WTO TANADA VS.

ANGARA
272 SCRA 18

6. POLITICAL LAW; CONSTITUTION; DECLARATION OF PRINCIPLES

AND STATE POLICIES; AIDS OR GUIDES IN THE EXERCISE OF
JUDICIAL AND LEGISLATIVE POWERS. 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 is called the "basic political creed of the
nation" by Dean Vicente Sinco. These principles in Article II are not intended to
be self-executing principles ready for enforcement through the courts. 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 v. Morato, 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."cralaw
virtua1aw
library
7. ID.; ID.; THOUGH IT MANDATES A BIAS IN FAVOR OF FILIPINO
GOODS, SERVICES, LABOR AND ENTERPRISES, IT RECOGNIZES THE
NEED FOR BUSINESS EXCHANGE WITH THE REST OF THE WORLD.
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. 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.
9. POLITICAL LAW; CONSTITUTION; DECLARATION OF PRINCIPLES
AND STATE POLICIES; POLICE OF "SELF-RELIANT AND INDEPENDENT
NATIONAL ECONOMY" DOES NOT RULE OUT ENTRY OF FOREIGN
INVESTMENTS, GOODS AND SERVICES. The constitutional policy of a

"self-reliant and independent national economy" does not necessarily rule out
the entry, of foreign investments, goods and services. It contemplates neither
"economic seclusion" nor "mendicancy in the international community."cralaw
virtua1aw
library
10. POLITICAL LAW; INTERNATIONAL LAW; WORLD TRADE LAW
ORGANIZATION/GENERAL AGREEMENT ON TARIFFS AND TRADE;
RELIANCE ON "MOST FAVORED NATIONS", CONSTITUTIONAL. 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 reciprocal", 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.
12. POLITICAL LAW; SOVEREIGNTY; SUBJECT TO RESTRICTIONS

AND LIMITATIONS VOLUNTARILY AGREED TO BY THE STATE; CASE

AT BAR. While sovereignty has traditionally been deemed absolute and allencompassing 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. 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." 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. 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."cralaw
virtua1aw
library

13. ID.; ID.; ID.; ID. 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." 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." Apart from the UN Treaty, the Philippines has entered
into many other international pacts both bilateral and multilateral that
involve limitations on Philippine sovereignty 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. 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."cralaw virtua1aw library
14. ID.; ID.; ID.; WORLD TRADE ORGANIZATION; PARAGRAPH 1,
ARTICLE

34

OF

THE

GENERAL

PROVISIONS

AND

BASIC

PRINCIPLES OF THE AGREEMENT ON TRADE-RELATED ASPECTS

OF

INTELLECTUAL

INTRUDE

ON

PROMULGATE

THE

PROPERTY
POWER

RULES

ON

RIGHTS

OF

THE

(TRIPS);

SUPREME

PLEADING,

DOES

COURT

PRACTICE

NOT

TO

AND

PROCEDURES. Petitioners aver that paragraph 1, Article 34 (Process

Patents: Burden of Proof) of the General Provisions and Basic Principles of the
Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS)
intrudes on the power of the Supreme Court to promulgate rules concerning
pleading, practice and procedures. A WTO Member is required to provide a rule
of disputable (note 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 was made by the patented process. 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 is 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 a 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 adjustments in legislation and rules of procedure will not be
substantial.
15. ID.; ID.; ID.; ID.; MINISTERIAL DECLARATION AND DECISIONS AND
THE UNDERSTANDING ON COMMITMENTS IN FINANCIAL SERVICES,
NOT SUBJECT TO CONCURRENCE BY 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."
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
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 provision of this Agreement which
invoke joint action, and generally with a view to facilitating the operation and
furthering the objectives of this Agreement." 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."cralaw virtua1aw library

FACTS:
This is a petition seeking to nullify the Philippine ratification of the World
Trade Organization (WTO) Agreement. Petitioners question the concurrence of
herein respondents acting in their capacities as Senators via signing the said
agreement.
The WTO opens access to foreign markets, especially its major trading partners,
through the reduction of tariffs on its exports, particularly agricultural and
industrial products. Thus, provides new opportunities for the service sector cost
and uncertainty associated with exporting and more investment in the country.
These are the predicted benefits as reflected in the agreement and as viewed by
the signatory Senators, a free market espoused by WTO.
Petitioners on the other hand viewed the WTO agreement as one that limits,
restricts and impair Philippine economic sovereignty and legislative power. That
the Filipino First policy of the Constitution was taken for granted as it gives
foreign trading intervention.
Issue :
1. whether or not the provisions of the said agreement and its annexes
limit restricts or impair the exercise of the legislative power by
congress?

2. whether or not the provisions unduly impair or interefere with the

exercise of judicial power by this court in promulgating rules on
evidence ?
3. whether or not 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.

G.R. No. 162230, August 12, 2014

ISABELITA C. VINUYA, VICTORIA C. DELA PEA, HERMINIHILDA
MANIMBO, LEONOR H. SUMAWANG, CANDELARIA L. SOLIMAN,

MARIA L. QUILANTANG, MARIA L. MAGISA, NATALIA M. ALONZO,

LOURDES

M.

NAVARO,

FRANCISCA

M.

ATENCIO,

ERLINDA

MANALASTAS, TARCILA M. SAMPANG, ESTER M. PALACIO, MAXIMA

R. DELA CRUZ, BELEN A. SAGUM, FELICIDAD TURLA, FLORENCIA
M. DELA PEA, EUGENIA M. LALU, JULIANA G. MAGAT, CECILIA
SANGUYO, ANA ALONZO, RUFINA P. MALLARI,

ROSARIO M.

ALARCON, RUFINA C. GULAPA, ZOILA B. MANALUS, CORAZON C.

CALMA, MARTA A. GULAPA, TEODORA M. HERNANDEZ, FERMIN B.

DELA PEA, MARIA DELA PAZ B. CULALA, ESPERANZA MANAPOL,

JUANITA M. BRIONES, VERGINIA M. GUEVARRA, MAXIMA ANGULO,

EMILIA SANGIL, TEOFILA R. PUNZALAN, JANUARIA G. GARCIA,

PERLA B. BALINGIT, BELEN A. CULALA, PILAR Q. GALANG,

ROSARIO C. BUCO, GAUDENCIA C. DELA PEA, RUFINA Q.
CATACUTAN, FRANCIA A. BUCO, PASTORA C. GUEVARRA, VICTORIA
M. DELA CRUZ, PETRONILA O. DELA CRUZ, ZENAIDA P. DELA

CRUZ, CORAZON M. SUBA, EMERINCIANA A. VINUYA, LYDIA A.

SANCHEZ, ROSALINA M. BUCO, PATRICIA A. BERNARDO, LUCILA H.

PAYAWAL, MAGDALENA LIWAG, ESTER C. BALINGIT, JOVITA A.

DAVID, EMILIA C. MANGILIT, VERGINIA M. BANGIT, GUILERMA S.
BALINGIT,

TERECITA

PANGILINAN,

MAMERTA

C.

PUNO,

CRISENCIANA C. GULAPA, SEFERINA S. TURLA, MAXIMA B. TURLA,

LEONICIA G. GUEVARRA, ROSALINA M. CULALA, CATALINA Y.

MANIO, MAMERTA T. SAGUM, CARIDAD L. TURLA, et al. in their
capacity

and

as

Organizations, Petitioners,

members

v. THE

of

the

Malaya

HONORABLE

Lolas

EXECUTIVE

SECRETARY ALBERTO G. ROMULO, THE HONORABLE SECRETARY

OF FOREIGN AFFAIRS DELIA DOMINGO-ALBERT, THE HONORABLE

SECRETARY OF JUSTICE MERCEDITAS N. GUTIERREZ, AND THE

HONORABLE

SOLICITOR

GENERAL

BENIPAYO,,Respondents.

ALFREDO

L.

RESOLUTION
BERSAMIN, J.:
Petitioners filed a Motion for Reconsideration1 and a Supplemental Motion for
Reconsideration,2praying that the Court reverse its decision of April 28, 2010,
and
grant
their
petition
for certiorari.
In their Motion for Reconsideration, petitioners argue that our constitutional
and jurisprudential histories have rejected the Courts ruling that the foreign
policy prerogatives of the Executive Branch are unlimited; that under the
relevant jurisprudence and constitutional provisions, such prerogatives are
proscribed by international human rights and international conventions of
which the Philippines is a party; that the Court, in holding that the Chief
Executive has the prerogative whether to bring petitioners claims against
Japan, has read the foreign policy powers of the Office of the President in
isolation from the rest of the constitutional protections that expressly textualize
international human rights; that the foreign policy prerogatives are subject to
obligations to promote international humanitarian law as incorporated into the
laws of the land through the Incorporation Clause; that the Court must re-visit
its decisions in Yamashita v. Styer3 and Kuroda v. Jalandoni4 which have been
noted for their prescient articulation of the import of laws of humanity; that in
said decision, the Court ruled that the State was bound to observe the laws of
war and humanity; that in Yamashita, the Court expressly recognized rape as
an international crime under international humanitarian law, and inJalandoni,
the Court declared that even if the Philippines had not acceded or signed the
Hague Convention on Rules and Regulations covering Land Warfare, the Rules
and Regulations formed part of the law of the nation by virtue of the
Incorporation Clause; that such commitment to the laws of war and humanity
has been enshrined in Section 2, Article II of the 1987 Constitution, which
provides that the Philippinesadopts 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.
The petitioners added that the status and applicability of the generally accepted
principles of international law within the Philippine jurisdiction would be
uncertain without the Incorporation Clause, and that the clause implied that

the general international law forms part of Philippine law only insofar as they
are expressly adopted; that in its rulings in The Holy See, v. Rosario,
Jr.5 and U.S. v. Guinto6the Court has said that international law is deemed part
of the Philippine law as a consequence of Statehood; that in Agustin v. Edu,7 the
Court has declared that a treaty, though not yet ratified by the Philippines, was
part of the law of the land through the Incorporation Clause; that by virtue of
the Incorporation Clause, the Philippines is bound to abide by the erga
omnes obligations arising from thejus cogens norms embodied in the laws of war
and humanity that include the principle of the imprescriptibility of war crimes;
that the crimes committed against petitioners are proscribed under
international human rights law as there were undeniable violations of jus
cogens norms; that the need to punish crimes against the laws of humanity has
long become jus cogens norms, and that international legal obligations prevail
over national legal norms; that the Courts invocation of the political doctrine in
the instant case is misplaced; and that the Chief Executive has the
constitutional duty to afford redress and to give justice to the victims of the
comfort
women
system
in
the
Philippines. 8cralawred
Petitioners further argue that the Court has confused diplomatic protection
with the broader responsibility of states to protect the human rights of their
citizens, especially where the rights asserted are subject of erga
omnes obligations and pertain to jus cogens norms; that the claims raised by
petitioners are not simple private claims that are the usual subject of diplomatic
protection; that the crimes committed against petitioners are shocking to the
conscience of humanity; and that the atrocities committed by the Japanese
soldiers against petitioners are not subject to the statute of limitations under
international
law.9cralawred
Petitioners pray that the Court reconsider its April 28, 2010 decision, and
declare: (1) that the rapes, sexual slavery, torture and other forms of sexual
violence committed against the Filipina comfort women are crimes against
humanity and war crimes under customary international law; (2) that the
Philippines is not bound by the Treaty of Peace with Japan, insofar as the
waiver of the claims of the Filipina comfort women against Japan is concerned;
(3) that the Secretary of Foreign Affairs and the Executive Secretary committed
grave abuse of discretion in refusing to espouse the claims of Filipina comfort
women; and (4) that petitioners are entitled to the issuance of a writ of
preliminary
injunction
against
the
respondents.

Petitioners also pray that the Court order the Secretary of Foreign Affairs and
the Executive Secretary to espouse the claims of Filipina comfort women for an
official apology, legal compensation and other forms of reparation from
Japan.10cralawred
In their Supplemental Motion for Reconsideration, petitioners stress that it was
highly improper for the April 28, 2010 decision to lift commentaries from at
least three sources without proper attribution an article published in 2009 in
the Yale Law Journal of International Law; a book published by the Cambridge
University Press in 2005; and an article published in 2006 in the Western
Reserve Journal of International Law and make it appear that such
commentaries supported its arguments for dismissing the petition, when in
truth the plagiarized sources even made a strong case in favour of petitioners
claims.11cralawred
In their Comment,12 respondents disagree with petitioners, maintaining that
aside from the statements on plagiarism, the arguments raised by petitioners
merely rehashed those made in their June 7, 2005 Memorandum; that they
already refuted such arguments in their Memorandum of June 6, 2005 that the
Court resolved through its April 28, 2010 decision, specifically as
follows:chanRoblesvirtualLawlibrary
1. The contentions pertaining to the alleged plagiarism were then already
lodged with the Committee on Ethics and Ethical Standards of the Court; hence,
the matter of alleged plagiarism should not be discussed or resolved
herein.13cralawred
2. A writ of certiorari did not lie in the absence of grave abuse of discretion
amounting to lack or excess of jurisdiction. Hence, in view of the failure of
petitioners to show any arbitrary or despotic act on the part of respondents, the
relief
of
the
writ
of certiorariwas
not
warranted.14cralawred
3. Respondents hold that the Waiver Clause in the Treaty of Peace with Japan,
being valid, bound the Republic of the Philippines pursuant to the international
law principle ofpacta sunt servanda. The validity of the Treaty of Peace was the
result of the ratification by two mutually consenting parties. Consequently, the
obligations embodied in the Treaty of Peace must be carried out in accordance
with the common and real intention of the parties at the time the treaty was
concluded.15cralawred

10

4. Respondents assert that individuals did not have direct international

remedies against any State that violated their human rights except where such
remedies are provided by an international agreement. Herein, neither of the
Treaty of Peace and the Reparations Agreement, the relevant agreements
affecting herein petitioners, provided for the reparation of petitioners claims.
Respondents aver that the formal apology by the Government of Japan and the
reparation the Government of Japan has provided through the Asian Womens
Fund (AWF) are sufficient to recompense petitioners on their claims,
specifically:cralawlawlibrary
a. About 700 million yen would be paid from the national treasury over the
next
10
years
as
welfare
and
medical
services;chanroblesvirtuallawlibrary
b. Instead of paying the money directly to the former comfort women, the
services would be provided through organizations delegated by
governmental bodies in the recipient countries (i.e., the Philippines, the
Republic of Korea, and Taiwan); andChanRoblesVirtualawlibrary
c.

Compensation would consist of assistance for nursing services (like

home helpers), housing, environmental development, medical expenses,
and medical goods.16

Ruling
The Court DENIES the Motion for Reconsideration and Supplemental Motion
for Reconsideration for being devoid of merit.
1.

Petitioners

did

not

show

that

their

resort

was timely under the Rules of Court.

Petitioners did not show that their bringing of the special civil action
for certiorari was timely, i.e., within the 60-day period provided in Section 4,
Rule 65 of the Rules of Court, to wit:chanRoblesvirtualLawlibrary
Section 4. When and where position filed. The petition shall be filed not later
than sixty (60) days from notice of judgment, order or resolution. In case a
motion for reconsideration or new trial is timely filed, whether such motion is

11

required or not, the sixty (60) day period shall be counted from notice of the
denial of said motion.
As the rule indicates, the 60-day period starts to run from the date petitioner
receives the assailed judgment, final order or resolution, or the denial of the
motion for reconsideration or new trial timely filed, whether such motion is
required or not. To establish the timeliness of the petition for certiorari, the date
of receipt of the assailed judgment, final order or resolution or the denial of the
motion for reconsideration or new trial must be stated in the petition; otherwise,
the petition for certiorari must be dismissed. The importance of the dates cannot
be understated, for such dates determine the timeliness of the filing of the
petition for certiorari. As the Court has emphasized in Tambong v. R. Jorge
Development Corporation:17cralawred
There are three essential dates that must be stated in a petition for certiorari
brought under Rule 65. First, the date when notice of the judgment or final
order or resolution was received; second, when a motion for new trial or
reconsideration was filed; andthird, when notice of the denial thereof was
received. Failure of petitioner to comply with this requirement shall be

sufficient ground for the dismissal of the petition. Substantial

compliance will not suffice in a matter involving strict observance with
the Rules. (Emphasis supplied)

The Court has further said in Santos v. Court of Appeals:18cralawred

The requirement of setting forth the three (3) dates in a petition
for certiorari under Rule 65 is for the purpose of determining its timeliness.
Such a petition is required to be filed not later than sixty (60) days from notice
of the judgment, order or Resolutionsought to be assailed. Therefore, that the
petition for certiorari was filed forty-one (41) days from receipt of the denial of
the motion for reconsideration is hardly relevant. The Court of Appeals was not
in any position to determine when this period commenced to run and whether
the motion for reconsideration itself was filed on time since the material dates
were not stated. It should not be assumed that in no event would the motion be
filed later than fifteen (15) days. Technical rules of procedure are not designed
to frustrate the ends of justice. These are provided to effect the proper and
orderly disposition of cases and thus effectively prevent the clogging of court

12

dockets. Utter disregard of the Rules cannot justly be rationalized by harking on

the policy of liberal construction.19chanrobleslaw
The
petition
for certiorari contains
averments, viz:chanRoblesvirtualLawlibrary

the

following

82. Since 1998, petitioners and other victims of the comfort women system,
approached the Executive Department through the Department of Justice in
order to request for assistance to file a claim against the Japanese officials and
military officers who ordered the establishment of the comfort women stations
in
the
Philippines;chanroblesvirtuallawlibrary
83. Officials of the Executive Department ignored their request and refused to
file a claim against the said Japanese officials and military
officers;chanroblesvirtuallawlibrary
84. Undaunted, the Petitioners in turn approached the Department of Foreign
Affairs, Department of Justice and Office of the of the Solicitor General to file
their claim against the responsible Japanese officials and military officers, but
their efforts were similarly and carelessly disregarded;20chanrobleslaw
The petition thus mentions the year 1998 only as the time when petitioners
approached the Department of Justice for assistance, but does not specifically
state when they received the denial of their request for assistance by the
Executive Department of the Government. This alone warranted the outright
dismissal
of
the
petition.
Even assuming that petitioners received the notice of the denial of their request
for assistance in 1998, their filing of the petition only on March 8, 2004 was still
way beyond the 60-day period. Only the most compelling reasons could justify
the Courts acts of disregarding and lifting the strictures of the rule on the
period. As we pointed out in MTM Garment Mfg. Inc. v. Court of
Appeals:21cralawred
All these do not mean, however, that procedural rules are to be ignored or
disdained at will to suit the convenience of a party. Procedural law has its own
rationale in the orderly administration of justice, namely: to ensure the effective
enforcement of substantive rights by providing for a system that obviates
arbitrariness, caprice, despotism, or whimsicality in the settlement of disputes.

13

Hence, it is a mistake to suppose that substantive law and procedural law are
contradictory to each other, or as often suggested, that enforcement of
procedural rules should never be permitted if it would result in prejudice to the
substantive
rights
of
the
litigants.
As we have repeatedly stressed, the right to file a special civil action
of certiorari is neither a natural right nor an essential element of due process; a
writ of certiorari is a prerogative writ, never demandable as a matter
of right, and never issued except in the exercise of judicial discretion.
Hence, he who seeks a writ ofcertiorari must apply for it only in the
manner and strictly in accordance with the provisions of the law and
the

Rules.

Herein petitioners have not shown any compelling reason for us to relax the rule
and the requirements under current jurisprudence. x x x. (Emphasis
supplied)chanrobleslaw

2.

Petitioners
was

did
either

not

on the part of respondents.

show
judicial

that

the
or

assailed

act

quasi-judicial

Petitioners were required to show in their petition for certiorari that the
assailed act was either judicial or quasi-judicial in character. Section 1, Rule 65
of the Rules of Court requires such showing, to wit:chanRoblesvirtualLawlibrary
Section 1. Petition for certiorari.When any tribunal, board or officer exercising
judicial or quasi-judicial functions has acted without or in excess of its or his
jurisdiction, or with grave abuse of discretion amounting to lack or excess of
jurisdiction, and there is no appeal, nor any plain, speedy, and adequate remedy
in the ordinary course of law, a person aggrieved thereby may file a verified
petition in the proper court, alleging the facts with certainty and praying that
judgment be rendered annulling or modifying the proceedings of such tribunal,
board or officer, and granting such incidental reliefs as law and justice may
require.
The petition shall be accompanied by a certified true copy of the judgment,

14

order, or resolution subject thereof, copies of all pleadings and documents

relevant and pertinent thereto, and a sworn certification of non-forum shopping
as provided in the third paragraph of Section 3, Rule 46.
However, petitioners did not make such a showing.
3.

Petitioners

were

not

entitled

to the injunction.
The Court cannot grant petitioners prayer for the writ of preliminary
mandatory
injunction.
Preliminary injunction is merely a provisional remedy that is adjunct to the
main case, and is subject to the latters outcome. It is not a cause of action
itself.22 It is provisional because it constitutes a temporary measure availed of
during the pendency of the action; and it is ancillary because it is a mere
incident in and is dependent upon the result of the main action. 23 Following the
dismissal of the petition for certiorari, there is no more legal basis to issue the
writ of injunction sought. As an auxiliary remedy, the writ of preliminary
mandatory injunction cannot be issued independently of the principal
action.24cralawred
In any event, a mandatory injunction requires the performance of a particular
act. Hence, it is an extreme remedy, 25 to be granted only if the following
requisites are attendant, namely:chanRoblesvirtualLawlibrary
(a) The applicant has a clear and unmistakable right, that is, a right in
esse;chanroblesvirtuallawlibrary
(b) There is a material and
andChanRoblesVirtualawlibrary

substantial

invasion

of

such

right;

(c) There is an urgent need for the writ to prevent irreparable injury to the
applicant; and no other ordinary, speedy, and adequate remedy exists to prevent
the infliction of irreparable injury.26

15

In Marquez v. The Presiding Judge (Hon. Ismael B. Sanchez), RTC Br. 58,
Lucena City,27 we expounded as follows:chanRoblesvirtualLawlibrary
It is basic that the issuance of a writ of preliminary injunction is addressed to
the sound discretion of the trial court, conditioned on the existence of a clear
and positive right of the applicant which should be protected. It is an
extraordinary, peremptory remedy available only on the grounds expressly
provided by law, specifically Section 3, Rule 58 of the Rules of Court. Moreover,
extreme caution must be observed in the exercise of such discretion. It should be
granted only when the court is fully satisfied that the law permits it and the
emergency demands it. The very foundation of the jurisdiction to issue a writ of
injunction rests in the existence of a cause of action and in the probability of
irreparable injury, inadequacy of pecuniary compensation, and the prevention of
multiplicity of suits. Where facts are not shown to bring the case within these
conditions, the relief of injunction should be refused.28
Here, the Constitution has entrusted to the Executive Department the conduct
of foreign relations for the Philippines. Whether or not to espouse petitioners
claim against the Government of Japan is left to the exclusive determination
and judgment of the Executive Department. The Court cannot interfere with or
question the wisdom of the conduct of foreign relations by the Executive
Department. Accordingly, we cannot direct the Executive Department, either by
writ of certiorari or injunction, to conduct our foreign relations with Japan in a
certain
manner.
WHEREFORE, the Court DENIES the Motion for Reconsideration and
Supplemental Motion for Reconsideration for their lack of merit.

[G.R. No. 162230 : April 28, 2010]

VINUYA VS. EXECUTIVE SECRETARY

16

DECISION
DEL CASTILLO, J.:

FACTS:
Petitioners are all members of the MALAYA LOLAS, a non-stock, non-profit
organization registered with the Securities and Exchange Commission,
established for the purpose of providing aid to the victims of rape by Japanese
military forces in the Philippines during the Second World War.
Petitioners narrate that during the Second World War, the Japanese army
attacked villages and systematically raped the women as part of the destruction
of the village. Their communities were bombed, houses were looted and burned,
and civilians were publicly tortured, mutilated, and slaughtered. Japanese
soldiers forcibly seized the women and held them in houses or cells, where they
were repeatedly raped, beaten, and abused by Japanese soldiers. As a result of
the actions of their Japanese tormentors, the petitioners have spent their lives
in misery, having endured physical injuries, pain and disability, and mental and
emotional
suffering.[2]
Petitioners claim that since 1998, they have approached the Executive
Department through the DOJ, DFA, and OSG, requesting assistance in filing a
claim against the Japanese officials and military officers who ordered the
establishment of the "comfort women" stations in the Philippines. However,
officials of the Executive Department declined to assist the petitioners, and took
the position that the individual claims of the comfort women for compensation
had already been fully satisfied by Japan's compliance with the Peace Treaty
between the Philippines and Japan.
Issues
Hence, this petition where petitioners pray for this court to (a) declare that
respondents committed grave abuse of discretion amounting to lack or excess of
discretion in refusing to espouse their claims for the crimes against humanity
and war crimes committed against them; and (b) compel the respondents to
espouse their claims for official apology and other forms of reparations against
Japan before the International Court of Justice (ICJ) and other international
tribunals.

17

Petitioners'

arguments

Petitioners argue that the general waiver of claims made by the Philippine
government in the Treaty of Peace with Japan is void. They claim that the
comfort women system established by Japan, and the brutal rape and
enslavement of petitioners constituted a crime against humanity, [3] sexual
slavery,[4] and torture.[5] They allege that the prohibition against these
international crimes is jus cogens norms from which no derogation is possible;
as such, in waiving the claims of Filipina comfort women and failing to espouse
their complaints against Japan, the Philippine government is in breach of its
legal obligation not to afford impunity for crimes against humanity. Finally,
petitioners assert that the Philippine government's acceptance of the "apologies"
made by Japan as well as funds from the Asian Women's Fund (AWF) were
contrary
to
international
law.
Respondents'

Arguments

Respondents maintain that all claims of the Philippines and its nationals
relative to the war were dealt with in the San Francisco Peace Treaty of 1951
and
the
bilateral
Reparations
Agreement
of
1956. [6]
Article 14 of the Treaty of Peace[7] provides:
Article 14. Claims and Property
a) It is recognized that Japan should pay reparations to the Allied Powers for
the damage and suffering caused by it during the war. Nevertheless it is also
recognized that the resources of Japan are not presently sufficient, if it is to
maintain a viable economy, to make complete reparation for all such damage
and suffering and at the present time meet its other obligations.

b) Except as otherwise provided in the present Treaty, the Allied Powers waive
all reparations claims of the Allied Powers, other claims of the Allied Powers
and their nationals arising out of any actions taken by Japan and its
nationals in the course of the prosecution of the war, and claims of the
Allied Powers for direct military costs of occupation.

18

In addition, respondents argue that the apologies made by Japan [8] have been
satisfactory, and that Japan had addressed the individual claims of the women
through the atonement money paid by the Asian Women's Fund.
Historical

Background

The comfort women system was the tragic legacy of the Rape of Nanking. In
December 1937, Japanese military forces captured the city of Nanking in China
and began a "barbaric campaign of terror" known as the Rape of Nanking, which
included the rapes and murders of an estimated 20,000 to 80,000 Chinese
women, including young girls, pregnant mothers, and elderly women. [9]
In reaction to international outcry over the incident, the Japanese government
sought ways to end international condemnation [10] by establishing the "comfort
women" system. Under this system, the military could simultaneously appease
soldiers' sexual appetites and contain soldiers' activities within a regulated
environment.[11] Comfort stations would also prevent the spread of venereal
disease among soldiers and discourage soldiers from raping inhabitants of
occupied
territories.[12]
Daily life as a comfort woman was "unmitigated misery." [13] The military forced
victims into barracks-style stations divided into tiny cubicles where they were
forced to live, sleep, and have sex with as many 30 soldiers per day. [14] The 30
minutes allotted for sexual relations with each soldier were 30-minute
increments of unimaginable horror for the women. [15] Disease was rampant.
[16]
Military doctors regularly examined the women, but these checks were
carried out to prevent the spread of venereal diseases; little notice was taken of
the frequent cigarette burns, bruises, bayonet stabs and even broken bones
inflicted
on
the
women
by
soldiers.
Fewer than 30% of the women survived the war. [17] Their agony continued in
having to suffer with the residual physical, psychological, and emotional scars
from their former lives. Some returned home and were ostracized by their
families. Some committed suicide. Others, out of shame, never returned home. [18]
Efforts

to

Secure

Reparation

The most prominent attempts to compel the Japanese government to accept

19

legal responsibility and pay compensatory damages for the comfort women
system were through a series of lawsuits, discussion at the United Nations
(UN), resolutions by various nations, and the Women's International Criminal
Tribunal. The Japanese government, in turn, responded through a series of
public
apologies
and
the
creation
of
the
AWF. [19]
Lawsuits
In December 1991, Kim Hak-Sun and two other survivors filed the first lawsuit
in Japan by former comfort women against the Japanese government. The
Tokyo District Court however dismissed their case. [20] Other suits followed,[21] but
the Japanese government has, thus far, successfully caused the dismissal of
every
case.[22]
Undoubtedly frustrated by the failure of litigation before Japanese courts,
victims of the comfort women system brought their claims before the United
States (US). On September 18, 2000, 15 comfort women filed a class action
lawsuit in the US District Court for the District of Columbia [23]"seeking money
damages for [allegedly] having been subjected to sexual slavery and torture
before and during World War II," in violation of "both positive and customary
international law." The case was filed pursuant to the Alien Tort Claims Act
("ATCA"),[24] which allowed the plaintiffs to sue the Japanese government in a
US federal district court.[25] On October 4, 2001, the district court dismissed the
lawsuit due to lack of jurisdiction over Japan, stating that "[t]here is no question
that this court is not the appropriate forum in which plaintiffs may seek to
reopen x x x discussions nearly half a century later x x x [E]ven if Japan did not
enjoy sovereign immunity, plaintiffs' claims are non-justiciable and must be
dismissed."
The District of Columbia Court of Appeals affirmed the lower court's dismissal
of the case.[26] On appeal, the US Supreme Court granted the women's petition
for writ of certiorari, vacated the judgment of the District of Columbia Court of
Appeals, and remanded the case. [27] On remand, the Court of Appeals affirmed
its prior decision, noting that "much as we may feel for the plight of the
appellants, the courts of the US simply are not authorized to hear their
case."[28] The women again brought their case to the US Supreme Court which
denied their petition for writ of certiorari on February 21, 2006.
Efforts

at

the

United

20

Nations

In 1992, the Korean Council for the Women Drafted for Military Sexual Slavery
by Japan (KCWS), submitted a petition to the UN Human Rights Commission
(UNHRC), asking for assistance in investigating crimes committed by Japan
against Korean women and seeking reparations for former comfort women.
[29]
The UNHRC placed the issue on its agenda and appointed Radhika
Coomaraswamy as the issue's special investigator. In 1996, Coomaraswamy
issued a Report reaffirming Japan's responsibility in forcing Korean women to
act
as
sex
slaves
for
the
imperial
army,
and
made
the
following recommendations:
A.

At

the

national

level

137. The Government of Japan should:

(a) Acknowledge that the system of comfort stations set up by the Japanese
Imperial Army during the Second World War was a violation of its
obligations under international law and accept legal responsibility for that
violation;

(b) Pay compensation to individual victims of Japanese military sexual slavery

according to principles outlined by the Special Rapporteur of the SubCommission on Prevention of Discrimination and Protection of Minorities on
the right to restitution, compensation and rehabilitation for victims of grave
violations of human rights and fundamental freedoms. A special
administrative tribunal for this purpose should be set up with a limited
time-frame since many of the victims are of a very advanced age;

(c) Make a full disclosure of documents and materials in its possession with
regard to comfort stations and other related activities of the Japanese
Imperial Army during the Second World War;

(d) Make a public apology in writing to individual women who have come
forward and can be substantiated as women victims of Japanese military
sexual slavery;

21

(e) Raise awareness of these issues by amending educational curricula to reflect

historical realities;

(f) Identify and punish, as far as possible, perpetrators involved in the

recruitment and institutionalization of comfort stations during the Second
World War.
Gay J. McDougal, the Special Rapporteur for the UN Sub-Commission on
Prevention of Discrimination and Protection of Minorities, also presented a
report to the Sub-Committee on June 22, 1998 entitledContemporary Forms of
Slavery: Systematic Rape, Sexual Slavery and Slavery-like Practices During
Armed Conflict. The report included an appendix entitled An Analysis of the
Legal Liability of the Government of Japan for 'Comfort Women Stations'
established during the Second World War,[30]which contained the following
findings:
68. The present report concludes that the Japanese Government remains liable
for grave violations of human rights and humanitarian law, violations that
amount in their totality to crimes against humanity. The Japanese
Government's arguments to the contrary, including arguments that seek to
attack the underlying humanitarian law prohibition of enslavement and rape,
remain as unpersuasive today as they were when they were first raised before
the Nuremberg war crimes tribunal more than 50 years ago. In addition, the
Japanese Government's argument that Japan has already settled all claims
from the Second World War through peace treaties and reparations agreements
following the war remains equally unpersuasive. This is due, in large part, to
the failure until very recently of the Japanese Government to admit the extent
of the Japanese military's direct involvement in the establishment and
maintenance of these rape centres. The Japanese Government's silence on this
point during the period in which peace and reparations agreements between
Japan and other Asian Governments were being negotiated following the end of
the war must, as a matter of law and justice, preclude Japan from relying today
on these peace treaties to extinguish liability in these cases.
69. The failure to settle these claims more than half a century after the
cessation of hostilities is a testament to the degree to which the lives of women

22

continue to be undervalued. Sadly, this failure to address crimes of a sexual

nature committed on a massive scale during the Second World War has added to
the level of impunity with which similar crimes are committed today. The
Government of Japan has taken some steps to apologize and atone for the rape
and enslavement of over 200,000 women and girls who were brutalized in
"comfort stations" during the Second World War. However, anything less than
full and unqualified acceptance by the Government of Japan of legal liability
and the consequences that flow from such liability is wholly inadequate. It must
now fall to the Government of Japan to take the necessary final steps to provide
adequate redress.
The UN, since then, has not taken any official action directing Japan to provide
the
reparations
sought.
Women's

International

War

Crimes

Tribunal
The Women's International War Crimes Tribunal (WIWCT) was a "people's
tribunal" established by a number of Asian women and human rights
organizations, supported by an international coalition of non-governmental
organizations.[31] First proposed in 1998, the WIWCT convened in Tokyo in 2000
in order to "adjudicate Japan's military sexual violence, in particular the
enslavement of comfort women, to bring those responsible for it to justice, and to
end the ongoing cycle of impunity for wartime sexual violence against women."
After examining the evidence for more than a year, the "tribunal" issued its
verdict on December 4, 2001, finding the former Emperor Hirohito and the State
of Japan guilty of crimes against humanity for the rape and sexual slavery of
women.[32] It bears stressing, however, that although the tribunal included
prosecutors, witnesses, and judges, its judgment was not legally binding since
the
tribunal
itself
was
organized
by
private
citizens.
Action

by

Individual

Governments

On January 31, 2007, US Representative Michael Honda of California, along

with six co-sponsor representatives, introduced House Resolution 121 which
called for Japanese action in light of the ongoing struggle for closure by former

23

comfort women. The Resolution was formally passed on July 30, 2007, [33] and
made four distinct demands:
[I]t is the sense of the House of Representatives that the Government of Japan
(1) should formally acknowledge, apologize, and accept historical responsibility
in a clear and unequivocal manner for its Imperial Armed Forces' coercion of
young women into sexual slavery, known to the world as "comfort women",
during its colonial and wartime occupation of Asia and the Pacific Islands from
the 1930s through the duration of World War II; (2) would help to resolve
recurring questions about the sincerity and status of prior statements if the
Prime Minister of Japan were to make such an apology as a public statement in
his official capacity; (3) should clearly and publicly refute any claims that the
sexual enslavement and trafficking of the "comfort women" for the Japanese
Imperial Army never occurred; and (4) should educate current and future
generations about this horrible crime while following the recommendations of
the international community with respect to the "comfort women." [34]
In December 2007, the European Parliament, the governing body of the
European Union, drafted a resolution similar to House Resolution 121.
[35]
Entitled, "Justice for Comfort Women," the resolution demanded: (1) a formal
acknowledgment of responsibility by the Japanese government; (2) a removal of
the legal obstacles preventing compensation; and (3) unabridged education of
the past. The resolution also stressed the urgency with which Japan should act
on these issues, stating: "the right of individuals to claim reparations against
the government should be expressly recognized in national law, and cases for
reparations for the survivors of sexual slavery, as a crime under international
law, should be prioritized, taking into account the age of the survivors."
The Canadian and Dutch parliaments have each followed suit in drafting
resolutions against Japan. Canada's resolution demands the Japanese
government to issue a formal apology, to admit that its Imperial Military
coerced or forced hundreds of thousands of women into sexual slavery, and to
restore references in Japanese textbooks to its war crimes. [36] The Dutch
parliament's resolution calls for the Japanese government to uphold the 1993
declaration of remorse made by Chief Cabinet Secretary Yohei Kono.
The Foreign Affairs Committee of the United Kingdom's Parliament also
produced a report in November, 2008 entitled, "Global Security: Japan and
Korea" which concluded that Japan should acknowledge the pain caused by the

24

issue of comfort women in order to ensure cooperation between Japan and

Korea.
Statements of Remorse made by representatives of the Japanese
government

Various officials of the Government of Japan have issued the following public
statements
concerning
the
comfort
system:
a) Statement by the Chief Cabinet Secretary Yohei Kono in 1993:
The Government of Japan has been conducting a study on the issue of wartime
"comfort women" since December 1991. I wish to announce the findings as a
result
of
that
study.
As a result of the study which indicates that comfort stations were operated in
extensive areas for long periods, it is apparent that there existed a great
number of comfort women. Comfort stations were operated in response to the
request of the military authorities of the day. The then Japanese military was,
directly or indirectly, involved in the establishment and management of the
comfort stations and the transfer of comfort women. The recruitment of the
comfort women was conducted mainly by private recruiters who acted in
response to the request of the military. The Government study has revealed that
in many cases they were recruited against their own will, through coaxing
coercion, etc., and that, at times, administrative/military personnel directly took
part in the recruitments. They lived in misery at comfort stations under a
coercive
atmosphere.
As to the origin of those comfort women who were transferred to the war areas,
excluding those from Japan, those from the Korean Peninsula accounted for a
large part. The Korean Peninsula was under Japanese rule in those days, and
their recruitment, transfer, control, etc., were conducted generally against their
will,
through
coaxing,
coercion,
etc.
Undeniably, this was an act, with the involvement of the military authorities of
the day, that severely injured the honor and dignity of many women. The
Government of Japan would like to take this opportunity once again to extend
its sincere apologies and remorse to all those, irrespective of place of origin, who
suffered immeasurable pain and incurable physical and psychological wounds as

25

comfort

women.

It is incumbent upon us, the Government of Japan, to continue to consider

seriously, while listening to the views of learned circles, how best we can express
this
sentiment.
We shall face squarely the historical facts as described above instead of evading
them, and take them to heart as lessons of history. We hereby reiterated our
firm determination never to repeat the same mistake by forever engraving such
issues in our memories through the study and teaching of history.
As actions have been brought to court in Japan and interests have been shown
in this issue outside Japan, the Government of Japan shall continue to pay full
attention to this matter, including private researched related thereto.
b) Prime Minister Tomiichi Murayama's Statement in 1994
On the issue of wartime "comfort women", which seriously stained the honor
and dignity of many women, I would like to take this opportunity once again to
express my profound and sincere remorse and apologies"
c) Letters from the Prime Minister of Japan to Individual Comfort Women
The issue of comfort women, with the involvement of the Japanese military
authorities at that time, was a grave affront to the honor and dignity of a large
number
of
women.
As Prime Minister of Japan, I thus extend anew my most sincere apologies and
remorse to all the women who endured immeasurable and painful experiences
and suffered incurable physical and psychological wounds as comfort women.
I believe that our country, painfully aware of its moral responsibilities, with
feelings of apology and remorse, should face up squarely to its past history and
accurately convey it to future generations.
d) The Diet (Japanese Parliament) passed resolutions in 1995 and 2005

26

Solemnly reflecting upon the many instances of colonial rule and acts of
aggression that occurred in modern world history, and recognizing that Japan
carried out such acts in the past and inflicted suffering on the people of other
countries, especially in Asia, the Members of this House hereby express deep
remorse. (Resolution of the House of Representatives adopted on June 9, 1995)
e) Various Public Statements by Japanese Prime Minister Shinzo Abe
I have talked about this matter in the Diet sessions last year, and recently as
well, and to the press. I have been consistent. I will stand by the Kono
Statement. This is our consistent position. Further, we have been apologizing
sincerely to those who suffered immeasurable pain and incurable psychological
wounds as comfort women. Former Prime Ministers, including Prime Ministers
Koizumi and Hashimoto, have issued letters to the comfort women. I would like
to be clear that I carry the same feeling. This has not changed even slightly.
(Excerpt from Remarks by Prime Minister Abe at an Interview by NHK, March
11,
2007).
I am apologizing here and now. I am apologizing as the Prime Minister and it is
as stated in the statement by the Chief Cabinet Secretary Kono. (Excerpt from
Remarks by Prime Minister Abe at the Budget Committee, the House of
Councilors,
the
Diet
of
Japan,
March
26,
2007).
I am deeply sympathetic to the former comfort women who suffered hardships,
and I have expressed my apologies for the extremely agonizing circumstances
into which they were placed. (Excerpt from Telephone Conference by Prime
Minister Abe to President George W. Bush, April 3, 2007).
I have to express sympathy from the bottom of my heart to those people who
were taken as wartime comfort women. As a human being, I would like to
express my sympathies, and also as prime minister of Japan I need to apologize
to them. My administration has been saying all along that we continue to stand
by the Kono Statement. We feel responsible for having forced these women to go
through that hardship and pain as comfort women under the circumstances at
the time. (Excerpt from an interview article "A Conversation with Shinzo Abe"
by
the
Washington
Post,
April
22,
2007).
x x x both personally and as Prime Minister of Japan, my heart goes out in
sympathy to all those who suffered extreme hardships as comfort women; and I

27

expressed my apologies for the fact that they were forced to endure such extreme
and harsh conditions. Human rights are violated in many parts of the world
during the 20th Century; therefore we must work to make the 21st Century a
wonderful century in which no human rights are violated. And the Government
of Japan and I wish to make significant contributions to that end. (Excerpt from
Prime Minister Abe's remarks at the Joint Press Availability after the summit
meeting at Camp David between Prime Minister Abe and President Bush, April
27, 2007).
The

Asian

Women's

Fund

Established by the Japanese government in 1995, the AWF represented the

government's concrete attempt to address its moral responsibility by offering
monetary compensation to victims of the comfort women system. [37] The purpose
of the AWF was to show atonement of the Japanese people through expressions
of apology and remorse to the former wartime comfort women, to restore their
honor, and to demonstrate Japan's strong respect for women. [38]
The AWF announced three programs for former comfort women who applied for
assistance: (1) an atonement fund paying 2 million (approximately $20,000)
to each woman; (2) medical and welfare support programs, paying 2.5-3
million ($25,000-$30,000) for each woman; and (3) a letter of apology from the
Japanese Prime Minister to each woman. Funding for the program came from
the Japanese government and private donations from the Japanese people. As of
March 2006, the AWF provided 700 million (approximately $7 million) for
these programs in South Korea, Taiwan, and the Philippines; 380 million
(approximately $3.8 million) in Indonesia; and 242 million (approximately
$2.4
million)
in
the
Netherlands.
On January 15, 1997, the AWF and the Philippine government signed a
Memorandum of Understanding for medical and welfare support programs for
former comfort women. Over the next five years, these were implemented by the
Department of Social Welfare and Development.
Our Ruling
Stripped down to its essentials, the issue in this case is whether the Executive
Department committed grave abuse of discretion in not espousing petitioners'

28

claims for official apology and other forms of reparations against Japan.
The
From

Executive
prerogative
petitioners'

petition
a

lacks

Domestic

Law

Department
to

has

determine

claims

merit.
Perspective,
the

whether

against

to

the

exclusive
espouse
Japan.

Baker v. Carr[39] remains the starting point for analysis under the political
question doctrine. There the US Supreme Court explained that:
x x x Prominent on the surface of any case held to involve a political question is
found a textually demonstrable constitutional commitment of the issue to a
coordinate political department or a lack of judicially discoverable and
manageable standards for resolving it, or the impossibility of deciding without
an initial policy determination of a kind clearly for non-judicial discretion; or the
impossibility of a court's undertaking independent resolution without
expressing lack of the respect due coordinate branches of government; or an
unusual need for unquestioning adherence to a political decision already made;
or the potentiality of embarrassment from multifarious pronouncements by
various departments on question.
In Taada v. Cuenco,[40] we held that political questions refer "to those
questions which, under the Constitution, are to be decided by the people in their
sovereign capacity, or in regard to which full discretionary authority has been
delegated to the legislative or executive branch of the government. It is
concerned with issues dependent upon the wisdom, not legality of a particular
measure."
Certain types of cases often have been found to present political questions.
[41]
One such category involves questions of foreign relations. It is wellestablished that "[t]he conduct of the foreign relations of our government is
committed by the Constitution to the executive and legislative--'the political'-departments of the government, and the propriety of what may be done in the
exercise of this political power is not subject to judicial inquiry or
decision."[42] The US Supreme Court has further cautioned that decisions
relating to foreign policy

29

are delicate, complex, and involve large elements of prophecy. They are and
should be undertaken only by those directly responsible to the people whose
welfare they advance or imperil. They are decisions of a kind for which the
Judiciary has neither aptitude, facilities nor responsibility. [43]
To be sure, not all cases implicating foreign relations present political questions,
and courts certainly possess the authority to construe or invalidate treaties and
executive agreements.[44] However, the question whether the Philippine
government should espouse claims of its nationals against a foreign government
is a foreign relations matter, the authority for which is demonstrably committed
by our Constitution not to the courts but to the political branches. In this case,
the Executive Department has already decided that it is to the best interest of
the country to waive all claims of its nationals for reparations against Japan in
the Treaty of Peace of 1951. The wisdom of such decision is not for the courts to
question. Neither could petitioners herein assail the said determination by the
Executive
Department via the
instant
petition
for certiorari.
In the seminal case of US v. Curtiss-Wright Export Corp.,[45] the US Supreme
Court held that "[t]he President is the sole organ of the nation in its external
relations, and its sole representative with foreign relations."
It is quite apparent that if, in the maintenance of our international relations,
embarrassment -- perhaps serious embarrassment -- is to be avoided and
success for our aims achieved, congressional legislation which is to be made
effective through negotiation and inquiry within the international field must
often accord to the President a degree of discretion and freedom from statutory
restriction which would not be admissible where domestic affairs alone involved.
Moreover, he, not Congress, has the better opportunity of knowing the
conditions which prevail in foreign countries, and especially is this true in time
of war. He has his confidential sources of information. He has his agents in the
form of diplomatic, consular and other officials. x x x
This ruling has been incorporated in our jurisprudence through Bayan v.
Executive Secretary[46] and Pimentel v. Executive Secretary;[47] its overreaching
principle was, perhaps, best articulated in (now Chief) Justice Puno's dissent
in Secretary of Justice v. Lantion:[48]

30

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

sometimes with life and death significance to the nation especially in times of
war. It can only be entrusted to that department of government which can act
on the basis of the best available information and can decide with decisiveness.
x x x It is also the President who possesses the most comprehensive and the
most confidential information about foreign countries for our diplomatic and
consular officials regularly brief him on meaningful events all over the world. He
has also unlimited access to ultra-sensitive military intelligence data. In fine,
the presidential role in foreign affairs is dominant and the President is
traditionally accorded a wider degree of discretion in the conduct of foreign
affairs. The regularity, nay, validity of his actions are adjudged under less
stringent standards, lest their judicial repudiation lead to breach of an
international obligation, rupture of state relations, forfeiture of confidence,
national embarrassment and a plethora of other problems with equally
undesirable consequences.
The Executive Department has determined that taking up petitioners' cause
would be inimical to our country's foreign policy interests, and could disrupt our
relations with Japan, thereby creating serious implications for stability in this
region. For us to overturn the Executive Department's determination would
mean an assessment of the foreign policy judgments by a coordinate political
branch to which authority to make that judgment has been constitutionally
committed.
In any event, it cannot reasonably be maintained that the Philippine
government was without authority to negotiate the Treaty of Peace with Japan.
And it is equally true that, since time immemorial, when negotiating peace
accords and settling international claims:
x x x [g]overnments have dealt with x x x private claims as their own, treating
them as national assets, and as counters, `chips', in international bargaining.
Settlement agreements have lumped, or linked, claims deriving from private
debts with others that were intergovernmental in origin, and concessions in
regard to one category of claims might be set off against concessions in the
other, or against larger political considerations unrelated to debts. [49]
Indeed, except as an agreement might otherwise provide, international
settlements generally wipe out the underlying private claims, thereby

31

terminating any recourse under domestic law. In Ware v. Hylton,[50] a case

brought by a British subject to recover a debt confiscated by the Commonwealth
of Virginia during the war, Justice Chase wrote:
I apprehend that the treaty of peace abolishes the subject of the war, and that
after peace is concluded, neither the matter in dispute, nor the conduct of either
party, during the war, can ever be revived, or brought into contest again. All
violences, injuries, or damages sustained by the government, or people of either,
during the war, are buried in oblivion; and all those things are implied by the
very treaty of peace; and therefore not necessary to be expressed. Hence it
follows, that the restitution of, or compensation for, British property confiscated,
or extinguished, during the war, by any of the United States, could only be
provided for by the treaty of peace; and if there had been no provision, respecting
these subjects, in the treaty, they could not be agitated after the treaty, by the
British government, much less by her subjects in courts of justice. (Emphasis
supplied).
This practice of settling claims by means of a peace treaty is certainly nothing
new. For instance, inDames & Moore v. Regan,[51] the US Supreme Court held:
Not infrequently in affairs between nations, outstanding claims by nationals of
one country against the government of another country are "sources of friction"
between the two sovereigns. United States v. Pink, 315 U.S. 203, 225, 62 S.Ct.
552, 563, 86 L.Ed. 796 (1942). To resolve these difficulties, nations have often
entered into agreements settling the claims of their respective nationals. As one
treatise writer puts it, international agreements settling claims by nationals of
one state against the government of another "are established international
practice reflecting traditional international theory." L. Henkin, Foreign Affairs
and the Constitution 262 (1972). Consistent with that principle, the United
States has repeatedly exercised its sovereign authority to settle the claims of its
nationals against foreign countries. x x x Under such agreements, the President
has agreed to renounce or extinguish claims of United States nationals against
foreign governments in return for lump-sum payments or the establishment of
arbitration procedures. To be sure, many of these settlements were encouraged
by the United States claimants themselves, since a claimant's only hope of
obtaining any payment at all might lie in having his Government negotiate a
diplomatic settlement on his behalf. But it is also undisputed that the "United
States has sometimes disposed of the claims of its citizens without their
consent, or even without consultation with them, usually without exclusive

32

regard for their interests, as distinguished from those of the nation as a whole."
Henkin, supra, at 262-263. Accord, Restatement (Second) of Foreign Relations
Law of the United States 213 (1965) (President "may waive or settle a claim
against a foreign state x x x [even] without the consent of the [injured]
national"). It is clear that the practice of settling claims continues today.
Respondents explain that the Allied Powers concluded the Peace Treaty with
Japan not necessarily for the complete atonement of the suffering caused by
Japanese aggression during the war, not for the payment of adequate
reparations, but for security purposes. The treaty sought to prevent the spread
of communism in Japan, which occupied a strategic position in the Far East.
Thus, the Peace Treaty compromised individual claims in the collective interest
of
the
free
world.
This was also the finding in a similar case involving American victims of
Japanese slave labor during the war. [52] In a consolidated case in the Northern
District of California,[53] the court dismissed the lawsuits filed, relying on the
1951 peace treaty with Japan,[54] because of the following policy considerations:
The official record of treaty negotiations establishes that a fundamental goal of
the agreement was to settle the reparations issue once and for all. As the
statement of the chief United States negotiator, John Foster Dulles, makes
clear, it was well understood that leaving open the possibility of future
claims would be an unacceptable impediment to a lasting peace:

Reparation is usually the most controversial aspect of peacemaking. The present

peace
is
no
exception.
On the one hand, there are claims both vast and just. Japan's aggression caused
tremendous
cost,
losses
and
suffering.
On the other hand, to meet these claims, there stands a Japan presently
reduced to four home islands which are unable to produce the food its people
need to live, or the raw materials they need to work. x x x
The policy of the United States that Japanese liability for reparations should be
sharply limited was informed by the experience of six years of United States-led
occupation of Japan. During the occupation the Supreme Commander of the

33

Allied Powers (SCAP) for the region, General Douglas MacArthur, confiscated
Japanese assets in conjunction with the task of managing the economic affairs
of the vanquished nation and with a view to reparations payments. It soon
became clear that Japan's financial condition would render any

aggressive reparations plan an exercise in futility. Meanwhile, the

importance of a stable, democratic Japan as a bulwark to communism

in the region increased. At the end of 1948, MacArthur expressed the view
that "[t]he use of reparations as a weapon to retard the reconstruction of a
viable economy in Japan should be combated with all possible means" and
"recommended that the reparations issue be settled finally and without delay."
That this policy was embodied in the treaty is clear not only from the
negotiations history but also from the Senate Foreign Relations Committee
report recommending approval of the treaty by the Senate. The committee
noted, for example:
Obviously insistence upon the payment of reparations in any proportion
commensurate with the claims of the injured countries and their nationals
would wreck Japan's economy, dissipate any credit that it may possess at
present, destroy the initiative of its people, and create misery and chaos in
which the seeds of discontent and communism would flourish. In short, [it]
would be contrary to the basic purposes and policy of x x x the United States x x
x.
We thus hold that, from a municipal law perspective, that certiorari will not lie.
As a general principle - and particularly here, where such an extraordinary
length of time has lapsed between the treaty's conclusion and our consideration
- the Executive must be given ample discretion to assess the foreign policy
considerations of espousing a claim against Japan, from the standpoint of both
the interests of the petitioners and those of the Republic, and decide on that
basis if apologies are sufficient, and whether further steps are appropriate or
necessary.
The

Philippines

international
petitioners'

is

not

obligation

under
to

any
espouse

claims.

In the international sphere, traditionally, the only means available for

individuals to bring a claim within the international legal system has been

34

when the individual is able to persuade a government to bring a claim on the

individual's behalf.[55] Even then, it is not the individual's rights that are being
asserted, but rather, the state's own rights. Nowhere is this position more
clearly reflected than in the dictum of the Permanent Court of International
Justice (PCIJ) in the 1924 Mavrommatis Palestine Concessions Case:
By taking up the case of one of its subjects and by resorting to diplomatic action
or international judicial proceedings on his behalf, a State is in reality asserting
its own right to ensure, in the person of its subjects, respect for the rules of
international law. The question, therefore, whether the present dispute
originates in an injury to a private interest, which in point of fact is the case in
many international disputes, is irrelevant from this standpoint. Once a State
has taken up a case on behalf of one of its subjects before an international
tribunal, in the eyes of the latter the State is sole claimant. [56]
Since the exercise of diplomatic protection is the right of the State, reliance on
the right is within the absolute discretion of states, and the decision whether to
exercise the discretion may invariably be influenced by political considerations
other than the legal merits of the particular claim. [57] As clearly stated by the
ICJ
in
Barcelona Traction:
The Court would here observe that, within the limits prescribed by
international law, a State may exercise diplomatic protection by whatever
means and to whatever extent it thinks fit, for it is its own right that

the State is asserting. Should the natural or legal person on whose

behalf it is acting consider that their rights are not adequately

protected, they have no remedy in international law. All they can do is

resort to national law, if means are available, with a view to furthering their
cause or obtaining redress. The municipal legislator may lay upon the State an
obligation to protect its citizens abroad, and may also confer upon the national a
right to demand the performance of that obligation, and clothe the right with
corresponding sanctions. However, all these questions remain within the
province of municipal law and do not affect the position internationally.
[58]
(Emphasis supplied)
The State, therefore, is the sole judge to decide whether its protection will be

35

granted, to what extent it is granted, and when will it cease. It retains, in this
respect, a discretionary power the exercise of which may be determined by
considerations of a political or other nature, unrelated to the particular case.
The International Law Commission's (ILC's) Draft Articles on Diplomatic
Protection fully support this traditional view. They (i) state that "the right of
diplomatic protection belongs to or vests in the State," [59] (ii) affirm its
discretionary nature by clarifying that diplomatic protection is a "sovereign
prerogative" of the State;[60] and (iii) stress that the state "has the right to
exercise
diplomatic
protection
on behalf of a national. It is under no duty or obligation to do so." [61]
It has been argued, as petitioners argue now, that the State has a duty to
protect its nationals and act on his/her behalf when rights are injured.
[62]
However, at present, there is no sufficient evidence to establish a general
international obligation for States to exercise diplomatic protection of their own
nationals abroad.[63] Though, perhaps desirable, neither state practice nor opinio
juris has evolved in such a direction. If it is a duty internationally, it is only a
moral and not a legal duty, and there is no means of enforcing its fulfillment. [64]
We fully agree that rape, sexual slavery, torture, and sexual violence are morally
reprehensible as well as legally prohibited under contemporary international
law.[65] However, petitioners take quite a theoretical leap in claiming that these
proscriptions automatically imply that that the Philippines is under a nonderogable obligation to prosecute international crimes, particularly since
petitioners do not demand the imputation of individual criminal liability, but
seek to recover monetary reparations from the state of Japan. Absent the
consent of states, an applicable treaty regime, or a directive by the Security
Council, there is no non-derogable duty to institute proceedings against Japan.
Indeed, precisely because of states' reluctance to directly prosecute claims
against another state, recent developments support the modern trend to
empower individuals to directly participate in suits against perpetrators of
international crimes.[66] Nonetheless, notwithstanding an array of General
Assembly resolutions calling for the prosecution of crimes against humanity and
the strong policy arguments warranting such a rule, the practice of states does
not yet support the present existence of an obligation to prosecute international
crimes.[67] Of course a customary duty of prosecution is ideal, but we cannot find
enough evidence to reasonably assert its existence. To the extent that any state

36

practice in this area is widespread, it is in the practice of granting amnesties,

immunity, selective prosecution, or de facto impunity to those who commit
crimes
against
humanity."[68]
Even the invocation of jus cogens norms and erga omnes obligations will not
alter this analysis. Even if we sidestep the question of whether jus cogens norms
existed in 1951, petitioners have not deigned to show that the crimes committed
by the Japanese army violated jus cogens prohibitions at the time the Treaty of
Peace was signed, or that the duty to prosecute perpetrators of international
crimes is an erga omnes obligation or has attained the status of jus cogens.
The term erga omnes (Latin: in relation to everyone) in international law has
been used as a legal term describing obligations owed by States towards the
community of states as a whole. The concept was recognized by the ICJ
in Barcelona Traction:
x x x an essential distinction should be drawn between the obligations of a State
towards the international community as a whole, and those arising vis- -vis
another State in the field of diplomatic protection. By their very nature, the
former are the concern of all States. In view of the importance of the rights
involved, all States can be held to have a legal interest in their protection; they
are
obligations erga
omnes.
Such obligations derive, for example, in contemporary international law, from
the outlawing of acts of aggression, and of genocide, as also from the principles
and rules concerning the basic rights of the human person, including protection
from slavery and racial discrimination. Some of the corresponding rights of
protection have entered into the body of general international law ... others are
conferred by international instruments of a universal or quasi-universal
character.
The Latin phrase, `erga omnes,' has since become one of the rallying cries of
those sharing a belief in the emergence of a value-based international public
order. However, as is so often the case, the reality is neither so clear nor so
bright. Whatever the relevance of obligations erga omnes as a legal concept, its
full
potential
remains
to
be
realized
in
practice. [69]
The term is closely connected with the international law concept of jus cogens.
In international law, the term "jus cogens" (literally, "compelling law") refers to

37

norms that command peremptory authority, superseding conflicting treaties and

custom. Jus cogens norms are considered peremptory in the sense that they are
mandatory, do not admit derogation, and can be modified only by general
international
norms
of
equivalent
authority. [70]
Early strains of the jus cogens doctrine have existed since the 1700s, [71] but
peremptory norms began to attract greater scholarly attention with the
publication of Alfred von Verdross's influential 1937 article, Forbidden Treaties
in International Law.[72] The recognition of jus cogens gained even more force in
the 1950s and 1960s with the ILC's preparation of the Vienna Convention on
the Law of Treaties (VCLT).[73] Though there was a consensus that certain
international norms had attained the status of jus cogens,[74] the ILC was unable
to reach a consensus on the proper criteria for identifying peremptory norms.
After an extended debate over these and other theories of jus cogens, the ILC
concluded ruefully in 1963 that "there is not as yet any generally accepted
criterion by which to identify a general rule of international law as having the
character of jus cogens."[75] In a commentary accompanying the draft convention,
the ILC indicated that "the prudent course seems to be to x x x leave the full
content of this rule to be worked out in State practice and in the jurisprudence
of international tribunals."[76] Thus, while the existence of jus cogens in
international law is undisputed, no consensus exists on its substance, [77] beyond
a
tiny
core
of
principles
and
rules. [78]
Of course, we greatly sympathize with the cause of petitioners, and we cannot
begin to comprehend the unimaginable horror they underwent at the hands of
the Japanese soldiers. We are also deeply concerned that, in apparent
contravention of fundamental principles of law, the petitioners appear to be
without a remedy to challenge those that have offended them before appropriate
fora. Needless to say, our government should take the lead in protecting its
citizens against violation of their fundamental human rights. Regrettably, it is
not within our power to order the Executive Department to take up the

petitioners' cause. Ours is only the power to urge and exhort the Executive
Department
WHEREFORE, the

to

take

up

Petition

petitioners'
is

SO ORDERED.

38

cause.

hereby DISMISSED.

[G.R

No.

187167

39

August

16,

2011]

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

HONTIVEROS, PROF. HARRY C. ROQUE, JR., AND UNIVERSITY OF
THE

PHILIPPINES

BARBARA ACAS,

COLLEGE

OF

LAW

VOLTAIRE ALFERES,

STUDENTS,

CZARINA

ALITHEA

MAY

ALTEZ,

FRANCIS ALVIN ASILO, SHERYL BALOT, RUBY AMOR BARRACA,

JOSE JAVIER BAUTISTA, ROMINA BERNARDO, VALERIE PAGASA

BUENAVENTURA, EDAN MARRI CAETE, VANN ALLEN DELA CRUZ,
RENE

DELORINO,

PAULYN

MAY

DUMAN,

SHARON

ESCOTO,

RODRIGO FAJARDO III, GIRLIE FERRER, RAOULLE OSEN FERRER,

CARLA REGINA GREPO, ANNA MARIE CECILIA GO, IRISH KAY

KALAW, MARY ANN JOY LEE, MARIA LUISA MANALAYSAY, MIGUEL
RAFAEL MUSNGI, MICHAEL OCAMPO, JAKLYN HANNA PINEDA,

WILLIAM RAGAMAT, MARICAR RAMOS, ENRIK FORT REVILLAS,

JAMES

MARK

TERRY

RIDON,

JOHANN

FRANTZ

RIVERA

IV,

CHRISTIAN RIVERO, DIANNE MARIE ROA, NICHOLAS SANTIZO,

MELISSA CHRISTINA SANTOS, CRISTINE MAE TABING, VANESSA
ANNE TORNO, MARIA ESTER VANGUARDIA, AND MARCELINO
VELOSO III, PETITIONERS, VS. HON. EDUARDO ERMITA, IN HIS

CAPACITY AS EXECUTIVE SECRETARY, HON. ALBERTO ROMULO,

IN HIS CAPACITY AS SECRETARY OF THE DEPARTMENT OF
FOREIGN AFFAIRS, HON. ROLANDO ANDAYA, IN HIS CAPACITY AS
SECRETARY

OF

THE

DEPARTMENT

OF

BUDGET

AND

MANAGEMENT, HON. DIONY VENTURA, IN HIS CAPACITY AS

ADMINISTRATOR OF THE NATIONAL MAPPING & RESOURCE

INFORMATION AUTHORITY, AND HON. HILARIO DAVIDE, JR., IN
HIS

CAPACITY

AS

REPRESENTATIVE

OF

THE

PERMANENT

MISSION OF THE REPUBLIC OF THE PHILIPPINES TO THE UNITED

NATIONS,

RESPONDENTS.

DECISION

CARPIO, J.:

The

Case

40

This original action for the writs of certiorari and prohibition assails the
constitutionality of Republic Act No. 9522[1] (RA 9522) adjusting the country's
archipelagic baselines and classifying the baseline regime of nearby territories.
The

Antecedents

In 1961, Congress passed Republic Act No. 3046 (RA 3046) [2] demarcating the
maritime baselines of the Philippines as an archipelagic State. [3] This law
followed the framing of the Convention on the Territorial Sea and the
Contiguous Zone in 1958 (UNCLOS I), [4] codifying, among others, the sovereign
right of States parties over their "territorial sea," the breadth of which, however,
was left undetermined. Attempts to fill this void during the second round of
negotiations in Geneva in 1960 (UNCLOS II) proved futile. Thus, domestically,
RA 3046 remained unchanged for nearly five decades, save for legislation passed
in 1968 (Republic Act No. 5446 [RA 5446]) correcting typographical errors and
reserving the drawing of baselines around Sabah in North Borneo.
In March 2009, Congress amended RA 3046 by enacting RA 9522, the statute
now under scrutiny. The change was prompted by the need to make RA 3046
compliant with the terms of the United Nations Convention on the Law of the
Sea (UNCLOS III),[5] which the Philippines ratified on 27 February 1984.
[6]
Among others, UNCLOS III prescribes the water-land ratio, length, and
contour of baselines of archipelagic States like the Philippines [7] and sets the
deadline for the filing of application for the extended continental shelf.
[8]
Complying with these requirements, RA 9522 shortened one baseline,
optimized the location of some basepoints around the Philippine archipelago
and classified adjacent territories, namely, the Kalayaan Island Group (KIG)
and the Scarborough Shoal, as "regimes of islands" whose islands generate their
own
applicable
maritime
zones.
Petitioners, professors of law, law students and a legislator, in their respective
capacities as "citizens, taxpayers or x x x legislators," [9] as the case may be,
assail the constitutionality of RA 9522 on two principal grounds, namely: (1) RA
9522 reduces Philippine maritime territory, and logically, the reach of the
Philippine state's sovereign power, in violation of Article 1 of the 1987
Constitution,[10]embodying the terms of the Treaty of Paris [11] and ancillary
treaties,[12] and (2) RA 9522 opens the country's waters landward of the
baselines to maritime passage by all vessels and aircrafts, undermining
Philippine sovereignty and national security, contravening the country's

41

nuclear-free policy, and damaging marine resources, in violation of relevant

constitutional
provisions.[13]
In addition, petitioners contend that RA 9522's treatment of the KIG as "regime
of islands" not only results in the loss of a large maritime area but also
prejudices the livelihood of subsistence fishermen.[14] To buttress their argument
of territorial diminution, petitioners facially attack RA 9522 for what it excluded
and included - its failure to reference either the Treaty of Paris or Sabah and its
use of UNCLOS III's framework of regime of islands to determine the maritime
zones
of
the
KIG
and
the
Scarborough
Shoal.
Commenting on the petition, respondent officials raised threshold issues
questioning (1) the petition's compliance with the case or controversy
requirement for judicial review grounded on petitioners' alleged lack of locus
standi and (2) the propriety of the writs of certiorari and prohibition to assail
the constitutionality of RA 9522. On the merits, respondents defended RA 9522
as the country's compliance with the terms of UNCLOS III, preserving
Philippine territory over the KIG or Scarborough Shoal. Respondents add that
RA 9522 does not undermine the country's security, environment and economic
interests
or
relinquish
the
Philippines'
claim
over
Sabah.
Respondents also question the normative force, under international law, of
petitioners' assertion that what Spain ceded to the United States under the
Treaty of Paris were the islands and all the watersfound within the boundaries
of
the
rectangular
area
drawn
under
the
Treaty
of
Paris.
We

left

unacted

petitioners'

prayer

for

an

injunctive

The
The

writ.
Issues

petition

raises

the

following

issues:

1. Preliminarily 1. Whether petitioners possess locus standi to bring this suit; and
2. Whether the writs of certiorari and prohibition are the proper remedies
to assail the constitutionality of RA 9522.

42

2.

On

the

merits,

The

whether

Ruling

RA

9522

of

is

unconstitutional.

the

Court

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

the

Threshold

Petitioners

Issues

Possess

Standi

Locus

as

Citizens

Petitioners themselves undermine their assertion of locus standi as legislators

and taxpayers because the petition alleges neither infringement of legislative
prerogative[15] nor misuse of public funds, [16]occasioned by the passage and
implementation of RA 9522. Nonetheless, we recognize petitioners'locus
standi as citizens with constitutionally sufficient interest in the resolution of the
merits of the case which undoubtedly raises issues of national significance
necessitating urgent resolution. Indeed, owing to the peculiar nature of RA
9522, it is understandably difficult to find other litigants possessing "a more
direct and specific interest" to bring the suit, thus satisfying one of the
requirements
for
granting
citizenship
standing. [17]
The
Are
the

Writs

Proper

of

Certiorari

Remedies

Constitutionality

and
of

to

Prohibition

Test

Statutes

In praying for the dismissal of the petition on preliminary grounds, respondents

seek a strict observance of the offices of the writs of certiorari and prohibition,
noting that the writs cannot issue absent any showing of grave abuse of
discretion in the exercise of judicial, quasi-judicial or ministerial powers on the
part of respondents and resulting prejudice on the part of petitioners. [18]
Respondents' submission holds true in ordinary civil proceedings. When this
Court exercises its constitutional power of judicial review, however, we have, by
tradition, viewed the writs of certiorari and prohibition as proper remedial
vehicles to test the constitutionality of statutes, [19] and indeed, of acts of other
branches of government.[20] Issues of constitutional import are sometimes crafted

43

out of statutes which, while having no bearing on the personal interests of the
petitioners, carry such relevance in the life of this nation that the Court
inevitably finds itself constrained to take cognizance of the case and pass upon
the issues raised, non-compliance with the letter of procedural rules
notwithstanding. The statute sought to be reviewed here is one such law.
RA
RA
to

Maritime
Shelf

Delineate

9522

9522

is

is

Not

Demarcate

Statutory

the

Zones

Under

Unconstitutional

and

UNCLOS

III,

Philippine

Tool

Country's

Continental
not

to

Territory

Petitioners submit that RA 9522 "dismembers a large portion of the national

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

theory

fails

to

persuade

us.

UNCLOS III has nothing to do with the acquisition (or loss) of territory. It is a
multilateral treaty regulating, among others, sea-use rights over maritime
zones (i.e., the territorial waters [12 nautical miles from the baselines],
contiguous zone [24 nautical miles from the baselines], exclusive economic zone
[200 nautical miles from the baselines]), and continental shelves that UNCLOS
III delimits.[23] UNCLOS III was the culmination of decades-long negotiations
among United Nations members to codify norms regulating the conduct of
States in the world's oceans and submarine areas, recognizing coastal and
archipelagic States' graduated authority over a limited span of waters and
submarine
lands
along
their
coasts.
On the other hand, baselines laws such as RA 9522 are enacted by UNCLOS III

44

States parties to mark-out specific basepoints along their coasts from which
baselines are drawn, either straight or contoured, to serve as geographic
starting points to measure the breadth of the maritime zones and continental
shelf. Article 48 of UNCLOS III on archipelagic States like ours could not be any
clearer:
Article 48. Measurement of the breadth of the territorial sea, the contiguous zone,
the exclusive economic zone and the continental shelf. - The breadth of the
territorial sea, the contiguous zone, the exclusive economic zone and the
continental shelf shall be measured from archipelagic baselines drawn in
accordance with article 47. (Emphasis supplied)
Thus, baselines laws are nothing but statutory mechanisms for UNCLOS III
States parties to delimit with precision the extent of their maritime zones and
continental shelves. In turn, this gives notice to the rest of the international
community of the scope of the maritime space and submarine areas within
which States parties exercise treaty-based rights, namely, the exercise of
sovereignty over territorial waters (Article 2), the jurisdiction to enforce
customs, fiscal, immigration, and sanitation laws in the contiguous zone (Article
33), and the right to exploit the living and non-living resources in the exclusive
economic zone (Article 56) and continental shelf (Article 77).
Even under petitioners' theory that the Philippine territory embraces the
islands and all the waterswithin the rectangular area delimited in the Treaty of
Paris, the baselines of the Philippines would still have to be drawn in
accordance with RA 9522 because this is the only way to draw the baselines in
conformity with UNCLOS III. The baselines cannot be drawn from the
boundaries or other portions of the rectangular area delineated in the Treaty of
Paris, but from the "outermost islands and drying reefs of the archipelago." [24]
UNCLOS III and its ancillary baselines laws play no role in the acquisition,
enlargement or, as petitioners claim, diminution of territory. Under traditional
international law typology, States acquire (or conversely, lose) territory through
occupation, accretion, cession and prescription,[25] not by executing multilateral
treaties on the regulations of sea-use rights or enacting statutes to comply with
the treaty's terms to delimit maritime zones and continental shelves. Territorial
claims to land features are outside UNCLOS III, and are instead governed by
the
rules
on
general
international
law. [26]

45

RA
of

9522's

Regime

Maritime

Scarborough
with

Over

the

of

Zones

Use

Islands

of

Shoal,

Philippines'

of

the

these

the

to

Framework

Determine

KIG

and

not

Claim

the

the

Inconsistent

of

Sovereignty

Areas

Petitioners next submit that RA 9522's use of UNCLOS III's regime of islands
framework to draw the baselines, and to measure the breadth of the applicable
maritime zones of the KIG, "weakens our territorial claim" over that area.
[27]
Petitioners add that the KIG's (and Scarborough Shoal's) exclusion from the
Philippine archipelagic baselines results in the loss of "about 15,000 square
nautical miles of territorial waters," prejudicing the livelihood of subsistence
fishermen.[28] A comparison of the configuration of the baselines drawn under RA
3046 and RA 9522 and the extent of maritime space encompassed by each law,
coupled with a reading of the text of RA 9522 and its congressional
deliberations, vis- -vis the Philippines' obligations under UNCLOS III, belie
this
view.
The configuration of the baselines drawn under RA 3046 and RA 9522 shows
that RA 9522 merely followed the basepoints mapped by RA 3046, save for at
least nine basepoints that RA 9522 skipped to optimize the location of
basepoints and adjust the length of one baseline (and thus comply with
UNCLOS III's limitation on the maximum length of baselines). Under RA 3046,
as under RA 9522, the KIG and the Scarborough Shoal lie outside of the
baselines drawn around the Philippine archipelago. This undeniable
cartographic fact takes the wind out of petitioners' argument branding RA 9522
as a statutory renunciation of the Philippines' claim over the KIG, assuming
that
baselines
are
relevant
for
this
purpose.
Petitioners' assertion of loss of "about 15,000 square nautical miles of territorial
waters" under RA 9522 is similarly unfounded both in fact and law. On the
contrary, RA 9522, by optimizing the location of basepoints, increased the
Philippines' total maritime space (covering its internal waters, territorial sea
and exclusive economic zone) by 145,216 square nautical miles, as shown in the
table below:[29]
Extent of maritime Extent

46

of

maritime

area using RA 3046,

as amended, taking
into account the
Treaty of Paris'
delimitation
(in
square
nautical
miles)

area using RA 9522,

taking into account
UNCLOS
III
(in
square nautical miles)

Internal
or 166,858
archipelagic
waters

171,435

Territorial Sea

32,106

274,136

Exclusive
Economic Zone
TOTAL

382,669

440,994

586,210

Thus, as the map below shows, the reach of the exclusive economic zone drawn
under RA 9522 even extends way beyond the waters covered by the rectangular
demarcation under the Treaty of Paris. Of course, where there are overlapping
exclusive economic zones of opposite or adjacent States, there will have to be a
delineation of maritime boundaries in accordance with UNCLOS III. [30]
Further, petitioners' argument that the KIG now lies outside Philippine
territory because the baselines that RA 9522 draws do not enclose the KIG is
negated by RA 9522 itself. Section 2 of the law commits to text the Philippines'
continued claim of sovereignty and jurisdiction over the KIG and the
Scarborough Shoal:
SEC. 2. The baselines in the following areas over which the Philippines
likewise exercises sovereignty and jurisdiction shall be determined as
"Regime of Islands" under the Republic of the Philippines consistent with
Article 121 of the United Nations Convention on the Law of the Sea (UNCLOS):

47

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

1596
and
b) Bajo de Masinloc, also known as Scarborough Shoal. (Emphasis supplied)
Had Congress in RA 9522 enclosed the KIG and the Scarborough Shoal as part
of the Philippine archipelago, adverse legal effects would have ensued. The
Philippines would have committed a breach of two provisions of UNCLOS III.
First, Article 47 (3) of UNCLOS III requires that "[t]he drawing of such
baselines shall not depart to any appreciable extent from the general
configuration of the archipelago." Second, Article 47 (2) of UNCLOS III requires
that "the length of the baselines shall not exceed 100 nautical miles," save for
three per cent (3%) of the total number of baselines which can reach up to 125
nautical
miles.[31]
Although the Philippines has consistently claimed sovereignty over the
KIG[32] and the Scarborough Shoal for several decades, these outlying areas are
located at an appreciable distance from the nearest shoreline of the Philippine
archipelago,[33] such that any straight baseline loped around them from the
nearest basepoint will inevitably "depart to an appreciable extent from the
general
configuration
of
the
archipelago."
The principal sponsor of RA 9522 in the Senate, Senator Miriam DefensorSantiago, took pains to emphasize the foregoing during the Senate
deliberations:
What we call the Kalayaan Island Group or what the rest of the world call[] the
Spratlys and the Scarborough Shoal are outside our archipelagic baseline
because if we put them inside our baselines we might be accused of violating the
provision of international law which states: "The drawing of such baseline shall
not depart to any appreciable extent from the general configuration of the
archipelago." So sa loob ng ating baseline, dapat magkalapit ang mga islands.
Dahil malayo ang Scarborough Shoal, hindi natin masasabing malapit sila sa
atin although we are still allowed by international law to claim them as our own.
This is called contested islands outside our configuration. We see that our
archipelago is defined by the orange line which [we] call[] archipelagic baseline.
Ngayon, tingnan ninyo ang maliit na circle doon sa itaas, that is Scarborough
Shoal, itong malaking circle sa ibaba, that is Kalayaan Group or the

48

Spratlys. Malayo na sila sa ating archipelago kaya kung ilihis pa natin ang
dating archipelagic baselines para lamang masama itong dalawang circles,
hindi na sila magkalapit at baka hindi na tatanggapin ng United Nations
because of the rule that it should follow the natural configuration of the
archipelago.[34] (Emphasis supplied)
Similarly, the length of one baseline that RA 3046 drew exceeded UNCLOS III's
limits. The need to shorten this baseline, and in addition, to optimize the
location of basepoints using current maps, became imperative as discussed by
respondents:
[T]he amendment of the baselines law was necessary to enable the Philippines
to draw the outer limits of its maritime zones including the extended
continental shelf in the manner provided by Article 47 of [UNCLOS III]. As
defined by R.A. 3046, as amended by R.A. 5446, the baselines suffer from some
technical deficiencies, to wit:
1. The length of the baseline across Moro Gulf (from Middle of 3 Rock
Awash to Tongquil Point) is 140.06 nautical miles x x x. This exceeds the
maximum length allowed under Article 47(2) of the [UNCLOS III],
which states that "The length of such baselines shall not exceed 100
nautical miles, except that up to 3 per cent of the total number of
baselines enclosing any archipelago may exceed that length, up to a
maximum length of 125 nautical miles."
2. The selection of basepoints is not optimal. At least 9 basepoints can be
skipped or deleted from the baselines system. This will enclose an
additional 2,195 nautical miles of water.
3. Finally, the basepoints were drawn from maps existing in 1968, and not
established by geodetic survey methods. Accordingly, some of the points,
particularly along the west coasts of Luzon down to Palawan were later
found to be located either inland or on water, not on low-water line and
drying reefs as prescribed by Article 47.[35]
Hence, far from surrendering the Philippines' claim over the KIG and the
Scarborough Shoal, Congress' decision to classify the KIG and the Scarborough
Shoal as "`Regime[s] of Islands' under the Republic of the Philippines consistent
with Article 121"[36] of UNCLOS III manifests the Philippine State's responsible

49

observance of its pacta sunt servanda obligation under UNCLOS III. Under
Article 121 of UNCLOS III, any "naturally formed area of land, surrounded by
water, which is above water at high tide," such as portions of the KIG, qualifies
under the category of "regime of islands," whose islands generate their own
applicable
maritime
zones.[37]
Statutory
RA

Claim

Over

Sabah

5446

under

Retained

Petitioners' argument for the invalidity of RA 9522 for its failure to textualize
the Philippines' claim over Sabah in North Borneo is also untenable. Section 2
of RA 5446, which RA 9522 did not repeal, keeps open the door for drawing the
baselines of Sabah:
Section 2. The definition of the baselines of the territorial sea of the Philippine
Archipelago as provided in this Act is without prejudice to the delineation
of the baselines of the territorial sea around the territory of Sabah,

situated in North Borneo, over which the Republic of the Philippines

has acquired dominion and sovereignty. (Emphasis supplied)
UNCLOS

Incompatible
Delineation

III

and

RA

with

the

of

Internal

9522

not

Constitution's
Waters

As their final argument against the validity of RA 9522, petitioners contend that
the law unconstitutionally "converts" internal waters into archipelagic waters,
hence subjecting these waters to the right of innocent and sea lanes passage
under UNCLOS III, including overflight. Petitioners extrapolate that these
passage rights indubitably expose Philippine internal waters to nuclear and
maritime pollution hazards, in violation of the Constitution. [38]
Whether referred to as Philippine "internal waters" under Article I of the
Constitution[39] or as "archipelagic waters" under UNCLOS III (Article 49 [1]),
the Philippines exercises sovereignty over the body of water lying landward of
the baselines, including the air space over it and the submarine areas
underneath. UNCLOS III affirms this:
Article 49. Legal status of archipelagic waters, of the air space over archipelagic
waters and of their bed and subsoil. -

50

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

enclosed by the archipelagic baselines drawn in accordance with

article 47, described as archipelagic waters, regardless of their depth or
distance from the coast.

2. This sovereignty extends to the air space over the archipelagic

waters, as well as to their bed and subsoil, and the resources
contained therein.
xxxx

4. The regime of archipelagic sea lanes passage established in this

Part shall not in other respects affect the status of the
archipelagic waters, including the sea lanes, or the exercise by the
archipelagic State of its sovereignty over such waters and their
air space, bed and subsoil, and the resources contained therein.
(Emphasis supplied)
The fact of sovereignty, however, does not preclude the operation of municipal
and international law norms subjecting the territorial sea or archipelagic
waters to necessary, if not marginal, burdens in the interest of maintaining
unimpeded, expeditious international navigation, consistent with the
international law principle of freedom of navigation. Thus, domestically, the
political branches of the Philippine government, in the competent discharge of
their constitutional powers, may pass legislation designating routes within the
archipelagic waters to regulate innocent and sea lanes passage. [40]Indeed, bills
drawing nautical highways for sea lanes passage are now pending in Congress.
[41]

In the absence of municipal legislation, international law norms, now codified in

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

51

The fact that for archipelagic States, their archipelagic waters are subject to
both the right of innocent passage and sea lanes passage [45] does not place them
in lesser footing vis- -vis continental coastal States which are subject, in their
territorial sea, to the right of innocent passage and the right of transit passage
through international straits. The imposition of these passage rights through
archipelagic waters under UNCLOS III was a concession by archipelagic States,
in exchange for their right to claim all the waters landward of their
baselines, regardless of their depth or distance from the coast, as archipelagic
waters subject to their territorial sovereignty. More importantly, the recognition
of archipelagic States' archipelago and the waters enclosed by their baselines as
one cohesive entity prevents the treatment of their islands as separate islands
under UNCLOS III.[46] Separate islands generate their own maritime zones,
placing the waters between islands separated by more than 24 nautical miles
beyond the States' territorial sovereignty, subjecting these waters to the rights
of
other
States
under
UNCLOS
III. [47]
Petitioners' invocation of non-executory constitutional provisions in Article II
(Declaration of Principles and State Policies) [48] must also fail. Our present state
of jurisprudence considers the provisions in Article II as mere legislative guides,
which, absent enabling legislation, "do not embody judicially enforceable
constitutional rights x x x."[49] Article II provisions serve as guides in
formulating and interpreting implementing legislation, as well as in
interpreting executory provisions of the Constitution. Although Oposa v.
Factoran[50] treated the right to a healthful and balanced ecology under Section
16 of Article II as an exception, the present petition lacks factual basis to
substantiate the claimed constitutional violation. The other provisions
petitioners cite, relating to the protection of marine wealth (Article XII, Section
2, paragraph 2[51]) and subsistence fishermen (Article XIII, Section 7 [52]), are not
violated
by
RA
9522.
In fact, the demarcation of the baselines enables the Philippines to delimit its
exclusive economic zone, reserving solely to the Philippines the exploitation of
all living and non-living resources within such zone. Such a maritime
delineation binds the international community since the delineation is in strict
observance of UNCLOS III. If the maritime delineation is contrary to UNCLOS
III, the international community will of course reject it and will refuse to be
bound
by
it.

52

UNCLOS III favors States with a long coastline like the Philippines. UNCLOS
III creates a sui generismaritime space - the exclusive economic zone - in waters
previously part of the high seas. UNCLOS III grants new rights to coastal
States to exclusively exploit the resources found within this zone up to 200
nautical miles.[53] UNCLOS III, however, preserves the traditional freedom of
navigation of other States that attached to this zone beyond the territorial sea
before
UNCLOS
III.
RA

9522

and

the

Philippines'

Maritime

Zones

Petitioners hold the view that, based on the permissive text of UNCLOS III,
Congress was not bound to pass RA 9522. [54] We have looked at the relevant
provision of UNCLOS III[55] and we find petitioners' reading plausible.
Nevertheless, the prerogative of choosing this option belongs to Congress, not to
this Court. Moreover, the luxury of choosing this option comes at a very steep
price. Absent an UNCLOS III compliant baselines law, an archipelagic State
like the Philippines will find itself devoid of internationally acceptable baselines
from where the breadth of its maritime zones and continental shelf is measured.
This is recipe for a two-fronted disaster: first, it sends an open invitation to the
seafaring powers to freely enter and exploit the resources in the waters and
submarine areas around our archipelago; and second, it weakens the country's
case in any international dispute over Philippine maritime space. These are
consequences
Congress
wisely
avoided.
The enactment of UNCLOS III compliant baselines law for the Philippine
archipelago and adjacent areas, as embodied in RA 9522, allows an
internationally-recognized delimitation of the breadth of the Philippines'
maritime zones and continental shelf. RA 9522 is therefore a most vital step on
the part of the Philippines in safeguarding its maritime zones, consistent with
the
Constitution
and
our
national
interest.
WHEREFORE,

we DISMISS the

SO ORDERED.

53

petition.

G.R. No. 183591

October 14, 2008

THE PROVINCE OF NORTH COTABATO, duly represented by GOVERNOR

JESUS SACDALAN and/or VICE-GOVERNOR EMMANUEL PIOL, for and in
his
vs.

own

behalf, petitioners,

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

54

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
THE

PROVINCIAL

October 14, 2008

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, 3rdCongressional 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.
vs.

LUZVIMINDA

E.

TORRINO, petitioners,

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,

55

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.

Palawan, petitioners-in-intervention.
x--------------------------------------------x

JAGMIS,

as

citizens

and

residents

of

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

x--------------------------------------------x
MUSLIM LEGAL ASSISTANCE FOUNDATION, INC (MUSLAF), respondent-inintervention.
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

56

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

57

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 Piol
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.

58

By Resolution of August 4, 2008, the Court issued a Temporary Restraining

Order commanding and directing public respondents and their agents to cease and desist
from formally signing the MOA-AD. 13 The Court also required the Solicitor General to
submit to the Court and petitioners the official copy of the final draft of the MOA-AD, 14 to
which she complied.15
Meanwhile, the City of Iligan16 filed a petition for Injunction and/or Declaratory Relief,
docketed as G.R. No. 183893, praying that respondents be enjoined from signing the
MOA-AD or, if the same had already been signed, from implementing the same, and that
the MOA-AD be declared unconstitutional. Petitioners herein additionally implead
Executive Secretary Eduardo Ermita as respondent.
The Province of Zamboanga del Norte, 17 Governor Rolando Yebes, Vice-Governor Francis
Olvis, Rep. Cecilia Jalosjos-Carreon, Rep. Cesar Jalosjos, and the members 18 of the
Sangguniang Panlalawigan of Zamboanga del Norte filed on August 15, 2008 a petition
for Certiorari, Mandamus and Prohibition,19 docketed as G.R. No. 183951. They
pray, inter alia, that the MOA-AD be declared null and void and without operative effect,
and that respondents be enjoined from executing the MOA-AD.
On August 19, 2008, Ernesto Maceda, Jejomar Binay, and Aquilino Pimentel III filed a
petition for Prohibition,20docketed as G.R. No. 183962, praying for a judgment
prohibiting and permanently enjoining respondents from formally signing and executing
the MOA-AD and or any other agreement derived therefrom or similar thereto, and
nullifying the MOA-AD for being unconstitutional and illegal. Petitioners
herein additionally implead as respondent the MILF Peace Negotiating Panel
represented by its Chairman Mohagher Iqbal.
Various parties moved to intervene and were granted leave of court to file their
petitions-/comments-in-intervention. Petitioners-in-Intervention include Senator Manuel
A. Roxas, former Senate President Franklin Drilon and Atty. Adel Tamano, the City of
Isabela21 and Mayor Cherrylyn Santos-Akbar, the Province of Sultan Kudarat 22 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-inIntervention.
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:

59

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--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

60

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-ulharb (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-ulIslam 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-ulmua'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-ulaman (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

61

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, TawiTawi, 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

62

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 territorialwaters, 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

63

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

between

the

"associative"

Central

relationship

Government

and the BJE

The MOA-AD describes the relationship of the Central Government and the BJE as
"associative," characterizedby 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

64

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. 57The 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,

65

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 forceupon 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

66

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 MOAAD. 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

67

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 theIntegrated 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. MacapagalArroyo,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

68

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 havelocus 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 standigiven 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 nongovernment 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 MOAAD, and prays for the denial of the petitions on the grounds therein stated. Such legal
interest suffices to clothe them with standing.
B. MOOTNESS

69

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.

70

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 toformulate 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 inSanlakas v. Reyes104 in which he stated that the doctrine of
"capable of repetition yet evading review" can override mootness, "provided the party

71

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.

72

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

73

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

74

that the broader130 right to information on matters of public concern is already

enforceable while the correlative duty of the State to disclose its transactions involving
public interest is not enforceable until there is an enabling law.Respondents cannot thus
point to the absence of an implementing legislation as an excuse in not effecting such
policy.
An essential element of these freedoms is to keep open a continuing dialogue or process
of communication between the government and the people. It is in the interest of the
State that the channels for free political discussion be maintained to the end that the
government may perceive and be responsive to the people's will. 131Envisioned to
be corollary to the twin rights to information and disclosure is the design for feedback
mechanisms.
MS. ROSARIO BRAID. Yes. And lastly, Mr. Presiding Officer, will the people be able
to participate? Will the government provide feedback mechanisms so that the
people can participate and can react where the existing media facilities are not

able to provide full feedback mechanisms to the government? I suppose this

will be part of the government implementing operational mechanisms.

MR. OPLE. Yes. I think through their elected representatives and that is how these
courses take place. There is a message and a feedback, both ways.
xxxx
MS. ROSARIO BRAID. Mr. Presiding Officer, may I just make one last sentence?
I think when we talk about the feedback network, we are not talking about

public officials but also network of private business o[r] community-based

organizations that will be reacting. As a matter of fact, we will put more credence or
credibility on the private network of volunteers and voluntary community-based
organizations. So I do not think we are afraid that there will be another OMA in the
making.132(Emphasis supplied)
The imperative of a public consultation, as a species of the right to information, is
evident in the "marching orders" to respondents. The mechanics for the duty to disclose
information and to conduct public consultation regarding the peace agenda and process
is manifestly provided by E.O. No. 3.133 The preambulatory clause of E.O. No. 3 declares
that there is a need to further enhance the contribution of civil society to the
comprehensive peace process by institutionalizing the people's participation.
One of the three underlying principles of the comprehensive peace process is that it
"should be community-based, reflecting the sentiments, values and principles important
to all Filipinos" and "shall be defined not by the government alone, nor by the different
contending groups only, but by all Filipinos as one community." 134Included 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

75

Further, E.O. No. 3 enumerates the functions and responsibilities of the PAPP, one of
which is to "[c]onductregular 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
forumfor 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

76

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 authoritiesunless 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. Pao,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

77

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 beassociative 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

78

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 ofassociation, 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

79

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

entity

BJE

than

is

far

the

more

autonomous

powerful
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)

80

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

comply

MOA-AD,

with

Article

moreover,
X,

would

Section

20

not
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 MOAAD 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

81

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 ofindigenous 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. 9054 156 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

82

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;

83

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

84

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 selfdetermination

of

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 toexternal selfdetermination (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 apeople 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 selfdetermination 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.

85

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

86

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:

87

(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.

88

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 orconstrued 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.

89

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 MOAAD so as to render its compliance with other laws unnecessary.
It is, therefore, clear that the MOA-AD contains numerous provisions that

cannot be reconciled with the Constitution and the laws as presently worded.
Respondents proffer, however, that the signing of the MOA-AD alone would not have
entailed any violation of law or grave abuse of discretion on their part, precisely because
it stipulates that the provisions thereof inconsistent with the laws shall not take effect
until these laws are amended. They cite paragraph 7 of the MOA-AD strand on
GOVERNANCE quoted earlier, but which is reproduced below for convenience:
7. The Parties agree that the mechanisms and modalities for the actual implementation
of this MOA-AD shall be spelt out in the Comprehensive Compact to mutually take such
steps to enable it to occur effectively.
Any provisions of the MOA-AD requiring amendments to the existing legal framework
shall come into force upon signing of a Comprehensive Compact and upon effecting the
necessary changes to the legal framework with due regard to non derogation of prior
agreements and within the stipulated timeframe to be contained in the Comprehensive
Compact.
Indeed, the foregoing stipulation keeps many controversial provisions of the MOA-AD
from coming into force until the necessary changes to the legal framework are
effected. While the word "Constitution" is not mentioned in the provision now
under consideration or anywhere else in the MOA-AD, the term "legal

framework" is certainly broad enough to include the Constitution.

Notwithstanding the suspensive clause, however, respondents, by their mere act of
incorporating in the MOA-AD the provisions thereof regarding the associative
relationship between the BJE and the Central Government, have already violated the
Memorandum of Instructions From The President dated March 1, 2001, which states
that the "negotiations shall be conducted in accordance with x x x the principles of the
sovereignty and territorial integrityof the Republic of the Philippines." (Emphasis
supplied) Establishing an associative relationship between the BJE and the Central
Government is, for the reasons already discussed, a preparation for independence, or
worse, an implicit acknowledgment of an independent status already prevailing.
Even apart from the above-mentioned Memorandum, however, the MOA-AD is defective
because the suspensive clause is invalid, as discussed below.
The authority of the GRP Peace Negotiating Panel to negotiate with the MILF is founded
on E.O. No. 3, Section 5(c), which states that there shall be established Government
Peace Negotiating Panels for negotiations with different rebel groups to be "appointed by
the President as her official emissaries to conduct negotiations, dialogues, and face-toface 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

90

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 askedwhether 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

91

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-inChief, 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 constitutionmaking has been recognized by no less than the framers of the Constitution. Behind the
provisions of the Constitution on autonomous regions172is 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.

92

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 thatcertain 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 Muoz Palma
vigorously dissented. The Court's concern at present, however, is not with regard to the

93

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

94

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 MOAAD. 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.

95

As a backdrop, the parties to the 1996 Agreement stipulated that it would be

implemented in two phases. Phase Icovered a three-year transitional period involving
the putting up of new administrative structures through Executive Order, such as the
Special Zone of Peace and Development (SZOPAD) and the Southern Philippines Council
for Peace and Development (SPCPD), while Phase II covered the establishment of the
new regional autonomous government through amendment or repeal of R.A. No. 6734,
which was then the Organic Act of the ARMM.
The stipulations on Phase II consisted of specific agreements on the structure of the
expanded autonomous region envisioned by the parties. To that extent, they are similar
to the provisions of the MOA-AD. There is, however, a crucial difference between the two
agreements. While the MOA-AD virtually guarantees that the "necessary changes

to the legal framework" will be put in place, the GRP-MNLF final peace agreement

states thus: "Accordingly, these provisions [on Phase II] shall be recommended by the
GRP to Congress for incorporation in the amendatory or repealing law."
Concerns have been raised that the MOA-AD would have given rise to a binding
international law obligation on the part of the Philippines to change its Constitution in
conformity thereto, on the ground that it may be considered either as a binding
agreement under international law, or a unilateral declaration of the Philippine
government to the international community that it would grant to the Bangsamoro
people all the concessions therein stated. Neither ground finds sufficient support in
international law, however.
The MOA-AD, as earlier mentioned in the overview thereof, would have included foreign
dignitaries as signatories. In addition, representatives of other nations were invited to
witness its signing in Kuala Lumpur. These circumstances readily lead one to surmise
that the MOA-AD would have had the status of a binding international agreement had it
been signed. An examination of the prevailing principles in international law, however,
leads to the contrary conclusion.
The Decision on Challenge to Jurisdiction: Lom Accord Amnesty180 (the Lom Accord
case) of the Special Court of Sierra Leone is enlightening. The Lom 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 Lom 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.

96

In

the

Lom

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

Lom 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 Lom Agreement created neither rights nor obligations

capable of being regulated by international law. An agreement such as the

Lom 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

97

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 Lom 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

98

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

99

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 Lom 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 statesrepresentatives 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

100

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 toguarantee 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 requisitelocus 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 insplendid 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.

101

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, areunconstitutional, for the

102

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.

104768.

July

21,

2003.]

REPUBLIC OF THE PHILIPPINES, Petitioner, v. SANDIGANBAYAN,

MAJOR

GENERAL

JOSEPHUS

Q.

RAMAS

and

ELIZABETH

DIMAANO, Respondents.
DECISION

CARPIO, J.:

The Case

Before this Court is a petition for review on certiorari seeking to set aside the

103

Resolutions of the Sandiganbayan (First Division) 1 dated 18 November 1991

and 25 March 1992 in Civil Case No. 0037. The first Resolution dismissed
petitioners Amended Complaint and ordered the return of the confiscated items
to respondent Elizabeth Dimaano, while the second Resolution denied
petitioners Motion for Reconsideration. Petitioner prays for the grant of the
reliefs sought in its Amended Complaint, or in the alternative, for the remand of
this case to the Sandiganbayan (First Division) for further proceedings allowing
petitioner to complete the presentation of its evidence.chanrob1es virtua1 1aw
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Antecedent Facts

Immediately upon her assumption to office following the successful EDSA

Revolution, then President Corazon C. Aquino issued Executive Order No. 1
("EO No. 1") creating the Presidential Commission on Good Government
("PCGG"). EO No. 1 primarily tasked the PCGG to recover all ill-gotten wealth
of former President Ferdinand E. Marcos, his immediate family, relatives,
subordinates and close associates. EO No. 1 vested the PCGG with the power"
(a) to conduct investigation as may be necessary in order to accomplish and
carry out the purposes of this order" and the power" (h) to promulgate such
rules and regulations as may be necessary to carry out the purpose of this
order." Accordingly, the PCGG, through its then Chairman Jovito R. Salonga,
created an AFP Anti-Graft Board ("AFP Board") tasked to investigate reports of
unexplained wealth and corrupt practices by AFP personnel, whether in the
active
service
or
retired.
2
Based on its mandate, the AFP Board investigated various reports of alleged
unexplained wealth of respondent Major General Josephus Q. Ramas ("Ramas").
On 27 July 1987, the AFP Board issued a Resolution on its findings and
recommendation on the reported unexplained wealth of Ramas. The relevant
part
of
the
Resolution
reads:chanrob1es
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III.

FINDINGS

and

EVALUATION:chanrob1es

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Evidence in the record showed that respondent is the owner of a house and lot
located at 15-Yakan St., La Vista, Quezon City. He is also the owner of a house
and lot located in Cebu City. The lot has an area of 3,327 square meters.

104

The value of the property located in Quezon City may be estimated modestly at
P700,000.00.
The equipment/items and communication facilities which were found in the
premises of Elizabeth Dimaano and were confiscated by elements of the PC
Command of Batangas were all covered by invoice receipt in the name of CAPT.
EFREN SALIDO, RSO Command Coy, MSC, PA. These items could not have
been in the possession of Elizabeth Dimaano if not given for her use by
respondent
Commanding
General
of
the
Philippine
Army.
Aside from the military equipment/items and communications equipment, the
raiding team was also able to confiscate money in the amount of P2,870,000.00
and $50,000 US Dollars in the house of Elizabeth Dimaano on 3 March 1986.
Affidavits of members of the Military Security Unit, Military Security
Command, Philippine Army, stationed at Camp Eldridge, Los Baos, Laguna,
disclosed that Elizabeth Dimaano is the mistress ofRespondent. That
respondent usually goes and stays and sleeps in the alleged house of Elizabeth
Dimaano in Barangay Tengga, Itaas, Batangas City and when he arrives,
Elizabeth Dimaano embraces and kisses Respondent. That on February 25,
1986, a person who rode in a car went to the residence of Elizabeth Dimaano
with four (4) attach cases filled with money and owned by MGen Ramas.
Sworn statement in the record disclosed also that Elizabeth Dimaano had no
visible means of income and is supported by respondent for she was formerly a
mere
secretary.
Taking in toto the evidence, Elizabeth Dimaano could not have used the military
equipment/items seized in her house on March 3, 1986 without the consent of
respondent, he being the Commanding General of the Philippine Army. It is also
impossible for Elizabeth Dimaano to claim that she owns the P2,870,000.00 and
$50,000 US Dollars for she had no visible source of income.
This money was never declared in the Statement of Assets and Liabilities
of Respondent. There was an intention to cover the existence of these money
because these are all ill-gotten and unexplained wealth. Were it not for the
affidavits of the members of the Military Security Unit assigned at Camp
Eldridge, Los Baos, Laguna, the existence and ownership of these money would
have
never
been
known.

105

The Statement of Assets and Liabilities of respondent were also submitted for
scrutiny and analysis by the Boards consultant. Although the amount of
P2,870,000.00 and $50,000 US Dollars were not included, still it was disclosed
that
respondent
has
an
unexplained
wealth
of
P104,134.60.
IV.

CONCLUSION:chanrob1es

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In view of the foregoing, the Board finds that a prima facie case exists against
respondent for ill-gotten and unexplained wealth in the amount of
P2,974,134.00
and
$50,000
US
Dollars.
V.

RECOMMENDATION:chanrob1es

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Wherefore it is recommended that Maj. Gen. Josephus Q. Ramas (ret.) be

prosecuted and tried for violation of RA 3019, as amended, otherwise known as
"Anti-Graft and Corrupt Practices Act" and RA 1379, as amended, otherwise
known as "The Act for the Forfeiture of Unlawfully Acquired Property." 3
Thus, on 1 August 1987, the PCGG filed a petition for forfeiture under Republic
Act
No.
1379
("RA
No.
1379")
4
against
Ramas.
Before Ramas could answer the petition, then Solicitor General Francisco I.
Chavez filed an Amended Complaint naming the Republic of the Philippines
("petitioner"), represented by the PCGG, as plaintiff and Ramas as defendant.
The Amended Complaint also impleaded Elizabeth Dimaano ("Dimaano") as codefendant.
The Amended Complaint alleged that Ramas was the Commanding General of
the Philippine Army until 1986. On the other hand, Dimaano was a confidential
agent of the Military Security Unit, Philippine Army, assigned as a clerk-typist
at the office of Ramas from 1 January 1978 to February 1979. The Amended
Complaint further alleged that Ramas "acquired funds, assets and properties
manifestly out of proportion to his salary as an army officer and his other
income from legitimately acquired property by taking undue advantage of his
public office and/or using his power, authority and influence as such officer of the
Armed Forces of the Philippines and as a subordinate and close associate of the
deposed
President
Ferdinand
Marcos."
5

106

The Amended Complaint also alleged that the AFP Board, after a previous
inquiry, found reasonable ground to believe that respondents have violated RA
No. 1379. 6 The Amended Complaint prayed for, among others, the forfeiture of
respondents properties, funds and equipment in favor of the State.
Ramas filed an Answer with Special and/or Affirmative Defenses and
Compulsory Counterclaim to the Amended Complaint. In his Answer, Ramas
contended that his property consisted only of a residential house at La Vista
Subdivision, Quezon City, valued at P700,000, which was not out of proportion
to his salary and other legitimate income. He denied ownership of any mansion
in Cebu City and the cash, communications equipment and other items
confiscated
from
the
house
of
Dimaano.
Dimaano filed her own Answer to the Amended Complaint. Admitting her
employment as a clerk-typist in the office of Ramas from JanuaryNovember
1978 only, Dimaano claimed ownership of the monies, communications
equipment, jewelry and land titles taken from her house by the Philippine
Constabulary
raiding
team.
After termination of the pre-trial, 7 the court set the case for trial on the merits
on
911
November
1988.
On 9 November 1988, petitioner asked for a deferment of the hearing due to its
lack of preparation for trial and the absence of witnesses and vital documents to
support its case. The court reset the hearing to 17 and 18 April 1989.
On 13 April 1989, petitioner filed a motion for leave to amend the complaint in
order "to charge the delinquent properties with being subject to forfeiture as
having been unlawfully acquired by defendant Dimaano alone . . .." 8
Nevertheless, in an order dated 17 April 1989, the Sandiganbayan proceeded
with petitioners presentation of evidence on the ground that the motion for
leave to amend complaint did not state when petitioner would file the amended
complaint. The Sandiganbayan further stated that the subject matter of the
amended complaint was on its face vague and not related to the existing
complaint. The Sandiganbayan also held that due to the time that the case had
been pending in court, petitioner should proceed to present its evidence.
After presenting only three witnesses, petitioner asked for a postponement of

107

the

trial.

On 28 September 1989, during the continuation of the trial, petitioner

manifested its inability to proceed to trial because of the absence of other
witnesses or lack of further evidence to present. Instead, petitioner reiterated
its motion to amend the complaint to conform to the evidence already presented
or to change the averments to show that Dimaano alone unlawfully acquired the
monies
or
properties
subject
of
the
forfeiture.
The Sandiganbayan noted that petitioner had already delayed the case for over
a year mainly because of its many postponements. Moreover, petitioner would
want the case to revert to its preliminary stage when in fact the case had long
been ready for trial. The Sandiganbayan ordered petitioner to prepare for
presentation
of
its
additional
evidence,
if
any.
During the trial on 23 March 1990, petitioner again admitted its inability to
present further evidence. Giving petitioner one more chance to present further
evidence or to amend the complaint to conform to its evidence, the
Sandiganbayan reset the trial to 18 May 1990. The Sandiganbayan, however,
hinted that the re-setting was without prejudice to any action that private
respondents
might
take
under
the
circumstances.
However, on 18 May 1990, petitioner again expressed its inability to proceed to
trial because it had no further evidence to present. Again, in the interest of
justice, the Sandiganbayan granted petitioner 60 days within which to file an
appropriate pleading. The Sandiganbayan, however, warned petitioner that
failure to act would constrain the court to take drastic action.
Private respondents then filed their motions to dismiss based on Republic v.
Migrino. 9 The Court held in Migrino that the PCGG does not have jurisdiction
to investigate and prosecute military officers by reason of mere position held
without a showing that they are "subordinates" of former President Marcos.
On 18 November 1991, the Sandiganbayan rendered a resolution, the dispositive
portion
of
which
states:chanrob1es
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WHEREFORE, judgment is hereby rendered dismissing the Amended
Complaint, without pronouncement as to costs. The counterclaims are likewise
dismissed for lack of merit, but the confiscated sum of money, communications

108

equipment, jewelry and land titles are ordered returned to Elizabeth Dimaano.
The records of this case are hereby remanded and referred to the Hon.
Ombudsman, who has primary jurisdiction over the forfeiture cases under R.A.
No. 1379, for such appropriate action as the evidence warrants. This case is also
referred to the Commissioner of the Bureau of Internal Revenue for a
determination of any tax liability of respondent Elizabeth Dimaano in
connection
herewith.
SO

ORDERED.

On 4 December 1991, petitioner filed its Motion for Reconsideration.

In answer to the Motion for Reconsideration, private respondents filed a Joint
Comment/Opposition to which petitioner filed its Reply on 10 January 1992.
On 25 March 1992, the Sandiganbayan rendered a Resolution denying the
Motion
for
Reconsideration.chanrob1es
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Ruling

of

the

Sandiganbayan

The Sandiganbayan dismissed the Amended Complaint on the following

grounds:chanrob1es
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(1.) The actions taken by the PCGG are not in accordance with the rulings of the
Supreme Court in Cruz, Jr. v. Sandiganbayan 10 and Republic v. Migrino 11
which
involve
the
same
issues.
(2.) No previous inquiry similar to preliminary investigations in criminal cases
was
conducted
against
Ramas
and
Dimaano.
(3.) The evidence adduced against Ramas does not constitute a prima facie case
against
him.
(4.) There was an illegal search and seizure of the items confiscated.
The Issues

109

Petitioner

raises

the

following

issues:chanrob1es

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A. RESPONDENT COURT SERIOUSLY ERRED IN CONCLUDING THAT

PETITIONERS EVIDENCE CANNOT MAKE A CASE FOR FORFEITURE
AND THAT THERE WAS NO SHOWING OF CONSPIRACY, COLLUSION OR
RELATIONSHIP BY CONSANGUINITY OR AFFINITY BY AND BETWEEN
RESPONDENT
RAMAS
AND
RESPONDENT
DIMAANO
NOTWITHSTANDING THE FACT THAT SUCH CONCLUSIONS WERE
CLEARLY UNFOUNDED AND PREMATURE, HAVING BEEN RENDERED
PRIOR TO THE COMPLETION OF THE PRESENTATION OF THE
EVIDENCE
OF
THE
PETITIONER.
B. RESPONDENT COURT SERIOUSLY ERRED IN HOLDING THAT THE
ACTIONS TAKEN BY THE PETITIONER, INCLUDING THE FILING OF THE
ORIGINAL COMPLAINT AND THE AMENDED COMPLAINT, SHOULD BE
STRUCK OUT IN LINE WITH THE RULINGS OF THE SUPREME COURT IN
CRUZ, JR. v. SANDIGANBAYAN, 194 SCRA 474 AND REPUBLIC v.
MIGRINO,
189
SCRA
289,
NOTWITHSTANDING
THE
FACT
THAT:chanrob1es
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1. The cases of Cruz, Jr. v. Sandiganbayan, supra, and Republic v. Migrino,
supra,
are
clearly
not
applicable
to
this
case;
2. Any procedural defect in the institution of the complaint in Civil Case No.
0037 was cured and/or waived by respondents with the filing of their respective
answers
with
counterclaim;
and
3. The separate motions to dismiss were evidently improper considering that
they were filed after commencement of the presentation of the evidence of the
petitioner and even before the latter was allowed to formally offer its evidence
and
rest
its
case;
C. RESPONDENT COURT SERIOUSLY ERRED IN HOLDING THAT THE
ARTICLES AND THINGS SUCH AS SUMS OF MONEY, COMMUNICATIONS
EQUIPMENT, JEWELRY AND LAND TITLES CONFISCATED FROM THE
HOUSE OF RESPONDENT DIMAANO WERE ILLEGALLY SEIZED AND
THEREFORE EXCLUDED AS EVIDENCE. 12
The Courts Ruling

110

First

Issue:

PCGGs

Jurisdiction

to

Investigate

Private

Respondents

This case involves a revisiting of an old issue already decided by this Court in
Cruz, Jr. v. Sandiganbayan 13 and Republic v. Migrino. 14
The primary issue for resolution is whether the PCGG has the jurisdiction to
investigate and cause the filing of a forfeiture petition against Ramas and
Dimaano
for
unexplained
wealth
under
RA
No.
1379.
We

hold

that

PCGG

has

no

such

jurisdiction.

The PCGG created the AFP Board to investigate the unexplained wealth and
corrupt practices of AFP personnel, whether in the active service or retired. 15
The PCGG tasked the AFP Board to make the necessary recommendations to
appropriate government agencies on the action to be taken based on its findings.
16 The PCGG gave this task to the AFP Board pursuant to the PCGGs power
under Section 3 of EO No. 1 "to conduct investigation as may be necessary in
order to accomplish and to carry out the purposes of this order." EO No. 1 gave
the PCGG specific responsibilities, to wit:chanrob1es virtual 1aw library
SEC. 2. The Commission shall be charged with the task of assisting the
President in regard to the following matters:chanrob1es virtual 1aw library
(a) The recovery of all ill-gotten wealth accumulated by former President
Ferdinand E. Marcos, his immediate family, relatives, subordinates and close
associates, whether located in the Philippines or abroad, including the takeover
and sequestration of all business enterprises and entities owned or controlled by
them, during his administration, directly or through nominees, by taking undue
advantage of their public office and/or using their powers, authority, influence,
connections
or
relationship.
(b) The investigation of such cases of graft and corruption as the President may
assign
to
the
Commission
from
time
to
time.
x

x.

The PCGG, through the AFP Board, can only investigate the unexplained

111

wealth and corrupt practices of AFP personnel who fall under either of the two
categories mentioned in Section 2 of EO No. 1. These are: (1) AFP personnel
who have accumulated ill-gotten wealth during the administration of former
President Marcos by being the latters immediate family, relative, subordinate
or close associate, taking undue advantage of their public office or using their
powers, influence . . .; 17 or (2) AFP personnel involved in other cases of graft
and corruption provided the President assigns their cases to the PCGG. 18
Petitioner, however, does not claim that the President assigned Ramas case to
the PCGG. Therefore, Ramas case should fall under the first category of AFP
personnel before the PCGG could exercise its jurisdiction over him. Petitioner
argues that Ramas was undoubtedly a subordinate of former President Marcos
because of his position as the Commanding General of the Philippine Army.
Petitioner claims that Ramas position enabled him to receive orders directly
from his commander-in-chief, undeniably making him a subordinate of former
President
Marcos.
We hold that Ramas was not a "subordinate" of former President Marcos in the
sense
contemplated
under
EO
No.
1
and
its
amendments.
Mere position held by a military officer does not automatically make him a
"subordinate" as this term is used in EO Nos. 1, 2, 14 and. 14-A absent a
showing that he enjoyed close association with former President Marcos.
Migrino discussed this issue in this wise:chanrob1es virtual 1aw library
A close reading of EO No. 1 and related executive orders will readily show what
is contemplated within the term subordinate. The Whereas Clauses of EO No.
1 express the urgent need to recover the ill gotten wealth amassed by former
President Ferdinand E. Marcos, his immediate family, relatives, and close
associates
both
here
and
abroad.
EO No. 2 freezes all assets and properties in the Philippines in which former
President Marcos and/or his wife, Mrs. Imelda Marcos, their close relatives,
subordinates, business associates, dummies, agents, or nominees have any
interest
or
participation.
Applying the rule in statutory construction known as ejusdem generis that is
[W]here general words follow an enumeration of persons or things by words of a

112

particular and specific meaning, such general words are not to be construed in
their widest extent, but are to be held as applying only to persons or things of
the same kind or class as those specifically mentioned [Smith, Bell & Co, Ltd. v.
Register of Deeds of Davao, 96 Phil. 53, 58, citing Black on Interpretation of
Laws,
2nd
Ed.,
203].
[T]he term "subordinate" as used in EO Nos. 1 & 2 refers to one who enjoys a
close association with former President Marcos and/or his wife, similar to the
immediate family member, relative, and close associate in EO No. 1 and the
close relative, business associate, dummy, agent, or nominee in EO No. 2.
x

It does not suffice, as in this case, that the respondent is or was a government
official or employee during the administration of former President Marcos.
There must be a prima facie showing that the respondent unlawfully
accumulated wealth by virtue of his close association or relation with former
Pres.
Marcos
and/or
his
wife.
(Emphasis
supplied)
Ramas position alone as Commanding General of the Philippine Army with the
rank of Major General 19 does not suffice to make him a "subordinate" of former
President Marcos for purposes of EO No. 1 and its amendments. The PCGG has
to provide a prima facie showing that Ramas was a close associate of former
President Marcos, in the same manner that business associates, dummies,
agents or nominees of former President Marcos were close to him. Such close
association is manifested either by Ramas complicity with former President
Marcos in the accumulation of ill-gotten wealth by the deposed President or by
former President Marcos acquiescence in Ramas own accumulation of ill-gotten
wealth
if
any.
This,

the

PCGG

failed

to

do.

Petitioners attempt to differentiate the instant case from Migrino does not
convince us. Petitioner argues that unlike in Migrino, the AFP Board Resolution
in the instant case states that the AFP Board conducted the investigation
pursuant to EO Nos. 1, 2, 14 and 14-A in relation to RA No. 1379. Petitioner
asserts that there is a presumption that the PCGG was acting within its
jurisdiction of investigating crony-related cases of graft and corruption and that

113

Ramas was truly a subordinate of the former President. However, the same AFP
Board Resolution belies this contention. Although the Resolution begins with
such statement, it ends with the following recommendation:chanrob1es virtual
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V.

RECOMMENDATION:chanrob1es

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Wherefore it is recommended that Maj. Gen. Josephus Q. Ramas (ret.) be

prosecuted and tried for violation of RA 3019, as amended, otherwise known as
"Anti-Graft and Corrupt Practices Act" and RA 1379, as amended, otherwise
known as "The Act for the Forfeiture of Unlawfully Acquired Property." 20
Thus, although the PCGG sought to investigate and prosecute private
respondents under EO Nos. 1, 2, 14 and 14-A, the result yielded a finding of
violation of Republic Acts Nos. 3019 and 1379 without any relation to EO Nos. 1,
2, 14 and 14-A. This absence of relation to EO No. 1 and its amendments proves
fatal to petitioners case. EO No. 1 created the PCGG for a specific and limited
purpose, and necessarily its powers must be construed to address such specific
and
limited
purpose.
Moreover, the resolution of the AFP Board and even the Amended Complaint do
not show that the properties Ramas allegedly owned were accumulated by him
in his capacity as a "subordinate" of his commander-in chief. Petitioner merely
enumerated the properties Ramas allegedly owned and suggested that these
properties were disproportionate to his salary and other legitimate income
without showing that Ramas amassed them because of his close association
with former President Marcos. Petitioner, in fact, admits that the AFP Board
resolution does not contain a finding that Ramas accumulated his wealth
because of his close association with former President Marcos, thus:chanrob1es
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10. While it is true that the resolution of the Anti-Graft Board of the New
Armed Forces of the Philippines did not categorically find a prima facie evidence
showing that respondent Ramas unlawfully accumulated wealth by virtue of his
close association or relation with former President Marcos and/or his wife, it is
submitted that such omission was not fatal. The resolution of the Anti-Graft
Board should be read in the context of the law creating the same and the
objective of the investigation which was, as stated in the above, pursuant to
Republic Act Nos. 3019 and 1379 in relation to Executive Order Nos. 1, 2, 14

114

and

14-a;

21

(Emphasis

supplied)

Such omission is fatal. Petitioner forgets that it is precisely a prima facie

showing that the ill-gotten wealth was accumulated by a "subordinate" of former
President Marcos that vests jurisdiction on PCGG. EO No. 1 22 clearly premises
the creation of the PCGG on the urgent need to recover all ill-gotten wealth
amassed by former President Marcos, his immediate family, relatives,
subordinates and close associates. Therefore, to say that such omission was not
fatal is clearly contrary to the intent behind the creation of the PCGG.
In Cruz, Jr. v. Sandiganbayan, 23 the Court outlined the cases that fall under
the jurisdiction of the PCGG pursuant to EO Nos. 1, 2, 24 14, 25 14-A: 26
A careful reading of Sections 2(a) and 3 of Executive Order No. 1 in relation
with Sections 1, 2 and 3 of Executive Order No. 14, shows what the authority of
the respondent PCGG to investigate and prosecute covers:chanrob1es virtual
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(a) the investigation and prosecution of the civil action for the recovery of illgotten wealth under Republic Act No. 1379, accumulated by former President
Marcos, his immediate family, relatives, subordinates and close associates,
whether located in the Philippines or abroad, including the take-over or
sequestration of all business enterprises and entities owned or controlled by
them, during his administration, directly or through his nominees, by taking
undue advantage of their public office and/or using their powers, authority and
influence,
connections
or
relationships;
and
(b) the investigation and prosecution of such offenses committed in the
acquisition of said ill-gotten wealth as contemplated under Section 2(a) of
Executive
Order
No.
1.
However, other violations of the Anti-Graft and Corrupt Practices Act not
otherwise falling under the foregoing categories, require a previous authority of
the President for the respondent PCGG to investigate and prosecute in
accordance with Section 2 (b) of Executive Order No. 1. Otherwise, jurisdiction
over such cases is vested in the Ombudsman and other duly authorized
investigating agencies such as the provincial and city prosecutors, their
assistants, the Chief State Prosecutor and his assistants and the state
prosecutors.
(Emphasis
supplied)

115

The proper government agencies, and not the PCGG, should investigate and
prosecute forfeiture petitions not falling under EO No. 1 and its amendments.
The preliminary investigation of unexplained wealth amassed on or before 25
February 1986 falls under the jurisdiction of the Ombudsman, while the
authority to file the corresponding forfeiture petition rests with the Solicitor
General. 27 The Ombudsman Act or Republic Act No. 6770 ("RA No. 6770")
vests in the Ombudsman the power to conduct preliminary investigation and to
file forfeiture proceedings involving unexplained wealth amassed after 25
February
1986.
28
After the pronouncements of the Court in Cruz, the PCGG still pursued this
case despite the absence of a prima facie finding that Ramas was a
"subordinate" of former President Marcos. The petition for forfeiture filed with
the Sandiganbayan should be dismissed for lack of authority by the PCGG to
investigate respondents since there is no prima facie showing that EO No. 1 and
its amendments apply to respondents. The AFP Board Resolution and even the
Amended Complaint state that there are violations of RA Nos. 3019 and 1379.
Thus, the PCGG should have recommended Ramas case to the Ombudsman
who has jurisdiction to conduct the preliminary investigation of ordinary
unexplained wealth and graft cases. As stated in Migrino:chanrob1es virtual
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[But] in view of the patent lack of authority of the PCGG to investigate and
cause the prosecution of private respondent for violation of Rep. Acts Nos. 3019
and 1379, the PCGG must also be enjoined from proceeding with the case,
without prejudice to any action that may be taken by the proper prosecutory
agency. The rule of law mandates that an agency of government be allowed to
exercise
only
the
powers
granted
to
it.
Petitioners argument that private respondents have waived any defect in the
filing of the forfeiture petition by submitting their respective Answers with
counterclaim
deserves
no
merit
as
well.
Petitioner has no jurisdiction over private respondents. Thus, there is no
jurisdiction to waive in the first place. The PCGG cannot exercise investigative
or prosecutorial powers never granted to it. PCGGs powers are specific and
limited. Unless given additional assignment by the President, PCGGs sole task
is only to recover the ill-gotten wealth of the Marcoses, their relatives and

116

cronies. 29 Without these elements, the PCGG cannot claim jurisdiction over a
case.
Private respondents questioned the authority and jurisdiction of the PCGG to
investigate and prosecute their cases by filing their Motion to Dismiss as soon as
they learned of the pronouncement of the Court in Migrino. This case was
decided on 30 August 1990, which explains why private respondents only filed
their Motion to Dismiss on 8 October 1990. Nevertheless, we have held that the
parties may raise lack of jurisdiction at any stage of the proceeding. 30 Thus, we
hold that there was no waiver of jurisdiction in this case. Jurisdiction is vested
by
law
and
not
by
the
parties
to
an
action.
31
Consequently, the petition should be dismissed for lack of jurisdiction by the
PCGG to conduct the preliminary investigation. The Ombudsman may still
conduct the proper preliminary investigation for violation of RA No. 1379, and if
warranted, the Solicitor General may file the forfeiture petition with the
Sandiganbayan. 32 The right of the State to forfeit unexplained wealth under
RA No. 1379 is not subject to prescription, laches or estoppel. 33
Second Issue: Propriety of Dismissal of Case Before Completion of Presentation
of
Evidence
Petitioner also contends that the Sandiganbayan erred in dismissing the case
before
completion
of
the
presentation
of
petitioners
evidence.
We

disagree.

Based on the findings of the Sandiganbayan and the records of this case, we find
that petitioner has only itself to blame for non-completion of the presentation of
its evidence. First, this case has been pending for four years before the
Sandiganbayan dismissed it. Petitioner filed its Amended Complaint on 11
August 1987, and only began to present its evidence on 17 April 1989. Petitioner
had almost two years to prepare its evidence. However, despite this sufficient
time, petitioner still delayed the presentation of the rest of its evidence by filing
numerous motions for postponements and extensions. Even before the date set
for the presentation of its evidence, petitioner filed, on 13 April 1989, a Motion
for Leave to Amend the Complaint. 34 The motion sought "to charge the
delinquent properties (which comprise most of petitioners evidence) with being
subject to forfeiture as having been unlawfully acquired by defendant Dimaano

117

alone

."cralaw

virtua1aw

library

The Sandiganbayan, however, refused to defer the presentation of petitioners

evidence since petitioner did not state when it would file the amended
complaint. On 18 April 1989, the Sandiganbayan set the continuation of the
presentation of evidence on 2829 September and 911 October 1989, giving
petitioner ample time to prepare its evidence. Still, on 28 September 1989,
petitioner manifested its inability to proceed with the presentation of its
evidence. The Sandiganbayan issued an Order expressing its view on the
matter,
to
wit:chanrob1es
virtual
1aw
library
The Court has gone through extended inquiry and a narration of the above
events because this case has been ready for trial for over a year and much of the
delay hereon has been due to the inability of the government to produce on
scheduled dates for pre-trial and for trial documents and witnesses, allegedly
upon the failure of the military to supply them for the preparation of the
presentation of evidence thereon. Of equal interest is the fact that this Court
has been held to task in public about its alleged failure to move cases such as
this one beyond the preliminary stage, when, in view of the developments such
as those of today, this Court is now faced with a situation where a case already
in progress will revert back to the preliminary stage, despite a five-month pause
where appropriate action could have been undertaken by the plaintiff Republic.
35
On 9 October 1989, the PCGG manifested in court that it was conducting a
preliminary investigation on the unexplained wealth of private respondents as
mandated by RA No. 1379. 36 The PCGG prayed for an additional four months
to conduct the preliminary investigation. The Sandiganbayan granted this
request and scheduled the presentation of evidence on 2629 March 1990.
However, on the scheduled date, petitioner failed to inform the court of the
result of the preliminary investigation the PCGG supposedly conducted. Again,
the Sandiganbayan gave petitioner until 18 May 1990 to continue with the
presentation of its evidence and to inform the court of "what lies ahead insofar
as the status of the case is concerned . . . ." 37 Still on the date set, petitioner
failed to present its evidence. Finally, on 11 July 1990, petitioner filed its ReAmended Complaint. 38 The Sandiganbayan correctly observed that a case
already pending for years would revert to its preliminary stage if the court were
to
accept
the
Re-Amended
Complaint.

118

Based on these circumstances, obviously petitioner has only itself to blame for
failure to complete the presentation of its evidence. The Sandiganbayan gave
petitioner more than sufficient time to finish the presentation of its evidence.
The Sandiganbayan overlooked petitioners delays and yet petitioner ended the
long-string of delays with the filing of a Re-Amended Complaint, which would
only
prolong
even
more
the
disposition
of
the
case.
Moreover, the pronouncements of the Court in Migrino and Cruz prompted the
Sandiganbayan to dismiss the case since the PCGG has no jurisdiction to
investigate and prosecute the case against private respondents. This alone
would have been sufficient legal basis for the Sandiganbayan to dismiss the
forfeiture
case
against
private
respondents.
Thus, we hold that the Sandiganbayan did not err in dismissing the case before
completion of the presentation of petitioners evidence.chanrob1es virtua1 1aw
1ibrary
Third

Issue:

Legality

of

the

Search

and

Seizure

Petitioner claims that the Sandiganbayan erred in declaring the properties

confiscated from Dimaanos house as illegally seized and therefore inadmissible
in evidence. This issue bears a significant effect on petitioners case since these
properties comprise most of petitioners evidence against private respondents.
Petitioner will not have much evidence to support its case against private
respondents
if
these
properties
are
inadmissible
in
evidence.
On 3 March 1986, the Constabulary raiding team served at Dimaanos residence
a search warrant captioned "Illegal Possession of Firearms and Ammunition."
Dimaano was not present during the raid but Dimaanos cousins witnessed the
raid. The raiding team seized the items detailed in the seizure receipt together
with other items not included in the search warrant. The raiding team seized
these items: once baby armalite rifle with two magazines; 40 rounds of 5.56
ammunition; one pistol, caliber .45; communications equipment, cash consisting
of
P2,870,000
and
US$50,000,
jewelry,
and
land
titles.
Petitioner wants the Court to take judicial
conducted the search and seizure "on March
successful EDSA revolution. 39 Petitioner
government was operative at that time by

119

notice that the raiding team

3, 1986 or five days after the
argues that a revolutionary
virtue of Proclamation No. 1

announcing that President Aquino and Vice President Laurel were "taking
power in the name and by the will of the Filipino people." 40 Petitioner asserts
that the revolutionary government effectively withheld the operation of the 1973
Constitution which guaranteed private respondents exclusionary right.
Moreover, petitioner argues that the exclusionary right arising from an illegal
search applies only beginning 2 February 1987, the date of ratification of the
1987 Constitution. Petitioner contends that all rights under the Bill of Rights
had already reverted to its embryonic stage at the time of the search. Therefore,
the government may confiscate the monies and items taken from Dimaano and
use the same in evidence against her since at the time of their seizure, private
respondents
did
not
enjoy
any
constitutional
right.
Petitioner

is

partly

right

in

its

arguments.

The EDSA Revolution took place on 2325 February 1986. As succinctly stated
in President Aquinos Proclamation No. 3 dated 25 March 1986, the EDSA
Revolution was "done in defiance of the provisions of the 1973 Constitution." 41
The resulting government was indisputably a revolutionary government bound
by no constitution or legal limitations except treaty obligations that the
revolutionary government, as the de jure government in the Philippines,
assumed
under
international
law.
The correct issues are: (1) whether the revolutionary government was bound by
the Bill of Rights of the 1973 Constitution during the interregnum, that is, after
the actual and effective take-over of power by the revolutionary government
following the cessation of resistance by loyalist forces up to 24 March 1986
(immediately before the adoption of the Provisional Constitution); and (2)
whether the protection accorded to individuals under the International
Covenant on Civil and Political Rights ("Covenant") and the Universal
Declaration of Human Rights ("Declaration") remained in effect during the
interregnum.
We hold that the Bill of Rights under the 1973 Constitution was not operative
during the interregnum. However, we rule that the protection accorded to
individuals under the Covenant and the Declaration remained in effect during
the
interregnum.
During the interregnum, the directives and orders of the revolutionary

120

government were the supreme law because no constitution limited the extent
and scope of such directives and orders. With the abrogation of the 1973
Constitution by the successful revolution, there was no municipal law higher
than the directives and orders of the revolutionary government. Thus, during
the interregnum, a person could not invoke any exclusionary right under a Bill
of Rights because there was neither a constitution nor a Bill of Rights during
the interregnum. As the Court explained in Letter of Associate Justice Reynato
S.
Puno:
42
A revolution has been defined as "the complete overthrow of the established
government in any country or state by those who were previously subject to it"
or as "a sudden, radical and fundamental change in the government or political
system, usually effected with violence or at least some acts of violence." In
Kelsens book, General Theory of Law and State, it is defined as that which
"occurs whenever the legal order of a community is nullified and replaced by a
new order . . . a way not prescribed by the first order itself."cralaw virtua1aw
library
It was through the February 1986 revolution, a relatively peaceful one, and
more popularly known as the "people power revolution" that the Filipino people
tore themselves away from an existing regime. This revolution also saw the
unprecedented
rise
to
power
of
the
Aquino
government.
From the natural law point of view, the right of revolution has been defined as
"an inherent right of a people to cast out their rulers, change their policy or
effect radical reforms in their system of government or institutions by force or a
general uprising when the legal and constitutional methods of making such
change have proved inadequate or are so obstructed as to be unavailable." It has
been said that "the locus of positive law-making power lies with the people of the
state" and from there is derived "the right of the people to abolish, to reform and
to alter any existing form of government without regard to the existing
constitution."cralaw virtua1aw library
x

It is widely known that Mrs. Aquinos rise to the presidency was not due to
constitutional processes; in fact, it was achieved in violation of the provisions of
the 1973 Constitution as a Batasang Pambansa resolution had earlier declared

121

Mr. Marcos as the winner in the 1986 presidential election. Thus it can be said
that the organization of Mrs. Aquinos Government which was met by little
resistance and her control of the state evidenced by the appointment of the
Cabinet and other key officers of the administration, the departure of the
Marcos Cabinet officials, revamp of the Judiciary and the Military signaled the
point where the legal system then in effect, had ceased to be obeyed by the
Filipino.
(Emphasis
supplied)
To hold that the Bill of Rights under the 1973 Constitution remained operative
during the interregnum would render void all sequestration orders issued by the
Philippine Commission on Good Government ("PCGG") before the adoption of
the Freedom Constitution. The sequestration orders, which direct the freezing
and even the take-over of private property by mere executive issuance without
judicial action, would violate the due process and search and seizure clauses of
the
Bill
of
Rights.chanrob1es
virtua1
1aw
1ibrary
During the interregnum, the government in power was concededly a
revolutionary government bound by no constitution. No one could validly
question the sequestration orders as violative of the Bill of Rights because there
was no Bill of Rights during the interregnum. However, upon the adoption of the
Freedom Constitution, the sequestered companies assailed the sequestration
orders as contrary to the Bill of Rights of the Freedom Constitution.
In Bataan Shipyard & Engineering Co. Inc. v. Presidential Commission on Good
Government, 43 petitioner Baseco, while conceding there was no Bill of Rights
during the interregnum, questioned the continued validity of the sequestration
orders upon adoption of the Freedom Constitution in view of the due process
clause in its Bill of Rights. The Court ruled that the Freedom Constitution, and
later the 1987 Constitution, expressly recognized the validity of sequestration
orders,
thus:chanrob1es
virtual
1aw
library
If any doubt should still persist in the face of the foregoing considerations as to
the validity and propriety of sequestration, freeze and takeover orders, it should
be dispelled by the fact that these particular remedies and the authority of the
PCGG to issue them have received constitutional approbation and sanction. As
already mentioned, the Provisional or "Freedom" Constitution recognizes the
power and duty of the President to enact "measures to achieve the mandate of
the people to . . . (r)ecover ill-gotten properties amassed by the leaders and
supporters of the previous regime and protect the interest of the people through

122

orders of sequestration or freezing of assets or accounts." And as also already

adverted to, Section 26, Article XVIII of the 1987 Constitution treats of, and
ratifies the "authority to issue sequestration or freeze orders under
Proclamation No. 3 dated March 25, 1986."cralaw virtua1aw library
The framers of both the Freedom Constitution and the 1987 Constitution were
fully aware that the sequestration orders would clash with the Bill of Rights.
Thus, the framers of both constitutions had to include specific language
recognizing the validity of the sequestration orders. The following discourse by
Commissioner Joaquin G. Bernas during the deliberations of the Constitutional
Commission
is
instructive:chanrob1es
virtual
1aw
library
FR. BERNAS: Madam President, there is something schizophrenic about the
arguments
in
defense
of
the
present
amendment.
For instance, I have carefully studied Minister Salongas lecture in the Gregorio
Araneta University Foundation, of which all of us have been given a copy. On
the one hand, he argues that everything the Commission is doing is
traditionally legal. This is repeated by Commissioner Romulo also. Minister
Salonga spends a major portion of his lecture developing that argument. On the
other hand, almost as an afterthought, he says that in the end what matters are
the results and not the legal niceties, thus suggesting that the PCGG should be
allowed to make some legal shortcuts, another word for niceties or exceptions.
Now, if everything the PCGG is doing is legal, why is it asking the CONCOM for
special protection? The answer is clear. What they are doing will not stand the
test of ordinary due process, hence they are asking for protection, for exceptions.
Grandes malos, grandes remedios, fine, as the saying stands, but let us not say
grandes malos, grande y malos remedios. That is not an allowable extrapolation.
Hence, we should not give the exceptions asked for, and let me elaborate and
give
three
reasons:chanrob1es
virtual
1aw
library
First, the whole point of the February Revolution and of the work of the
CONCOM is to hasten constitutional normalization. Very much at the heart of
the constitutional normalization is the full effectivity of the Bill of Rights. We
cannot, in one breath, ask for constitutional normalization and at the same time
ask for a temporary halt to the full functioning of what is at the heart of
constitutionalism. That would be hypocritical; that would be a repetition of
Marcosian protestation of due process and rule of law. The New Society word for

123

that is "backsliding." It is tragic when we begin to backslide even before we get

there.
Second, this is really a corollary of the first. Habits tend to become ingrained.
The committee report asks for extraordinary exceptions from the Bill of Rights
for six months after the convening of Congress, and Congress may even extend
this
longer.
Good deeds repeated ripen into virtue; bad deeds repeated become vice. What
the committee report is asking for is that we should allow the new government
to
acquire
the
vice
of
disregarding
the
Bill
of
Rights.
Vices, once they become ingrained, become difficult to shed. The practitioners of
the vice begin to think that they have a vested right to its practice, and they will
fight tooth and nail to keep the franchise. That would be an unhealthy way of
consolidating
the
gains
of
a
democratic
revolution.
Third, the argument that what matters are the results and not the legal niceties
is an argument that is very disturbing. When it comes from a staunch Christian
like Commissioner Salonga, a Minister, and repeated verbatim by another
staunch Christian like Commissioner Tingson, it becomes doubly disturbing and
even discombobulating. The argument makes the PCGG an auctioneer, placing
the Bill of Rights on the auction block. If the price is right, the search and
seizure clause will be sold. "Open your Swiss bank account to us and we will
award you the search and seizure clause. You can keep it in your private
safe."cralaw
virtua1aw
library
Alternatively, the argument looks on the present government as hostage to the
hoarders of hidden wealth. The hoarders will release the hidden health if the
ransom price is paid and the ransom price is the Bill of Rights, specifically the
due process in the search and seizure clauses. So, there is something positively
revolving about either argument. The Bill of Rights is not for sale to the highest
bidder nor can it be used to ransom captive dollars. This nation will survive and
grow strong, only if it would become convinced of the values enshrined in the
Constitution
of
a
price
that
is
beyond
monetary
estimation.
For these reasons, the honorable course for the Constitutional Commission is to
delete all of Section 8 of the committee report and allow the new Constitution to
take effect in full vigor. If Section 8 is deleted, the PCGG has two options. First,

124

it can pursue the Salonga and the Romulo argument that what the PCGG
has been doing has been completely within the pale of the law. If sustained, the
PCGG can go on and should be able to go on, even without the support of
Section 8. If not sustained, however, the PCGG has only one honorable option, it
must
bow
to
the
majesty
of
the
Bill
of
Rights.
The PCGG extrapolation of the law is defended by staunch Christians. Let me
conclude with what another Christian replied when asked to toy around with
the law. From his prison cell, Thomas More said, "Ill give the devil benefit of
law for my nations safety sake." I ask the Commission to give the devil benefit
of law for our nations sake. And we should delete Section 8.
Thank

you,

Madam

President.

(Emphasis

supplied)

Despite the impassioned plea by Commissioner Bernas against the amendment

excepting sequestration orders from the Bill of Rights, the Constitutional
Commission still adopted the amendment as Section 26, 44 Article XVIII of the
1987 Constitution. The framers of the Constitution were fully aware that absent
Section 26, sequestration orders would not stand the test of due process under
the
Bill
of
Rights.
Thus, to rule that the Bill of Rights of the 1973 Constitution remained in force
during the interregnum, absent a constitutional provision excepting
sequestration orders from such Bill of Rights, would clearly render all
sequestration orders void during the interregnum. Nevertheless, even during
the interregnum the Filipino people continued to enjoy, under the Covenant and
the Declaration, almost the same rights found in the Bill of Rights of the 1973
Constitution.
The revolutionary government, after installing itself as the de jure government,
assumed responsibility for the States good faith compliance with the Covenant
to which the Philippines is a signatory. Article 2(1) of the Covenant requires
each signatory State "to respect and to ensure to all individuals within its
territory and subject to its jurisdiction the rights 45 recognized in the present
Covenant." Under Article 17(1) of the Covenant, the revolutionary government
had the duty to insure that" [n]o one shall be subjected to arbitrary or unlawful
interference with his privacy, family, home or correspondence."cralaw virtua1aw
library

125

The Declaration, to which the Philippines is also a signatory, provides in its

Article 17(2) that" [n]o one shall be arbitrarily deprived of his property."
Although the signatories to the Declaration did not intend it as a legally binding
document, being only a declaration, the Court has interpreted the Declaration
as part of the generally accepted principles of international law and binding on
the State. 46 Thus, the revolutionary government was also obligated under
international law to observe the rights 47 of individuals under the Declaration.
The revolutionary government did not repudiate the Covenant or the
Declaration during the interregnum. Whether the revolutionary government
could have repudiated all its obligations under the Covenant or the Declaration
is another matter and is not the issue here. Suffice it to say that the Court
considers the Declaration as part of customary international law, and that
Filipinos as human beings are proper subjects of the rules of international law
laid down in the Covenant. The fact is the revolutionary government did not
repudiate the Covenant or the Declaration in the same way it repudiated the
1973 Constitution. As the de jure government, the revolutionary government
could not escape responsibility for the States good faith compliance with its
treaty
obligations
under
international
law.
It was only upon the adoption of the Provisional Constitution on 25 March 1986
that the directives and orders of the revolutionary government became subject
to a higher municipal law that, if contravened, rendered such directives and
orders void. The Provisional Constitution adopted verbatim the Bill of Rights of
the 1973 Constitution. 48 The Provisional Constitution served as a selflimitation by the revolutionary government to avoid abuses of the absolute
powers
entrusted
to
it
by
the
people.
During the interregnum when no constitution or Bill of Rights existed,
directives and orders issued by government officers were valid so long as these
officers did not exceed the authority granted them by the revolutionary
government. The directives and orders should not have also violated the
Covenant or the Declaration. In this case, the revolutionary government
presumptively sanctioned the warrant since the revolutionary government did
not repudiate it. The warrant, issued by a judge upon proper application,
specified the items to be searched and seized. The warrant is thus valid with
respect
to
the
items
specifically
described
in
the
warrant.
However, the Constabulary raiding team seized items not included in the

126

warrant. As admitted by petitioners witnesses, the raiding team confiscated

items not included in the warrant, thus:chanrob1es virtual 1aw library
Direct

Examination

of

Capt.

AJ

Rodolfo

Sebastian
AMORES

Q. According to the search warrant, you are supposed to seize only for weapons.
What else, aside from the weapons, were seized from the house of Miss
Elizabeth
Dimaano?
A. The communications equipment, money in Philippine currency and US
dollars,
some
jewelries,
land
titles,
sir.
Q. Now, the search warrant speaks only of weapons to be seized from the house
of Elizabeth Dimaano. Do you know the reason why your team also seized other
properties
not
mentioned
in
said
search
warrant?
A. During the conversation right after the conduct of said raid, I was informed
that the reason why they also brought the other items not included in the search
warrant was because the money and other jewelries were contained in attach
cases and cartons with markings "Sony Trinitron", and I think three (3) vaults
or steel safes. Believing that the attach cases and the steel safes were
containing firearms, they forced open these containers only to find out that they
contained money.
x

Q. You said you found money instead of weapons, do you know the reason why
your
team
seized
this
money
instead
of
weapons?
A I think the overall team leader and the other two officers assisting him
decided to bring along also the money because at that time it was already dark
and they felt most secured if they will bring that because they might be
suspected also of taking money out of those items, your Honor. 49
Cross-examination

127

Atty.

Banaag

Q. Were you present when the search warrant in connection with this case was
applied before the Municipal Trial Court of Batangas, Branch 1?
A.

Yes,

sir.

Q. And the search warrant applied for by you was for the search and seizure of
five (5) baby armalite rifles M-16 and five (5) boxes of ammunition?
A. Yes, sir.
x

AJ

AMORES

Q. Before you applied for a search warrant, did you conduct surveillance in the
house
of
Miss
Elizabeth
Dimaano?
A. The Intelligence Operatives conducted surveillance together with the MSU
elements,
your
Honor.
Q. And this party believed there were weapons deposited in the house of Miss
Elizabeth
Dimaano?
A.
Q.
A.

Yes,
And

they

so

swore

your
before

Yes,

the

Municipal
your

Honor.
Trial

Judge?
Honor.

Q. But they did not mention to you, the applicant for the search warrant, any
other properties or contraband which could be found in the residence of Miss
Elizabeth
Dimaano?
A. They just gave us still unconfirmed report about some hidden items, for
instance, the communications equipment and money. However, I did not include
that in the application for search warrant considering that we have not

128

established

concrete

evidence

about

that.

So

when

Q. So that when you applied for search warrant, you had reason to believe that
only weapons were in the house of Miss Elizabeth Dimaano?
A. Yes, your Honor. 50
x

Q. You stated that a .45 caliber pistol was seized along with one armalite rifle
M-16
and
how
many
ammunition?
A.

Forty,

sir.

Q. And this became the subject of your complaint with the issuing Court, with
the fiscals office who charged Elizabeth Dimaano for Illegal Possession of
Firearms
and
Ammunition?
A.
Q.

Yes,
Do

A.

you
I

Q.

know

what

think

sir.
happened

it

In

was

the

A.

to

that

dismissed,
fiscals

case?
sir.
office?

Yes,

sir.

Q. Because the armalite rifle you seized, as well as the .45 caliber pistol had a
Memorandum Receipt in the name of Felino Melegrito, is that not correct?
A.

think

that

was

the

reason,

sir.

Q. There were other articles seized which were not included in the search
warrant, like for instance, jewelries. Why did you seize the jewelries?
A. I think it was the decision of the overall team leader and his assistant to
bring along also the jewelries and other items, sir. I do not really know where it

129

was taken but they brought along also these articles. I do not really know their
reason for bringing the same, but I just learned that these were taken because
they might get lost if they will just leave this behind.
x

Q. How about the money seized by your raiding team, they were not also
included
in
the
search
warrant?
A. Yes sir; but I believe they were also taken considering that the money was
discovered to be contained in attach cases. These attach cases were suspected
to be containing pistols or other high powered firearms, but in the course of the
search the contents turned out to be money. So the team leader also decided to
take this considering that they believed that if they will just leave the money
behind,
it
might
get
lost
also.
Q. That holds true also with respect to the other articles that were seized by
your raiding team, like Transfer Certificates of Title of lands?
A. Yes, sir. I think they were contained in one of the vaults that were opened. 51
It is obvious from the testimony of Captain Sebastian that the warrant did not
include the monies, communications equipment, jewelry and land titles that the
raiding team confiscated. The search warrant did not particularly describe these
items and the raiding team confiscated them on its own authority. The raiding
team had no legal basis to seize these items without showing that these items
could be the subject of warrantless search and seizure. 52 Clearly, the raiding
team
exceeded
its
authority
when
it
seized
these
items.
The seizure of these items was therefore void, and unless these items are
contraband per se, 53 and they are not, they must be returned to the person
from whom the raiding seized them. However, we do not declare that such
person is the lawful owner of these items, merely that the search and seizure
warrant could not be used as basis to seize and withhold these items from the
possessor. We thus hold that these items should be returned immediately to
Dimaano.
WHEREFORE, the petition for certiorari is DISMISSED. The questioned

130

Resolutions of the Sandiganbayan dated 18 November 1991 and 25 March 1992

in Civil Case No. 0037, remanding the records of this case to the Ombudsman
for such appropriate action as the evidence may warrant, and referring this case
to the Commissioner of the Bureau of Internal Revenue for a determination of
any tax liability of respondent Elizabeth Dimaano, are AFFIRMED.chanrob1es
virtua1
1aw
1ibrary
SO
Bellosillo, Austria-Martinez,
Azcuna, JJ.,

ORDERED.
Corona,

Carpio-Morales,

Callejo,

Sr. and
concur.

Davide, Jr., C.J., Panganiban and Ynares-Santiago, JJ., concur in the result.
Quisumbing and Sandoval-Gutierrez, JJ., on official leave.
Separate Opinions

PUNO, J.:

While I concur in the result of the ponencia of Mr. Justice Carpio, the ruling on
whether or not private respondent Dimaano could invoke her rights against
unreasonable search and seizure and to the exclusion of evidence resulting
therefrom compels this humble opinion. The ponencia states that" (t)he correct
issue is whether the Bill of Rights was operative during the interregnum from
February 26, 1986 (the day Corazon C. Aquino took her oath as President) to
March 24, 1986 (immediately before the adoption of the Freedom Constitution)."
1 The majority holds that the Bill of Rights was not operative, thus private
respondent Dimaano cannot invoke the right against unreasonable search and
seizure and the exclusionary right as her house was searched and her properties
were seized during the interregnum or on March 3, 1986. My disagreement is
not with the ruling that the Bill of Rights was not operative at that time, but
with the conclusion that the private respondent has lost and cannot invoke the
right against unreasonable search and seizure and the exclusionary right. Using
a different lens in viewing the problem at hand, I respectfully submit that the

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crucial issue for resolution is whether she can invoke these rights in the absence
of a constitution under the extraordinary circumstances after the 1986 EDSA
Revolution. The question boggles the intellect, and is interesting, to say the
least, perhaps even to those not half-interested in the law. But the question of
whether the Filipinos were bereft of fundamental rights during the one month
interregnum is not as perplexing as the question of whether the world was
without a God in the three days that God the Son descended into the dead
before He rose to life. Nature abhors a vacuum and so does the law.chanrob1es
virtua1 1aw 1ibrary
I. Prologue
The ponencia suggests that the Constitution, the Bill of Rights in particular, is
the only source of rights, hence in its absence, private respondent Dimaano
cannot invoke her rights against unreasonable search and seizure and to the
exclusion of evidence obtained therefrom. Pushing the ponencias line of
reasoning to the extreme will result in the conclusion that during the one month
interregnum, the people lost their constitutionally guaranteed rights to life,
liberty and property and the revolutionary government was not bound by the
strictures of due process of law. Even before appealing to history and philosophy,
reason shouts otherwise.
The ponencia recognized the EDSA Revolution as a "successful revolution" 2
that installed the Aquino government. There is no right to revolt in the 1973
Constitution, in force prior to February 2325, 1986. Nonetheless, it is widely
accepted that under natural law, the right of revolution is an inherent right of
the people. Thus, we justified the creation of a new legal order after the 1986
EDSA Revolution, viz:jgc:chanrobles.com.ph
"From the natural law point of view, the right of revolution has been defined as
an inherent right of a people to cast out their rulers, change their policy or
effect radical reforms in their system of government or institutions by force or a
general uprising when the legal and constitutional methods of making such
change have proved inadequate or are so obstructed as to be unavailable. (H.

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Black, Handbook of American Constitutional Law II, 4th edition, 1927) It has
been said that the locus of positive law-making power lies with the people of the
state and from there is derived the right of the people to abolish, to reform and
to alter any existing form of government without regard to the existing
constitution. (Political Rights as Political Questions, The Paradox of Luther v.
Borden, 100 Harvard Law Review 1125, 1133 [1987])" 3
It is my considered view that under this same natural law, private respondent
Dimaano has a right against unreasonable search and seizure and to exclude
evidence obtained as a consequence of such illegal act. To explain my thesis, I
will first lay down the relevant law before applying it to the facts of the case at
bar. Tracking down the elusive law that will govern the case at bar will take us
to the labyrinths of philosophy and history. To be sure, the difficulty of the case
at bar lies less in the application of the law, but more in finding the applicable
law. I shall take up the challenge even if the route takes negotiating, but
without trespassing, on political and religious thickets.chanrob1es virtua1 1aw
1ibrary
II. Natural Law and Natural Rights
As early as the Greek civilization, man has alluded to a higher, natural
standard or law to which a state and its laws must conform. Sophocles
unmistakably articulates this in his poignant literary piece, Antigone. In this
mid-fifth century Athenian tragedy, a civil war divided two brothers, one died
defending Thebes, and the other, Polyneices, died attacking it. The king forbade
Polyneices burial, commanding instead that his body be left to be devoured by
beasts. But according to Greek religious ideas, only a burial even a token one
with a handful of earth could give repose to his soul. Moved by piety,
Polyneices sister, Antigone, disobeyed the command of the king and buried the
body. She was arrested. Brought before the king who asks her if she knew of his
command and why she disobeyed, Antigone replies:jgc:chanrobles.com.ph
". . . These laws were not ordained of Zeus,

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And she who sits enthroned with gods below,

Justice, enacted not these human laws.
Nor did I deem that thou, a mortal man,
Couldst by a breath annul and override
The immutable unwritten laws of heaven.
They were not born today nor yesterday;
They die not; and none knoweth whence they sprang." 4
Antigone was condemned to be buried alive for violating the order of the king. 5
Aristotle also wrote in his Nicomachean Ethics: "Of political justice part is
natural, part legal natural, that which everywhere has the same force and
does not exist by peoples thinking this or that; legal, that which is originally
indifferent, but when it has been laid down is not indifferent, e.g. that a
prisoners ransom shall be mina, or that a goat and not two sheep shall be
sacrificed, and again all the laws that are passed for particular cases, . . ." 6
Aristotle states that" (p)articular law is that which each community lays down
and applies to its own members: this is partly written and partly unwritten.
Universal law is the law of Nature. For there really is, as every one to some
extent divines, a natural justice and injustice that is binding on all men, even on
those who have no association or covenant with each other. It is this that
Sophocles Antigone clearly means when she says that the burial of Polyneices
was a just act in spite of the prohibition: she means that it was just by nature."
7
Later, the Roman orator Cicero wrote of natural law in the first century B.C. in
this wise:jgc:chanrobles.com.ph

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"True law is right reason in agreement with nature; it is of universal

application, unchanging and everlasting; it summons to duty by its commands,
and averts from wrongdoing by its prohibitions. And it does not lay its
commands or prohibitions upon good men in vain, though neither have any
effect on the wicked. It is a sin to try to alter this law, nor is it allowable to
attempt to repeal any part of it, and it is impossible to abolish it entirely. We
cannot be freed from its obligations by senate or people, and we need not look
outside ourselves for an expounder or interpreter of it. And there will not be
different laws at Rome and at Athens, or different laws now and in the future,
but one eternal and unchangeable law will be valid for all nations and at all
times, and there will be one master and ruler, that is, God, over us all, for he is
the author of this law, its promulgator, and its enforcing judge. Whoever is
disobedient is fleeing from himself and denying his human nature, and by
reason of this very fact he will suffer the worst penalties, even if he escapes
what is commonly considered punishment." 8
This allusion to an eternal, higher, and universal natural law continues from
classical antiquity to this day. The face of natural law, however, has changed
throughout the classical, medieval, modern, and contemporary periods of
history.
In the medieval times, shortly after 1139, Gratian published the Decretum, a
collection and reconciliation of the canon laws in force, which distinguished
between divine or natural law and human law. Similar to the writings of the
earliest Church Fathers, he related this natural law to the Decalogue and to
Christs commandment of love of ones neighbor. "The law of nature is that
which is contained in the Law and the Gospel, by which everyone is commanded
to do unto others as he would wish to be done unto him, and is prohibited from
doing unto others that which he would be unwilling to be done unto himself." 9
This natural law precedes in time and rank all things, such that statutes
whether ecclesiastical or secular, if contrary to law, were to be held null and
void. 10
The following century saw a shift from a natural law concept that was

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revelation-centered to a concept related to mans reason and what was

discoverable by it, under the influence of Aristotles writings which were coming
to be known in the West. William of Auxerre acknowledged the human capacity
to recognize good and evil and Gods will, and made reason the criterion of
natural law. Natural law was thus id quod naturalis ratio sine omni
deliberatione aut sine magna dictat esse faciendum or "that which natural
reason, without much or even any need of reflection, tells us what we must do."
11 Similarly, Alexander of Hales saw human reason as the basis for recognizing
natural law 12 and St. Bonaventure wrote that what natural reason commands
is called the natural law. 13 By the thirteenth century, natural law was
understood as the law of right reason, coinciding with the biblical law but not
derived from it. 14
Of all the medieval philosophers, the Italian St. Thomas Aquinas is indisputably
regarded as the most important proponent of traditional natural law theory. He
created a comprehensive and organized synthesis of the natural law theory
which rests on both the classical (in particular, Aristotelian philosophy) and
Christian foundation, i.e., on reason and revelation. 15 His version of the
natural law theory rests on his vision of the universe as governed by a single,
self-consistent and overarching system of law under the direction and authority
of God as the supreme lawgiver and judge. 16 Aquinas defined law as "an
ordinance of reason for the common good, made by him who has care of the
community, and promulgated." 17 There are four kinds of laws in his natural
law theory: eternal, natural, human, and divine.
First, eternal law. To Aquinas, a law is a dictate of practical reason (which
provides practical directions on how one ought to act as opposed to "speculative
reason" which provides propositional knowledge of the way things are)
emanating from the ruler who governs a perfect community. 18 Presupposing
that Divine Providence rules the universe, and Divine Providence governs by
divine reason, then the rational guidance of things in God the Ruler of the
universe has the nature of a law. And since the divine reasons conception of
things is not subject to time but is eternal, this kind of law is called eternal law.
19 In other words, eternal law is that law which is a "dictate" of Gods reason. It

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is the external aspect of Gods perfect wisdom, or His wisdom applied to His
creation. 20 Eternal law consists of those principles of action that God
implanted in creation to enable each thing to perform its proper function in the
overall order of the universe. The proper function of a thing determines what is
good and bad for it: the good consists of performing its function while the bad
consists of failing to perform it. 21
Then, natural law. This consists of principles of eternal law which are specific to
human beings as rational creatures. Aquinas explains that law, as a rule and
measure, can be in a person in two ways: in one way, it can be in him that rules
and measures; and in another way, in that which is ruled and measured since a
thing is ruled and measured in so far as it partakes of the rule or measure.
Thus, since all things governed by Divine Providence are regulated and
measured by the eternal law, then all things partake of or participate to a
certain extent in the eternal law; they receive from it certain inclinations
towards their proper actions and ends. Being rational, however, the
participation of a human being in the Divine Providence, is most excellent
because he participates in providence itself, providing for himself and others. He
participates in eternal reason itself and through this, he possesses a natural
inclination to right action and right end. This participation of the rational
creature in the eternal law is called natural law. Hence, the psalmist says: "The
light of Thy countenance, O Lord, is signed upon us, thus implying that the light
of natural reason, by which we discern what is good and what is evil, which is
the function of the natural law, is nothing else than an imprint on us of the
Divine light. It is therefore evident that the natural law is nothing else than the
rational creatures participation in the eternal law." 22 In a few words, the
"natural law is a rule of reason, promulgated by God in mans nature, whereby
man can discern how he should act." 23
Through natural reason, we are able to distinguish between right and wrong;
through free will, we are able to choose what is right. When we do so, we
participate more fully in the eternal law rather than being merely led blindly to
our proper end. We are able to choose that end and make our compliance with
eternal law an act of self-direction. In this manner, the law becomes in us a rule

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and measure and no longer a rule and measure imposed from an external
source. 24 The question that comes to the fore then is what is this end to which
natural law directs rational creatures?
The first self-evident principle of natural law is that "good is to be pursued and
done, and evil is to be avoided. All other precepts of the natural law are based
upon this, so that whatever the practical reason naturally apprehends as mans
good (or evil) belongs to the precept of the natural law as something to be done
or avoided." 25 Because good is to be sought and evil avoided, and good is that
which is in accord with the nature of a given creature or the performance of a
creatures proper function, then the important question to answer is what is
human nature or the proper function of man. Those to which man has a natural
inclination are naturally apprehended by reason as good and must thus be
pursued, while their opposites are evil which must be avoided. 26 Aquinas
identifies the basic inclinations of man as follows:jgc:chanrobles.com.ph
"1. To seek the good, including his highest good, which is eternal happiness with
God. 27
2. To preserve himself in existence.
3. To preserve the species that is, to unite sexually.
4. To live in community with other men.
5. To use his intellect and will that is, to know the truth and to make his own
decision." 28
As living creatures, we have an interest in self-preservation; as animals, in
procreation; and as rational creatures, in living in society and exercising our
intellectual and spiritual capacities in the pursuit of knowledge." 29 God put
these inclinations in human nature to help man achieve his final end of eternal
happiness. With an understanding of these inclinations in our human nature,
we can determine by practical reason what is good for us and what is bad. 30 In

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this sense, natural law is an ordinance of reason. 31 Proceeding from these

inclinations, we can apply the natural law by deduction, thus: good should be
done; this action is good; this action should therefore be done. 32 Concretely, it
is good for humans to live peaceably with one another in society, thus this
dictates the prohibition of actions such as killing and stealing that harm society.
33
From the precepts of natural law, human reason needs to proceed to the more
particular determinations or specialized regulations to declare what is required
in particular cases considering societys specific circumstances. These particular
determinations, arrived at by human reason, are called human laws (Aquinas
positive law). They are necessary to clarify the demands of natural law. Aquinas
identifies two ways by which something may be derived from natural law: first,
like in science, demonstrated conclusions are drawn from principles; and second,
as in the arts, general forms are particularized as to details like the craftsman
determining the general form of a house to a particular shape. 34 Thus,
according to Aquinas, some things are derived from natural law by way of
conclusion (such as "one must not kill" may be derived as a conclusion from the
principle that "one should do harm to no man") while some are derived by way of
determination (such as the law of nature has it that the evildoer should be
punished, but that he be punished in this or that way is not directly by natural
law but is a derived determination of it). 35 Aquinas says that both these modes
of derivation are found in the human law. But those things derived as a
conclusion are contained in human law not as emanating therefrom exclusively,
but having some force also from the natural law. But those things which are
derived in the second manner have no other force than that of human law. 36
Finally, there is divine law which is given by God, i.e., the Old Testament and
the New Testament. This is necessary to direct human life for four reasons.
First, through law, man is directed to proper actions towards his proper end.
This end, which is eternal happiness and salvation, is not proportionate to his
natural human power, making it necessary for him to be directed not just by
natural and human law but by divinely given law. Secondly, because of
uncertainty in human judgment, different people form different judgments on

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human acts, resulting in different and even contrary laws. So that man may
know for certain what he ought to do and avoid, it was necessary for man to be
directed in his proper acts by a God-given law for it is certain that such law
cannot err. Thirdly, human law can only judge the external actions of persons.
However, perfection of virtue consists in man conducting himself right in both
his external acts and in his interior motives. The divine law thus supervenes to
see and judge both dimensions. Fourthly, because human law cannot punish or
forbid all evils, since in aiming to do away with all evils it would do away with
many good things and would hinder the advancement of the common good
necessary for human development, divine law is needed. 37 For example, if
human law forbade backbiting gossip, in order to enforce such a law, privacy and
trust that is necessary between spouses and friends would be severely
restricted. Because the price paid to enforce the law would outweigh the
benefits, gossiping ought to be left to God to be judged and punished. Thus, with
divine law, no evil would remain unforbidden and unpunished. 38
Aquinas traditional natural law theory has been advocated, recast and restated
by other scholars up to the contemporary period. 39 But clearly, what has had a
pervading and lasting impact on the Western philosophy of law and government,
particularly on that of the United States of America which heavily influenced
the Philippine system of government and constitution, is the modern natural
law theory.chanrobles.com.ph : red
In the traditional natural law theory, among which was Aquinas, the emphasis
was placed on moral duties of man both rulers and subjects rather than on
rights of the individual citizen. Nevertheless, from this medieval theoretical
background developed modern natural law theories associated with the gradual
development in Europe of modern secular territorial state. These theories
increasingly veered away from medieval theological trappings 40 and gave
particular emphasis to the individual and his natural rights. 41
One far-reaching school of thought on natural rights emerged with the political
philosophy of the English man, John Locke. In the traditional natural law
theory such as Aquinas, the monarchy was not altogether disfavored because as

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Aquinas says, "the rule of one man is more useful than the rule of the many" to
achieve "the unity of peace." 42 Quite different from Aquinas, Locke emphasized
that in any form of government, "ultimate sovereignty rested in the people and
all legitimate government was based on the consent of the governed." 43 His
political theory was used to justify resistance to Charles II over the right of
succession to the English throne and the Whig Revolution of 168889 by which
James II was dethroned and replaced by William and Mary under terms which
weakened the power of the crown and strengthened the power of the Parliament.
44
Locke explained his political theory in his major work, Second Treatise of
Government, originally published in 1690, 45 where he adopted the modern
view that human beings enjoyed natural rights in the state of nature, before the
formation of civil or political society. In this state of nature, it is self-evident
that all persons are naturally in a "state of perfect freedom to order their
actions, and dispose of their possessions and persons, as they think fit, within
the bounds of the law of nature, without asking leave or depending upon the will
of any other man." 46 Likewise, in the state of nature, it was self-evident that all
persons were in a state of equality, "wherein all the power and jurisdiction is
reciprocal, no one having more than another; there being nothing more evident,
than that creatures of the same species and rank, promiscuously born to all the
same advantages of nature, and the use of the same faculties, should also be
equal one amongst another without subordination or subjection . . ." 47 Locke
quickly added, however, that though all persons are in a state of liberty, it is not
a state of license for the "state of nature has a law of nature to govern it, which
obliges every one: and reason, which is that law, teaches all mankind, who will
but consult it, that being all equal and independent, no one ought to harm
another in his life health, liberty, or possessions . . ." 48 Locke also alludes to an
"omnipotent, and infinitely wise maker" whose "workmanship they (mankind)
are, made to last during his (the makers) . . . pleasure." 49 In other words,
through reason, with which human beings arrive at the law of nature
prescribing certain moral conduct, each person can realize that he has a natural
right and duty to ensure his own survival and well-being in the world and a
related duty to respect the same right in others, and preserve mankind. 50

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Through reason, human beings are capable of recognizing the need to treat
others as free, independent and equal as all individuals are equally concerned
with ensuring their own lives, liberties and properties. 51 In this state of
nature, the execution of the law of nature is placed in the hands of every
individual who has a right to punish transgressors of the law of nature to an
extent that will hinder its violation. 52 It may be gathered from Lockes political
theory that the rights to life, health, liberty and property are natural rights,
hence each individual has a right to be free from violent death, from arbitrary
restrictions of his person and from theft of his property. 53 In addition, every
individual has a natural right to defend oneself from and punish those who
violate the law of nature.
But although the state of nature is somewhat of an Eden before the fall, there
are two harsh "inconveniences" in it, as Locke puts them, which adversely affect
the exercise of natural rights. First, natural law being an unwritten code of
moral conduct, it might sometimes be ignored if the personal interests of certain
individuals are involved. Second, without any written laws, and without any
established judges or magistrates, persons may be judges in their own cases and
self-love might make them partial to their side. On the other hand, ill nature,
passion and revenge might make them too harsh to the other side. Hence,
"nothing but confusion and disorder will follow." 54 These circumstances make it
necessary to establish and enter a civil society by mutual agreement among the
people in the state of nature, i.e., based on a social contract founded on trust
and consent. Locke writes:jgc:chanrobles.com.ph
"The only way whereby any one divests himself of his natural liberty, and puts
on the bonds of civil society, is by agreeing with other men to join and unite into
a community for their comfortable, safe, and peaceable living one amongst
another, in a secure enjoyment of their properties (used in the broad sense,
referring to life, liberty and property) and a greater security against any, that
are not of it." 55
This collective agreement then culminated in the establishment of a civil
government.chanrob1es virtua1 1aw 1ibrary

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Three important consequences of Lockes theory on the origin of civil

government and its significance to the natural rights of individual subjects
should be noted. First, since it was the precariousness of the individuals
enjoyment of his natural and equal right to life, liberty, and property that
justified the establishment of civil government, then the "central, overriding
purpose of civil government was to protect and preserve the individuals natural
rights. For just as the formation by individuals of civil or political society had
arisen from their desire to unite for the mutual Preservation of their Lives,
Liberties and Estates, which I (Locke) call by the general name, Property, 56 so,
too, did the same motive underlie in the second stage of the social contract
their collective decision to institute civil government." 57 Locke thus maintains,
again using the term "property" in the broad sense, that," (t)he great and chief
end, therefore, of mens uniting into common-wealths, and putting themselves
under government, is the preservation of their property." 58 Secondly, the
central purpose that has brought a civil government into existence, i.e., the
protection of the individuals natural rights, sets firm limits on the political
authority of the civil government. A government that violates the natural rights
of its subjects has betrayed their trust, vested in it when it was first established,
thereby undermining its own authority and losing its claim to the subjects
obedience. Third and finally, individual subjects have a right of last resort to
collectively resist or rebel against and overthrow a government that has failed to
discharge its duty of protecting the peoples natural rights and has instead
abused its powers by acting in an arbitrary or tyrannical manner. The
overthrow of government, however, does not lead to dissolution of civil society
which came into being before the establishment of civil government. 59
Lockes ideas, along with other modern natural law and natural rights theories,
have had a profound impact on American political and legal thought. American
law professor Philip Hamburger observes that American natural law scholars
generally agree "that natural law consisted of reasoning about humans in the
state of nature (or absence of government)" and tend "to emphasize that they
were reasoning from the equal freedom of humans and the need of humans to
preserve themselves." 60 As individuals are equally free, they did not have the

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right to infringe the equal rights of others; even self-preservation typically

required individuals to cooperate so as to avoid doing unto others what they
would not have others do unto them. 61 With Lockes theory of natural law as
foundation, these American scholars agree on the well-known analysis of how
individuals preserved their liberty by forming government, i.e., that in order to
address the insecurity and precariousness of ones life, liberty and property in
the state of nature, individuals, in accordance with the principle of selfpreservation, gave up a portion of their natural liberty to civil government to
enable it "to preserve the residue." 62 "People must cede to [government] some
of their natural rights, in order to vest it with powers." 63 That individuals "give
up a part of their natural rights to secure the rest" in the modern natural law
sense is said to be "an old hackneyed and well known principle" 64
thus:jgc:chanrobles.com.ph
"That Man, on entering into civil society, of necessity, sacrifices a part of his
natural liberty, has been pretty universally taken for granted by writers on
government. They seem, in general, not to have admitted a doubt of the truth of
the proposition. One feels as though it was treading on forbidden ground, to
attempt a refutation of what has been advanced by a Locke, a Bacari[a], and
some other writers and statesmen." 65
But, while Lockes theory showed the necessity of civil society and government,
it was careful to assert and protect the individuals rights against government
invasion, thus implying a theory of limited government that both restricted the
role of the state to protect the individuals fundamental natural rights to life,
liberty and property and prohibited the state, on moral grounds, from violating
those rights. 66 The natural rights theory, which is the characteristic American
interpretation of natural law, serves as the foundation of the well-entrenched
concept of limited .government in the United States. It provides the theoretical
basis of the formulation of limits on political authority vis--vis the superior
right of the individual which the government should preserve. 67
Lockes ideas undoubtedly influenced Thomas Jefferson, the eminent statesman
and "philosopher of the (American) revolution and of the first constitutional

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order which free men were permitted to establish." 68 Jefferson espoused

Lockes theory that man is free in the state of nature. But while Locke limited
the authority of the state with the doctrine of natural rights, Jeffersons
originality was in his use of this doctrine as basis for a fundamental law or
constitution established by the people. 69 To obviate the danger that the
government would limit natural liberty more than necessary to afford protection
to the governed, thereby becoming a threat to the very natural liberty it was
designed to protect, people had to stipulate in their constitution which natural
rights they sacrificed and which not, as it was important for them to retain
those portions of their natural liberty that were inalienable, that facilitated the
preservation of freedom, or that simply did not need to be sacrificed. 70 Two
ideas are therefore fundamental in the constitution: one is the regulation of the
form of government and the other, the securing of the liberties of the people. 71
Thus, the American Constitution may be understood as comprising three
elements. First, it creates the structure and authority of a republican form of
government; second, it provides a division of powers among the different parts of
the national government and the checks and balances of these powers; and
third, it inhibits governments power vis--vis the rights of individuals, rights
existent and potential, patent and latent. These three parts have one prime
objective: to uphold the liberty of the people. 72
But while the constitution guarantees and protects the fundamental rights of
the people, it should be stressed that it does not create them. As held by many of
the American Revolution patriots, "liberties do not result from charters;
charters rather are in the nature of declarations of pre-existing rights." 73 John
Adams, one of the patriots, claimed that natural rights are founded "in the
frame of human nature, rooted in the constitution of the intellect and moral
world." 74 Thus, it is said of natural rights vis--vis the
constitution:jgc:chanrobles.com.ph
". . . (t)hey exist before constitutions and independently of them. Constitutions
enumerate such rights and provide against their deprivation or infringement,
but do not create them. It is supposed that all power, all rights, and all
authority are vested in the people before they form or adopt a constitution. By

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such an instrument, they create a government, and define and limit the powers
which the constitution is to secure and the government respect. But they do not
thereby invest the citizens of the commonwealth with any natural rights that
they did not before possess." 75 (Emphasis supplied)
A constitution is described as follows:jgc:chanrobles.com.ph
"A Constitution is not the beginning of a community, nor the origin of private
rights; it is not the fountain of law, nor the incipient state of government; it is
not the cause, but consequence, of personal and political freedom; it grants no
rights to the people, but is the creature of their power, the instrument of their
convenience. Designed for their protection in the enjoyment of the rights and
powers which they possessed before the Constitution was made, it is but the
framework of the political government, and necessarily based upon the
preexisting condition of laws, rights, habits and modes of thought. There is
nothing primitive in it; it is all derived from a known source. It presupposes an
organized society, law, order, propriety, personal freedom, a love of political
liberty, and enough of cultivated intelligence to know how to guard against the
encroachments of tyranny." 76 (Emphasis supplied)
That Lockes modern natural law and rights theory was influential to those who
framed and ratified the United States constitution and served as its theoretical
foundation is undeniable. 77 In a letter in which George Washington formally
submitted the Constitution to Congress in September 1787, he spoke of the
difficulties of drafting the document in words borrowed from the standard
eighteenth-century natural rights analysis:jgc:chanrobles.com.ph
"Individuals entering into society, must give up a share of liberty to preserve the
rest. The magnitude of the sacrifice must depend as well on situation and
circumstance, as on the object to be obtained. It is at all times difficult to draw
with precision the line between those rights which must be surrendered, and
those which may be reserved . . .." 78 (Emphasis supplied)
Natural law is thus to be understood not as a residual source of constitutional

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rights but instead, as the reasoning that implied the necessity to sacrifice
natural liberty to government in a written constitution. Natural law and
natural rights were concepts that explained and justified written constitutions.
79
With the establishment of civil government and a constitution, there arises a
conceptual distinction between natural rights and civil rights, difficult though to
define their scope and delineation. It has been proposed that natural rights are
those rights that "appertain to man in right of his existence." 80 These were
fundamental rights endowed by God upon human beings, "all those rights of
acting as an individual for his own comfort and happiness, which are not
injurious to the natural rights of others." 81 On the other hand, civil rights are
those that "appertain to man in right of his being a member of society." 82 These
rights, however, are derived from the natural rights of individuals
since:jgc:chanrobles.com.ph
"Man did not enter into society to become worse off than he was before, nor to
have fewer rights than he had before, but to have those rights better secured.
His natural rights are the foundation of all his rights." 83
Civil rights, in this sense, were those natural rights particularly rights to
security and protection which by themselves, individuals could not safeguard,
rather requiring the collective support of civil society and government. Thus, it
is said:jgc:chanrobles.com.ph
"Every civil right has for its foundation, some natural right pre-existing in the
individual, but to the enjoyment of which his individual power is not, in all
cases, sufficiently competent." 84
The distinction between natural and civil rights is "between that class of natural
rights which man retains after entering into society, and those which he throws
into the common stock as a member of society." 85 The natural rights retained
by the individuals after entering civil society were "all the intellectual rights, or
rights of the mind," 86 i.e., the rights to freedom of thought, to freedom of

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religious belief and to freedom of expression in its various forms. The individual
could exercise these rights without government assistance, but government has
the role of protecting these natural rights from interference by others and of
desisting from itself infringing such rights. Government should also enable
individuals to exercise more effectively the natural rights they had exchanged
for civil rights like the rights to security and protection when they entered
into civil society. 87
American natural law scholars in the 1780s and early 1790s occasionally
specified which rights were natural and which were not. On the Lockean
assumption that the state of nature was a condition in which all humans were
equally free from subjugation to one another and had no common superior,
American scholars tended to agree that natural liberty was the freedom of
individuals in the state of nature. 88 Natural rights were understood to be
simply a portion of this undifferentiated natural liberty and were often broadly
categorized as the rights to life, liberty, and property; or life, liberty and the
pursuit of happiness. More specifically, they identified as natural rights the free
exercise of religion, freedom of conscience, 89 freedom of speech and press, right
to self-defense, right to bear arms, right to assemble and right to ones
reputation. 90 In contrast, certain other rights, such as habeas corpus and jury
rights, do not exist in the state of nature, but exist only under the laws of civil
government or the constitution because they are essential for restraining
government. 91 They are called civil rights not only in the sense that they are
protected by constitutions or other laws, but also in the sense that they are
acquired rights which can only exist under civil government. 92
In his Constitutional Law, Black states that natural rights may be used to
describe those rights which belong to man by virtue of his nature and depend
upon his personality. "His existence as an individual human being, clothed with
certain attributes, invested with certain capacities, adapted to certain kind of
life, and possessing a certain moral and physical nature, entitles him, without
the aid of law, to such rights as are necessary to enable him to continue his
existence, develop his faculties, pursue and achieve his destiny." 93 An example
of a natural right is the right to life. In an organized society, natural rights must

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be protected by law, "and although they owe to the law neither their existence
nor their sacredness, yet they are effective only when recognized and sanctioned
by law." 94 Civil rights include natural rights as they are taken into the sphere
of law. However, there are civil rights which are not natural rights such as the
right of trial by jury. This right is not founded in the nature of man, nor does it
depend on personality, but it falls under the definition of civil rights which are
the rights secured by the constitution to all its citizens or inhabitants not
connected with the organization or administration of government which belong
to the domain of political rights. "Natural rights are the same all the world over,
though they may not be given the fullest recognition under all governments.
Civil rights which are not natural rights will vary in different states or
countries." 95
From the foregoing definitions and distinctions, we can gather that the
inclusions in and exclusions from the scope of natural rights and civil rights are
not well-defined. This is understandable because these definitions are derived
from the nature of man which, in its profundity, depth, and fluidity, cannot
simply and completely be grasped and categorized. Thus, phrases such as
"rights appertain(ing) to man in right of his existence", or "rights which are a
portion of mans undifferentiated natural liberty, broadly categorized as the
rights to life, liberty, and property; or life, liberty and the pursuit of happiness",
or "rights that belong to man by virtue of his nature and depend upon his
personality" serve as guideposts in identifying a natural right. Nevertheless,
although the definitions of natural right and civil right are not uniform and
exact, we can derive from the foregoing definitions that natural rights exist prior
to constitutions, and may be contained in and guaranteed by them. Once these
natural rights enter the constitutional or statutory sphere, they likewise acquire
the character of civil rights in the broad sense (as opposed to civil rights
distinguished from political rights), without being stripped of their nature as
natural rights. There are, however, civil rights which are not natural rights but
are merely created and protected by the constitution or other law such as the
right to a jury trial.chanrob1es virtua1 1aw 1ibrary
Long after Locke conceived of his ideas of natural rights, civil society, and civil

149

government, his concept of natural rights continued to flourish in the modern

and contemporary period. About a hundred years after the Treatise of
Government, Lockes natural law and rights theory was restated by the
eighteenth-century political thinker and activist, Thomas Paine. He wrote his
classic text, The Rights of Man, Part 1 where he argued that the central purpose
of all governments was to protect the natural and imprescriptible rights of man.
Citing the 1789 French Declaration of the Rights of Man and of Citizens, Paine
identified these rights as the right to liberty, property, security and resistance of
oppression. All other civil and political rights such as to limits on
government, to freedom to choose a government, to freedom of speech, and to
fair taxation were derived from those fundamental natural rights. 96
Paine inspired and actively assisted the American Revolution and defended the
French Revolution. His views were echoed by the authors of the American and
the French declarations that accompanied these democratic revolutions. 97 The
American Declaration of Independence of July 4, 1776, the revolutionary
manifesto of the thirteen newly-independent states of America that were
formerly colonies of Britain, reads:jgc:chanrobles.com.ph
"We hold these Truths to be self-evident, that all Men are created equal, that
they are endowed by their Creator with certain inalienable Rights, that among
these are Life, Liberty, and the Pursuit of Happiness. That to secure these
Rights, Governments are instituted among Men, deriving their just Powers from
the Consent of the Governed, that whenever any Form of Government becomes
destructive of these Ends, it is the Right of the People to alter or to abolish it,
and to institute new Government, laying its Foundation on such Principles, and
organizing its Powers in such Form as to them shall seem most likely to effect
their Safety and Happiness." 98 (Emphasis supplied)
His phrase "rights of man" was used in the 1789 French Declaration of the
Rights of Man and of Citizens, proclaimed by the French Constituent Assembly
in August 1789, viz:jgc:chanrobles.com.ph
"The representatives of the French people, constituted in a National Assembly,

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considering that ignorance, oblivion or contempt of the Rights of Man are the
only causes of public misfortunes and of the corruption of governments, have
resolved to lay down in a solemn Declaration, the natural, inalienable and
sacred Rights of Man, in order that this Declaration, being always before all the
members of the Social Body, should constantly remind them of their Rights and
their Duties . . ." 99 (Emphasis supplied)
Thereafter, the phrase "rights of man" gradually replaced "natural rights" in the
latter period of the eighteenth century, thus removing the theological
assumptions of medieval natural law theories. After the American and French
Revolutions, the doctrine of the rights of man became embodied not only in
succinct declarations of rights, but also in new constitutions which emphasized
the need to uphold the natural rights of the individual citizen against other
individuals and particularly against the state itself. 100
Considerable criticism was, however, hurled against natural law and natural
rights theories, especially by the logical positivist thinkers, as these theories
were not empirically verifiable. Nevertheless, the concept of natural rights or
rights of man regained force and influence in the 1940s because of the growing
awareness of the wide scale violation of such rights perpetrated by the Nazi
dictatorship in Germany. The British leader Winston Churchill and the
American leader Franklin Roosevelt stated in the preface of their Atlantic
Charter in 1942 that "complete victory over their enemies is essential to decent
life, liberty, independence and religious freedom, and to preserve human rights
and justice, in their own land as well as in other lands." (Emphasis supplied)
This time, natural right was recast in the idea of "human rights" which belong
to every human being by virtue of his or her humanity. The idea superseded the
traditional concept of rights based on notions of God-given natural law and of
social contract. Instead, the refurbished idea of "human rights" was based on
the assumption that each individual person was entitled to an equal degree of
respect as a human being. 101
With this historical backdrop, the United Nations Organization published in
1948 its Universal Declaration of Human Rights (UDHR) as a systematic

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attempt to secure universal recognition of a whole gamut of human rights. The

Declaration affirmed the importance of civil and political rights such as the
rights to life, liberty, property; equality before the law; privacy; a fair trial;
freedom of speech and assembly, of movement, of religion, of participation in
government directly or indirectly; the right to political asylum, and the absolute
right not to be tortured. Aside from these, but more controversially, it affirmed
the importance of social and economic rights. 102 The UDHR is not a treaty and
its provisions are not binding law, but it is a compromise of conflicting
ideological, philosophical, political, economic, social and juridical ideas which
resulted from the collective effort of 58 states on matters generally considered
desirable and imperative. It may be viewed as a "blending (of) the deepest
convictions and ideals of different civilizations into one universal expression of
faith in the rights of man." 103
On December 16, 1966, the United Nations General Assembly adopted the
International Covenant on Economic, Social and Cultural Rights (ICESCR) and
the International Covenant on Civil and Political Rights (ICCPR) and the
Optional Protocol to the Civil and Political Rights providing for the mechanism
of checking state compliance to the international human rights instruments
such as through a reportorial requirement among governments. These treaties
entered into force on March 23, 1976 104 and are binding as international law
upon governments subscribing to them. Although admittedly, there will be
differences in interpreting particular statements of rights and freedoms in these
United Nations instruments "in the light of varied cultures and historical
traditions, the basis of the covenants is a common agreement on the
fundamental objective of the dignity and worth of the human person. Such
agreement is implied in adherence to the (United Nations) Charter and
corresponds to the universal urge for freedom and dignity which strives for
expression, despite varying degrees of culture and civilization and despite the
countervailing forces of repression and authoritarianism." 105
Human rights and fundamental freedoms were affirmed by the United Nations
Organization in the different instruments embodying these rights not just as a
solemn protest against the Nazi-fascist method of government, but also as a

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recognition that the "security of individual rights, like the security of national
rights, was a necessary requisite to a peaceful and stable world order." 106
Moskowitz wrote:jgc:chanrobles.com.ph
"The legitimate concern of the world community with human rights and
fundamental freedoms stems in large part from the close relation they bear to
the peace and stability of the world. World War II and its antecedents, as well as
contemporary events, clearly demonstrate the peril inherent in the doctrine
which accepts the state as the sole arbiter in questions pertaining to the rights
and freedoms of the citizen. The absolute power exercised by a government over
its citizens is not only a source of disorder in the international community; it
can no longer be accepted as the only guaranty of orderly social existence at
home. But orderly social existence is ultimately a matter which rests in the
hands of the citizen. Unless the citizen can assert his human rights and
fundamental freedoms against his own government under the protection of the
international community, he remains at the mercy of the superior power." 107
Similar to natural rights and civil rights, human rights as the refurbished idea
of natural right in the 1940s, eludes definition. The usual definition that it is
the right which inheres in persons from the fact of their humanity seemingly
begs the question. Without doubt, there are certain rights and freedoms so
fundamental as to be inherent and natural such as the integrity of the person
and equality of persons before the law which should be guaranteed by all
constitutions of all civilized countries and effectively protected by their laws. 108
It is nearly universally agreed that some of those rights are religious toleration,
a general right to dissent, and freedom from arbitrary punishment. 109 It is not
necessarily the case, however, that what the law guarantees as a human right in
one country should also be guaranteed by law in all other countries. Some
human rights might be considered fundamental in some countries, but not in
others. For example, trial by jury which we have earlier cited as an example of a
civil right which is not a natural right, is a basic human right in the United
States protected by its constitution, but not so in Philippine jurisdiction. 110
Similar to natural rights, the definition of human rights is derived from human
nature, thus understandably not exact. The definition that it is a "right which

153

inheres in persons from the fact of their humanity", however, can serve as a
guideline to identify human rights. It seems though that the concept of human
rights is broadest as it encompasses a human persons natural rights (e.g.,
religious freedom) and civil rights created by law (e.g. right to trial by
jury).chanrob1es virtua1 1aw 1ibrary
In sum, natural law and natural rights are not relic theories for academic
discussion, but have had considerable application and influence. Natural law
and natural rights theories have played an important role in the Declaration of
Independence, the Abolition (anti-slavery) movement, and parts of the modern
Civil Rights movement. 111 In charging Nazi and Japanese leaders with "crimes
against humanity" at the end of the Second World War, Allied tribunals in 1945
invoked the traditional concept of natural law to override the defense that those
charged had only been obeying the laws of the regimes they served. 112
Likewise, natural law, albeit called by another name such as "substantive due
process" which is grounded on reason and fairness, has served as legal standard
for international law, centuries of development in the English common law, and
certain aspects of American constitutional law. 113 In controversies involving
the Bill of Rights, the natural law standards of "reasonableness" and "fairness"
or "justified on balance" are used. Questions such as these are common: "Does
this form of government involvement with religion endanger religious liberty in
a way that seems unfair to some group? Does permitting this restriction on
speech open the door to government abuse of political opponents? Does this
police investigative practice interfere with citizens legitimate interests in
privacy and security?" 114 Undeniably, natural law and natural rights theories
have carved their niche in the legal and political arena.
III. Natural Law and Natural Rights
in Philippine Cases and the Constitution
A. Traces of Natural Law and
Natural Rights Theory in Supreme Court Cases

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Although the natural law and natural rights foundation is not articulated, some
Philippine cases have made reference to natural law and rights without raising
controversy. For example, in People v. Asas, 115 the Court admonished courts to
consider cautiously an admission or confession of guilt especially when it is
alleged to have been obtained by intimidation and force. The Court said:"
(w)ithal, aversion of man against forced self-affliction is a matter of Natural
Law." 116 In People v. Agbot, 117 we did not uphold lack of instruction as an
excuse for killing because we recognized the "offense of taking ones life being
forbidden by natural law and therefore within instinctive knowledge and feeling
of every human being not deprived of reason." 118 In Mobil Oil Philippines, Inc.
v. Diocares, Et Al., 119 Chief Justice Fernando acknowledged the influence of
natural law in stressing that the element of a promise is the basis of contracts.
In Manila Memorial Park Cemetery, Inc. v. Court of Appeals, Et Al., 120 the
Court invoked the doctrine of estoppel which we have repeatedly pronounced is
predicated on, and has its origin in equity, which broadly defined, is justice
according to natural law. In Yu Con v. Ipil, Et Al., 121 we recognized the
application of natural law in maritime commerce.
The Court has also identified in several cases certain natural rights such as the
right to liberty, 122 the right of expatriation, 123 the right of parents over their
children which provides basis for a parents visitorial rights over his illegitimate
children, 124 and the right to the fruits of ones industry. 125
In Simon, Jr. Et. Al. v. Commission on Human Rights, 126 the Court defined
human rights, civil rights, and political rights. In doing so, we considered the
United Nations instruments to which the Philippines is a signatory, namely the
UDHR which we have ruled in several cases as binding upon the Philippines,
127 the ICCPR and the ICESCR. Still, we observed that "human rights" is so
generic a term that at best, its definition is inconclusive. But the term "human
rights" is closely identified to the "universally accepted traits and attributes of
an individual, along with what is generally considered to be his inherent and
inalienable rights, encompassing almost all aspects of life," 128 i.e., the
individuals social, economic, cultural, political and civil relations. 129 On the

155

other hand, we defined civil rights as referring to:jgc:chanrobles.com.ph

". . . those (rights) that belong to every citizen of the state or country, or, in a
wider sense, to all inhabitants, and are not connected with the organization or
administration of government. They include the rights to property, marriage,
equal protection of the laws, freedom of contract, etc. Or, as otherwise defined,
civil rights are rights appertaining to a person by virtue of his citizenship in a
state or community. Such term may also refer, in its general sense, to rights
capable of being enforced or redressed in a civil action." 130
Guarantees against involuntary servitude, religious persecution, unreasonable
searches and seizures, and imprisonment for debt are also identified as civil
rights. 131 The Courts definition of civil rights was made in light of their
distinction from political rights which refer to the right to participate, directly
or indirectly, in the establishment or administration of government, the right of
suffrage, the right to hold public office, the right of petition and, in general, the
rights appurtenant to citizenship vis-a-vis the management of government. 132
To distill whether or not the Courts reference to natural law and natural rights
finds basis in a natural law tradition that has influenced Philippine law and
government, we turn to Philippine constitutional law history.chanrob1es virtua1
1aw 1ibrary
B. History of the Philippine Constitution
and the Bill of Rights
During the Spanish colonization of the Philippines, Filipinos ardently fought for
their fundamental rights. The Propaganda Movement spearheaded by our
national hero Jose Rizal, Marcelo H. del Pilar, and Graciano Lopez-Jaena
demanded assimilation of the Philippines by Spain, and the extension to
Filipinos of rights enjoyed by Spaniards under the Spanish Constitution such as
the inviolability of person and property, specifically freedom from arbitrary
action by officialdom particularly by the Guardia Civil and from arbitrary

156

detention and banishment of citizens. They clamored for their right to liberty of
conscience, freedom of speech and the press, freedom of association, freedom of
worship, freedom to choose a profession, the right to petition the government for
redress of grievances, and the right to an opportunity for education. They raised
the roof for an end to the abuses of religious corporations. 133
With the Propaganda Movement having apparently failed to bring about
effective reforms, Andres Bonifacio founded in 1892 the secret society of the
Katipunan to serve as the military arm of the secessionist movement whose
principal aim was to create an independent Filipino nation by armed revolution.
134 While preparing for separation from Spain, representatives of the
movement engaged in various constitutional projects that would reflect the
longings and aspirations of the Filipino people. On May 31, 1897, a republican
government was established in Biak-na-Bato, followed on November 1, 1897 by
the unanimous adoption of the Provisional Constitution of the Republic of the
Philippines, popularly known as the Constitution of Biak-na-Bato, by the
revolutions representatives. The document was an almost exact copy of the
Cuban Constitution of Jimaguayu, 135 except for four articles which its authors
Felix Ferrer and Isabelo Artacho added. These four articles formed the
constitutions Bill of Rights and protected, among others, religious liberty, the
right of association, freedom of the press, freedom from imprisonment except by
virtue of an order issued by a competent court, and freedom from deprivation of
property or domicile except by virtue of judgment passed by a competent court of
authority. 136
The Biak-na-Bato Constitution was projected to have a life-span of two years,
after which a final constitution would be drafted. Two months after it was
adopted, however, the Pact of Biak-na-Bato was signed whereby the Filipino
military leaders agreed to cease fighting against the Spaniards and guaranteed
peace for at least three years, in exchange for monetary indemnity for the
Filipino men in arms and for promised reforms. Likewise, General Emilio
Aguinaldo, who by then had become the military leader after Bonifacios death,
agreed to leave the Philippines with other Filipino leaders. They left for
Hongkong in December 1897.

157

A few months later, the Spanish-American war broke out in April 1898. Upon
encouragement of American officials, Aguinaldo came back to the Philippines
and set up a temporary dictatorial government with himself as dictator. In June
1898, the dictatorship was terminated and Aguinaldo became the President of
the Revolutionary Government. 137 By this time, the relations between the
American troops and the Filipino forces had become precarious as it became
more evident that the Americans planned to stay. In September 1898, the
Revolutionary Congress was inaugurated whose primary goal was to formulate
and promulgate a Constitution. The fruit of their efforts was the Malolos
Constitution which, as admitted by Felipe Calderon who drafted it, was based
on the constitutions of South American Republics 138 while the Bill of Rights
was substantially a copy of the Spanish Constitution. 139 The Bill of Rights
included among others, freedom of religion, freedom from arbitrary arrests and
imprisonment, security of the domicile and of papers and effects against
arbitrary searches and seizures, inviolability of correspondence, due process in
criminal prosecutions, freedom of expression, freedom of association, and right
of peaceful petition for the redress of grievances. Its Article 28 stated that" (t)he
enumeration of the rights granted in this title does not imply the prohibition of
any others not expressly stated." 140 This suggests that natural law was the
source of these rights. 141 The Malolos Constitution was short-lived. It went
into effect in January 1899, about two months before the ratification of the
Treaty of Paris transferring sovereignty over the Islands to the United States.
Within a month after the constitutions promulgation, war with the United
States began and the Republic survived for only about ten months. On March
23, 1901, American forces captured Aguinaldo and a week later, he took his oath
of allegiance to the United States. 142
In the early months of the war against the United States, American President
McKinley sent the First Philippine Commission headed by Jacob Gould
Schurman to assess the Philippine situation. On February 2, 1900, in its report
to the President, the Commission stated that the Filipino people wanted above
all a "guarantee of those fundamental human rights which Americans hold to be
the natural and inalienable birthright of the individual but which under

158

Spanish domination in the Philippines had been shamefully invaded and

ruthlessly trampled upon." 143 (Emphasis supplied) In response to this,
President McKinley, in his Instruction of April 7, 1900 to the Second Philippine
Commission, provided an authorization and guide for the establishment of a
civil government in the Philippines and stated that" (u)pon every division and
branch of the government of the Philippines . . . must be imposed these
inviolable rules . . ." These "inviolable rules" were almost literal reproductions of
the First to Ninth and the Thirteenth Amendment of the United States
Constitution, with the addition of the prohibition of bills of attainder and ex
past facto laws in Article 1, Section 9 of said Constitution. The "inviolable rules"
or Bill of Rights provided, among others, that no person shall be deprived of life,
liberty, or property without due process of law; that no person shall be twice put
in jeopardy for the same offense or be compelled to be a witness against himself,
that the right to be secure against unreasonable searches and seizures shall not
be violated; that no law shall be passed abridging the freedom of speech or of the
press or of the rights of the people to peaceably assemble and petition the
Government for redress of grievances. Scholars have characterized the
Instruction as the "Magna Charta of the Philippines" and as a "worthy rival of
the Laws of the Indies." 144
The "inviolable rules" of the Instruction were re-enacted almost exactly in the
Philippine Bill of 1902, 145 as an act which temporarily provided for the
administration of the affairs of the civil government in the Philippine Islands,
146 and in the Philippine Autonomy Act of 1916, 147 otherwise known as the
Jones Law, which was an act to declare the purpose of the people of the United
States as to the future of the Philippine Islands and to provide an autonomous
government for it. 148 These three organic acts the Instruction, the
Philippine Bill of 1902, and the Jones Law extended the guarantees of the
American Bill of Rights to the Philippines. In Kepner v. United States, 149
Justice Day prescribed the methodology for applying these "inviolable rules" to
the Philippines, viz:" (t)hese principles were not taken from the Spanish law;
they were carefully collated from our own Constitution, and embody almost
verbatim the safeguards of that instrument for the protection of life and liberty."
150 Thus, the "inviolable rules" should be applied in the sense "which has been

159

placed upon them in construing the instrument from which they were taken."
151 (Emphasis supplied)

Thereafter, the Philippine Independence Law, popularly known as

the Tydings-McDuffie Law of 1934, was enacted. It guaranteed
independence to the Philippines and authorized the drafting of a
Philippine Constitution. The law provided that the government
should be republican in form and the Constitution to be drafted
should contain a Bill of Rights. 152 Thus, the Constitutional
Convention of 1934 was convened. In
fting the Constitution, the Convention preferred to be generally
conservative on the belief that to be stable and permanent, the
Constitution must be anchored on the experience of the people,
"providing for institutions which were the natural outgrowths of the
national life." 153 As the people already had a political
organization buttressed by national traditions, the Constitution
was to sanctify these institutions tested by time and the Filipino
peoples experience and to confirm the practical and substantial
rights of the people. Thus, the institutions and philosophy adopted
in the Constitution drew substantially from the organic acts which
had governed the Filipinos for more than thirty years, more
particularly the Jones Law of 1916. In the absence of Philippine
precedents, the Convention considered precedents of American
origin that might be suitable to our substantially American political
system and to the Filipino psychology and traditions. 154 Thus, in
the words of Claro M. Recto, President of the Constitutional
Convention, the 1935 Constitution was "frankly an imitation of the
American
charter."
155
Aside from the heavy American influence, the Constitution also
bore traces of the Malolos Constitution, the German Constitution,
the Constitution of the Republic of Spain, the Mexican Constitution,
and the Constitutions of several South American countries, and the
English unwritten constitution. Though the Tydings-McDuffie law
mandated a republican constitution and the inclusion of a Bill of
Rights, with or without such mandate, the Constitution would have
nevertheless been republican because the Filipinos were satisfied
with their experience of a republican government; a Bill of Rights
would have nonetheless been also included because the people
had been accustomed to the role of a Bill of Rights in the past
organic
acts.
156

160

The Bill of Rights in the 1935 Constitution was reproduced largely from the
report of the Conventions committee on bill of rights. The report was mostly a
copy of the Bill of Rights in the Jones Law, which in turn was borrowed from the
American constitution. Other provisions in the report drew from the Malolos
Constitution and the constitutions of the Republic of Spain, Italy and Japan.
There was a conscious effort to retain the phraseology of the well-known
provisions of the Jones Law because of the jurisprudence that had built around
them. The Convention insistently avoided including provisions in the Bill of
Rights not tested in the Filipino experience. 157 Thus, upon submission of its
draft bill of rights to the President of the Convention, the committee on bill of
rights
stated:jgc:chanrobles.com.ph
"Adoption and adaptation have been the relatively facile work of your committee
in the formulation of a bill or declaration of rights to be incorporated in the
Constitution of the Philippine Islands. No attempt has been made to incorporate
new
or
radical
changes.
.
.
The enumeration of individual rights in the present organic law (Acts of
Congress of July 1, 1902, August 29, 1916) is considered ample, comprehensive
and precise enough to safeguard the rights and immunities of Filipino citizens
against abuses or encroachments of the Government, its powers or agents. . .
Modifications or changes in phraseology have been avoided, wherever possible.
This is because the principles must remain couched in a language expressive of
their historical background, nature, extent and limitations, as construed and
expounded by the great statesmen and jurists that have vitalized them." 158
(Emphasis
supplied)
The 1935 Constitution was approved by the Convention on February 8, 1935 and
signed on February 19, 1935. On March 23, 1935, United States President
Roosevelt affixed his signature on the Constitution. By an overwhelming
majority, the Filipino voters ratified it on May 14, 1935. 159
Then dawned the decade of the 60s. There grew a clamor to revise the 1935
charter for it to be more responsive to the problems of the country, specifically in
the socio-economic arena and to the sources of threats to the security of the
Republic identified by then President Marcos. In 1970, delegates to the
Constitution Convention were elected, and they convened on June 1, 1971. In
their deliberations, "the spirit of moderation prevailed, and the . . . Constitution

161

was hardly notable for its novelty, much less a radical departure from our
constitutional tradition." 160 Our rights in the 1935 Constitution were
reaffirmed and the government to which we have been accustomed was
instituted, albeit taking on a parliamentary rather than presidential form. 161
The Bill of Rights in the 1973 Constitution had minimal difference from its
counterpart in the 1935 Constitution. Previously, there were 21 paragraphs in
one section, now there were twenty-three. The two rights added were the
recognition of the peoples right to access to official records and documents and
the right to speedy disposition of cases. To the right against unreasonable
searches and seizures, a second paragraph was added that evidence obtained
therefrom shall be inadmissible for any purpose in any proceeding. 162
The 1973 Constitution went into effect on January 17, 1973 and remained the
fundamental law until President Corazon Aquino rose to power in defiance of
the 1973 charter and upon the "direct exercise of the power of the Filipino
people" 163 in the EDSA Revolution of February 2325, 1986. On February 25,
1986, she issued Proclamation No. 1 recognizing that "sovereignty resides in the
people and all government authority emanates from them" and that she and
Vice President Salvador Laurel were "taking power in the name and by the will
of the Filipino people." 164 The old legal order, constitution and enactments
alike, was overthrown by the new administration. 165 A month thenceforth,
President Aquino issued Proclamation No. 3, "Declaring National Policy to
Implement the Reforms Mandated by the People, Protecting their Basic Rights,
Adopting a Provisional Constitution, and Providing for an Orderly Transition to
Government under a New Constitution." The Provisional Constitution,
otherwise known as the "Freedom Constitution" adopted certain provisions of
the 1973 Constitution, including the Bill of Rights which was adopted in toto,
and provided for the adoption of a new constitution within 60 days from the date
of
Proclamation
No.
3.
166
Pursuant to the Freedom Constitution, the 1986 Constitutional Commission
drafted the 1987 Constitution which was ratified and became effective on
February 2, 1987. 167 As in the 1935 and 1973 Constitutions, it retained a
republican system of government, but emphasized and created more channels
for the exercise of the sovereignty of the people through recall, initiative,
referendum and plebiscite. 168 Because of the wide-scale violation of human
rights during the dictatorship, the 1987 Constitution contains a Bill of Rights
which more jealously safeguards the peoples "fundamental liberties in the

162

essence of a constitutional democracy", in the words of ConCom delegate Fr.

Joaquin Bernas, S.J. 169 It declares in its state policies that" (t)he state values
the dignity of every human person and guarantees full respect for human
rights." 170 In addition, it has a separate Article on Social Justice and Human
Rights, under which, the Commission on Human Rights was created. 171
Considering the American model and origin of the Philippine constitution, it is
not surprising that Filipino jurists and legal scholars define and explain the
nature of the Philippine constitution in similar terms that American
constitutional law scholars explain their constitution. Chief Justice Fernando,
citing Laski, wrote about the basic purpose of a civil society and government,
viz:jgc:chanrobles.com.ph
"The basic purpose of a State, namely to assure the happiness and welfare of its
citizens is kept foremost in mind. To paraphrase Laski, it is not an end in itself
but only a means to an end, the individuals composing it in their separate and
identifiable capacities having rights which must be respected. It is their
happiness then, and not its interest, that is the criterion by which its behavior is
to be judged; and it is their welfare, and not the force at its command, that sets
the limits to the authority it is entitled to exercise." 172 (Emphasis supplied)
Citing Hamilton, he also defines a constitution along the lines of the natural law
theory as "a law for the government, safeguarding (not creating) individual
rights, set down in writing." 173 (Emphasis supplied) This view is accepted by
Taada and Fernando who wrote that the constitution "is a written instrument
organizing the government, distributing its powers and safeguarding the rights
of the people." 174 Chief Justice Fernando also quoted Schwartz that "a
constitution is seen as an organic instrument, under which governmental
powers are both conferred and circumscribed. Such stress upon both grant and
limitation of authority is fundamental in American theory.The office and
purpose of the constitution is to shape and fix the limits of governmental
activity." 175 Malcolm and Laurel define it according to Justice Millers
definition in his opus on the American Constitution 176 published in 1893 as
"the written instrument by which the fundamental powers of government are
established, limited and defined, and by which those powers are distributed
among the several departments for their safe and useful exercise for the benefit
of the body politic." 177 The constitution exists to assure that in the
governments discharge of its functions, the "dignity that is the birthright of
every
human
being
is
duly
safeguarded."
178

163

Clearly then, at the core of constitutionalism is a strong concern for individual

rights 179 as in the modern period natural law theories. Justice Laurel as
delegate to the 1934 Constitutional Convention declared in a major address
before
the
Convention:jgc:chanrobles.com.ph
"There is no constitution, worthy of the name, without a bill or declaration of
rights. (It is) the palladium of the peoples liberties and immunities, so that
their persons, homes, their peace, their livelihood, their happiness and their
freedom may be safe and secure from an ambitious ruler, an envious neighbor,
or
a
grasping
state."
180
As Chairman of the Committee
stated:jgc:chanrobles.com.ph

on

the

Declaration

of

Rights,

he

"The history of the world is the history of man and his arduous struggle for
liberty. . . . It is the history of those brave and able souls who, in the ages that
are past, have labored, fought and bled that the government of the lash that
symbol of slavery and despotism might endure no more. It is the history of
those great self-sacrificing men who lived and suffered in an age of cruelty, pain
and desolation, so that every man might stand, under the protection of great
rights and privileges,
the equal
of every
other man." 181
Being substantially a copy of the American Bill of Rights, the history of our Bill
of Rights dates back to the roots of the American Bill of Rights. The latter is a
charter of the individuals liberties and a limitation upon the power of the state
182 which traces its roots to the English Magna Carta of 1215, a first in English
history for a written instrument to be secured from a sovereign ruler by the
bulk of the politically articulate community that intended to lay down binding
rules of law that the ruler himself may not violate. "In Magna Carta is to be
found the germ of the root principle that there are fundamental individual
rights that the State sovereign though it is may not infringe." 183
(Emphasis
supplied)
In Sales v. Sandiganbayan, Et Al., 184 quoting Allado v. Diokno, 185 this Court
ruled that the Bill of Rights guarantees the preservation of our natural rights,
viz:jgc:chanrobles.com.ph
"The purpose of the Bill of Rights is to protect the people against arbitrary and

164

discriminatory use of political power. This bundle of rights guarantees the

preservation of our natural rights which include personal liberty and security
against invasion by the government or any of its branches or instrumentalities."
186
(Emphasis
supplied)
We need, however, to fine tune this pronouncement of the Court, considering
that certain rights in our Bill of Rights, for example habeas corpus, have been
identified not as a natural right, but a civil right created by law. Likewise, the
right against unreasonable searches and seizures has been identified in Simon
as a civil right, without expounding however what civil right meant therein
whether a natural right existing before the constitution and protected by it, thus
acquiring the status of a civil right; or a right created merely by law and nonexistent in the absence of law. To understand the nature of the right against
unreasonable search and seizure and the corollary right to exclusion of evidence
obtained therefrom, we turn a heedful eye on the history, concept and purpose of
these
guarantees.chanrob1es
virtua1
1aw
1ibrary
IV.

History

Unreasonable
Right
in

to
the

of

the

Search
Exclusion
United

Guarantee

and

Seizure

of
States

Illegally
and

in

against
and

the

Seized

Evidence

the

Philippines

The origin of the guarantee against unreasonable search and seizure in the
Philippine constitutions can be traced back to hundreds of years ago in a land
distant from the Philippines. Needless to say, the right is well-entrenched in
history.
The power to search in England was first used as an instrument to oppress
objectionable publications. 187 Not too long after the printing press was
developed, seditious and libelous publications became a concern of the Crown,
and a broad search and seizure power developed to suppress these publications.
188 General warrants were regularly issued that gave all kinds of people the
power to enter and seize at their discretion under the authority of the Crown to
enforce publication licensing statutes. 189 In 1634, the ultimate ignominy in the
use of general warrants came when the early "great illuminary of the common
law," 190 and most influential of the Crowns opponents, 191 Sir Edward Coke,

165

while on his death bed, was subjected to a ransacking search and the
manuscripts of his Institutes were seized and carried away as seditious and
libelous
publications.
192
The power to issue general warrants and seize publications grew. They were
also used to search for and seize smuggled goods. 193 The developing common
law tried to impose limits on the broad power to search to no avail. In his
History of the Pleas of Crown, Chief Justice Hale stated unequivocally that
general warrants were void and that warrants must be used on "probable cause"
and with particularity. 194 Member of Parliament, William Pitt, made his
memorable and oft-quoted speech against the unrestrained power to
search:jgc:chanrobles.com.ph
"The poorest man may, in his cottage, bid defiance to all the forces of the Crown.
It may be frail its roof may shake the wind may blow through it the
storm may enter the rain may enter; but the King of England may not enter;
all his force dares not cross the threshold of the ruined tenement." 195
Nevertheless, legislation authorizing general warrants continued to be passed.
196
In the 16th century, writs of assistance, called as such because they commanded
all officers of the Crown to participate in their execution, 197 were also common.
These writs authorized searches and seizures for enforcement of import duty
laws. 198 The "same powers and authorities" and the "like assistance" that
officials had in England were given to American customs officers when
parliament extended the customs laws to the colonies. The abuse in the writs of
assistance was not only that they were general, but they were not returnable
and once issued, lasted six months past the life of the sovereign. 199
These writs caused profound resentment in the colonies. 200 They were
predominantly used in Massachusetts, the largest port in the colonies 201 and
the seat of the American revolution. When the writs expired six months after
the death of George II in October 1760, 202 sixty-three Boston merchants who
were opposed to the writs retained James Otis, Jr. to petition the Superior
Court for a hearing on the question of whether new writs should be issued. 203
Otis used the opportunity to denounce Englands whole policy to the colonies
and on general warrants. 204 He pronounced the writs of assistance as "the
worst instrument of arbitrary power, the most destructive of English liberty and

166

the fundamental principles of law, that ever was found in an English law book"
since they placed "the liberty of every man in the hands of every petty officer."
205 Otis was a visionary and apparently made the first argument for judicial
review and nullifying of a statute exceeding the legislatures power under the
Constitution and "natural law." 206 This famous debate in February 1761 in
Boston was "perhaps the most prominent event which inaugurated the
resistance of the colonies to the oppressions of the mother country.Then and
there, said John Adams, then and there was the first scene of the first act of
opposition to the arbitrary claims of Great Britain. Then and there the child
Independence was born." 207 But the Superior Court nevertheless held that the
writs
could
be
issued.
208
Once the customs officials had the writs, however, they had great difficulty
enforcing the customs laws owing to rampant smuggling and mob resistance
from the citizenry. 209 The revolution had begun. The Declaration of
Independence followed. The use of general warrants and writs of assistance in
enforcing customs and tax laws was one of the causes of the American
Revolution.
210
Back in England, shortly after the Boston debate, John Wilkes, a member of
Parliament, anonymously published the North Briton, a series of pamphlets
criticizing the policies of the British government. 211 In 1763, one pamphlet was
very bold in denouncing the government. Thus, the Secretary of the State issued
a general warrant to "search for the authors, printers, and publishers of [the]
seditious and treasonable paper." 212 Pursuant to the warrant, Wilkes house
was searched and his papers were indiscriminately seized. He sued the
perpetrators and obtained a judgment for damages. The warrant was
pronounced illegal "as totally subversive of the liberty" and "person and
property
of
every
man
in
this
kingdom."
213
Seeing Wilkes success, John Entick filed an action for trespass for the search
and seizure of his papers under a warrant issued earlier than Wilkes. This
became the case of Entick v. Carrington, 214 considered a landmark of the law
of search and seizure and called a familiar "monument of English freedom." 215
Lord Camden, the judge, held that the general warrant for Enticks papers was
invalid. Having described the power claimed by the Secretary of the State for
issuing general search warrants, and the manner in which they were executed,
Lord Camden spoke these immortalized words, viz:jgc:chanrobles.com.ph

167

"Such is the power and therefore one would naturally expect that the law to
warrant it should be clear in proportion as the power is exorbitant. If it is law, it
will be found in our books; if it is not to be found there, it is not law.
The great end for which men entered into society was to secure their property.
That right is preserved sacred and incommunicable in all instances where it has
not been taken away or abridged by some public law for the good of the whole.
The cases where this right of property is set aside by positive law are various.
Distresses, executions, forfeitures, taxes, etc., are all of this description, wherein
every man by common consent gives up that right for the sake of justice and the
general good. By the laws of England, every invasion of private property, be it
ever so minute, is a trespass. No man can set his foot upon my ground without
my license but he is liable to an action though the damage be nothing; which is
proved by every declaration in trespass where the defendant is called upon to
answer for bruising the grass and even treading upon the soil. If he admits the
fact, he is bound to show by way of justification that some positive law has
justified or excused him. . . If no such excuse can be found or produced, the
silence of the books is an authority against the defendant and the plaintiff must
have
judgment
.
.
."
216
(Emphasis
supplied)
The experience of the colonies on the writs of assistance which spurred the
Boston debate and the Entick case which was a "monument of freedom" that
every American statesman knew during the revolutionary and formative period
of America, could be confidently asserted to have been "in the minds of those
who framed the Fourth Amendment to the Constitution, and were considered as
sufficiently explanatory of what was meant by unreasonable searches and
seizures."
217
The American experience with the writs of assistance and the Entick case were
considered by the United States Supreme Court in the first major case to
discuss the scope of the Fourth Amendment right against unreasonable search
and seizure in the 1885 case of Boyd v. United States, supra, where the court
ruled,
viz:jgc:chanrobles.com.ph
"The principles laid down in this opinion (Entick v. Carrington, supra) affect the
very essence of constitutional liberty and security. They reach farther than the
concrete form of the case then before the court, with its adventitious
circumstances; they apply to all invasions, on the part of the Government and
its employees, of the sanctity of a mans home and the privacies of life. It is not

168

the breaking of his doors and the rummaging of his drawers that constitutes the
essence of the offense; but it is the invasion of his indefeasible right of personal
security, personal liberty and private property, where that right has never been
forfeited by his conviction of some public offense; it is the invasion of this sacred
right which underlies and constitutes the essence of Lord Camdens judgment."
218
(Emphasis
supplied)
In another landmark case of 1914, Weeks v. United States, 219 the Court, citing
Adams v. New York, 220 reiterated that the Fourth Amendment was intended to
secure the citizen in person and property against the unlawful invasion of the
sanctity of his home by officers of the law, acting under legislative or judicial
sanction.chanrob1es
virtua1
1aw
1ibrary
With this genesis of the right against unreasonable searches and seizures and
the jurisprudence that had built around it, the Fourth Amendment guarantee
was extended by the United States to the Filipinos in succinct terms in
President McKinleys Instruction of April 7, 1900, viz:jgc:chanrobles.com.ph
". . . that the right to be secure against unreasonable searches and seizures shall
not
be
violated."
221
This provision in the Instruction was re-enacted in Section 5 of the Philippine
Bill of 1902, this time with a provision on warrants, viz:jgc:chanrobles.com.ph
"That the right to be secure against unreasonable searches and seizures shall
not be violated.
x

That no warrant shall issue except upon probable cause, supported by oath or
affirmation, and particularly describing the place to be searched and the person
or
things
to
be
seized."
222
The above provisions were reproduced verbatim in the Jones Law of 1916.
Then came the 1935 Constitution which provides in Article IV, Section 1(3),
viz:jgc:chanrobles.com.ph

169

"Section 1(3). The right of the people to be secure in their persons, houses,
papers, and effects against unreasonable searches and seizures shall not be
violated, and no warrants shall issue but upon probable cause, to be determined
by the judge after examination under oath or affirmation of the complainant and
the witnesses he may produce, and particularly describing the place to be
searched, and the persons or things to be seized."cralaw virtua1aw library
Initially, the Constitutional Conventions committee on bill of rights proposed an
exact copy of the Fourth Amendment of the United States Constitution in their
draft,
viz:jgc:chanrobles.com.ph
"The right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be violated, and
no warrants shall issue but upon probable cause, supported by oath or
affirmation, and particularly describing the place to be searched, and the
persons
or
things
to
be
seized."
223
During the debates of the Convention, however, Delegate Vicente Francisco
proposed to amend the provision by inserting the phrase "to be determined by
the judge after examination under oath or affirmation of the complainant and
the witness he may produce" in lieu of "supported by oath or affirmation." His
proposal was based on Section 98 of General Order No. 58 or the Code of
Criminal Procedure then in force in the Philippines which provided that:" (t)he
judge or justice of the peace must, before issuing the warrant, examine on oath
or affirmation the complainant and any witness he may produce and take their
deposition in writing." 224 The amendment was accepted as it was a remedy
against the evils pointed out in the debates, brought about by the issuance of
warrants, many of which were in blank, upon mere affidavits on facts which
were
generally
found
afterwards
to
be
false.
225
When the Convention patterned the 1935 Constitutions guarantee against
unreasonable searches and seizures after the Fourth Amendment, the
Convention made specific reference to the Boyd case and traced the history of
the guarantee against unreasonable search and seizure back to the issuance of
general warrants and writs of assistance in England and the American colonies.
226 From the Boyd case, it may be derived that our own Constitutional
guarantee against unreasonable searches and seizures, which is an almost exact
copy of the Fourth Amendment, seeks to protect rights to security of person and
property as well as privacy in ones home and possessions.

170

Almost 40 years after the ratification of the 1935 Constitution, the provision on
the right against unreasonable searches and seizures was amended in Article
IV, Section 3 of the 1973 Constitution, viz:jgc:chanrobles.com.ph
"Sec. 3. The right of the people to be secure in their persons, houses, papers, and
effects against unreasonable searches and seizures of whatever nature and for
any purpose shall not be violated, and no search warrant or warrant of arrest
shall issue except upon probable cause to be determined by the judge, or such
other responsible officer as may be authorized by law, after examination under
oath or affirmation of the complainant and the witnesses he may produce, and
particularly describing the place to be searched, and the persons or things to be
seized."cralaw
virtua1aw
library
Noticeably, there were three modifications of the 1935 counterpart, namely: (1)
the clause was made applicable to searches and seizures "of whatever nature
and for any purpose" ; (2) the provision on warrants was expressly made
applicable to both "search warrant or warrant of arrest" ; and (3) probable cause
was made determinable not only by a judge, but also by "such other officer as
may be authorized by law." 227 But the concept and purpose of the right
remained
substantially
the
same.
As a corollary to the above provision on searches and seizures, the exclusionary
rule made its maiden appearance in Article IV, Section 4(2) of the Constitution,
viz:jgc:chanrobles.com.ph
"Section 4 (1). The privacy of communication and correspondence shall be
inviolable except upon lawful order of the court, or when public safety and order
require
otherwise.
(2) Any evidence obtained in violation of this or the preceding section shall be
inadmissible for any purpose in any proceeding."cralaw virtua1aw library
That evidence obtained in violation of the guarantee against unreasonable
searches and seizures is inadmissible was an adoption of the Courts ruling in
the
1967
case
of
Stonehill
v.
Diokno.
228
Sections 3 and 4 of the 1973 Constitution were adopted in toto in Article I,
Section 1 of the Freedom Constitution which took effect on March 25, 1986,

171

viz:jgc:chanrobles.com.ph
"Section 1. The provision of . . . ARTICLE IV (Bill of Rights) . . . of the 1973
Constitution, as amended, remain in force and effect and are hereby adopted in
toto
as
part
of
this
Provisional
Constitution."
229
Thereafter, pursuant to the Freedom Constitution, the 1987 Constitution was
drafted and ratified on February 2, 1987. Sections 2 and 3, Article III thereof
provide:jgc:chanrobles.com.ph
"Section 2. The right of the people to be secure in their persons, houses, papers,
and effects against unreasonable searches and seizures of whatever nature and
for any purpose shall be inviolable, and no search warrant or warrant of arrest
shall issue except upon probable cause to be determined personally by a judge
after examination under oath or affirmation of the complainant and the
witnesses he may produce, and particularly describing the place to be searched
and the persons or things to be seized.
x

Section 3 (1). The privacy of communication and correspondence shall be

inviolable except upon lawful order of the court, or when public safety and order
requires
otherwise
as
prescribed
by
law.
(2) Any evidence obtained in violation of this or the preceding section shall be
inadmissible for any purpose in any proceeding."cralaw virtua1aw library
The significant modification of Section 2 is that probable cause may be
determined only by a judge and no longer by "such other responsible officer as
may be authorized by law." This was a reversion to the counterpart provision in
the
1935
Constitution.
Parenthetically, in the international arena, the UDHR provides a similar
protection
in
Article
12,
viz:jgc:chanrobles.com.ph
"No one shall be subjected to arbitrary interference with his privacy, family,
home or correspondence, nor to attacks upon his honour and reputation.
Everyone has the right to the protection of the law against such interference or

172

attacks."cralaw
The ICCPR similarly
viz:jgc:chanrobles.com.ph

virtua1aw
protects

this

human

library
right

in

Article

17,

"1. No one shall be subjected to arbitrary or unlawful interference with his

privacy, family, home or correspondence, nor to attacks upon his honour and
reputation.
2. Everyone has the right to protection of the law against such interference or
attacks."cralaw
virtua1aw
library
In the United States, jurisprudence on the Fourth Amendment continued to
grow from the Boyd case. The United States Supreme Court has held that the
focal concern of the Fourth Amendment is to protect the individual from
arbitrary and oppressive official conduct. 230 It also protects the privacies of life
and the sanctity of the person from such interference. 231 In later cases, there
has been a shift in focus: it has been held that the principal purpose of the
guarantee is the protection of privacy rather than property," [f]or the Fourth
Amendment protects people, not places." 232 The tests that have more recently
been formulated in interpreting the provision focus on privacy rather than
intrusion of property such as the "constitutionally protected area" test in the
1961 case of Silverman v. United States 233 and the "reasonable expectation of
privacy" standard in Katz v. United States 234 which held that the privacy of
communication in a public telephone booth comes under the protection of the
Fourth
Amendment.chanrob1es
virtua1
1aw
1ibrary
Despite the shift in focus of the Fourth Amendment in American jurisdiction,
the essence of this right in Philippine jurisdiction has consistently been
understood as respect for ones personality, property, home, and privacy. Chief
Justice
Fernando
explains,
viz:jgc:chanrobles.com.ph
"It is deference to ones personality that lies at the core of this right, but it could
be also looked upon as a recognition of a constitutionally protected area,
primarily ones home, but not necessarily excluding an office or a hotel room. (Cf.
Hoffa v. United States, 385 US 293 [1966]) What is sought to be regarded is a
mans prerogative to choose who is allowed entry in his residence, for him to
retreat from the cares and pressures, even at times the oppressiveness of the
outside world, where he can truly be himself with his family. In that haven of

173

refuge, his individuality can assert itself not only in the choice of who shall be
welcome but likewise in the objects he wants around him. There the state,
however powerful, does not as such have access except under the circumstances
noted, for in the traditional formulation, his house, however humble, is his
castle. (Cf. Cooley: Near in importance to exemption from any arbitrary control
of the person is that maxim of the common law which secures to the citizen
immunity in his home against the prying eyes of the government, and protection
in person, property, and papers against even the process of the law, except in
specified cases. The maxim that every mans house is his castle, is made part of
our constitutional law in the clauses prohibiting unreasonable searches and
seizures, and has always been looked upon as of high value to the citizen. (1
Constitutional Limitations, pp. 610611 [1927]) In the language of Justice
Laurel, this provision is intended to bulwark individual security, home, and
legitimate possessions (Rodriguez v. Vollamiel, 65 Phil. 230, 239 (1937). Laurel
con.) Thus is protected his personal privacy and dignity against unwarranted
intrusion by the State. There is to be no invasion on the part of the government
and its employees of the sanctity of a mans home and the privacies of life. (Boyd
v. United States, 116 US 616, 630 [1886])" 235 (Emphasis supplied)
As early as 1904, the Court has affirmed the sanctity and privacy of the home in
United
States
v.
Arceo,
236
viz:jgc:chanrobles.com.ph
"The inviolability of the home is one of the most fundamental of all the
individual rights declared and recognized in the political codes of civilized
nations. No one can enter into the home of another without the consent of its
owners
or
occupants.
The privacy of the home the place of abode, the place where man with his
family may dwell in peace and enjoy the companionship of his wife and children
unmolested by anyone, even the king, except in rare cases has always been
regarded by civilized nations as one of the most sacred personal rights to whom
men are entitled. Both the common and the civil law guaranteed to man the
right to absolute protection to the privacy of his home. The king was powerful;
he was clothed with majesty; his will was the law, but, with few exceptions, the
humblest citizen or subject might shut the door of his humble cottage in the face
of the monarch and defend his intrusion into that privacy which was regarded
as
sacred
as
any
of
the
kingly
prerogatives.
.
.
A mans house is his castle, has become a maxim among the civilized peoples of

174

the earth. His protection therein has become a matter of constitutional

protection in England, America, and Spain, as well as in other countries.
x

So jealously did the people of England regard this right to enjoy, unmolested,
the privacy of their houses, that they might even take the life of the unlawful
intruder, if it be nighttime. This was also the sentiment of the Romans
expressed by Tully: Quid enim sanctius quid omni religione munitius, quam
domus
uniuscu
jusque
civium."
237
(Emphasis
supplied)
The Court reiterated this in the 1911 case of United States v. De Los Reyes, Et
Al., 238 to demonstrate the uncompromising regard placed upon the privacy of
the home that cannot be violated by unreasonable searches and seizures,
viz:jgc:chanrobles.com.ph
"In the case of McClurg v. Brenton (123 Iowa, 368), the court, speaking of the
right of an officer to enter a private house to search for the stolen goods,
said:chanrob1es
virtual
1aw
library
The right of the citizen to occupy and enjoy his home, however mean or humble,
free from arbitrary invasion and search, has for centuries been protected with
the most solicitous care by every court in the English-speaking world, from
Magna Charta down to the present, and is embodied in every bill of rights
defining the limits of governmental power in our own republic.
The mere fact that a man is an officer, whether of high or low degree, gives him
no more right than is possessed by the ordinary private citizen to break in upon
the privacy of a home and subject its occupants to the indignity of a search for
the evidence of crime, without a legal warrant procured for that purpose. No
amount of incriminating evidence, whatever its source, will supply the place of
such warrant. At the closed door of the home, be it palace or hovel, even bloodhounds must wait till the law, by authoritative process, bids it open . . ." 239
(Emphasis
supplied)
It is not only respect for personality, privacy and property, but to the very
dignity of the human being that lies at the heart of the provision.

175

There is also public interest involved in the guarantee against unreasonable

search and seizure. The respect that government accords its people helps it
elicit allegiance and loyalty of its citizens. Chief Justice Fernando writes about
the right against unreasonable search and seizure as well as to privacy of
communication
in
this
wise:jgc:chanrobles.com.ph
"These rights, on their face, impart meaning and vitality to that liberty which in
a constitutional regime is a mans birth-right. There is the recognition of the
area of privacy normally beyond the power of government to intrude. Full and
unimpaired respect to that extent is accorded his personality. He is free from the
prying eyes of public officials. He is let alone, a prerogative even more valued
when the agencies of publicity manifest less and less diffidence in impertinent
and unwelcome inquiry into ones person, his home, wherever he may be minded
to stay, his possessions, his communication. Moreover, in addition to the
individual interest, there is a public interest that is likewise served by these
constitutional safeguards. They make it easier for state authority to enlist the
loyalty and allegiance of its citizens, with the unimpaired deference to ones
dignity and standing as a human being, not only to his person as such but to
things that may be considered necessary appurtenances to a decent existence. A
government that thus recognizes such limits and is careful not to trespass on
what is the domain subject to his sole control is likely to prove more stable and
enduring."
240
(Emphasis
supplied)
In the 1967 case of Stonehill, Et. Al. v. Diokno, 241 this Court affirmed the
sanctity of the home and the privacy of communication and correspondence,
viz:jgc:chanrobles.com.ph
"To uphold the validity of the warrants in question would be to wipe out
completely one of the most fundamental rights guaranteed in our Constitution,
for it would place the sanctity of the domicile and the privacy of communication
and correspondence at the mercy of the whims, caprice or passion of peace
officers. This is precisely the evil sought to be remedied by the constitutional
provision above quoted to outlaw the so-called general warrants. It is not
difficult to imagine what would happen, in times of keen political strife, when
the party in power feels that the minority is likely to wrest it, even though by
legal
means."
242
(Emphasis
supplied)
Even after the 1961 Silverman and 1967 Katz cases in the United States, which
emphasized protection of privacy rather than property as the principal purpose

176

of the Fourth Amendment, this Court declared the avowed purposes of the
guarantee in the 1981 case of People v. CFI of Rizal, Branch IX, Quezon City,
243
viz:jgc:chanrobles.com.ph
"The purpose of the constitutional guarantee against unreasonable searches and
seizures is to prevent violations of private security in person and property and
unlawful invasion of the security of the home by officers of the law acting under
legislative or judicial sanction and to give remedy against such usurpation when
attempted. (Adams v. New York, 192 U.S. 858; Alvero v. Dizon, 76 Phil. 637
[1946]). The right to privacy is an essential condition to the dignity and
happiness and to the peace and security of every individual, whether it be of
home or of persons and correspondence. (Taada and Carreon, Political Law of
the Philippines, Vol. 2, 139 [1962]). The constitutional inviolability of this great
fundamental right against unreasonable searches and seizures must be deemed
absolute as nothing is closer to a mans soul than the serenity of his privacy and
the assurance of his personal security. Any interference allowable can only be for
the
best
causes
and
reasons."
244
(Emphasis
supplied)
Even if it were conceded that privacy and not property is the focus of the
guarantee as shown by the growing American jurisprudence, this Court has
upheld the right to privacy and its central place in a limited government such as
the
Philippines,
viz:jgc:chanrobles.com.ph
"The right to privacy as such is accorded recognition independently of its
identification with liberty; in itself, it is fully deserving of constitutional
protection. The language of Prof. Emerson is particularly apt: The concept of
limited government has always included the idea that governmental powers stop
short of certain intrusions into the personal life of the citizen. This is indeed one
of the basic distinctions between absolute and limited government. Ultimate
and pervasive control of the individual, in all aspects of his life, is the hallmark
of the absolute state. In contrast, a system of limited government safeguards a
private sector, which belongs to the individual, firmly distinguishing it from the
public sector, which the state can control. Protection of this private sector
protection, in other words, of the dignity and integrity of the individual has
become increasingly important as modern society has developed. All the forces of
technological age industrialization, urbanization, and organization operate
to narrow the area of privacy and facilitate intrusion to it. In modern times, the
capacity to maintain and support this enclave of private life marks the
difference between a democratic and a totalitarian society." 245 (Emphasis

177

supplied)
The right to privacy discussed in Justice Douglas dissent in the Hayden case is
illuminating.
We
quote
it
at
length,
viz:jgc:chanrobles.com.ph
"Judge Learned Hand stated a part of the philosophy of the Fourth Amendment
in United States v. Poller, 43 F2d 911, 914: [I]t is only fair to observe that the
real evil aimed at by the Fourth Amendment is the search itself, that invasion of
a mans privacy which consists in rummaging about among his effects to secure
evidence against him. If the search is permitted at all, perhaps it does not make
so much difference what is taken away, since the officers will ordinarily not be
interested in what does not incriminate, and there can be no sound policy in
protecting what does.
x

The constitutional philosophy is, I think, clear. The personal effects and
possessions of the individual (all contraband and the like excepted) are
sacrosanct from prying eyes, from the long arm of the law, from any rummaging
by police. Privacy involves the choice of the individual to disclose or to reveal
what he believes, what he thinks, what he possesses. The article may be
nondescript work of art, a manuscript of a book, a personal account book, a
diary, invoices, personal clothing, jewelry, or whatnot. Those who wrote the Bill
of Rights believed that every individual needs both to communicate with others
and to keep his affairs to himself. That dual aspect of privacy means that the
individual should have the freedom to select for himself the time and
circumstances when he will share his secrets with others and decide the extent
of the sharing (footnote omitted). This is his prerogative not the States. The
Framers, who were as knowledgeable as we, knew what police surveillance
meant and how the practice of rummaging through ones personal effects could
destroy freedom.
x

I would . . . leave with the individual the choice of opening his private effects
(apart from contraband and the like) to the police and keeping their contents as
secret and their integrity inviolate. The existence of that choice is the very
essence
of
the
right
of
privacy."
246
(Emphasis
supplied)

178

Thus, in Griswold v. Connecticut, 247 the United States Supreme Court upheld
the right to marital privacy and ruled that lawmakers could not make the use of
contraceptives a crime and sanction the search of marital bedrooms,
viz:jgc:chanrobles.com.ph
"Would we allow the police to search the sacred precincts of marital bedrooms
for telltale signs of the use of contraceptives? The very idea is repulsive to the
notions
of
privacy
surrounding
the
marriage
relationship.
We deal with a right of privacy older than the Bill of Rights older than our
political parties, older than our school system. Marriage is a coming together for
better or for worse, hopefully enduring, and intimate to the degree of being
sacred. It is an association that promotes a way of life, not causes; a harmony in
living, not political faiths; a bilateral loyalty, not commercial or social projects.
Yet it is an association for as noble a purpose as any involved in our prior
decisions."
248
(Emphasis
supplied)
In relation to the right against unreasonable searches and seizures, private
respondent Dimaano likewise claims a right to the exclusionary rule, i.e., that
evidence obtained from an unreasonable search cannot be used in evidence
against her. To determine whether this right is available to her, we again
examine the history, concept, and purpose of this right in both the American
and
Philippine
jurisdictions.chanrob1es
virtua1
1aw
1ibrary
The exclusionary rule has had an uneven history in both the United States and
Philippine jurisdictions. In common law, the illegal seizure of evidence did not
affect its admissibility because of the view that physical evidence was the same
however it was obtained. As distinguished from a coerced confession, the illegal
seizure did not impeach the authenticity or reliability of physical evidence. This
view prevailed in American jurisdiction until the Supreme Court ruled in the
1914 Weeks case that evidence obtained in violation of the Fourth Amendment
was inadmissible in federal court as it amounted to theft by agents of the
government. This came to be known as the exclusionary rule and was believed
to deter federal law enforcers from violating the Fourth Amendment. In 1949,
the Fourth Amendment was incorporated into the Due Process Clause under the
Fourteenth Amendment 249 and made applicable in the state system in Wolf v.
Colorado, 250 but the Court rejected to incorporate the exclusionary rule. At the
time Wolf was decided, 17 states followed the Weeks doctrine while 30 states did

179

not.

251

The

Court

reasoned:jgc:chanrobles.com.ph

"We cannot brush aside the experience of States which deem the incidence of
such conduct by the police too slight to call for a deterrent remedy not by way of
disciplinary measures but by overriding the relevant rules of evidence. There
are, moreover, reasons for excluding evidence unreasonably obtained by the
federal police which are less compelling in the case of police under State or local
authority. The public opinion of a community can far more effectively be exerted
against oppressive conduct on the part of police directly responsible to the
community itself than can local opinion, sporadically aroused, be brought to
bear upon remote authority pervasively exerted throughout the country." 252
This difference in treatment on the federal and state level of evidence obtained
illegally resulted in the "silver platter" doctrine. State law enforcement agents
would provide federal officers with illegally seized evidence, which was then
admissible in federal court because, as with illegally seized evidence by private
citizens, federal officers were not implicated in obtaining it. Thus, it was said
that state law enforcers served up the evidence in federal cases in "silver
platter." This pernicious practice was stopped with the United States Supreme
Courts 1960 decision, Elkins v. United States. 253 Twelve years after Wolf, the
United States Supreme Court reversed Wolf and incorporated the exclusionary
rule in the state system in Mapp v. Ohio 254 because other means of controlling
illegal police behavior had failed. 255 We quote at length the Mapp ruling as it
had a significant influence in the exclusionary rule in Philippine jurisdiction,
viz:jgc:chanrobles.com.ph
". . . Today we once again examine the Wolfs constitutional documentation of
the right of privacy free from unreasonable state intrusion, and after its dozen
years on our books, are led by it to close the only courtroom door remaining open
to evidence secured by official lawlessness in flagrant abuse of that basic right,
reserved to all persons as a specific guarantee against that very same unlawful
conduct.
.
.
Since the Fourth Amendments right to privacy has been declared enforceable
against the States through the Due Process Clause of the Fourteenth, it is
enforceable against them by the same sanction of exclusion as it is used against
the Federal Government. Were it otherwise, then just as without the Weeks rule
the assurance against unreasonable federal searches and seizures would be a
form of words, valueless and undeserving of mention in a perpetual charter of

180

inestimable human liberties, so too, without that rule the freedom from state
invasions of privacy would be so ephemeral and so neatly severed from its
conceptual nexus with the freedom from all brutish means of coercing evidence
as not to permit this Courts high regard as freedom implicit in the concept of
ordered liberty. At that time that the Court held in Wolf that the amendment
was applicable to the States trough the Due Process Clause, the cases of this
court as we have seen, had steadfastly held that as to federal officers the Fourth
Amendment included the exclusion of the evidence seized in violation of its
provisions. Even Wolf stoutly adhered to that proposition. The right to privacy,
when conceded operatively enforceable against the States, was not susceptible of
destruction by avulsion of the sanction upon which its protection and enjoyment
had always been deemed dependent under the Boyd, Weeks and Silverthorne
Cases. Therefore, in extending the substantive protections of due process to all
constitutionally unreasonable searches state or federal it was logically and
constitutionally necessary that the exclusion doctrine an essential part of the
right to privacy be also insisted upon as an essential ingredient of the right
newly recognized by the Wolf case. In short, the admission of the new
constitutional right by Wolf could not consistently tolerate denial of its most
important constitutional privilege, namely, the exclusion of the evidence which
an accused had been forced to give by reason of the unlawful seizure. To hold
otherwise is to grant the right but in reality to withhold its privilege and
enjoyment. Only last year the Court itself recognized that the purpose of the
exclusionary rule is to deter to compel respect for the constitutional guaranty
in the only available way by removing the incentive to disregard it. (Elkins v.
United States, 364 US at 217)
x

The ignoble shortcut to conviction left open to the State tends to destroy the
entire system of constitutional restraints on which the liberties of the people
rest. (Cf. Marcus v. Search Warrant of Property, 6 L ed 2d post, p. 1127) Having
once recognized that the right to privacy embodied in the Fourth Amendment is
enforceable against the States, and that the right to be secure against rude
invasions of privacy by state officers is, therefore constitutional in origin, we can
no longer permit that right to remain an empty promise. Because it is
enforceable in the same manner and to like effect as other basic rights secured
by its Due Process Clause, we can no longer permit it to be revocable at the
whim of any police officer who, in the name of law enforcement itself, chooses to

181

suspend its enjoyment. Our decision, founded on reason and truth, gives to the
individual no more than that which the Constitution guarantees him, to the
police officer no less than that to which honest law enforcement is entitled, and
to the courts, that judicial integrity so necessary in the true administration of
justice."
256
(Emphasis
supplied)
It is said that the exclusionary rule has three purposes. The major and most
often invoked is the deterrence of unreasonable searches and seizures as stated
in Elkins v. United States 257 and quoted in Mapp:" (t)he rule is calculated to
prevent, not repair. Its purpose is to deter to compel respect for constitutional
guaranty in the only effective available way by removing the incentive to
disregard it." 258 Second is the "imperative of judicial integrity", i.e., that the
courts do not become "accomplices in the willful disobedience of a Constitution
they are sworn to uphold . . . by permitting unhindered governmental use of the
fruits of such invasions. . . A ruling admitting evidence in a criminal trial . . .
has the necessary effect of legitimizing the conduct which produced the
evidence, while an application of the exclusionary rule withholds the
constitutional imprimatur." 259 Third is the more recent purpose pronounced by
some members of the United States Supreme Court which is that "of assuring
the people all potential victims of unlawful government conduct that the
government would not profit from its lawless behavior, thus minimizing the risk
of seriously undermining popular trust in government." 260 The focus of
concern here is not the police but the public. This third purpose is implicit in the
Mapp declaration that "no man is to be convicted on unconstitutional evidence."
261
In Philippine jurisdiction, the Court has likewise swung from one position to the
other on the exclusionary rule. In the 1920 case of Uy Kheytin v. Villareal, 262
the Court citing Boyd, ruled that "seizure or compulsory production of a mans
private papers to be used against him" was tantamount to self-incrimination
and was therefore "unreasonable search and seizure." This was a proscription
against "fishing expeditions." The Court restrained the prosecution from using
the books as evidence. Five years later or in 1925, we held in People v. Carlos
263 that although the Boyd and Silverthorne Lumber Co. and Silverthorne v.
United States 264 cases are authorities for the doctrine that documents
obtained by illegal searches were inadmissible in evidence in criminal cases,
Weeks modified this doctrine by adding that the illegality of the search and
seizure should have initially been directly litigated and established by a pretrial motion for the return of the things seized. As this condition was not met,

182

the illegality of the seizure was not deemed an obstacle to admissibility. The
subject evidence was nevertheless excluded, however, for being hearsay.
Thereafter, in 1932, the Court did not uphold the defense of self-incrimination
when "fraudulent books, invoices and records" that had been seized were
presented in evidence in People v. Rubio. 265 The Court gave three reasons: (1)
the public has an interest in the proper regulation of the partys books; (2) the
books belonged to a corporation of which the party was merely a manager; and
(3) the warrants were not issued to fish for evidence but to seize "instruments
used in the violation of [internal revenue] laws" and "to further prevent the
perpetration
of
fraud."
266
The exclusionary rule applied in Uy Kheytin was reaffirmed seventeen years
thence in the 1937 case of Alvarez v. Court of First Instance 267 decided under
the 1935 Constitution. The Court ruled that the seizure of books and documents
for the purpose of using them as evidence in a criminal case against the
possessor thereof is unconstitutional because it makes the warrant
unreasonable and the presentation of evidence offensive of the provision against
self-incrimination. At the close of the Second World War, however, the Court, in
Alvero v. Dizon, 268 again admitted in evidence documents seized by United
States military officers without a search warrant in a prosecution by the
Philippine Government for treason. The Court reasoned that this was in accord
with the Laws and Customs of War and that the seizure was incidental to an
arrest and thus legal. The issue of self-incrimination was not addressed at all
and instead, the Court pronounced that even if the seizure had been illegal, the
evidence would nevertheless be admissible following jurisprudence in the United
States that evidence illegally obtained by state officers or private persons may
be
used
by
federal
officers.
269
Then came Moncado v. Peoples Court 270 in 1948. The Court made a
categorical declaration that "it is established doctrine in the Philippines that
the admissibility of evidence is not affected by the illegality of the means used
for obtaining it." It condemned the "pernicious influence" of Boyd and totally
rejected the doctrine in Weeks as "subversive of evidentiary rules in Philippine
jurisdiction." The ponencia declared that the prosecution of those guilty of
violating the right against unreasonable searches and seizures was adequate
protection for the people. Thus it became settled jurisprudence that illegally
obtained evidence was admissible if found to be relevant to the case 271 until
the 1967 landmark decision of Stonehill v. Diokno 272 which overturned the
Moncado rule. The Court held in Stonehill, viz:jgc:chanrobles.com.ph

183

". . . Upon mature deliberation, however, we are unanimously of the opinion that
the position taken in the Moncado case must be abandoned. Said position was in
line with the American common law rule, that the criminal should not be
allowed to go free merely because the constable has blundered, (People v.
Defore, 140 NE 585) upon the theory that the constitutional prohibition against
unreasonable searches and seizures is protected by means other than the
exclusion of evidence unlawfully obtained (Wolf v. Colorado, 93 L.Ed. 1782), such
as common-law action for damages against the searching officer, against the
party who procured the issuance of the search warrant and against those
assisting in the execution of an illegal search, their criminal punishment,
resistance, without liability to an unlawful seizure, and such other legal
remedies
as
may
be
provided
by
other
laws.
However, most common law jurisdictions have already given up this approach
and eventually adopted the exclusionary rule, realizing that this is the only
practical means of enforcing the constitutional injunction against unreasonable
searches
and
seizures."
273
The Court then quoted the portion of the Mapp case which we have quoted at
length above in affirming that the exclusionary rule is part and parcel of the
right against unreasonable searches and seizures. The Stonehill ruling was
incorporated in Article 4, Section 4(2) of the 1973 Constitution and carried over
to
Article
3,
Section
3(2)
of
the
1987
Constitution.
V.

Application

Culled
Are
and
which

from
the

to

History
Rights

the

of
and

Private

of

Natural

Philosophy:chanrob1es

Against

Exclusion

the

Unreasonable

Illegally

Respondent

Seized

virtual

Search
Evidence

Dimaano

Law
1aw

library

and

Seizure

Natural

Rights

Can

Invoke?

In answering this question, Justice Goldbergs concurring opinion in the

Griswold case serves as a helpful guidepost to determine whether a right is so
fundamental that the people cannot be deprived of it without undermining the
tenets
of
civil
society
and
government,
viz:jgc:chanrobles.com.ph

184

"In determining which rights are fundamental, judges are not left at large to
decide cases in light of their personal and private notions. Rather, they must
look to the traditions and [collective] conscience of our people to determine
whether a principle is so rooted [there] . . . as to be ranked as fundamental.
(Snyder v. Com. of Massachusetts, 291 U.S. 97, 105 (1934)). The inquiry is
whether a right involved is of such character that it cannot be denied without
violating those fundamental principles of liberty and justice which lie at the
base of all our civil and political institutions. . . . Powell v. State of Alabama,
287
U.S.
45,
67
(1932)"
274
(Emphasis
supplied)
In deciding a case, invoking natural law as solely a matter of the judges
personal preference, invites criticism that the decision is a performative
contradiction and thus self-defeating. Critics would point out that while the
decision invokes natural law that abhors arbitrariness, that same decision is
tainted with what it abhors as it stands on the judges subjective and arbitrary
choice of a school of legal thought. Just as one judge will fight tooth and nail to
defend the natural law philosophy, another judge will match his fervor in
defending a contrary philosophy he espouses. However, invoking natural law
because the history, tradition and moral fiber of a people indubitably show
adherence to it is an altogether different story, for ultimately, in our political
and legal tradition, the people are the source of all government authority, and
the courts are their creation. While it may be argued that the choice of a school
of legal thought is a matter of opinion, history is a fact against which one cannot
argue and it would not be turning somersault with history to say that the
American Declaration of Independence and the consequent adoption of a
constitution stood on a modern natural law theory foundation as this is
"universally taken for granted by writers on government." 275 It is also wellsettled in Philippine history that the American system of government and
constitution were adopted by our 1935 Constitutional Convention as a model of
our own republican system of government and constitution. In the words of
Claro M. Recto, President of the Convention, the 1935 Constitution is "frankly
an imitation of the American Constitution." Undeniably therefore, modern
natural law theory, specifically Lockes natural rights theory, was used by the
Founding Fathers of the American constitutional democracy and later also used
by the Filipinos. 276 Although the 1935 Constitution was revised in 1973,
minimal modifications were introduced in the 1973 Constitution which was in
force prior to the EDSA Revolution. Therefore, it could confidently be asserted
that the spirit and letter of the 1935 Constitution, at least insofar as the system

185

of government and the Bill of Rights were concerned, still prevailed at the time
of the EDSA Revolution. Even the 1987 Constitution ratified less than a year
from the EDSA Revolution retained the basic provisions of the 1935 and 1973
Constitutions on the system of government and the Bill of Rights, with the
significant difference that it emphasized respect for and protection of human
rights and stressed that sovereignty resided in the people and all government
authority
emanates
from
them.
Two facts are easily discernible from our constitutional history. First, the
Filipinos are a freedom-loving race with high regard for their fundamental and
natural rights. No amount of subjugation or suppression, by rulers with the
same color as the Filipinos skin or otherwise, could obliterate their longing and
aspiration to enjoy these rights. Without the peoples consent to submit their
natural rights to the ruler, 277 these rights cannot forever be quelled, for like
water seeking its own course and level, they will find their place in the life of the
individual and of the nation; natural right, as part of nature, will take its own
course. Thus, the Filipinos fought for and demanded these rights from the
Spanish and American colonizers, and in fairly recent history, from an
authoritarian ruler. They wrote these rights in stone in every constitution they
crafted starting from the 1899 Malolos Constitution. Second, although Filipinos
have given democracy its own Filipino face, it is undeniable that our political
and legal institutions are American in origin. The Filipinos adopted the
republican form of government that the Americans introduced and the Bill of
Rights they extended to our islands, and were the keystones that kept the body
politic intact. These institutions sat well with the Filipinos who had long
yearned for participation in government and were jealous of their fundamental
and natural rights. Undergirding these institutions was the modern natural law
theory which stressed natural rights in free, independent and equal individuals
who banded together to form government for the protection of their natural
rights to life, liberty and property. The sole purpose of government is to
promote, protect and preserve these rights. And when government not only
defaults in its duty but itself violates the very rights it was established to
protect, it forfeits its authority to demand obedience of the governed and could
be replaced with one to which the people consent. The Filipino people exercised
this highest of rights in the EDSA Revolution of February 1986.chanrob1es
virtua1
1aw
1ibrary
I will not endeavor to identify every natural right that the Filipinos fought for in
EDSA. The case at bar merely calls us to determine whether two particular

186

rights the rights against unreasonable search and seizure and to the
exclusion of evidence obtained therefrom have the force and effect of natural
rights which private respondent Dimaano can invoke against the government.
I shall first deal with the right against unreasonable search and seizure. On
February 25, 1986, the new president, Corazon Aquino, issued Proclamation No.
1 where she declared that she and the vice president were taking power in the
name and by the will of the Filipino people and pledged "to do justice to the
numerous victims of human rights violations." 278 It is implicit from this pledge
that the new government recognized and respected human rights. Thus, at the
time of the search on March 3, 1986, it may be asserted that the government
had the duty, by its own pledge, to uphold human rights. This presidential
issuance was what came closest to a positive law guaranteeing human rights
without enumerating them. Nevertheless, even in the absence of a positive law
granting private respondent Dimaano the right against unreasonable search
and seizure at the time her house was raided, I respectfully submit that she can
invoke her natural right against unreasonable search and seizure.
The right against unreasonable search and seizure is a core right implicit in the
natural right to life, liberty and property. Our well-settled jurisprudence that
the right against unreasonable search and seizure protects the peoples rights to
security of person and property, to the sanctity of the home, and to privacy is a
recognition of this proposition. The life to which each person has a right is not a
life lived in fear that his person and property may be unreasonably violated by a
powerful ruler. Rather, it is a life lived with the assurance that the government
he established and consented to, will protect the security of his person and
property. The ideal of security in life and property dates back even earlier than
the modern philosophers and the American and French revolutions, but
pervades the whole history of man. It touches every aspect of mans existence,
thus
it
has
been
described,
viz:jgc:chanrobles.com.ph
"The right to personal security emanates in a persons legal and uninterrupted
enjoyment of his life, his limbs, his body, his health, and his reputation. It
includes the right to exist, and the right to enjoyment of life while existing, and
it is invaded not only by a deprivation of life but also of those things which are
necessary to the enjoyment of life according to the nature, temperament, and
lawful
desires
of
the
individual."
279
The individual in the state of nature surrendered a portion of his

187

undifferentiated liberty and agreed to the establishment of a government to

guarantee his natural rights, including the right to security of person and
property, which he could not guarantee by himself. Similarly, the natural right
to liberty includes the right of a person to decide whether to express himself and
communicate to the public or to keep his affairs to himself and enjoy his privacy.
Justice Douglas reminds us of the indispensability of privacy in the Hayden
case, thus: "Those who wrote the Bill of Rights believed that every individual
needs both to communicate with others and to keep his affairs to himself." A
natural right to liberty indubitably includes the freedom to determine when and
how an individual will share the private part of his being and the extent of his
sharing. And when he chooses to express himself, the natural right to liberty
demands that he should be given the liberty to be truly himself with his family
in his home, his haven of refuge where he can "retreat from the cares and
pressures, even at times the oppressiveness of the outside world," to borrow the
memorable words of Chief Justice Fernando. For truly, the drapes of a mans
castle are but an extension of the drapes on his body that cover the essentials.
In unreasonable searches and seizures, the prying eyes and the invasive hands
of the government prevent the individual from enjoying his freedom to keep to
himself and to act undisturbed within his zone of privacy. Finally, indispensable
to the natural right to property is the right to ones possessions. Property is a
product of ones toil and might be considered an expression and extension of
oneself. It is what an individual deems necessary to the enjoyment of his life.
With unreasonable searches and seizures, ones property stands in danger of
being rummaged through and taken away. In sum, as pointed out in De Los
Reyes, persons are subjected to indignity by an unreasonable search and seizure
because at bottom, it is a violation of a persons natural right to life, liberty and
property. It is this natural right which sets man apart from other beings, which
gives
him
the
dignity
of
a
human
being.
It is understandable why Filipinos demanded that every organic law in their
history guarantee the protection of their natural right against unreasonable
search and seizure and why the UDHR treated this right as a human right. It is
a right inherent in the right to life, liberty and property; it is a right
"appertain(ing) to man in right of his existence", a right that "belongs to man by
virtue of his nature and depends upon his personality", and not merely a civil
right created and protected by positive law. The right to protect oneself against
unreasonable search and seizure, being a right indispensable to the right to life,
liberty and property, may be derived as a conclusion from what Aquinas
identifies as mans natural inclination to self-preservation and self

188

actualization. Man preserves himself by leading a secure life enjoying his liberty
and actualizes himself as a rational and social being in choosing to freely
express himself and associate with others as well as by keeping to and knowing
himself. For after all, a reflective grasp of what it means to be human and how
one should go about performing the functions proper to his human nature can
only be done by the rational person himself in the confines of his private space.
Only he himself in his own quiet time can examine his life, knowing that an
unexamined
life
is
not
worth
living.
Every organic law the Filipinos established (the Malolos, 1935, 1973, and 1987
Constitutions) and embraced (the Instruction, Philippine Bill of 1902, and Jones
Law) in the last century included a provision guaranteeing the peoples right
against unreasonable search and seizure because the people ranked this right as
fundamental and natural. Indeed, so fundamental and natural is this right that
the demand for it spurred the American revolution against the English Crown.
It resulted in the Declaration of Independence and the subsequent
establishment of the American Constitution about 200 years ago in 1789. A
revolution is staged only for the most fundamental of reasons such as the
violation of fundamental and natural rights for prudence dictates that
"governments long established should not be changed for light and transient
reasons."
280
Considering that the right against unreasonable search and seizure is a natural
right, the government cannot claim that private respondent Dimaano is not
entitled to the right for the reason alone that there was no constitution granting
the right at the time the search was conducted. This right of the private
respondent precedes the constitution, and does not depend on positive law. It is
part of natural rights. A violation of this right along with other rights stirred
Filipinos to revolutions. It is the restoration of the Filipinos natural rights that
justified the establishment of the Aquino government and the writing of the
1987 Constitution. I submit that even in the absence of a constitution, private
respondent Dimaano had a fundamental and natural right against
unreasonable
search
and
seizure
under
natural
law.
We now come to the right to the exclusion of evidence illegally seized. From
Stonehill quoting Mapp, we can distill that the exclusionary rule in both the
Philippine and American jurisdictions is a freedom "implicit in the concept of
ordered liberty" for it is a necessary part of the guarantee against unreasonable
searches and seizures, which in turn is "an essential part of the right to privacy"

189

that the Constitution protects. If the exclusionary rule were not adopted, it
would be to "grant the right (against unreasonable search and seizure) but in
reality to withhold its privilege and enjoyment." Thus, the inevitable conclusion
is that the exclusionary rule is likewise a natural right that private respondent
Dimaano can invoke even in the absence of a constitution guaranteeing such
right.
To be sure, the status of the exclusionary right as a natural right is admittedly
not as indisputable as the right against unreasonable searches and seizures
which is firmly supported by philosophy and deeply entrenched in history. On a
lower tier, arguments have been raised on the constitutional status of the
exclusionary right. Some assert, on the basis of United States v. Calandra, 281
that it is only a "judicially-created remedy designed to safeguard Fourth
Amendment rights generally through its deterrent effect, rather than a personal
constitutional right of the party aggrieved." 282 Along the same line, others
contend that the right against unreasonable search and seizure merely requires
some effective remedy, and thus Congress may abolish or limit the exclusionary
right if it could replace it with other remedies of a comparable or greater
deterrent effect. But these contentions have merit only if it is conceded that the
exclusionary rule is merely an optional remedy for the purpose of deterrence.
283
Those who defend the constitutional status of the exclusionary right, however,
assert that there is nothing in Weeks that says that it is a remedy 284 or a
manner of deterring police officers. 285 In Mapp, while the court discredited
other means of enforcing the Fourth Amendment cited in Wolf, the thrust of the
opinion was broader. Justice Clarke opined that "no man is to be convicted on
unconstitutional evidence" 286 and held that "the exclusionary rule is an
essential part of both the Fourth and Fourteenth Amendments." 287
Formulated in the Aquinian concept of human law, the debate is whether the
exclusionary right is the first kind of human law which may be derived as a
conclusion from the natural law precept that one should do no harm to another
man, in the same way that conclusions are derived from scientific principles, in
which case the exclusionary right has force from natural law and does not
depend on positive law for its creation; or if it is the second kind of human law
which is derived by way of determination of natural law, in the same way that a
carpenter determines the shape of a house, such that it is merely a judicially or
legislatively chosen remedy or deterrent, in which case the right only has force

190

insofar

as

positive

law

creates

and

protects

it.

In holding that the right against unreasonable search and seizure is a

fundamental and natural right, we were aided by philosophy and history. In the
case of the exclusionary right, philosophy can also come to the exclusionary
rights aid, along the lines of Justice Clarkes proposition in the Mapp case that
no man shall be convicted on unconstitutional evidence. Similarly, the
government shall not be allowed to convict a man on evidence obtained in
violation of a natural right (against unreasonable search and seizure) for the
protection of which, government and the law were established. To rule otherwise
would be to sanction the brazen violation of natural rights and allow law
enforcers to act with more temerity than a thief in the night for they can disturb
ones privacy, trespass ones abode, and steal ones property with impunity. This,
in
turn,
would
erode
the
peoples
trust
in
government.
Unlike in the right against unreasonable search and seizure, however, history
cannot come to the aid of the exclusionary right. Compared to the right against
unreasonable search and seizure, the exclusionary right is still in its infancy
stage in Philippine jurisdiction, having been etched only in the 1973
Constitution after the 1967 Stonehill ruling which finally laid to rest the debate
on whether illegally seized evidence should be excluded. In the United States,
the exclusionary rights genesis dates back only to the 1885 Boyd case on the
federal level, and to the 1961 Mapp case in the state level. The long period of
non-recognition of the exclusionary right has not caused an upheaval, much less
a revolution, in both the Philippine and American jurisdictions. Likewise, the
UDHR, a response to violation of human rights in a particular period in world
history, did not include the exclusionary right. It cannot confidently be asserted
therefore that history can attest to its natural right status. Without the
strength of history and with philosophy alone left as a leg to stand on, the
exclusionary rights status as a fundamental and natural right stands on
unstable ground. Thus, the conclusion that it can be invoked even in the absence
of
a
constitution
also
rests
on
shifting
sands.
Be that as it may, the exclusionary right is available to private respondent
Dimaano as she invoked it when it was already guaranteed by the Freedom
Constitution and the 1987 Constitution. The AFP Board issued its resolution on
Ramas unexplained wealth only on July 27, 1987. The PCGGs petition for
forfeiture against Ramas was filed on August 1, 1987 and was later amended to
name the Republic of the Philippines as plaintiff and to add private respondent

191

Dimaano as co-defendant. Following the petitioners stance upheld by the

majority that the exclusionary right is a creation of the Constitution, then it
could be invoked as a constitutional right on or after the Freedom Constitution
took effect on March 25, 1986 and later, when the 1987 Constitution took effect
on
February
2,
1987.chanrob1es
virtua1
1aw
1ibrary
VI.

Epilogue

The Filipino people have fought revolutions, by the power of the pen, the
strength of the sword and the might of prayer to claim and reclaim their
fundamental rights. They set these rights in stone in every constitution they
established. I cannot believe and so hold that the Filipinos during that one
month from February 25 to March 24, 1986 were stripped naked of all their
rights, including their natural rights as human beings. With the extraordinary
circumstances before, during and after the EDSA Revolution, the Filipinos
simply found themselves without a constitution, but certainly not without
fundamental rights. In that brief one month, they retrieved their liberties and
enjoyed them in their rawest essence, having just been freed from the claws of
an authoritarian regime. They walked through history with bare feet, unshod by
a constitution, but with an armor of rights guaranteed by the philosophy and
history of their constitutional tradition. Those natural rights inhere in man and
need
not
be
granted
by
a
piece
of
paper.
To reiterate, the right against unreasonable search and seizure which private
respondent Dimaano invokes is among the sacred rights fought for by the
Filipinos in the 1986 EDSA Revolution. It will be a profanity to deny her the
right after the fight had been won. It does not matter whether she believed in
the righteousness of the EDSA Revolution or she contributed to its cause as an
alleged ally of the dictator, for as a human being, she has a natural right to life,
liberty and property which she can exercise regardless of existing or nonexisting laws and irrespective of the will or lack of will of governments.
I wish to stress that I am not making the duty of the Court unbearably difficult
by taking it to task every time a right is claimed before it to determine whether
it is a natural right which the government cannot diminish or defeat by any
kind of positive law or action. The Court need not always twice measure a law or
action, first utilizing the constitution and second using natural law as a
yardstick. However, the 1986 EDSA Revolution was extraordinary, one that
borders the miraculous. It was the first revolution of its kind in Philippine

192

history, and perhaps even in the history of this planet. Fittingly, this separate
opinion is the first of its kind in this Court, where history and philosophy are
invoked not as aids in the interpretation of a positive law, but to recognize a
right not written in a papyrus but inheres in man as man. The unnaturalness of
the 1986 EDSA revolution cannot dilute nor defeat the natural rights of man,
rights that antedate constitutions, rights that have been the beacon lights of the
law since the Greek civilization. Without respect for natural rights, man cannot
rise
to
the
full
height
of
his
humanity.
I

concur

in

Ynares-Santiago, J.,

the

result.
concur.

VITUG, J.:

The unprecedented 1986 People Power Revolution at EDSA remains to be such

an enigma, still confounding political scientists on its origins and repercussions,
to so many. Now, before the Court is yet another puzzle: Whether or not the Bill
of Rights may be considered operative during the interregnum from 26
February 1986 (the day Corazon C. Aquino took her oath to the Presidency) to
24 March 1986 (immediately before the adoption of the Freedom Constitution).
Indeed, there are differing views on the other related question of whether or not
the 1973 Constitution has meanwhile been rendered, ipso facto, without force
and effect by the successful revolution."cralaw virtua1aw library
The government under President Corazon C. Aquino was described as
revolutionary for having been so installed through a "direct exercise of the power
of the Filipino people" in disregard of the "provisions of the 1973 Constitution."
1 It was said to be revolutionary in the sense that it came into existence in
defiance of existing legal processes, and President Aquino assumed the reigns of
government through the extra-legal action taken by the people. 2
A revolution is defined by Western political scholars as being a "rapid
fundamental and violent domestic change in the dominant values and myths of
a society in its political institutions, social structure, leadership, and
government activity and policies." 3 A revolution results in a complete
overthrow of established government and of the existing legal order. 4 Notable
examples would be the French, Chinese, Mexican, Russian, and Cuban

193

revolutions. Revolution, it is pointed out, is to be distinguished from rebellion,

insurrection, revolt, coup, and war of independence. 5 A rebellion or
insurrection may change policies, leadership, and the political institution, but
not the social structure and prevailing values. A coup dtat in itself changes
leadership and perhaps policies but not necessarily more extensive and
intensive than that. A war of independence is a struggle of one community
against the rule by an alien community and does not have to involve changes in
the
social
structure
of
either
community.
6
The 1986 People Power Revolution is a uniquely Philippine experience. Much of
its effects may not be compared in good substance with those of the "great
revolutions." While a revolution may be accomplished by peaceful means, 7 it is
essential, however, that there be an accompanying basic transformation in
political and social structures. The "revolution" at Edsa has not resulted in such
radical change though it concededly could have. The offices of the executive
branch have been retained, the judiciary has been allowed to function, the
military, as well as the constitutional commissions and local governments, have
remained intact. 8 It is observed by some analysts that there has only been a
change of personalities in the government but not a change of structures 9 that
can imply the consequent abrogation of the fundamental law. The efficacy of a
legal order must be distinguished from the question of its existence 10 for it may
be that the efficacy of a legal order comes to a low point which may,
nevertheless,
continue
to
be
operative
and
functioning.
11
The proclamations issued, as well as the Provisional Constitutions enacted by
the Aquino administration shortly after being installed, have revealed the new
governments recognition of and its intention to preserve the provisions of the
1973 Constitution on individual rights. Proclamation No. 1, 12 dated 25
February 1986, has maintained that "sovereignty resides in the people and all
government authority emanates from them." It has expressed that the
government would be "dedicated to uphold justice, morality and decency in
government, freedom and democracy." In lifting the suspension of the privilege
of the writ of habeas corpus throughout the Philippines, for, among other
reasons, the "Filipino people have established a new government bound to the
ideals of genuine liberty, and freedom for all," Proclamation No. 2 of March
1986,
has
declared:jgc:chanrobles.com.ph
"Now, therefore, I, Corazon C. Aquino, President of the Philippines, by virtue of
the powers vested in me by the Constitution and the Filipino people, do

194

hereby . . . lift the suspension of the privilege of the writ of habeas

corpus
.
.
.
."cralaw
virtua1aw
library
What Constitution could the proclamation have been referring to? It could not
have been the Provisional Constitution, adopted only later on 25 March 1986
under Proclamation No. 3 which, in fact, contains and attests to the new
governments commitment to the "restoration of democracy" and "protection of
basic rights," announcing that the "the provisions of Article I (National
Territory), Article III (Citizenship), Article IV (Bill of Rights), Article V (Duties
and Obligations of Citizens), and Article VI (Suffrage) of the 1973 Constitution,
as amended, (shall) remain in force and effect," (Emphasis supplied), 13
superseding only the articles on "The Batasang Pambansa", "The Prime
Minister and the Cabinet", "Amendments", and "Transitory Provisions." 14
Verily, Proclamation No. 3 is an acknowledgment by the Aquino government of
the continued existence, subject to its exclusions, of the 1973 Charter.
The new government has done wisely. The Philippines, a member of the
community of nations and among the original members of the United Nations
(UN) organized in 1941, has had the clear obligation to observe human rights
and the duty to promote universal respect for and observance of all fundamental
freedoms for all individuals without distinction as to race, sex, language or
religion. 15 In 1948, the United Nations General Assembly has adopted the
Universal Declaration of Human Rights proclaiming that basic rights and
freedoms are inherent and inalienable to every member of the human family.
One of these rights is the right against arbitrary deprivation of ones property.
16 Even when considered by other jurisdictions as being a mere statement of
aspirations and not of law, the Philippine Supreme Court has, as early as 1951,
acknowledged the binding force of the Universal Declaration in Mejoff v.
Director of Prisons, 17 Borovsky v. Commissioner of Immigration, 18 Chirskoff
v. Commissioner of Immigration, 19 and Andreu v. Commissioner of
Immigration. 20 In subsequent cases, 21 the Supreme Court has adverted to the
enumeration in the Universal Declaration in upholding various fundamental
rights and freedoms. The Court, in invoking the articles in the Universal
Declaration has relied both on the Constitutional provision stating that the
Philippines adopts the generally accepted principles of international law as
being part of the law of the nation 22 and, in no little degree, on the tenet that
the acceptance of these generally recognized principles of international law are
deemed part of the law of the land not only as a condition for, but as a
consequence of, the countrys admission in the society of nations. 23 The

195

Universal Declaration "constitutes an authoritative interpretation of the

Charter of the highest order, and has over the years become a part of customary
international law." 24 It "spells out in considerable detail the meaning of the
phrase human rights and fundamental freedoms, which Member States have
agreed to observe. The Universal Declaration has joined the Charter . . . as part
of the constitutional structure of the world community. The Declaration, as an
authoritative listing of human rights, has become a basic component of
international customary law, indeed binding all states and not only members of
the
United
Nations."25cralaw:red
It might then be asked whether an individual is a proper subject of
international law and whether he can invoke a provision of international law
against his own nation state. International law, also often referred to as the law
of nations, has in recent times been defined as that law which is applicable to
states in their mutual relations and to individuals in their relations with states.
26 The individual as the end of the community of nations is a member of the
community, and a member has status and is not a mere object. 27 It is no longer
correct to state that the State could only be the medium between international
law and its own nationals, for the law has often fractured this link as and when
it fails in its purpose. Thus, in the areas of black and white slavery, human
rights and protection of minorities, and a score of other concerns over
individuals, international law has seen such individuals, being members of the
international community, as capable of invoking rights and duties even against
the
nation
State.
28
At bottom, the Bill of Rights (under the 1973 Constitution), during the
interregnum from 26 February to 24 March 1986 remained in force and effect
not only because it was so recognized by the 1986 People Power but also because
the new government was bound by international law to respect the Universal
Declaration
of
Human
Rights.
There would appear to be nothing irregular in the issuance of the warrant in
question; it was its implementation that failed to accord with that warrant. The
warrant issued by the Municipal Trial Court of Batangas, Branch 1, only listed
the search and seizure of five (5) baby armalite rifles M-16 and five (5) boxes of
ammunition. The raiding team, however, seized the following items: one (1) baby
armalite rifle with two (2) magazines; forty (40) rounds of 5.56 ammunition; one
(1) .45 caliber pistol; communications equipment; cash in the amount of
P2,870,000.00 and US$50,000.00; as well as jewelry and land titles. The

196

Philippine Commission on Good Government (PCGG) filed a petition for

forfeiture of all the items seized under Republic Act No. 1397, otherwise also
known as an "Act for the Forfeiture of Unlawfully Acquired Property," against
private respondents Elizabeth Dimaano and Josephus Q. Ramas. The
Sandiganbayan issued a resolution on 18 November 1991 dismissing the
complaint, directing the return of the illegally seized items, and ordering the
remand of the case to the Ombudsman for appropriate action. The resolution
should
be
affirmed.chanrob1es
virtua1
1aw
1ibrary
WHEREFORE,
Davide,

concur
Jr., C.J.,

in

the

results.
concur.

TINGA, J.:

In a little less than a fortnight, I find myself privileged with my involvement in

the final deliberation of quite a few significant public interest cases. Among
them
is
the
present
case.
With the well-studied and exhaustive main opinion of Justice Antonio Carpio,
the scholarly treatise that the separate opinion of Justice Reynato Puno is, and
the equally incisive separate opinion of Justice Jose Vitug, any other opinion
may appear unnecessary. But the questions posed are so challenging and the
implications so far-reaching that I feel it is my duty to offer my modest views.
To begin with, there is unanimity as regards the nullity of the questioned
seizure of items which are not listed in the search warrant. The disagreement
relates to the juridical basis for voiding the confiscation. At the core of the
controversy is the question of whether the Bill of Rights was in force and effect
during the time gap between the establishment of the revolutionary government
as a result of the People Power Revolution in February 1986, and the
promulgation of the Provisional or Freedom Constitution by then President
Corazon
C.
Aquino
a
month
thereafter.
According to the majority, during the interregnum the Filipino people continued
to enjoy, under the auspices of the Universal Declaration of Human Rights
("Universal Declaration") and the International Covenant on Civil and Political
Rights ("International Covenant"), practically the same rights under the Bill of

197

Rights of the 1973 Constitution although the said Constitution itself was no
longer operative then. Justice Puno posits that during that period, the right
against unreasonable search and seizure still held sway, this time under the
aegis of natural law. Justice Vitug is of the view that the Bill of Rights under
the 1973 Constitution remained in force and effect manly because the
revolutionary government was bound to respect the Universal Declaration.
Interestingly, the case
thought.chanrob1es

has

necessitated
virtua1

debate on
1aw

jurisprudential
1ibrary

Apparently, the majority adheres to the legal positivist theory championed by

nineteenth century philosopher John Austin, who defined the essence of law as
a distinct branch of morality or justice. 1 He and the English positivists believed
that the essence of law is the simple idea of an order backed by threats. 2
On the other side is Justice Punos espousal of the natural law doctrine, which,
despite its numerous forms and varied disguises, is still relevant in modern
times as an important tool in political and legal thinking. Essentially, it has
afforded a potent justification of the existing legal order and the social and
economic system it embodies, for by regarding positive law as based on a higher
law ordained by divine or natural reason, the actual legal system thus acquires
stability or even sanctity it would not otherwise possess. 3
While the two philosophies are poles apart in content, yet they are somehow
cognate. 4 To illustrate, the Bill of Rights in the Constitution has its origins
from natural law. Likewise a natural law document is the Universal
Declaration.
5
A professor of Jurisprudence notes the inexorable trend to codify fundamental
rights:chanrob1es
virtual
1aw
library
The emphasis on individual liberty and freedom has been a distinctive feature of
western political and legal philosophy since the seventeenth century, associated
particularly with the doctrine of natural rights. In the twentieth century this
doctrine has resulted in the widespread acceptance of the existence of
fundamental rights built into the constitutional framework as a bill of rights, as
well as receiving recognition internationally by means of Covenants of Human
Rights
agreed
upon
between
states.

198

As such bill of rights whether proffered as a statement of the inalienable and

immutable rights of man vested in him by natural law, or as no more than a set
of social and economic rights which the prevailing consensus and the climate of
the times acknowledge to be necessary and fundamental in a just society will
inevitably take the form of a catalogue of those rights, which experience has
taught modern western society to be crucial for the adequate protection of the
individual and the integrity of his personality. We may therefore expect, in one
form or another, the inclusion of a variety of freedoms, such as freedom of
association, of religion, of free speech and of a free press. 6
In the case at bar, in the ultimate analysis both jurisprudential doctrines have
found application in the denouement of the case. The Bill of Rights in the
Constitution, the Universal Declaration and the International Covenant, great
documents of liberty and human rights all, are founded on natural law.
Going back to the specific question as to the juridical basis for the nullification
of the questioned confiscation, I respectfully maintain that it is no less than the
Freedom Constitution since it made the Bill of Rights in the 1973 Constitution
operable
from
the
incipiency
of
the
Aquino
government.
In the well-publicised so-called "OIC cases," 7 this Court issued an en banc
resolution 8 dismissing the petitions and upholding the validity of the removal
of the petitioners who were all elected and whose terms of office under the 1973
Constitution were to expire on June 30, 1986, on the basis of Article III, Section
2 of the Freedom Constitution, which reads:chanrob1es virtual 1aw library
SEC. 2. All elective and appointive officials and employees under the 1973
Constitution shall continue in office until otherwise provided by proclamation or
executive order or upon the designation or appointment and qualification of
their successors, if such appointment is made within a period of one year, from
February
25,
1986.
This Court perforce extended retroactive effect to the above-quoted provision as
the petitions except one 9 were filed before the adoption of the Freedom
Constitution on March 25, 1986. That being the case, with greater reason
should the Bill of Rights in the 1973 Constitution be accorded retroactive
application
pursuant
to
the
Freedom
Constitution.
But the more precise statement is that it was the unmistakable thrust of the

199

Freedom Constitution to bestow uninterrupted operability to the Bill of Rights

in the 1973 Constitution. For one thing, the title 10 itself of Proclamation No. 3
which ordained the Freedom Constitution, as well as one of the vital premises or
whereas clauses 11 thereof, adverts to the "protection of the basic rights" of the
people. For another, the Freedom Constitution in Article 1, Section 1 mandates
that the Bill of Rights and other provisions of the Freedom Constitution
specified therein "remain in force and effect and are hereby adopted in toto as
part
of
this
Provisional
Constitution."cralaw
virtua1aw
library
Of course, even if it is supposed that the Freedom Constitution had no
retroactive effect or it did not extend the effectivity of the Bill of Rights in the
1973 Constitution, still there would be no void in the municipal or domestic law
at the time as far as the observance of fundamental rights is concerned. The Bill
of Rights in the 1973 Constitution would still be in force, independently of the
Freedom Constitution, or at least the provisions thereof proscribing
unreasonable search and seizure 12 and excluding evidence in violation of the
proscription.
13
Markedly departing from the typical, the revolutionary government installed by
President Aquino was a benign government. It had chosen to observe prevailing
constitutional restraints. An eloquent proof was the fact that through the
defunct Philippine Constabulary, it applied for a search warrant and conducted
the questioned search and seizure only after obtaining the warrant.
Furthermore, President Aquino definitely pledged in her oath of office to uphold
and defend the Constitution, which undoubtedly was the 1973 Constitution,
including
the
Bill
of
Rights
thereof.
True, the Aquino government reorganized the government, including the
judiciary and the local officialdom. It did so to protect and stabilize the
revolutionary government and not for the purpose of trampling upon the
fundamental
rights
of
the
people.
While arguably the due process clause was not observed in the case of the
sequestration orders issued by the Presidential Commission on Good
Government, the fact remains that by and large, the Aquino Government elected
and managed to uphold and honor the Bill of Rights.chanrob1es virtua1 1aw
1ibrary
In light of the foregoing, I concur in the result.

200

201

G.R. No. 162230

April 28, 2010

ISABELITA
C.
VINUYA,
VICTORIA
C.
DELA
PEA,
HERMINIHILDA
MANIMBO,
LEONOR
H.
SUMAWANG,
CANDELARIA L. SOLIMAN, MARIA L. QUILANTANG, MARIA L.
MAGISA, NATALIA M. ALONZO, LOURDES M. NAVARO,
FRANCISCA M. ATENCIO, ERLINDA MANALASTAS, TARCILA
M. SAMPANG, ESTER M. PALACIO, MAXIMA R. DELA CRUZ,
BELEN A. SAGUM, FELICIDAD TURLA, FLORENCIA M. DELA
PEA, EUGENIA M. LALU, JULIANA G. MAGAT, CECILIA
SANGUYO, ANA ALONZO, RUFINA P. MALLARI, ROSARIO M.
ALARCON, RUFINA C. GULAPA, ZOILA B. MANALUS,
CORAZON C. CALMA, MARTA A. GULAPA, TEODORA M.
HERNANDEZ, FERMIN B. DELA PEA, MARIA DELA PAZ B.
CULALA, ESPERANZA MANAPOL, JUANITA M. BRIONES,
VERGINIA M. GUEVARRA, MAXIMA ANGULO, EMILIA SANGIL,
TEOFILA R. PUNZALAN, JANUARIA G. GARCIA, PERLA B.
BALINGIT, BELEN A. CULALA, PILAR Q. GALANG, ROSARIO C.
BUCO, GAUDENCIA C. DELA PEA, RUFINA Q. CATACUTAN,
FRANCIA A. BUCO, PASTORA C. GUEVARRA, VICTORIA M.
DELA CRUZ, PETRONILA O. DELA CRUZ, ZENAIDA P. DELA
CRUZ, CORAZON M. SUBA, EMERINCIANA A. VINUYA, LYDIA
A. SANCHEZ, ROSALINA M. BUCO, PATRICIA A. BERNARDO,
LUCILA H. PAYAWAL, MAGDALENA LIWAG, ESTER C.
BALINGIT, JOVITA A. DAVID, EMILIA C. MANGILIT, VERGINIA
M. BANGIT, GUILLERMA S. BALINGIT, TERECITA PANGILINAN,
MAMERTA C. PUNO, CRISENCIANA C. GULAPA, SEFERINA S.
TURLA, MAXIMA B. TURLA, LEONICIA G. GUEVARRA,
ROSALINA M. CULALA, CATALINA Y. MANIO, MAMERTA T.
SAGUM, CARIDAD L. TURLA, et al. In their capacity and as
members of the "Malaya Lolas Organization", Petitioners,
vs.
THE HONORABLE EXECUTIVE SECRETARY ALBERTO G.
ROMULO, THE HONORABLE SECRETARY OF FOREIGN
AFFAIRS
DELIA
DOMINGO-ALBERT,
THE
HONORABLE
SECRETARY OF JUSTICE MERCEDITAS N. GUTIERREZ, and
THE HONORABLE SOLICITOR GENERAL ALFREDO L.
BENIPAYO, Respondents.
DECISION
202

DEL CASTILLO, J.:

The Treaty of Peace with Japan, insofar as it barred future claims
such as those asserted by plaintiffs in these actions, exchanged
full compensation of plaintiffs for a future peace. History has
vindicated the wisdom of that bargain. And while full
compensation for plaintiffs' hardships, in the purely economic
sense, has been denied these former prisoners and countless
other survivors of the war, the immeasurable bounty of life for
themselves and their posterity in a free society and in a more
peaceful world services the debt.1
There is a broad range of vitally important areas that must be
regularly decided by the Executive Department without either
challenge or interference by the Judiciary. One such area involves
the delicate arena of foreign relations. It would be strange indeed
if the courts and the executive spoke with different voices in the
realm of foreign policy. Precisely because of the nature of the
questions presented, and the lapse of more than 60 years since
the conduct complained of, we make no attempt to lay down
general guidelines covering other situations not involved here, and
confine the opinion only to the very questions necessary to reach a
decision on this matter.
Factual Antecedents
This is an original Petition for Certiorari under Rule 65 of the Rules
of Court with an application for the issuance of a writ of
preliminary mandatory injunction against the Office of the
Executive Secretary, the Secretary of the Department of Foreign
Affairs (DFA), the Secretary of the Department of Justice (DOJ), and
the Office of the Solicitor General (OSG).
Petitioners are all members of the MALAYA LOLAS, a non-stock,
non-profit organization registered with the Securities and
Exchange Commission, established for the purpose of providing
aid to the victims of rape by Japanese military forces in the
Philippines during the Second World War.ten.lihpwal
Petitioners narrate that during the Second World War, the Japanese
army attacked villages and systematically raped the women as
203

part of the destruction of the village. Their communities were

bombed, houses were looted and burned, and civilians were
publicly tortured, mutilated, and slaughtered. Japanese soldiers
forcibly seized the women and held them in houses or cells, where
they were repeatedly raped, beaten, and abused by Japanese
soldiers. As a result of the actions of their Japanese tormentors,
the petitioners have spent their lives in misery, having endured
physical injuries, pain and disability, and mental and emotional
suffering.2
Petitioners claim that since 1998, they have approached the
Executive Department through the DOJ, DFA, and OSG, requesting
assistance in filing a claim against the Japanese officials and
military officers who ordered the establishment of the "comfort
women" stations in the Philippines. However, officials of the
Executive Department declined to assist the petitioners, and took
the position that the individual claims of the comfort women for
compensation had already been fully satisfied by Japans
compliance with the Peace Treaty between the Philippines and
Japan.
Issues
Hence, this petition where petitioners pray for this court to (a)
declare that respondents committed grave abuse of discretion
amounting to lack or excess of discretion in refusing to espouse
their claims for the crimes against humanity and war crimes
committed against them; and (b) compel the respondents to
espouse their claims for official apology and other forms of
reparations against Japan before the International Court of Justice
(ICJ) and other international tribunals.
Petitioners arguments
Petitioners argue that the general waiver of claims made by the
Philippine government in the Treaty of Peace with Japan is void.
They claim that the comfort women system established by Japan,
and the brutal rape and enslavement of petitioners constituted a
crime against humanity,3 sexual slavery,4 and torture.5 They allege
that the prohibition against these international crimes is jus
cogens norms from which no derogation is possible; as such, in
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waiving the claims of Filipina comfort women and failing to

espouse their complaints against Japan, the Philippine government
is in breach of its legal obligation not to afford impunity for crimes
against humanity. Finally, petitioners assert that the Philippine
governments acceptance of the "apologies" made by Japan as
well as funds from the Asian Womens Fund (AWF) were contrary to
international law.
Respondents Arguments
Respondents maintain that all claims of the Philippines and its
nationals relative to the war were dealt with in the San Francisco
Peace Treaty of 1951 and the bilateral Reparations Agreement of
1956.6
Article 14 of the Treaty of Peace7 provides:
Article 14. Claims and Property
a) It is recognized that Japan should pay reparations to the Allied
Powers for the damage and suffering caused by it during the war.
Nevertheless it is also recognized that the resources of Japan are
not presently sufficient, if it is to maintain a viable economy, to
make complete reparation for all such damage and suffering and
at the present time meet its other obligations.
b) Except as otherwise provided in the present Treaty, the Allied
Powers waive all reparations claims of the Allied Powers, other
claims of the Allied Powers and their nationals arising out of any
actions taken by Japan and its nationals in the course of the
prosecution of the war, and claims of the Allied Powers for direct
military costs of occupation.
In addition, respondents argue that the apologies made by
Japan8 have been satisfactory, and that Japan had addressed the
individual claims of the women through the atonement money
paid by the Asian Womens Fund.1avvphi1
Historical Background
The comfort women system was the tragic legacy of the Rape of
Nanking. In December 1937, Japanese military forces captured the
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city of Nanking in China and began a "barbaric campaign of terror"

known as the Rape of Nanking, which included the rapes and
murders of an estimated 20,000 to 80,000 Chinese women,
including
young
girls,
pregnant
mothers,
and
elderly
9
women. Document1zzF24331552898
In reaction to international outcry over the incident, the Japanese
government sought ways to end international condemnation 10 by
establishing the "comfort women" system. Under this system, the
military could simultaneously appease soldiers' sexual appetites
and
contain
soldiers'
activities
within
a
regulated
environment.11 Comfort stations would also prevent the spread of
venereal disease among soldiers and discourage soldiers from
raping inhabitants of occupied territories.12
Daily life as a comfort woman was "unmitigated misery." 13 The
military forced victims into barracks-style stations divided into tiny
cubicles where they were forced to live, sleep, and have sex with
as many 30 soldiers per day. 14The 30 minutes allotted for sexual
relations with each soldier were 30-minute increments of
unimaginable
horror
for
the
women.15 Disease
was
16
rampant. Military doctors regularly examined the women, but
these checks were carried out to prevent the spread of venereal
diseases; little notice was taken of the frequent cigarette burns,
bruises, bayonet stabs and even broken bones inflicted on the
women by soldiers. Document1zzF48331552898
Fewer than 30% of the women survived the war. 17 Their agony
continued in having to suffer with the residual physical,
psychological, and emotional scars from their former lives. Some
returned home and were ostracized by their families. Some
committed suicide. Others, out of shame, never returned home. 18
Efforts to Secure Reparation
The most prominent attempts to compel the Japanese government
to accept legal responsibility and pay compensatory damages for
the comfort women system were through a series of lawsuits,
discussion at the United Nations (UN), resolutions by various
nations, and the Womens International Criminal Tribunal. The

206

Japanese government, in turn, responded through a series of

public apologies and the creation of the AWF. 19
Lawsuits
In December 1991, Kim Hak-Sun and two other survivors filed the
first lawsuit in Japan by former comfort women against the
Japanese government. The Tokyo District Court however dismissed
their case.20 Other suits followed,21 but the Japanese government
has, thus far, successfully caused the dismissal of every case. 22
Undoubtedly frustrated by the failure of litigation before Japanese
courts, victims of the comfort women system brought their claims
before the United States (US). On September 18, 2000, 15 comfort
women filed a class action lawsuit in the US District Court for the
District of Columbia23 "seeking money damages for [allegedly]
having been subjected to sexual slavery and torture before and
during World War II," in violation of "both positive and customary
international law." The case was filed pursuant to the Alien Tort
Claims Act ("ATCA"),24 which allowed the plaintiffs to sue the
Japanese government in a US federal district court. 25 On October 4,
2001, the district court dismissed the lawsuit due to lack of
jurisdiction over Japan, stating that "[t]here is no question that this
court is not the appropriate forum in which plaintiffs may seek to
reopen x x x discussions nearly half a century later x x x [E]ven if
Japan did not enjoy sovereign immunity, plaintiffs' claims are nonjusticiable and must be dismissed."
The District of Columbia Court of Appeals affirmed the lower
court's dismissal of the case.26 On appeal, the US Supreme Court
granted the womens petition for writ of certiorari, vacated the
judgment of the District of Columbia Court of Appeals, and
remanded the case.27 On remand, the Court of Appeals affirmed its
prior decision, noting that "much as we may feel for the plight of
the appellants, the courts of the US simply are not authorized to
hear their case."28 The women again brought their case to the US
Supreme Court which denied their petition for writ of certiorari on
February 21, 2006.
Efforts at the United Nations

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In 1992, the Korean Council for the Women Drafted for Military
Sexual Slavery by Japan (KCWS), submitted a petition to the UN
Human Rights Commission (UNHRC), asking for assistance in
investigating crimes committed by Japan against Korean women
and seeking reparations for former comfort women. 29 The UNHRC
placed the issue on its agenda and appointed Radhika
Coomaraswamy as the issue's special investigator. In 1996,
Coomaraswamy issued a Report reaffirming Japan's responsibility
in forcing Korean women to act as sex slaves for the imperial
army, and made the following recommendations:
A. At the national level
137. The Government of Japan should:
(a) Acknowledge that the system of comfort stations set up by the
Japanese Imperial Army during the Second World War was a
violation of its obligations under international law and accept legal
responsibility for that violation;
(b) Pay compensation to individual victims of Japanese military
sexual slavery according to principles outlined by the Special
Rapporteur of the Sub-Commission on Prevention of Discrimination
and Protection of Minorities on the right to restitution,
compensation and rehabilitation for victims of grave violations of
human rights and fundamental freedoms. A special administrative
tribunal for this purpose should be set up with a limited time-frame
since many of the victims are of a very advanced age;
(c) Make a full disclosure of documents and materials in its
possession with regard to comfort stations and other related
activities of the Japanese Imperial Army during the Second World
War;
(d) Make a public apology in writing to individual women who have
come forward and can be substantiated as women victims of
Japanese military sexual slavery;
(e) Raise awareness of these issues by amending educational
curricula to reflect historical realities;

208

(f) Identify and punish, as far as possible, perpetrators involved in

the recruitment and institutionalization of comfort stations during
the Second World War.
Gay J. McDougal, the Special Rapporteur for the UN SubCommission on Prevention of Discrimination and Protection of
Minorities, also presented a report to the Sub-Committee on June
22, 1998 entitled Contemporary Forms of Slavery: Systematic
Rape, Sexual Slavery and Slavery-like Practices During Armed
Conflict. The report included an appendix entitled An Analysis of
the Legal Liability of the Government of Japan for 'Comfort Women
Stations' established during the Second World War, 30 which
contained the following findings:
68. The present report concludes that the Japanese Government
remains liable for grave violations of human rights and
humanitarian law, violations that amount in their totality to crimes
against humanity. The Japanese Governments arguments to the
contrary, including arguments that seek to attack the underlying
humanitarian law prohibition of enslavement and rape, remain as
unpersuasive today as they were when they were first raised
before the Nuremberg war crimes tribunal more than 50 years ago.
In addition, the Japanese Governments argument that Japan has
already settled all claims from the Second World War through
peace treaties and reparations agreements following the war
remains equally unpersuasive. This is due, in large part, to the
failure until very recently of the Japanese Government to admit the
extent of the Japanese militarys direct involvement in the
establishment and maintenance of these rape centres. The
Japanese Governments silence on this point during the period in
which peace and reparations agreements between Japan and other
Asian Governments were being negotiated following the end of the
war must, as a matter of law and justice, preclude Japan from
relying today on these peace treaties to extinguish liability in
these cases.
69. The failure to settle these claims more than half a century after
the cessation of hostilities is a testament to the degree to which
the lives of women continue to be undervalued. Sadly, this failure
to address crimes of a sexual nature committed on a massive
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scale during the Second World War has added to the level of
impunity with which similar crimes are committed today. The
Government of Japan has taken some steps to apologize and atone
for the rape and enslavement of over 200,000 women and girls
who were brutalized in "comfort stations" during the Second World
War. However, anything less than full and unqualified acceptance
by the Government of Japan of legal liability and the consequences
that flow from such liability is wholly inadequate. It must now fall
to the Government of Japan to take the necessary final steps to
provide adequate redress.
The UN, since then, has not taken any official action directing
Japan to provide the reparations sought.
Women's International War Crimes
Tribunal
The Women's International War Crimes Tribunal (WIWCT) was a
"people's tribunal" established by a number of Asian women and
human rights organizations, supported by an international
coalition of non-governmental organizations. 31 First proposed in
1998, the WIWCT convened in Tokyo in 2000 in order to
"adjudicate Japan's military sexual violence, in particular the
enslavement of comfort women, to bring those responsible for it to
justice, and to end the ongoing cycle of impunity for wartime
sexual violence against women."
After examining the evidence for more than a year, the "tribunal"
issued its verdict on December 4, 2001, finding the former
Emperor Hirohito and the State of Japan guilty of crimes against
humanity for the rape and sexual slavery of women. 32 It bears
stressing, however, that although the tribunal included
prosecutors, witnesses, and judges, its judgment was not legally
binding since the tribunal itself was organized by private citizens.
Action by Individual Governments
On January 31, 2007, US Representative Michael Honda of
California, along with six co-sponsor representatives, introduced
House Resolution 121 which called for Japanese action in light of
the ongoing struggle for closure by former comfort women. The
210

Resolution was formally passed on July 30, 2007,33 and made four
distinct demands:
[I]t is the sense of the House of Representatives that the
Government of Japan (1) should formally acknowledge, apologize,
and accept historical responsibility in a clear and unequivocal
manner for its Imperial Armed Forces' coercion of young women
into sexual slavery, known to the world as "comfort women",
during its colonial and wartime occupation of Asia and the Pacific
Islands from the 1930s through the duration of World War II; (2)
would help to resolve recurring questions about the sincerity and
status of prior statements if the Prime Minister of Japan were to
make such an apology as a public statement in his official
capacity; (3) should clearly and publicly refute any claims that the
sexual enslavement and trafficking of the "comfort women" for the
Japanese Imperial Army never occurred; and (4) should educate
current and future generations about this horrible crime while
following the recommendations of the international community
with respect to the "comfort women."34
In December 2007, the European Parliament, the governing body
of the European Union, drafted a resolution similar to House
Resolution 121.35 Entitled, "Justice for Comfort Women," the
resolution demanded: (1) a formal acknowledgment of
responsibility by the Japanese government; (2) a removal of the
legal obstacles preventing compensation; and (3) unabridged
education of the past. The resolution also stressed the urgency
with which Japan should act on these issues, stating: "the right of
individuals to claim reparations against the government should be
expressly recognized in national law, and cases for reparations for
the survivors of sexual slavery, as a crime under international law,
should be prioritized, taking into account the age of the survivors."
The Canadian and Dutch parliaments have each followed suit in
drafting resolutions against Japan. Canada's resolution demands
the Japanese government to issue a formal apology, to admit that
its Imperial Military coerced or forced hundreds of thousands of
women into sexual slavery, and to restore references in Japanese
textbooks to its war crimes.36 The Dutch parliament's resolution

211

calls for the Japanese government to uphold the 1993 declaration

of remorse made by Chief Cabinet Secretary Yohei Kono.
The Foreign Affairs Committee of the United Kingdoms Parliament
also produced a report in November, 2008 entitled, "Global
Security: Japan and Korea" which concluded that Japan should
acknowledge the pain caused by the issue of comfort women in
order to ensure cooperation between Japan and Korea.
Statements of Remorse made by representatives of the Japanese
government
Various officials of the Government of Japan have issued the
following public statements concerning the comfort system:
a) Statement by the Chief Cabinet Secretary Yohei Kono in 1993:
The Government of Japan has been conducting a study on the
issue of wartime "comfort women" since December 1991. I wish to
announce the findings as a result of that study.
As a result of the study which indicates that comfort stations were
operated in extensive areas for long periods, it is apparent that
there existed a great number of comfort women. Comfort stations
were operated in response to the request of the military
authorities of the day. The then Japanese military was, directly or
indirectly, involved in the establishment and management of the
comfort stations and the transfer of comfort women. The
recruitment of the comfort women was conducted mainly by
private recruiters who acted in response to the request of the
military. The Government study has revealed that in many cases
they were recruited against their own will, through coaxing
coercion, etc., and that, at times, administrative/military personnel
directly took part in the recruitments. They lived in misery at
comfort stations under a coercive atmosphere.
As to the origin of those comfort women who were transferred to
the war areas, excluding those from Japan, those from the Korean
Peninsula accounted for a large part. The Korean Peninsula was
under Japanese rule in those days, and their recruitment, transfer,
control, etc., were conducted generally against their will, through
coaxing, coercion, etc.
212

Undeniably, this was an act, with the involvement of the military

authorities of the day, that severely injured the honor and dignity
of many women. The Government of Japan would like to take this
opportunity once again to extend its sincere apologies and
remorse to all those, irrespective of place of origin, who suffered
immeasurable pain and incurable physical and psychological
wounds as comfort women.
It is incumbent upon us, the Government of Japan, to continue to
consider seriously, while listening to the views of learned circles,
how best we can express this sentiment.
We shall face squarely the historical facts as described above
instead of evading them, and take them to heart as lessons of
history. We hereby reiterated our firm determination never to
repeat the same mistake by forever engraving such issues in our
memories through the study and teaching of history.
As actions have been brought to court in Japan and interests have
been shown in this issue outside Japan, the Government of Japan
shall continue to pay full attention to this matter, including private
researched related thereto.
b) Prime Minister Tomiichi Murayamas Statement in 1994
On the issue of wartime "comfort women", which seriously stained
the honor and dignity of many women, I would like to take this
opportunity once again to express my profound and sincere
remorse and apologies"
c) Letters from the Prime Minister of Japan to Individual Comfort
Women
The issue of comfort women, with the involvement of the Japanese
military authorities at that time, was a grave affront to the honor
and dignity of a large number of women.
As Prime Minister of Japan, I thus extend anew my most sincere
apologies and remorse to all the women who endured
immeasurable and painful experiences and suffered incurable
physical and psychological wounds as comfort women.

213

I believe that our country, painfully aware of its moral

responsibilities, with feelings of apology and remorse, should face
up squarely to its past history and accurately convey it to future
generations.
d) The Diet (Japanese Parliament) passed resolutions in 1995 and
2005
Solemnly reflecting upon the many instances of colonial rule and
acts of aggression that occurred in modern world history, and
recognizing that Japan carried out such acts in the past and
inflicted suffering on the people of other countries, especially in
Asia, the Members of this House hereby express deep remorse.
(Resolution of the House of Representatives adopted on June 9,
1995)
e) Various Public Statements by Japanese Prime Minister Shinzo
Abe
I have talked about this matter in the Diet sessions last year, and
recently as well, and to the press. I have been consistent. I will
stand by the Kono Statement. This is our consistent position.
Further, we have been apologizing sincerely to those who suffered
immeasurable pain and incurable psychological wounds as comfort
women. Former Prime Ministers, including Prime Ministers Koizumi
and Hashimoto, have issued letters to the comfort women. I would
like to be clear that I carry the same feeling. This has not changed
even slightly. (Excerpt from Remarks by Prime Minister Abe at an
Interview by NHK, March 11, 2007).
I am apologizing here and now. I am apologizing as the Prime
Minister and it is as stated in the statement by the Chief Cabinet
Secretary Kono. (Excerpt from Remarks by Prime Minister Abe at
the Budget Committee, the House of Councilors, the Diet of Japan,
March 26, 2007).
I am deeply sympathetic to the former comfort women who
suffered hardships, and I have expressed my apologies for the
extremely agonizing circumstances into which they were placed.
(Excerpt from Telephone Conference by Prime Minister Abe to
President George W. Bush, April 3, 2007).
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I have to express sympathy from the bottom of my heart to those

people who were taken as wartime comfort women. As a human
being, I would like to express my sympathies, and also as prime
minister of Japan I need to apologize to them. My administration
has been saying all along that we continue to stand by the Kono
Statement. We feel responsible for having forced these women to
go through that hardship and pain as comfort women under the
circumstances at the time. (Excerpt from an interview article "A
Conversation with Shinzo Abe" by the Washington Post, April 22,
2007).
x x x both personally and as Prime Minister of Japan, my heart
goes out in sympathy to all those who suffered extreme hardships
as comfort women; and I expressed my apologies for the fact that
they were forced to endure such extreme and harsh conditions.
Human rights are violated in many parts of the world during the
20th Century; therefore we must work to make the 21st Century a
wonderful century in which no human rights are violated. And the
Government of Japan and I wish to make significant contributions
to that end. (Excerpt from Prime Minister Abe's remarks at the
Joint Press Availability after the summit meeting at Camp David
between Prime Minister Abe and President Bush, April 27, 2007).
The Asian Women's Fund
Established by the Japanese government in 1995, the AWF
represented the government's concrete attempt to address its
moral responsibility by offering monetary compensation to victims
of the comfort women system.37The purpose of the AWF was to
show atonement of the Japanese people through expressions of
apology and remorse to the former wartime comfort women, to
restore their honor, and to demonstrate Japans strong respect for
women.38
The AWF announced three programs for former comfort women
who applied for assistance: (1) an atonement fund paying 2
million (approximately $20,000) to each woman; (2) medical and
welfare support programs, paying 2.5-3 million ($25,000$30,000) for each woman; and (3) a letter of apology from the
Japanese Prime Minister to each woman. Funding for the program
came from the Japanese government and private donations from
215

the Japanese people. As of March 2006, the AWF provided 700

million (approximately $7 million) for these programs in South
Korea, Taiwan, and the Philippines; 380 million (approximately
$3.8 million) in Indonesia; and 242 million (approximately $2.4
million) in the Netherlands.
On January 15, 1997, the AWF and the Philippine government
signed a Memorandum of Understanding for medical and welfare
support programs for former comfort women. Over the next five
years, these were implemented by the Department of Social
Welfare and Development.
Our Ruling
Stripped down to its essentials, the issue in this case is whether
the Executive Department committed grave abuse of discretion in
not espousing petitioners claims for official apology and other
forms of reparations against Japan.
The petition lacks merit.
From a Domestic Law Perspective, the Executive Department has
the exclusive prerogative to determine whether to espouse
petitioners claims against Japan.
Baker v. Carr39 remains the starting point for analysis under the
political question doctrine. There the US Supreme Court explained
that:
x x x Prominent on the surface of any case held to involve a
political question is found a textually demonstrable constitutional
commitment of the issue to a coordinate political department or a
lack of judicially discoverable and manageable standards for
resolving it, or the impossibility of deciding without an initial policy
determination of a kind clearly for non-judicial discretion; or the
impossibility of a court's undertaking independent resolution
without expressing lack of the respect due coordinate branches of
government; or an unusual need for unquestioning adherence to a
political decision already made; or the potentiality of
embarrassment from multifarious pronouncements by various
departments on question.
216

In Taada v. Cuenco,40 we held that political questions refer "to

those questions which, under the Constitution, are to be decided
by the people in their sovereign capacity, or in regard to which full
discretionary authority has been delegated to the legislative or
executive branch of the government. It is concerned with issues
dependent upon the wisdom, not legality of a particular measure."
Certain types of cases often have been found to present political
questions.41 One such category involves questions of foreign
relations. It is well-established that "[t]he conduct of the foreign
relations of our government is committed by the Constitution to
the executive and legislative--'the political'--departments of the
government, and the propriety of what may be done in the
exercise of this political power is not subject to judicial inquiry or
decision."42 The US Supreme Court has further cautioned that
decisions relating to foreign policy
are delicate, complex, and involve large elements of prophecy.
They are and should be undertaken only by those directly
responsible to the people whose welfare they advance or imperil.
They are decisions of a kind for which the Judiciary has neither
aptitude, facilities nor responsibility. 43
To be sure, not all cases implicating foreign relations present
political questions, and courts certainly possess the authority to
construe
or
invalidate
treaties
and
executive
44
agreements. However, the question whether the Philippine
government should espouse claims of its nationals against a
foreign government is a foreign relations matter, the authority for
which is demonstrably committed by our Constitution not to the
courts but to the political branches. In this case, the Executive
Department has already decided that it is to the best interest of
the country to waive all claims of its nationals for reparations
against Japan in the Treaty of Peace of 1951. The wisdom of such
decision is not for the courts to question. Neither could petitioners
herein assail the said determination by the Executive
Department via the instant petition for certiorari.
In the seminal case of US v. Curtiss-Wright Export Corp., 45 the US
Supreme Court held that "[t]he President is the sole organ of the

217

nation in its external relations, and its sole representative with

foreign relations."
It is quite apparent that if, in the maintenance of our international
relations, embarrassment -- perhaps serious embarrassment -- is
to be avoided and success for our aims achieved, congressional
legislation which is to be made effective through negotiation and
inquiry within the international field must often accord to the
President a degree of discretion and freedom from statutory
restriction which would not be admissible where domestic affairs
alone involved. Moreover, he, not Congress, has the better
opportunity of knowing the conditions which prevail in foreign
countries, and especially is this true in time of war. He has his
confidential sources of information. He has his agents in the form
of diplomatic, consular and other officials. x x x
This ruling has been incorporated in our jurisprudence through
Bayan v. Executive Secretary46 and Pimentel v. Executive
Secretary;47 its overreaching principle was, perhaps, best
articulated in (now Chief) Justice Punos dissent in Secretary of
Justice v. Lantion:48
x x x The conduct of foreign relations is full of complexities and
consequences, sometimes with life and death significance to the
nation especially in times of war. It can only be entrusted to that
department of government which can act on the basis of the best
available information and can decide with decisiveness. x x x It is
also the President who possesses the most comprehensive and the
most confidential information about foreign countries for our
diplomatic and consular officials regularly brief him on meaningful
events all over the world. He has also unlimited access to ultrasensitive military intelligence data. In fine, the presidential role in
foreign affairs is dominant and the President is traditionally
accorded a wider degree of discretion in the conduct of foreign
affairs. The regularity, nay, validity of his actions are adjudged
under less stringent standards, lest their judicial repudiation lead
to breach of an international obligation, rupture of state relations,
forfeiture of confidence, national embarrassment and a plethora of
other problems with equally undesirable consequences.

218

The Executive Department has determined that taking up

petitioners cause would be inimical to our countrys foreign policy
interests, and could disrupt our relations with Japan, thereby
creating serious implications for stability in this region. For us to
overturn the Executive Departments determination would mean
an assessment of the foreign policy judgments by a coordinate
political branch to which authority to make that judgment has
been constitutionally committed.
In any event, it cannot reasonably be maintained that the
Philippine government was without authority to negotiate the
Treaty of Peace with Japan. And it is equally true that, since time
immemorial, when negotiating peace accords and settling
international claims:
x x x [g]overnments have dealt with x x x private claims as their
own, treating them as national assets, and as counters, `chips', in
international bargaining. Settlement agreements have lumped, or
linked, claims deriving from private debts with others that were
intergovernmental in origin, and concessions in regard to one
category of claims might be set off against concessions in the
other, or against larger political considerations unrelated to
debts.49
Indeed, except as an agreement might otherwise provide,
international settlements generally wipe out the underlying private
claims, thereby terminating any recourse under domestic law.
In Ware v. Hylton,50 a case brought by a British subject to recover a
debt confiscated by the Commonwealth of Virginia during the war,
Justice Chase wrote:
I apprehend that the treaty of peace abolishes the subject of the
war, and that after peace is concluded, neither the matter in
dispute, nor the conduct of either party, during the war, can ever
be revived, or brought into contest again. All violences, injuries, or
damages sustained by the government, or people of either, during
the war, are buried in oblivion; and all those things are implied by
the very treaty of peace; and therefore not necessary to be
expressed. Hence it follows, that the restitution of, or
compensation for, British property confiscated, or extinguished,
during the war, by any of the United States, could only be provided
219

for by the treaty of peace; and if there had been no provision,

respecting these subjects, in the treaty, they could not be agitated
after the treaty, by the British government, much less by her
subjects in courts of justice. (Emphasis supplied).
This practice of settling claims by means of a peace treaty is
certainly nothing new. For instance, in Dames & Moore v.
Regan,51 the US Supreme Court held:
Not infrequently in affairs between nations, outstanding claims by
nationals of one country against the government of another
country
are
"sources
of
friction"
between
the
two
sovereigns. United States v. Pink, 315 U.S. 203, 225, 62 S.Ct. 552,
563, 86 L.Ed. 796 (1942). To resolve these difficulties, nations have
often entered into agreements settling the claims of their
respective nationals. As one treatise writer puts it, international
agreements settling claims by nationals of one state against the
government of another "are established international practice
reflecting traditional international theory." L. Henkin, Foreign
Affairs and the Constitution 262 (1972). Consistent with that
principle, the United States has repeatedly exercised its sovereign
authority to settle the claims of its nationals against foreign
countries. x x x Under such agreements, the President has agreed
to renounce or extinguish claims of United States nationals against
foreign governments in return for lump-sum payments or the
establishment of arbitration procedures. To be sure, many of these
settlements were encouraged by the United States claimants
themselves, since a claimant's only hope of obtaining any
payment at all might lie in having his Government negotiate a
diplomatic settlement on his behalf. But it is also undisputed that
the "United States has sometimes disposed of the claims of its
citizens without their consent, or even without consultation with
them, usually without exclusive regard for their interests, as
distinguished from those of the nation as a whole." Henkin, supra,
at 262-263. Accord, Restatement (Second) of Foreign Relations
Law of the United States 213 (1965) (President "may waive or
settle a claim against a foreign state x x x [even] without the
consent of the [injured] national"). It is clear that the practice of
settling claims continues today.

220

Respondents explain that the Allied Powers concluded the Peace

Treaty with Japan not necessarily for the complete atonement of
the suffering caused by Japanese aggression during the war, not
for the payment of adequate reparations, but for security
purposes. The treaty sought to prevent the spread of communism
in Japan, which occupied a strategic position in the Far East. Thus,
the Peace Treaty compromised individual claims in the collective
interest of the free world.
This was also the finding in a similar case involving American
victims of Japanese slave labor during the war.52 In a consolidated
case in the Northern District of California, 53 the court dismissed the
lawsuits filed, relying on the 1951 peace treaty with
Japan,54 because of the following policy considerations:
The official record of treaty negotiations establishes that a
fundamental goal of the agreement was to settle the reparations
issue once and for all. As the statement of the chief United States
negotiator, John Foster Dulles, makes clear, it was well understood
that leaving open the possibility of future claims would be an
unacceptable impediment to a lasting peace:
Reparation is usually the most controversial
peacemaking. The present peace is no exception.

aspect

of

On the one hand, there are claims both vast and just. Japan's
aggression caused tremendous cost, losses and suffering.
On the other hand, to meet these claims, there stands a Japan
presently reduced to four home islands which are unable to
produce the food its people need to live, or the raw materials they
need to work. x x x
The policy of the United States that Japanese liability for
reparations should be sharply limited was informed by the
experience of six years of United States-led occupation of Japan.
During the occupation the Supreme Commander of the Allied
Powers (SCAP) for the region, General Douglas MacArthur,
confiscated Japanese assets in conjunction with the task of
managing the economic affairs of the vanquished nation and with
a view to reparations payments. It soon became clear that Japan's
221

financial condition would render any aggressive reparations plan

an exercise in futility. Meanwhile, the importance of a stable,
democratic Japan as a bulwark to communism in the region
increased. At the end of 1948, MacArthur expressed the view that
"[t]he use of reparations as a weapon to retard the reconstruction
of a viable economy in Japan should be combated with all possible
means" and "recommended that the reparations issue be settled
finally and without delay."
That this policy was embodied in the treaty is clear not only from
the negotiations history but also from the Senate Foreign Relations
Committee report recommending approval of the treaty by the
Senate. The committee noted, for example:
Obviously insistence upon the payment of reparations in any
proportion commensurate with the claims of the injured countries
and their nationals would wreck Japan's economy, dissipate any
credit that it may possess at present, destroy the initiative of its
people, and create misery and chaos in which the seeds of
discontent and communism would flourish. In short, [it] would be
contrary to the basic purposes and policy of x x x the United
States x x x.
We thus hold that, from a municipal law perspective, that certiorari
will not lie. As a general principle and particularly here, where
such an extraordinary length of time has lapsed between the
treatys conclusion and our consideration the Executive must be
given ample discretion to assess the foreign policy considerations
of espousing a claim against Japan, from the standpoint of both
the interests of the petitioners and those of the Republic, and
decide on that basis if apologies are sufficient, and whether further
steps are appropriate or necessary.
The Philippines is not under any international obligation to
espouse petitioners claims.
In the international sphere, traditionally, the only means available
for individuals to bring a claim within the international legal
system has been when the individual is able to persuade a
government to bring a claim on the individuals behalf. 55 Even
then, it is not the individuals rights that are being asserted, but
222

rather, the states own rights. Nowhere is this position more clearly
reflected than in the dictum of the Permanent Court of
International Justice (PCIJ) in the 1924 Mavrommatis Palestine
Concessions Case:
By taking up the case of one of its subjects and by resorting to
diplomatic action or international judicial proceedings on his
behalf, a State is in reality asserting its own right to ensure, in the
person of its subjects, respect for the rules of international law.
The question, therefore, whether the present dispute originates in
an injury to a private interest, which in point of fact is the case in
many international disputes, is irrelevant from this standpoint.
Once a State has taken up a case on behalf of one of its subjects
before an international tribunal, in the eyes of the latter the State
is sole claimant.56
Since the exercise of diplomatic protection is the right of the State,
reliance on the right is within the absolute discretion of states, and
the decision whether to exercise the discretion may invariably be
influenced by political considerations other than the legal merits of
the particular claim.57 As clearly stated by the ICJ in
Barcelona Traction:
The Court would here observe that, within the limits prescribed by
international law, a State may exercise diplomatic protection by
whatever means and to whatever extent it thinks fit, for it is its
own right that the State is asserting. Should the natural or legal
person on whose behalf it is acting consider that their rights are
not adequately protected, they have no remedy in international
law. All they can do is resort to national law, if means are
available, with a view to furthering their cause or obtaining
redress. The municipal legislator may lay upon the State an
obligation to protect its citizens abroad, and may also confer upon
the national a right to demand the performance of that obligation,
and
clothe
the
right
with
corresponding
sanctions.1awwphi1 However, all these questions remain within
the province of municipal law and do not affect the position
internationally.58 (Emphasis supplied)

223

The State, therefore, is the sole judge to decide whether its

protection will be granted, to what extent it is granted, and when
will it cease. It retains, in this respect, a discretionary power the
exercise of which may be determined by considerations of a
political or other nature, unrelated to the particular case.
The International Law Commissions (ILCs) Draft Articles on
Diplomatic Protection fully support this traditional view. They (i)
state that "the right of diplomatic protection belongs to or vests in
the State,"59 (ii) affirm its discretionary nature by clarifying that
diplomatic protection is a "sovereign prerogative" of the
State;60 and (iii) stress that the state "has the right to exercise
diplomatic protection
on behalf of a national. It is under no duty or obligation to do so." 61
It has been argued, as petitioners argue now, that the State has
a duty to protect its nationals and act on his/her behalf when
rights are injured.62 However, at present, there is no sufficient
evidence to establish a general international obligation for States
to exercise diplomatic protection of their own nationals
abroad.63 Though, perhaps desirable, neither state practice
nor opinio juris has evolved in such a direction. If it is a duty
internationally, it is only a moral and not a legal duty, and there is
no means of enforcing its fulfillment.641avvphi1
We fully agree that rape, sexual slavery, torture, and sexual
violence are morally reprehensible as well as legally prohibited
under contemporary international law. 65 However, petitioners take
quite a theoretical leap in claiming that these proscriptions
automatically imply that that the Philippines is under a nonderogable obligation to prosecute international crimes, particularly
since petitioners do not demand the imputation of individual
criminal liability, but seek to recover monetary reparations from
the state of Japan. Absent the consent of states, an applicable
treaty regime, or a directive by the Security Council, there is no
non-derogable duty to institute proceedings against Japan. Indeed,
precisely because of states reluctance to directly prosecute claims
against another state, recent developments support the modern
trend to empower individuals to directly participate in suits against
perpetrators
of
international
crimes.66 Nonetheless,
224

notwithstanding an array of General Assembly resolutions calling

for the prosecution of crimes against humanity and the strong
policy arguments warranting such a rule, the practice of states
does not yet support the present existence of an obligation to
prosecute international crimes.67 Of course a customary duty of
prosecution is ideal, but we cannot find enough evidence to
reasonably assert its existence. To the extent that any state
practice in this area is widespread, it is in the practice of granting
amnesties, immunity, selective prosecution, or de facto impunity
to those who commit crimes against humanity." 68
Even the invocation of jus cogens norms and erga omnes
obligations will not alter this analysis. Even if we sidestep the
question of whether jus cogens norms existed in 1951, petitioners
have not deigned to show that the crimes committed by the
Japanese army violated jus cogens prohibitions at the time the
Treaty of Peace was signed, or that the duty to prosecute
perpetrators of international crimes is an erga omnes obligation or
has attained the status of jus cogens.
The term erga omnes (Latin: in relation to everyone) in
international
law
has
been
used
as
a
legal
term
describingobligations owed by States towards the community of
states as a whole. The concept was recognized by the ICJ in
Barcelona Traction:
x x x an essential distinction should be drawn between the
obligations of a State towards the international community as a
whole, and those arising vis--vis another State in the field of
diplomatic protection. By their very nature, the former are the
concern of all States. In view of the importance of the rights
involved, all States can be held to have a legal interest in their
protection;
they
are
obligations
erga
omnes.http://www.search.com/reference/Erga_omnes
_note0#_note-0
Such obligations derive, for example, in contemporary
international law, from the outlawing of acts of aggression, and of
genocide, as also from the principles and rules concerning the
basic rights of the human person, including protection from slavery
and racial discrimination. Some of the corresponding rights of
225

protection have entered into the body of general international law

others are conferred by international instruments of a universal
or quasi-universal character.
The Latin phrase, erga omnes, has since become one of the
rallying cries of those sharing a belief in the emergence of a valuebased international public order. However, as is so often the case,
the reality is neither so clear nor so bright. Whatever the relevance
of obligations erga omnes as a legal concept, its full potential
remains to be realized in practice. 69
The term is closely connected with the international law concept
of jus cogens. In international law, the term "jus cogens" (literally,
"compelling law") refers to norms that command peremptory
authority, superseding conflicting treaties and custom. Jus cogens
norms are considered peremptory in the sense that they are
mandatory, do not admit derogation, and can be modified only by
general international norms of equivalent authority. 70
Early strains of the jus cogens doctrine have existed since the
1700s,71 but peremptory norms began to attract greater scholarly
attention with the publication of Alfred von Verdross's influential
1937 article, Forbidden Treaties in International Law. 72 The
recognition of jus cogens gained even more force in the 1950s and
1960s with the ILCs preparation of the Vienna Convention on the
Law of Treaties (VCLT).73 Though there was a consensus that
certain international norms had attained the status of jus
cogens,74 the ILC was unable to reach a consensus on the proper
criteria for identifying peremptory norms.
After an extended debate over these and other theories of jus
cogens, the ILC concluded ruefully in 1963 that "there is not as yet
any generally accepted criterion by which to identify a general rule
of international law as having the character of jus cogens." 75 In a
commentary accompanying the draft convention, the ILC indicated
that "the prudent course seems to be to x x x leave the full
content of this rule to be worked out in State practice and in the
jurisprudence of international tribunals." 76 Thus, while the
existence of jus cogens in international law is undisputed, no
consensus exists on its substance, 77 beyond a tiny core of
principles and rules.78
226

Of course, we greatly sympathize with the cause of petitioners,

and we cannot begin to comprehend the unimaginable horror they
underwent at the hands of the Japanese soldiers. We are also
deeply concerned that, in apparent contravention of fundamental
principles of law, the petitioners appear to be without a remedy to
challenge those that have offended them before appropriate fora.
Needless to say, our government should take the lead in
protecting its citizens against violation of their fundamental human
rights. Regrettably, it is not within our power to order the
Executive Department to take up the petitioners cause. Ours is
only the power to urgeand exhort the Executive Department to
take up petitioners cause.
WHEREFORE, the Petition is hereby DISMISSED.
SO ORDERED

227