) of the decree authorizing the MTRCB "to exercise such powers and
functions as may be necessary or incidental to the attainment of the purpose and objectives of [the law]." As
earlier explained, the investiture of supervisory, regulatory, and disciplinary power would surely be a
meaningless grant if it did not carry with it the power to penalize the supervised or the regulated as may be
proportionate to the offense committed, charged, and proved. As the Court said in Chavez v. National Housing
Authority:

x x x [W]hen a general grant of power is conferred or duty enjoined, every particular power necessary for the
exercise of the one or the performance of the other is also conferred. x x x [W]hen the statute does not specify
the particular method to be followed or used by a government agency in the exercise of the power vested in it
by law, said agency has the authority to adopt any reasonable method to carry out its function.68

Given the foregoing perspective, it stands to reason that the power of the MTRCB to regulate and supervise
the exhibition of TV programs carries with it or necessarily implies the authority to take effective punitive action
for violation of the law sought to be enforced. And would it not be logical too to say that the power to deny or
cancel a permit for the exhibition of a TV program or broadcast necessarily includes the lesser power to
suspend?

The MTRCB promulgated the IRR of PD 1986 in accordance with Sec. 3(a) which, for reference, provides that
agency with the power "[to] promulgate such rules and regulations as are necessary or proper for the
implementation of this Act, and the accomplishment of its purposes and objectives x x x." And Chapter XIII,
Sec. 1 of the IRR providing:

Section 1. VIOLATIONS AND ADMINISTRATIVE SANCTIONS.––Without prejudice to the immediate filing of

the appropriate criminal action and the immediate seizure of the pertinent articles pursuant to Section 13, any
violation of PD 1986 and its Implementing Rules and Regulations governing motion pictures, television
programs, and related promotional materials shall be penalized with suspension or cancellation of permits
and/or licenses issued by the Board and/or with the imposition of fines and other administrative
penalty/penalties. The Board recognizes the existing Table of Administrative Penalties attached without
prejudice to the power of the Board to amend it when the need arises. In the meantime the existing revised
Table of Administrative Penalties shall be enforced. (Emphasis added.)

This is, in the final analysis, no more than a measure to specifically implement the aforequoted provisions of
Sec. 3(d) and (k). Contrary to what petitioner implies, the IRR does not expand the mandate of the MTRCB
under the law or partake of the nature of an unauthorized administrative legislation. The MTRCB cannot shirk
its responsibility to regulate the public airwaves and employ such means as it can as a guardian of the public.

In Sec. 3(c), one can already find the permissible actions of the MTRCB, along with the standards to be
applied to determine whether there have been statutory breaches. The MTRCB may evaluate motion pictures,
television programs, and publicity materials "applying contemporary Filipino cultural values as standard," and,
from there, determine whether these audio and video materials "are objectionable for being immoral, indecent,
contrary to law and/or good customs, [etc.] x x x" and apply the sanctions it deems proper. The lawmaking
body cannot possibly provide for all the details in the enforcement of a particular statute.69 The grant of the
rule-making power to administrative agencies is a relaxation of the principle of separation of powers and is an
exception to the non-delegation of legislative powers.70 Administrative regulations or "subordinate legislation"
calculated to promote the public interest are necessary because of "the growing complexity of modern life, the
multiplication of the subjects of governmental regulations, and the increased difficulty of administering the
law."71 Allowing the MTRCB some reasonable elbow-room in its operations and, in the exercise of its statutory
disciplinary functions, according it ample latitude in fixing, by way of an appropriate issuance, administrative
penalties with due regard for the severity of the offense and attending mitigating or aggravating circumstances,
as the case may be, would be consistent with its mandate to effectively and efficiently regulate the movie and
television industry.

But even as we uphold the power of the MTRCB to review and impose sanctions for violations of PD 1986, its
decision to suspend petitioner must be modified, for nowhere in that issuance, particularly the power-defining
Sec. 3 nor in the MTRCB Schedule of Administrative Penalties effective January 1, 1999 is the Board
empowered to suspend the program host or even to prevent certain people from appearing in television
programs. The MTRCB, to be sure, may prohibit the broadcast of such television programs or cancel permits
for exhibition, but it may not suspend television personalities, for such would be beyond its jurisdiction. The
MTRCB cannot extend its exercise of regulation beyond what the law provides. Only persons, offenses, and
penalties clearly falling clearly within the letter and spirit of PD 1986 will be considered to be within the
decree’s penal or disciplinary operation. And when it exists, the reasonable doubt must be resolved in favor of
the person charged with violating the statute and for whom the penalty is sought. Thus, the MTRCB’s decision
in Administrative Case No. 01-04 dated September 27, 2004 and the subsequent order issued pursuant to said
decision must be modified. The suspension should cover only the television program on which petitioner
appeared and uttered the offensive and obscene language, which sanction is what the law and the facts
obtaining call for.

In ending, what petitioner obviously advocates is an unrestricted speech paradigm in which absolute
permissiveness is the norm. Petitioner’s flawed belief that he may simply utter gutter profanity on television
without adverse consequences, under the guise of free speech, does not lend itself to acceptance in this
jurisdiction. We repeat: freedoms of speech and expression are not absolute freedoms. To say "any act that
restrains speech should be greeted with furrowed brows" is not to say that any act that restrains or regulates
speech or expression is per se invalid. This only recognizes the importance of freedoms of speech and
expression, and indicates the necessity to carefully scrutinize acts that may restrain or regulate speech.

WHEREFORE, the decision of the MTRCB in Adm. Case No. 01-04 dated September 27, 2004 is hereby
AFFIRMED with the MODIFICATION of limiting the suspension to the program Ang Dating Daan. As thus
modified, the fallo of the MTRCB shall read as follows:

WHEREFORE, in view of all the foregoing, a Decision is hereby rendered, imposing a penalty of THREE (3)
MONTHS SUSPENSION on the television program, Ang Dating Daan, subject of the instant petition.

Co-respondents Joselito Mallari, Luzviminda Cruz, and UNTV Channel 37 and its owner, PBC, are hereby
exonerated for lack of evidence.

Costs against petitioner.

SO ORDERED.
 G.R. No. 73748, May 22, 1986]LAWYERS LEAGUE FOR A BETTER PHILIPPINES AND/OR OLIVER A.
LOZANO VS. PRESIDENT CORAZON C. AQUINO, ET AL.
SIRS/MESDAMES:

Quoted hereunder, for your information, is a resolution of this Court MAY 22, 1986.

In G.R. No. 73748, Lawyers League for a Better Philippines vs. President Corazon C. Aquino, et al.; G.R. No.
73972, People’s Crusade for Supremacy of the Constitution vs. Mrs. Cory Aquino, et al., and G.R. No. 73990,
Councilor Clifton U. Ganay vs. Corazon C. Aquino, et al., the legitimacy of the government of President Aquino
is questioned. It is claimed that her government is illegal because it was not established pursuant to the 1973
Constitution.

As early as April 10, 1986, this Court* had already voted to dismiss the petitions for the reasons to be
stated below. On April 17, 1986, Atty. Lozano as counsel for the petitioners in G.R. Nos. 73748 and
73972 withdrew the petitions and manifested that they would pursue the question by extra-judicial
methods. The withdrawal is functus oficio.

The three petitions obviously are not impressed with merit. Petitioners have no personality to sue and their
petitions state no cause of action. For the legitimacy of the Aquino government is not a justiciable matter. It
belongs to the realm of politics where only the people of the Philippines are the judge. And the people have
made the judgment; they have accepted the government of President Corazon C. Aquino which is in effective
control of the entire country so that it is not merely a de factogovernment but is in fact and law a de jure
government. Moreover, the community of nations has recognized the legitimacy of the present government. All
the eleven members of this Court, as reorganized, have sworn to uphold the fundamental law of the Republic
under her government.

In view of the foregoing, the petitions are hereby dismissed.

 G.R. No. L-36409 October 26, 1973

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
LORETA GOZO, defendant-appellant.

Office of the Solicitor General Felix Q. Antonio, Assistant Solicitor General Jaime M. Lantin and
Solicitor Norberto P. Eduardo for plaintiff-appellee.

Jose T. Nery for defendant-appellant.

FERNANDO, J.:

Appellant seeks to set aside a judgment of the Court of First Instance of Zambales, convicting her of a violation
of an ordinance of Olongapo, Zambales, requiring a permit from the municipal mayor for the construction or
erection of a building, as well as any modification, alteration, repair or demolition thereof. She questions its
validity, or at the very least, its applicability to her, by invoking due process,1 a contention she would premise
on what for her is the teaching of People v. Fajardo.2 If such a ground were far from being impressed with
solidity, she stands on quicksand when she would deny the applicability of the ordinance to her, on the pretext
that her house was constructed within the naval base leased to the American armed forces. While yielding to
the well-settled doctrine that it does not thereby cease to be Philippine territory, she would, in effect, seek to
emasculate our sovereign rights by the assertion that we cannot exercise therein administrative jurisdiction. To
state the proposition is to make patent how much it is tinged with unorthodoxy. Clearly then, the lower court
decision must be affirmed with the sole modification that she is given thirty days from the finality of a judgment
to obtain a permit, failing which, she is required to demolish the same.

The facts are undisputed. As set forth in the decision of the lower court: "The accused bought a house and lot
located inside the United States Naval Reservation within the territorial jurisdiction of Olongapo City. She
demolished the house and built another one in its place, without a building permit from the City Mayor of
Olongapo City, because she was told by one Ernesto Evalle, an assistant in the City Mayor's office, as well as
by her neighbors in the area, that such building permit was not necessary for the construction of the house. On
December 29, 1966, Juan Malones, a building and lot inspector of the City Engineer's Office, Olongapo City,
together with Patrolman Ramon Macahilas of the Olongapo City police force apprehended four carpenters
working on the house of the accused and they brought the carpenters to the Olongapo City police
headquarters for interrogation. ... After due investigation, Loreta Gozo was charged with violation of Municipal
Ordinance No. 14, S. of 1964 with the City Fiscal's Office."3 The City Court of Olongapo City found her guilty of
violating Municipal Ordinance No. 14, Series of 1964 and sentenced her to an imprisonment of one month as
well as to pay the costs. The Court of Instance of Zambales, on appeal, found her guilty on the above facts of
violating such municipal ordinance but would sentence her merely to pay a fine of P200.00 and to demolish the
house thus erected. She elevated the case to the Court of Appeals but in her brief, she would put in issue the
validity of such an ordinance on constitutional ground or at the very least its applicability to her in view of the
location of her dwelling within the naval base. Accordingly, the Court of Appeals, in a resolution of January 29,
1973, noting the constitutional question raised, certified the case to this Court.

There is, as mentioned in the opening paragraph of this petition, no support in law for the stand taken by
appellant.

1. It would be fruitless for her to assert that local government units are devoid of authority to require building
permits. This Court, from Switzer v. Municipality of
Cebu,4 decided in 1911, has sanctioned the validity of such measures. It is much too late in the day to contend
that such a requirement cannot be validly imposed. Even appellant, justifiably concerned about the unfavorable
impression that could be created if she were to deny that such competence is vested in municipal corporations
and chartered cities, had to concede in her brief: "If, at all; the questioned ordinance may be predicated under
the general welfare clause ... ."5 Its scope is wide, well-nigh all embracing, covering every aspect of public
health, public morals, public safety, and the well being and good order of the community.6

It goes without saying that such a power is subject to limitations. Certainly, if its exercise is violative of any
constitutional right, then its validity could be impugned, or at the very least, its applicability to the person
adversely affected could be questioned. So much is settled law. Apparently, appellant has adopted the view
that a due process question may indeed be raised in view of what for her is its oppressive character. She is led
to such a conclusion, relying on People v. Fajardo.7 A more careful scrutiny of such a decision would not have
led her astray, for that case is easily distinguishable. The facts as set forth in the opinion follow: "It appears
that on August 15, 1950, during the incumbency of defendant-appellant Juan F. Fajardo as mayor of the
municipality of Baao, Camarines Sur, the municipal council passed the ordinance in question providing as
follows: "... 1. Any person or persons who will construct or repair a building should, before constructing or
repairing, obtain a written permit from the Municipal Mayor. ... 2. A fee of not less than P2.00 should be
charged for each building permit and P1.00 for each repair permit issued. ... 3. [Penalty]-Any violation of the
provisions of the above, this ordinance, shall make the violator liable to pay a fine of not less than P25 nor
more than P50 or imprisonment of not less than 12 days nor more than 24 days or both, at the discretion of the
court. If said building destroys the view of the Public Plaza or occupies any public property, it shall be removed
at the expense of the owner of the building or house. ... ." Four years later, after the term of appellant Fajardo
as mayor had expired, he and his son-in-law, appellant Babilonia, filed a written request with the incumbent
municipal mayor for a permit to construct a building adjacent to their gasoline station on a parcel of land
registered in Fajardo's name, located along the national highway and separated from the public plaza by a
creek ... . On January 16, 1954, the request was denied, for the reason among others that the proposed
building would destroy the view or beauty of the public plaza ... . On January 18, 1954, defendants reiterated
their request for a building permit ..., but again the request was turned down by the mayor. Whereupon,
appellants proceeded with the construction of the building without a permit, because they needed a place of
residence very badly, their former house having been destroyed by a typhoon and hitherto they had been living
on leased property."8

Clearly then, the application of such an ordinance to Fajardo was oppressive. A conviction therefore for a
violation thereof both in the justice of the peace court of Baao, Camarines Sur as well as in the Court of First
Instance could not be sustained. In this case, on the contrary, appellant never bothered to comply with the
ordinance. Perhaps aware of such a crucial distinction, she would assert in her brief: "The evidence showed
that even if the accused were to secure a permit from the Mayor, the same would not have been granted. To
require the accused to obtain a permit before constructing her house would be an exercise in futility. The law
will not require anyone to perform an impossibility, neither in law or in fact: ... ."9 It would be from her own
version, at the very least then, premature to anticipate such an adverse result, and thus to condemn an
ordinance which certainly lends itself to an interpretation that is neither oppressive, unfair, or unreasonable.
That kind of interpretation suffices to remove any possible question of its validity, as was expressly announced
in Primicias v. Fugoso. 10 So it appears from this portion of the opinion of Justice Feria, speaking for the Court:
"Said provision is susceptible of two constructions: one is that the Mayor of the City of Manila is vested with
unregulated discretion to grant or refuse to grant permit for the holding of a lawful assembly or meeting,
parade, or procession in the streets and other public places of the City of Manila; and the other is that the
applicant has the right to a permit which shall be granted by the Mayor, subject only to the latter's reasonable
discretion to determine or specify the streets or public places to be used for the purpose, with a view to prevent
confusion by overlapping, to secure convenient use of the streets and public places by others, and to provide
adequate and proper policing to minimize the risk of disorder. After a mature deliberation, we have arrived at
the conclusion that we must adopt the second construction, that is, construe the provisions of the said
ordinance to mean that it does not confer upon the Mayor the power to refuse to grant the permit, but only the
discretion, in issuing the permit, to determine or specify the streets or public places where the parade or
procession may pass or the meeting may be held." 11 If, in a case affecting such a preferred freedom as the
right to assembly, this Court could construe an ordinance of the City of Manila so as to avoid offending against
a constitutional provision, there is nothing to preclude it from a similar mode of approach in order to show the
lack of merit of an attack against an ordinance requiring a permit. Appellant cannot therefore take comfort from
any broad statement in the Fajardo opinion, which incidentally is taken out of context, considering the admitted
oppressive application of the challenged measure in that litigation. So much then for the contention that she
could not have been validly convicted for a violation of such ordinance. Nor should it be forgotten that she did
suffer the same fate twice, once from the City Court and thereafter from the Court of First Instance. The reason
is obvious.Such ordinance applies to her.

2. Much less is a reversal indicated because of the alleged absence of the rather novel concept of
administrative jurisdiction on the part of Olongapo City. Nor is novelty the only thing that may be said against it.
Far worse is the assumption at war with controlling and authoritative doctrines that the mere existence of
military or naval bases of a foreign country cuts deeply into the power to govern. Two leading cases may be
cited to show how offensive is such thinking to the juristic concept of sovereignty, People v.
Acierto, 12 and Reagan v. Commissioner of Internal Revenue. 13 As was so emphatically set forth by Justice
Tuason in Acierto: "By the Agreement, it should be noted, the Philippine Government merely consents that the
United States exercise jurisdiction in certain cases. The consent was given purely as a matter of comity,
courtesy, or expediency. The Philippine Government has not abdicated its sovereignty over the bases as part
of the Philippine territory or divested itself completely of jurisdiction over offenses committed therein. Under the
terms of the treaty, the United States Government has prior or preferential but not exclusive jurisdiction of such
offenses. The Philippine Government retains not only jurisdictional rights not granted, but also all such ceded
rights as the United States Military authorities for reasons of their own decline to make use of. The first
proposition is implied from the fact of Philippine sovereignty over the bases; the second from the express
provisions of the treaty." 14 There was a reiteration of such a view in Reagan. Thus: "Nothing is better settled
than that the Philippines being independent and sovereign, its authority may be exercised over its entire
domain. There is no portion thereof that is beyond its power. Within its limits, its decrees are supreme, its
commands paramount. Its laws govern therein, and everyone to whom it applies must submit to its terms. That
is the extent of its jurisdiction, both territorial and personal. Necessarily, likewise, it has to be exclusive. If it
were not thus, there is a diminution of sovereignty." 15 Then came this paragraph dealing with the principle of
auto-limitation: "It is to be admitted any state may, by its consent, express or implied, submit to a restriction of
its sovereign rights. There may thus be a curtailment of what otherwise is a power plenary in character. That is
the concept of sovereignty as auto-limitation, which, in the succinct language of Jellinek, "is the property of a
state-force due to which it has the exclusive capacity of legal self-determination and self-restriction." A state
then, if it chooses to, may refrain from the exercise of what otherwise is illimitable competence." 16 The
opinion was at pains to point out though that even then, there is at the most diminution of jurisdictional rights,
not its disappearance. The words employed follow: "Its laws may as to some persons found within its territory
no longer control. Nor does the matter end there. It is not precluded from allowing another power to participate
in the exercise of jurisdictional right over certain portions of its territory. If it does so, it by no means follows that
such areas become impressed with an alien character. They retain their status as native soil. They are still
subject to its authority. Its jurisdiction may be diminished, but it does not disappear. So it is with the bases
under lease to the American armed forces by virtue of the military bases agreement of 1947. They are not and
cannot be foreign territory." 17

Can there be anything clearer, therefore, than that only a turnabout, unwarranted and unjustified, from what is
settled and orthodox law can lend the slightest degree of plausibility to the contention of absence of
administrative jurisdiction. If it were otherwise, what was aptly referred to by Justice Tuason "as a matter of
comity, courtesy, or expediency" becomes one of obeisance and submission. If on a concern purely domestic
in its implications, devoid of any connection with national security, the Military-Bases Agreement could be thus
interpreted, then sovereignty indeed becomes a mockery and an illusion. Nor does appellant's thesis rest on
less shaky foundation by the mere fact that Acierto and Reagan dealt with the competence of the national
government, while what is sought to be emasculated in this case is the so-called administrative jurisdiction of a
municipal corporation. Within the limits of its territory, whatever statutory powers are vested upon it may be
validly exercised. Any residual authority and therein conferred, whether expressly or impliedly, belongs to the
national government, not to an alien country. What is even more to be deplored in this stand of appellant is that
no such claim is made by the American naval authorities, not that it would do them any good if it were so
asserted. To quote from Acierto anew: "The carrying out of the provisions of the Bases Agreement is the
concern of the contracting parties alone. Whether, therefore, a given case which by the treaty comes within the
United States jurisdiction should be transferred to the Philippine authorities is a matter about which the
accused has nothing to do or say. In other words, the rights granted to the United States by the treaty insure
solely to that country and can not be raised by the offender." 18 If an accused would suffer from such disability,
even if the American armed forces were the beneficiary of a treaty privilege, what is there for appellant to take
hold of when there is absolutely no showing of any alleged grant of what is quaintly referred to as
administrative jurisdiction? That is all, and it is more than enough, to make manifest the futility of seeking a
reversal.

WHEREFORE, the appealed decision of November 11, 1969 is affirmed insofar as it found the accused, Loreta
Gozo, guilty beyond reasonable doubt of a violation of Municipal Ordinance No. 14, series of 1964 and
sentencing her to pay a fine of P200.00 with subsidiary imprisonment in case of insolvency, and modified
insofar as she is required to demolish the house that is the subject matter of the case, she being given a period
of thirty days from the finality of this decision within which to obtain the required permit. Only upon her failure to
do so will that portion of the appealed decision requiringdemolition be enforced. Costs against the accused.
 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 growth and prosperity."

Brief Historical Background

To hasten worldwide recovery from the devastation wrought by the Second World War, plans for the
establishment of three multilateral institutions — inspired by that grand political body, the United Nations —
were discussed at Dumbarton Oaks and Bretton Woods. The first was the World Bank (WB) which was to
address the rehabilitation and reconstruction of war-ravaged and later developing countries; the second, the
International Monetary Fund (IMF) which was to deal with currency problems; and the third, the International
Trade Organization (ITO), which was to foster order and predictability in world trade and to minimize unilateral
protectionist policies that invite challenge, even retaliation, from other states. However, for a variety of reasons,
including its non-ratification by the United States, the ITO, unlike the IMF and WB, never took off. What
remained was only GATT — the General Agreement on Tariffs and Trade. GATT was a collection of treaties
governing access to the economies of treaty adherents with no institutionalized body administering the
agreements or dependable system of dispute settlement.

After half a century and several dizzying rounds of negotiations, principally the Kennedy Round, the Tokyo
Round and the Uruguay Round, the world finally gave birth to that administering body — the World Trade
Organization — with the signing of the "Final Act" in Marrakesh, Morocco and the 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

14
The jurisdiction of this Court to adjudicate the matters 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. 16 As 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 Filipinos.

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. 23 They are used by the judiciary as aids or as guides in the exercise of its power of judicial
review, and by the legislature in its enactment of laws. As held in the leading case 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 34 of the WTO Agreement as follows:

The Parties to this Agreement,

Recognizing that their relations in the field of trade and economic endeavour should be
conducted with a view to raising standards of living, ensuring full employment and a large and
steadily growing volume of real income and effective demand, and expanding the production of
and trade in goods and services, while allowing for the optimal use of the world's resources in
accordance with the objective of sustainable development, seeking both to protect and preserve
the environment and to enhance the means for doing 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 38 explains:

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.