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MAGALLONA v. ERMITA, G.R.

187167, August 16, 2011


Facts:
In 1961, Congress passed R.A. 3046 demarcating the maritime baselines of the Philippines as
an Archepelagic State pursuant to UNCLOS I of 9158, codifying the sovereignty of State parties
over their territorial sea. Then in 1968, it was amended by R.A. 5446, correcting some errors in
R.A. 3046 reserving the drawing of baselines around Sabah.
In 2009, it was again amended by R.A. 9522, to be compliant with the UNCLOS III of 1984. The
requirements complied with are: to shorten one baseline, to optimize the location of some
basepoints and classify KIG and Scarborough Shoal as regime of islands.
Petitioner now assails the constitutionality of the law for three main reasons:
1. it reduces the Philippine maritime territory under Article 1;
2. it opens the countrys waters to innocent and sea lanes passages hence undermining our
sovereignty and security; and
3. treating KIG and Scarborough as regime of islands would weaken our claim over those
territories.

Issue: Whether R.A. 9522 is constitutional?

Ruling:
1. UNCLOS III has nothing to do with acquisition or loss of territory. it is just a codified norm
that regulates conduct of States. On the other hand, RA 9522 is a baseline law to mark out
basepoints along coasts, serving as geographic starting points to measure. it merely notices
the international community of the scope of our maritime space.
2. If passages is the issue, domestically, the legislature can enact legislation designating
routes within the archipelagic waters to regulate innocent and sea lanes passages. but in the
absence of such, international law norms operate.
the fact that for archipelagic states, their waters are subject to both passages does not place
them in lesser footing vis a vis continental coastal states. Moreover, RIOP is a customary
international law, no modern state can invoke its sovereignty to forbid such passage.
3. On the KIG issue, RA 9522 merely followed the basepoints mapped by RA 3046 and in fact, it
increased the Phils. total maritime space. Moreover, the itself commits the Phils. continues
claim of sovereignty and jurisdiction over KIG.
If not, it would be a breach to 2 provisions of the UNCLOS III:
Art. 47 (3): drawing of basepoints shall not depart to any appreciable extent from the general
configuration of the archipelago.
Art 47 (2): the length of baselines shall not exceed 100 mm.
KIG and SS are far from our baselines, if we draw to include them, well breach the rules: that it
should follow the natural configuration of the archipelago.

Magallona vs. Hon. Ermita, et al.


G.R. 187167, August 16, 2011
Baseline laws, such as R.A. 9522, are nothing but statutory mechanisms for UNCLOS III-States-
parties to delimit with precision the extent of their maritime zones and continental shelves. It
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 bases rights (right of sovereignty;
right to enforce customs, fiscal, immigration and sanitation laws; right to exploit resources).

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UNCLOS III and its ancillary baseline laws play no role in the acquisition or diminution of
territory, because under traditional international law typology, states acquire or lose territory
through occupation, accretion, cession, and prescription, not by executing multilateral treaties
on the standard of sea-use rights or enacting statutes to comply with treaty terms to delimit
maritime zones and continental shelves.'
Kalayaan Island Group and the Scarborough Shoal lie outside the baselines drawn around the
Philippine archipelago. However, the Philippines continued claim of sovereignty and
jurisdiction over such islands was committed to text through RA 9522s use of the framework
of Regime of Islands, under which islands located at an appreciable distance from the nearest
shoreline of the Philippine archipelago generate their own applicable maritime zones. Such
classification of the KIG and Scarborough Shoal made by the Congress manifests the
Philippines compliance with its pacta sunt servanda obligation under the UNCLOS III.
The fact of sovereignty does not preclude the operation of municipal and international law
norms subjecting the territorial sea or archipelagic waters to necessary burdens in the interest
of maintaining unimpeded, expeditious international navigation, consistent with the
international law principle of freedom of navigation. The imposition of these passage rights
through archipelagic waters under UNCLOS III was aconcession 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.

UNCLOS III creates a sui generis maritime space the exclusive economic zone in waters
previously part of the high seas.

3 The third Whereas Clause of RA 3046 expresses the import of treating the Philippines as an
archipelagic State:
WHEREAS, all the waters around, between, and connecting the
various islands of the Philippine archipelago, irrespective of their width or
dimensions, have always been considered as necessary appurtenances of
the land territory, forming part of the inland waters of the Philippines.
4 One of the four conventions framed during the first United Nations Convention on the Law of
the Sea in Geneva, this treaty, excluding the Philippines, entered into force on 10
September 1964.
5 UNCLOS III entered into force on 16 November 1994.
6 The Philippines signed the treaty on 10 December 1982.
7 Article 47, paragraphs 1-3, provide:
1. An archipelagic State may draw straight archipelagic baselines
joining the outermost points of the outermost islands and drying reefs of
the archipelago provided that within such baselines are included the main
islands and an area in which the ratio of the area of the water to the area of
the land, including atolls, is between 1 to 1 and 9 to 1.
2. 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.
3. The drawing of such baselines shall not depart to any
appreciable extent from the general configuration of the archipelago.
(Emphasis supplied)
8UNCLOS III entered into force on 16 November 1994. The deadline for the filing of application
is mandated in Article 4, Annex II: Where a coastal State intends to establish, in
accordance with article 76, the outer limits of its continental shelf beyond
200 nautical miles, it shall submit particulars of such limits to the Commission along

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with supporting scientific and technical data as soon as possible but in any case
within 10 years of the entry into force of this Convention for that State. The coastal
State shall at the same time give the names of any Commission members who have
provided it with scientific and technical advice. (Underscoring supplied)
In a subsequent meeting, the States parties agreed that for States which became bound by the
treaty before 13 May 1999 (such as the Philippines) the ten-year period will be
counted from that date. Thus, RA 9522, which took effect on 27 March 2009, barely
met the deadline.
10Which provides: The national territory comprises the Philippine archipelago, with all the
islands and waters embraced therein, and all other territories over which the
Philippines has sovereignty or jurisdiction, consisting of its terrestrial, fluvial, and
aerial domains, including its territorial sea, the seabed, the subsoil, the insular
shelves, and other submarine areas. The waters around, between, and connecting
the islands of the archipelago, regardless of their breadth and dimensions, form part
of the internal waters of the Philippines.
11Entered into between the Unites States and Spain on 10 December 1898 following the
conclusion of the Spanish-American War. Under the terms of the treaty, Spain ceded
to the United States the archipelago known as the Philippine Islands lying within its
technical description.
12 The Treaty of Washington, between Spain and the United States (7 November 1900),
transferring to the US the islands of Cagayan, Sulu, and Sibutu and the US-Great Britain
Convention (2 January 1930) demarcating boundary lines between the Philippines and
North Borneo.
23UNCLOS III belongs to that larger corpus of international law of the sea, which petitioner
Magallona himself defined as a body of treaty rules and customary norms governing
the uses of the sea, the exploitation of its resources, and the exercise of jurisdiction
over maritime regimes. x x x x (Merlin M. Magallona, Primer on the Law of the Sea 1
[1997]) (Italicization supplied).
24 Following Article 47 (1) of UNCLOS III which provides:
An archipelagic State may draw straight archipelagic baselines
joining the outermost points of the outermost islands and drying reefs
of the archipelago provided that within such baselines are included the
main islands and an area in which the ratio of the area of the water to the
area of the land, including atolls, is between 1 to 1 and 9 to 1. (Emphasis
supplied)
25 Under the United Nations Charter, use of force is no longer a valid means of acquiring
territory.
26 The last paragraph of the preamble of UNCLOS III states that matters not regulated by this
Convention continue to be governed by the rules and principles of general international law.
32 Presidential Decree No. 1596 classifies the KIG as a municipality of Palawan.
33 KIG lies around 80 nautical miles west of Palawan while Scarborough Shoal is around 123
nautical west of Zambales.
37 Article 121 provides: Regime of islands.
1. An island is a naturally formed area of land, surrounded by water, which is above
water at high tide.
2. Except as provided for in paragraph 3, the territorial sea, the contiguous zone, the
exclusive economic zone and the continental shelf of an island are determined in
accordance with the provisions of this Convention applicable to other land territory.
3. Rocks which cannot sustain human habitation or economic life of their own shall
have no exclusive economic zone or continental shelf.
39Paragraph 2, Section 2, Article XII of the Constitution uses the term archipelagic waters
separately from territorial sea. Under UNCLOS III, an archipelagic State may have
internal waters such as those enclosed by closing lines across bays and mouths of
rivers. See Article 50, UNCLOS III. Moreover, Article 8 (2) of UNCLOS III provides:
Where the establishment of a straight baseline in accordance with the method set

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forth in article 7 has the effect of enclosing as internal waters areas which had not
previously been considered as such, a right of innocent passage as provided in this
Convention shall exist in those waters. (Emphasis supplied)
40 Mandated under Articles 52 and 53 of UNCLOS III:
Article 52. Right of innocent passage.
1. Subject to article 53 and without prejudice to article 50, ships of all
States enjoy the right of innocent passage through archipelagic
waters, in accordance with Part II, section 3.
2. The archipelagic State may, without discrimination in form or in fact
among foreign ships, suspend temporarily in specified areas of its
archipelagic waters the innocent passage of foreign ships if such
suspension is essential for the protection of its security. Such suspension
shall take effect only after having been duly published. (Emphasis supplied)

Article 53. Right of archipelagic sea lanes passage.


1. An archipelagic State may designate sea lanes and air routes
thereabove, suitable for the continuous and expeditious passage of foreign
ships and aircraft through or over its archipelagic waters and the adjacent
territorial sea.
2. All ships and aircraft enjoy the right of archipelagic sea
lanes passage in such sea lanes and air routes.
3. Archipelagic sea lanes passage means the exercise in
accordance with this Convention of the rights of navigation and overflight in
the normal mode solely for the purpose of continuous, expeditious and
unobstructed transit between one part of the high seas or an exclusive
economic zone and another part of the high seas or an exclusive economic
zone.
4. Such sea lanes and air routes shall traverse the archipelagic
waters and the adjacent territorial sea and shall include all normal passage
routes used as routes for international navigation or overflight through or
over archipelagic waters and, within such routes, so far as ships are
concerned, all normal navigational channels, provided that duplication of
routes of similar convenience between the same entry and exit points shall
not be necessary.
5. Such sea lanes and air routes shall be defined by a series of
continuous axis lines from the entry points of passage routes to the exit
points. Ships and aircraft in archipelagic sea lanes passage shall not deviate
more than 25 nautical miles to either side of such axis lines during passage,
provided that such ships and aircraft shall not navigate closer to the coasts
than 10 per cent of the distance between the nearest points on islands
bordering the sea lane.
6. An archipelagic State which designates sea lanes under this
article may also prescribe traffic separation schemes for the safe passage
of ships through narrow channels in such sea lanes.
7. An archipelagic State may, when circumstances require, after
giving due publicity thereto, substitute other sea lanes or traffic separation
schemes for any sea lanes or traffic separation schemes previously
designated or prescribed by it.
8. Such sea lanes and traffic separation schemes shall conform to
generally accepted international regulations.
9. In designating or substituting sea lanes or prescribing or
substituting traffic separation schemes, an archipelagic State shall refer
proposals to the competent international organization with a view to their
adoption. The organization may adopt only such sea lanes and traffic

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separation schemes as may be agreed with the archipelagic State, after
which the archipelagic State may designate, prescribe or substitute them.
10. The archipelagic State shall clearly indicate the axis of the sea
lanes and the traffic separation schemes designated or prescribed by it on
charts to which due publicity shall be given.
11. Ships in archipelagic sea lanes passage shall respect
applicable sea lanes and traffic separation schemes established in
accordance with this article.
12. If an archipelagic State does not designate sea lanes or air
routes, the right of archipelagic sea lanes passage may be exercised
through the routes normally used for international navigation. (Emphasis
supplied)
41Namely, House Bill No. 4153 and Senate Bill No. 2738, identically titled AN ACT TO
ESTABLISH THE ARCHIPELAGIC SEA LANES IN THE PHILIPPINE ARCHIPELAGIC WATERS,
PRESCRIBING THE RIGHTS AND OBLIGATIONS OF FOREIGN SHIPS AND AIRCRAFTS
EXERCISING THE RIGHT OF ARCHIPELAGIC SEA LANES PASSAGE THROUGH THE
ESTABLISHED ARCHIPELAGIC SEA LANES AND PROVIDING FOR THE ASSOCIATED
PROTECTIVE MEASURES THEREIN.
42 The relevant provision of UNCLOS III provides:
Article 17. Right of innocent passage.
Subject to this Convention, ships of all States,
whether coastal or land-locked, enjoy the right of innocent
passage through the territorial sea. (Emphasis supplied)
Article 19. Meaning of innocent passage.
1. Passage is innocent so long as it is not prejudicial to the
peace, good order or security of the coastal State. Such passage
shall take place in conformity with this Convention and with other
rules of international law.
2. Passage of a foreign ship shall be considered to be
prejudicial to the peace, good order or security of the coastal State if
in the territorial sea it engages in any of the following activities:
(a) any threat or use of force against the sovereignty,
territorial integrity or political independence of the coastal State, or
in any other manner in violation of the principles of international law
embodied in the Charter of the United Nations;
(b) any exercise or practice with weapons of any kind;
(c) any act aimed at collecting information to the prejudice
of the defence or security of the coastal State;
(d) any act of propaganda aimed at affecting the defence or
security of the coastal State;
(e) the launching, landing or taking on board of any aircraft;
(f) the launching, landing or taking on board of any military device;
(g) the loading or unloading of any commodity, currency or
person contrary to the customs, fiscal, immigration or sanitary laws
and regulations of the coastal State;

(h) any act of willful and serious pollution contrary to this Convention;
(i) any fishing activities;
(j) the carrying out of research or survey activities;
(k) any act aimed at interfering with any systems of
communication or any other facilities or installations of the coastal
State;
(l) any other activity not having a direct bearing on passage

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Article 21. Laws and regulations of the coastal State relating to innocent
passage.
1. The coastal State may adopt laws and regulations, in
conformity with the provisions of this Convention and other rules of
international law, relating to innocent passage through the territorial sea, in
respect of all or any of the following:
(a) the safety of navigation and the regulation of maritime traffic;
(b) the protection of navigational aids and facilities and other
facilities or installations;
(c) the protection of cables and pipelines;
(d) the conservation of the living resources of the sea;
(e) the prevention of infringement of the fisheries laws and
regulations of the coastal State;
(f) the preservation of the environment of the coastal State and
the prevention, reduction and control of pollution thereof;
(g) marine scientific research and hydrographic surveys;
(h) the prevention of infringement of the customs, fiscal,
immigration or sanitary laws and regulations of the coastal State.
2. Such laws and regulations shall not apply to the design,
construction, manning or equipment of foreign ships unless they are giving
effect to generally accepted international rules or standards.
3. The coastal State shall give due publicity to all such laws and
regulations.
4. Foreign ships exercising the right of innocent passage through
the territorial sea shall comply with all such laws and regulations and all
generally accepted international regulations relating to the prevention of
collisions at sea.
43The right of innocent passage through the territorial sea applies only to ships and not to
aircrafts (Article 17, UNCLOS III). The right of innocent passage of aircrafts through
the sovereign territory of a State arises only under an international agreement. In
contrast, the right of innocent passage through archipelagic waters applies to both
ships and aircrafts (Article 53 (12), UNCLOS III).
44Following Section 2, Article II of the Constitution: Section 2. The Philippines renounces war as
an instrument of national policy, adopts the generally accepted principles of
international law as part of the law of the land and adheres to the policy of
peace, equality, justice, freedom, cooperation, and amity with all nations. (Emphasis
supplied)
45Archipelagic sea lanes passage is essentially the same as transit passage through straits to
which the territorial sea of continental coastal State is subject. R.R. Churabill and A.V.
Lowe, The Law of the Sea 127 (1999).
46 Falling under Article 121 of UNCLOS III (see note 37).
47 Within the exclusive economic zone, other States enjoy the following rights under UNCLOS
III:

Article 58. Rights and duties of other States in the exclusive


economic zone.
1. In the exclusive economic zone, all States, whether coastal or
land-locked, enjoy, subject to the relevant provisions of this
Convention, the freedoms referred to in article 87 of navigation
and overflight and of the laying of submarine cables and pipelines,
and other internationally lawful uses of the sea related to these
freedoms, such as those associated with the operation of ships,
aircraft and submarine cables and pipelines, and compatible with
the other provisions of this Convention.

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2. Articles 88 to 115 and other pertinent rules of international
law apply to the exclusive economic zone in so far as they are not
incompatible with this Part.
xxxx

Beyond the exclusive economic zone, other States enjoy the freedom of the high
seas, defined under UNCLOS III as follows:

Article 87. Freedom of the high seas.


1. The high seas are open to all States, whether coastal or land-
locked. Freedom of the high seas is exercised under the conditions
laid down by this Convention and by other rules of international
law. It comprises, inter alia, both for coastal and land-locked
States:
(a) freedom of navigation;
(b) freedom of overflight;
(c) freedom to lay submarine cables and pipelines, subject to Part
VI;
(d) freedom to construct artificial islands and other
installations permitted under international law, subject to Part VI;
(e) freedom of fishing, subject to the conditions laid
down in section 2;
(f) freedom of scientific research, subject to Parts VI and XIII.
2. These freedoms shall be exercised by all States with
due regard for the interests of other States in their exercise of the
freedom of the high seas, and also with due regard for the rights
under this Convention with respect to activities in the Area.
51 The State shall protect the nations marine wealth in its archipelagic waters, territorial sea,
and exclusive economic zone, and reserve its use and enjoyment exclusively to Filipino
citizens.
52The State shall protect the rights of subsistence fishermen, especially of local communities,
to the preferential use of the communal marine and fishing resources, both inland
and offshore. It shall provide support to such fishermen through appropriate
technology and research, adequate financial, production, and marketing assistance,
and other services. The State shall also protect, develop, and conserve such
resources. The protection shall extend to offshore fishing grounds of subsistence
fishermen against foreign intrusion. Fishworkers shall receive a just share from their
labor in the utilization of marine and fishing resources.
53This can extend up to 350 nautical miles if the coastal State proves its right to claim an
extended continental shelf (see UNCLOS III, Article 76, paragraphs 4(a), 5 and 6, in
relation to Article 77).
55Article 47 (1) provides: An archipelagic State may draw straight archipelagic baselines
joining the outermost points of the outermost islands and drying reefs of the
archipelago provided that within such baselines are included the main islands and an
area in which the ratio of the area of the water to the area of the land, including
atolls, is between 1 to 1 and 9 to 1. (Emphasis supplied)

EN BANC G.R. No. 206510 September 16, 2014

MOST REV. PEDRO D. ARIGO, Vicar Apostolic of Puerto Princesa D.D.; MOST REV.
DEOGRACIAS S. INIGUEZ, JR., Bishop-Emeritus of Caloocan, FRANCES Q. QUIMPO,
CLEMENTE G. BAUTISTA, JR., Kalikasan-PNE, MARIA CAROLINA P. ARAULLO, RENATO
M. REYES, JR., Bagong Alyansang Makabayan, HON. NERI JAVIER COLMENARES,

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Bayan Muna Partylist, ROLAND G. SIMBULAN, PH.D., Junk VF A Movement, TERESITA
R. PEREZ, PH.D., HON. RAYMOND V. PALATINO, Kabataan Party-list, PETER SJ.
GONZALES, Pamalakaya, GIOVANNI A. TAPANG, PH. D., Agham, ELMER C. LABOG,
Kilusang Mayo Uno, JOAN MAY E. SALVADOR, Gabriela, JOSE ENRIQUE A. AFRICA,
THERESA A. CONCEPCION, MARY JOAN A. GUAN, NESTOR T. BAGUINON, PH.D., A.
EDSEL F. TUPAZ, Petitioners,
vs.
SCOTT H. SWIFT in his capacity as Commander of the US. 7th Fleet, MARK A. RICE in
his capacity as Commanding Officer of the USS Guardian, PRESIDENT BENIGNO S.
AQUINO III in his capacity as Commander-in-Chief of the Armed Forces of the
Philippines, HON. ALBERT F. DEL ROSARIO, Secretary, pepartment of Foreign Affair.s,
HON. PAQUITO OCHOA, JR., Executiv~.:Secretary, Office of the President, . HON.
VOLTAIRE T. GAZMIN, Secretary, Department of National Defense, HON. RAMON
JESUS P. P AJE, Secretary, Department of Environment and Natural Resoz!rces, VICE
ADMIRAL JOSE LUIS M. ALANO, Philippine Navy Flag Officer in Command, Armed
Forces of the Philippines, ADMIRAL RODOLFO D. ISO RENA, Commandant, Philippine
Coast Guard, COMMODORE ENRICO EFREN EVANGELISTA, Philippine Coast Guard
Palawan, MAJOR GEN. VIRGILIO 0. DOMINGO, Commandant of Armed Forces of the
Philippines Command and LT. GEN. TERRY G. ROBLING, US Marine Corps Forces.
Pacific and Balikatan 2013 Exercise Co-Director, Respondents.

VILLARAMA, JR, J.:

Environmental activists and scientists on Wednesday criticized a decision by the Philippine


Supreme Court to dismiss a legal action against the US government for compensation over the
grounding of a US Navy minesweeper in the Tubbataha Reef last year.

The court ruled against issuing a writ of nature, an extraordinary legal remedy for cases
involving massive environmental damage to the life, health, or property of inhabitants in two
or more cities or provinces.

The writ, filed by Bishop Pedro D Arigo of Palawan and environmental activists, pertained to the
destruction of 2,346 square meters of pristine coral ecosystems at the UNESCO World
Heritage-listed reef, when the US minesweeper USS Guardian ran aground in January 2013.

It named Vice Admiral Scott Swift, commander of the US Seventh Fleet, Lt Cmdr Mark Rice, the
ship's commanding officer, and a slew of Philippine officials led by President Benigno Aquino, in
an attempt to seek liability for the ecological and environmental damage.

The court, however, said on Monday it has no jurisdiction over Swift and Rice.

"The Supreme Court decision on the petition smacks of blind subservience to the United
States," the People's Network for the Environment said in a statement. "We are dumbfounded
and refuse to understand the logic behind this court decision."

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The court also dismissed a petition that demanded the US government pay as much as US$27
million in compensation for damages caused to the reef by the USS Guardian.

The court said the call for damages should be done through a civil case and not in a petition
for a writ of nature.

It also said it is up to the Philippine government to demand compensation and rehabilitation


from the United States.

Activists have called on the Philippine government to demand a fine of up to US$27 million, a
valuation close to the fines paid in the 2009 grounding of USS Port Royal in Hawaii.

The Philippine government has only asked for US$1.4 million.

Jose Clemente, spokesman for the People's Network, said in a statement the court decision
"disappoints the environmental activist community".

He said the court decision "is tantamount to letting the US Navy get away" and "shows that
any foreign military vessels can illegally enter Philippine territories, trespass into protected
areas, destroy our precious resources, and get away scot-free".

ARTHUR D. LIM vs. HON. EXECUTIVE SECRETARY (G.R. No. 151445) Case Digest
Facts:
Arthur D. Lim and Paulino P. Ersando filed a petition for certiorari and prohibition attacking the
constitutionality of Balikatan-02-1. They were subsequently joined by SANLAKAS and
PARTIDO NG MANGGAGAWA, both party-list organizations, who filed a petition-in-intervention.
Lim and Ersando filed suits in their capacities as citizens, lawyers and taxpayers. SANLAKAS
and PARTIDO on the other hand, claimed that certain members of their organization are
residents of Zamboanga and Sulu, and hence will be directly affected by the operations being
conducted in Mindanao.

The petitioners alleged that Balikatan-02-1 is not covered by the Mutual Defense Treaty
(MDT) between the Philippines and the United States. Petitioners posited that the MDT only
provides for mutual military assistance in case of armed attack by an external aggressor
against the Philippines or the US. Petitioners also claim that the Visiting Forces Agreement
(VFA) does not authorize American Soldiers to engage in combat operations in Philippine
Territory.

Issue:

Is the Balikatan-02-1 inconsistent with the Philippine Constitution?

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Ruling:

The MDT is the core of the defense relationship between the Philippines and the US and it is
the VFA which gives continued relevance to it. Moreover, it is the VFA that gave legitimacy to
the current Balikatan exercise.

The constitution leaves us no doubt that US Forces are prohibited from engaging war on
Philippine territory. This limitation is explicitly provided for in the Terms of Reference of the
Balikatan exercise. The issues that were raised by the petitioners was only based on fear of
future violation of the Terms of Reference.

Based on the facts obtaining, the Supreme court find that the holding of Balikatan-02-1 joint
military exercise has not intruded into that penumbra of error that would otherwise call for the
correction on its part.

The petition and the petition-in-intervention is DISMISSED.


Lim v. Executive Secretary

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

Laws Applicable: Constitution

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

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

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

HELD: NO. Petition and the petition-in-intervention are hereby DISMISSED without prejudice to

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the filing of a new petition sufficient in form and substance in the proper Regional Trial Court -
Supreme Court is not a trier of facts

Doctrine of Importance to the Public


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

Although courts generally avoid having to decide a constitutional question based on the
doctrine of separation of powers, which enjoins upon the department of the government a
becoming respect for each other's act, this Court nevertheless resolves to take cognizance of
the instant petition.
Interpretation of Treaty
The VFA permits United States personnel to engage, on an impermanent basis, in "activities,"
the exact meaning of which was left undefined. The expression is ambiguous, permitting a
wide scope of undertakings subject only to the approval of the Philippine government. The sole
encumbrance placed on its definition is couched in the negative, in that United States
personnel must "abstain from any activity inconsistent with the spirit of this agreement, and in
particular, from any political activity." All other activities, in other words, are fair game.

To aid in this, the Vienna Convention on the Law of Treaties Article 31 SECTION 3 and Article 32
contains provisos governing interpretations of international agreements. It is clear from the
foregoing that the cardinal rule of interpretation must involve an examination of the text,
which is presumed to verbalize the parties' intentions. The Convention likewise dictates what
may be used as aids to deduce the meaning of terms, which it refers to as the context of the
treaty, as well as other elements may be taken into account alongside the aforesaid context.
According to Professor Briggs, writer on the Convention, the distinction between the general
rule of interpretation and the supplementary means of interpretation is intended rather to
ensure that the supplementary means do not constitute an alternative, autonomous method of
interpretation divorced from the general rule.

The meaning of the word activities" was deliberately made that way to give both parties a
certain leeway in negotiation. Thus, the VFA gives legitimacy to the current Balikatan
exercises. Both the history and intent of the Mutual Defense Treaty and the VFA support the
conclusion that combat-related activities -as opposed to combat itself -such as the one subject
of the instant petition, are indeed authorized.

The Terms of Reference are explicit enough. Paragraph 8 of section I stipulates that US exercise
participants may not engage in combat "except in self-defense." ." The indirect violation is
actually petitioners' worry, that in reality, "Balikatan 02-1" is actually a war principally
conducted by the United States government, and that the provision on self-defense serves only
as camouflage to conceal the true nature of the exercise. A clear pronouncement on this
matter thereby becomes crucial. In our considered opinion, neither the MDT nor the VFA allow

11
foreign troops to engage in an offensive war on Philippine territory. Under the salutary
proscription stated in Article 2 of the Charter of the United Nations.

Both the Mutual Defense Treaty and the Visiting Forces Agreement, as in all other treaties and
international agreements to which the Philippines is a party, must be read in the context of the
1987 Constitution especially Sec. 2, 7 and 8 of Article 2: Declaration of Principles and State
Policies in this case. The Constitution also regulates the foreign relations powers of the Chief
Executive when it provides that "[n]o treaty or international agreement shall be valid and
effective unless concurred in by at least two-thirds of all the members of the Senate." Even
more pointedly Sec. 25 on Transitory Provisions which shows antipathy towards foreign military
presence in the country, or of foreign influence in general. Hence, foreign troops are allowed
entry into the Philippines only by way of direct exception.

International Law vs. Fundamental Law and Municipal Laws


Conflict arises then between the fundamental law and our obligations arising from international
agreements.

Philip Morris, Inc. v. Court of Appeals: Withal, the fact that international law has been made
part of the law of the land does not by any means imply the primacy of international law over
national law in the municipal sphere. Under the doctrine of incorporation as applied in most
countries, rules of international law are given a standing equal, not superior, to national
legislation.

From the perspective of public international law, a treaty is favored over municipal law
pursuant to the principle of pacta sunt servanda. Hence, "[e]very treaty in force is binding
upon the parties to it and must be performed by them in good faith." Further, a party to a
treaty is not allowed to "invoke the provisions of its internal law as justification for its failure to
perform a treaty."

Our Constitution espouses the opposing view as stated in section 5 of Article VIII: The
Supreme Court shall have the following powers: xxx
(2) Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the Rules of
Court may provide, final judgments and order of lower courts in:
(A) All cases in which the constitutionality or validity of any treaty, international or executive
agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation
is in question.
Ichong v. Hernandez: provisions of a treaty are always subject to qualification or amendment
by a subsequent law, or that it is subject to the police power of the State

Gonzales v. Hechanova: our Constitution authorizes the nullification of a treaty, not only when
it conflicts with the fundamental law, but, also, when it runs counter to an act of Congress.

12
The foregoing premises leave us no doubt that US forces are prohibited / from engaging in an
offensive war on Philippine territory.

Election Law: An Ineligible Winning Candidate Is No Candidate At All, And Second Highest
Candidate Will Take His Place

Rommel, a natural born Filipino citizen, lost his citizenship when he was naturalised as a US
citizen. On July 10, 2008, he took his Oath of Allegiance to the Republic of the Philippines under
the provisions of Republic Act 9225; thereupon an Order of Approval of his citizenship retention
and re-acquisition was issued in his favour. On April 3, 2009, he again took his Oath of
Allegiance as well as executed an Affidavit of Renunciation of his US citizenship. On November
30, 2009, Rommel filed his Certificate of Candidacy for Mayor of Kauswagan, Lanao del Norte.
On April 28, 2010, Liong, another mayoralty candidate, filed a petition to disqualify and/or
cancel his certificate of candidacy in connection with the 2010 elections. According to Linog,
Rommel is not a resident of Kauswagan; he is also a foreigner, as attested to by the Bureau of
Immigration. In support of his claim, Linog presented in his Memorandum a computer-
generated travel record[ dated 03 December 2009 indicating that Arnado has been using his
US Passport No. 057782700 in entering and departing the Philippines. The said record shows
that Arnado left the country on 14 April 2009 and returned on 25 June 2009, and again
departed on 29 July 2009, arriving back in the Philippines on 24 November 2009.
When required to answer, Rommel did not file any. It was only after his proclamation as winner
that he filed an answer, traversing the allegations of Linog, and submitting his documentary
evidence in support of his answer. The COMELEC First Division instead of treating the case as a
petition for cancellation of the certificate of candidacy, treated as a petition for disqualification.
Although the division dismissed Linogs claim that Rommel is a US resident, it agreed with him
in saying Rommel is a US citizen, citing that Rommels consistent use of his American passport
negated his Affidavit of Renunciation of US citizenship and showed his intention to retain US
citizenship. It therefore annulled his proclamation as Municipal Mayor of Kauswagan, and
ordered the rule of replacement of Rommel pursuant to the rule of succession under the Local
Government Code. Rommel thus filed his Motion for Reconsideration to the order. Meanwhile,
Casan, another mayoralty candidate and who garnered the second highest number of votes in
the 2010 elections, filed his Motion For Intervention and opposition to the Motion for
Reconsideration filed by Rommel. According to Casan, while the Comelec First Division ruled
correctly on Rommels citizenship, it erred when it ruled that the order of succession under the
Local Government should be followed. Following the cancellation of Rommels certificate of
candidacy and his disqualification, he (Casan), as the legitimate candidate with the highest
number of votes, should be proclaimed the winner. Rommel opposed the Motion For
Intervention filed by Casan, alleging that intervention is not allowed after the Comelec had
already rendered a decision, and Casan was never the winner.
The COMELEC En Banc, acting on the Motion for Reconsideration filed by Rommel and the
Motion for Intervention of Casan, granted the Motion for Reconsideration. It allowed the Motion
for Intervention by Casan, but ruled that he will not be prejudiced by the decision of the First
Division as it correctly ruled that the order of succession should be followed. However, it
reversed the First Division and held that Rommels use of the US passport was not one of the
grounds by which citizenship may be lost under RA 9225. It ruled that Rommel had a plausible
explanation as to why he used his US passport in his travels, that is, his Philippine passport

13
was issued late. When he took the oath of allegiance and executed his Affidavit of Renunciation
on April 3, 2009, he regained his Philippine citizenship.
Casan thus elevated his case to the Supreme Court. One of the core issue to be decided is the
effect of disqualification of an ineligible candidate.
The Supreme Court:
The ballot cannot override the constitutional and statutory requirements for qualifications and
disqualifications of candidates. When the law requires certain qualifications to be possessed or
that certain disqualifications be not possessed by persons desiring to serve as elective public
officials, those qualifications must be met before one even becomes a candidate. When a
person who is not qualified is voted for and eventually garners the highest number of votes,
even the will of the electorate expressed through the ballot cannot cure the defect in the
qualifications of the candidate. To rule otherwise is to trample upon and rent asunder the very
law that sets forth the qualifications and disqualifications of candidates. We might as well write
off our election laws if the voice of the electorate is the sole determinant of who should be
proclaimed worthy to occupy elective positions in our republic.
This has been, in fact, already laid down by the Court in Frivaldo v. COMELEC[ when we
pronounced:
x x x. The fact that he was elected by the people of Sorsogon does not excuse this patent
violation of the salutary rule limiting public office and employment only to the citizens of this
country. The qualifications prescribed for elective office cannot be erased by the electorate
alone. The will of the people as expressed through the ballot cannot cure the vice of
ineligibility, especially if they mistakenly believed, as in this case, that the candidate was
qualified. Obviously, this rule requires strict application when the deficiency is lack of
citizenship. If a person seeks to serve in the Republic of the Philippines, he must owe his total
loyalty to this country only, abjuring and renouncing all fealty and fidelity to any other state.
(Emphasis supplied)
This issue has also been jurisprudentially clarified in Velasco v. COMELEC[ where the Court
ruled that the ruling in Quizon and Saya-ang cannot be interpreted without qualifications lest
Election victory x x x becomes a magic formula to bypass election eligibility requirements.
[W]e have ruled in the past that a candidates victory in the election may be considered a
sufficient basis to rule in favor of the candidate sought to be disqualified if the main issue
involves defects in the candidates certificate of candidacy. We said that while provisions
relating to certificates of candidacy are mandatory in terms, it is an established rule of
interpretation as regards election laws, that mandatory provisions requiring certain steps
before elections will be construed as directory after the elections, to give effect to the will of
the people. We so ruled in Quizon v. COMELEC and Saya-ang v. COMELEC:
The present case perhaps presents the proper time and opportunity to fine-tune our above
ruling. We say this with the realization that a blanket and unqualified reading and application
of this ruling can be fraught with dangerous significance for the rule of law and the integrity of
our elections. For one, such blanket/unqualified reading may provide a way around the law
that effectively negates election requirements aimed at providing the electorate with the basic
information to make an informed choice about a candidates eligibility and fitness for office.
The first requirement that may fall when an unqualified reading is made is Section 39 of the
LGC which specifies the basic qualifications of local government officials. Equally susceptive of
being rendered toothless is Section 74 of the OEC that sets out what should be stated in a

14
COC. Section 78 may likewise be emasculated as mere delay in the resolution of the petition
to cancel or deny due course to a COC can render a Section 78 petition useless if a candidate
with false COC data wins. To state the obvious, candidates may risk falsifying their COC
qualifications if they know that an election victory will cure any defect that their COCs may
have. Election victory then becomes a magic formula to bypass election eligibility
requirements. (Citations omitted)
What will stop an otherwise disqualified individual from filing a seemingly valid COC,
concealing any disqualification, and employing every strategy to delay any disqualification
case filed against him so he can submit himself to the electorate and win, if winning the
election will guarantee a disregard of constitutional and statutory provisions on qualifications
and disqualifications of candidates?
It is imperative to safeguard the expression of the sovereign voice through the ballot by
ensuring that its exercise respects the rule of law. To allow the sovereign voice spoken through
the ballot to trump constitutional and statutory provisions on qualifications and
disqualifications of candidates is not democracy or republicanism. It is electoral anarchy. When
set rules are disregarded and only the electorates voice spoken through the ballot is made to
matter in the end, it precisely serves as an open invitation for electoral anarchy to set in.
Maquiling is not a second-placer as he obtained the highest number of votes from among the
qualified candidates.

With Arnados disqualification, Maquiling then becomes the winner in the election as he
obtained the highest number of votes from among the qualified candidates.
We have ruled in the recent cases of Aratea v. COMELEC[ and Jalosjos v. COMELEC that a void
COC cannot produce any legal effect. Thus, the votes cast in favor of the ineligible candidate
are not considered at all in determining the winner of an election.
Even when the votes for the ineligible candidate are disregarded, the will of the electorate is
still respected, and even more so. The votes cast in favor of an ineligible candidate do not
constitute the sole and total expression of the sovereign voice. The votes cast in favor of
eligible and legitimate candidates form part of that voice and must also be respected.
As in any contest, elections are governed by rules that determine the qualifications and
disqualifications of those who are allowed to participate as players. When there are
participants who turn out to be ineligible, their victory is voided and the laurel is awarded to
the next in rank who does not possess any of the disqualifications nor lacks any of the
qualifications set in the rules to be eligible as candidates.
There is no need to apply the rule cited in Labo v. COMELEC that when the voters are well
aware within the realm of notoriety of a candidates disqualification and still cast their votes in
favor said candidate, then the eligible candidate obtaining the next higher number of votes
may be deemed elected. That rule is also a mere obiter that further complicated the rules
affecting qualified candidates who placed second to ineligible ones.
The electorates awareness of the candidates disqualification is not a prerequisite for the
disqualification to attach to the candidate. The very existence of a disqualifying circumstance
makes the candidate ineligible. Knowledge by the electorate of a candidates disqualification is
not necessary before a qualified candidate who placed second to a disqualified one can be
proclaimed as the winner. The second-placer in the vote count is actually the first-placer
among the qualified candidates.

15
That the disqualified candidate has already been proclaimed and has assumed office is of no
moment. The subsequent disqualification based on a substantive ground that existed prior to
the filing of the certificate of candidacy voids not only the COC but also the proclamation.
Section 6 of R.A. No. 6646 provides:
Section 6. Effect of Disqualification Case. Any candidate who has been declared by final
judgment to be disqualified shall not be voted for, and the votes cast for him shall not be
counted. If for any reason a candidate is not declared by final judgment before an election to
be disqualified and he is voted for and receives the winning number of votes in such election,
the Court or Commission shall continue with the trial and hearing of the action, inquiry, or
protest and, upon motion of the complainant or any intervenor, may during the pendency
thereof order the suspension of the proclamation of such candidate whenever the evidence of
his guilt is strong.
There was no chance for Arnados proclamation to be suspended under this rule because
Arnado failed to file his answer to the petition seeking his disqualification. Arnado only filed his
Answer on 15 June 2010, long after the elections and after he was already proclaimed as the
winner.
The disqualifying circumstance surrounding Arnados candidacy involves his citizenship. It does
not involve the commission of election offenses as provided for in the first sentence of Section
68 of the Omnibus Election Code, the effect of which is to disqualify the individual from
continuing as a candidate, or if he has already been elected, from holding the office.
The disqualifying circumstance affecting Arnado is his citizenship. As earlier discussed, Arnado
was both a Filipino and an American citizen when he filed his certificate of candidacy. He was a
dual citizen disqualified to run for public office based on Section 40(d) of the Local Government
Code.
Section 40 starts with the statement The following persons are disqualified from running for
any elective local position. The prohibition serves as a bar against the individuals who fall
under any of the enumeration from participating as candidates in the election.
With Arnado being barred from even becoming a candidate, his certificate of candidacy is thus
rendered void from the beginning. It could not have produced any other legal effect except
that Arnado rendered it impossible to effect his disqualification prior to the elections because
he filed his answer to the petition when the elections were conducted already and he was
already proclaimed the winner.

16
To hold that such proclamation is valid is to negate the prohibitory character of the
disqualification which Arnado possessed even prior to the filing of the certificate of candidacy.
The affirmation of Arnados disqualification, although made long after the elections, reaches
back to the filing of the certificate of candidacy. Arnado is declared to be not a candidate at all
in the May 2010 elections.
Arnado being a non-candidate, the votes cast in his favor should not have been counted. This
leaves Maquiling as the qualified candidate who obtained the highest number of votes.
Therefore, the rule on succession under the Local Government Code will not apply.
EN BANC, G.R. No. 195649, April 16, 2013, CASAN MACODE MAQUILING, PETITIONER, VS.
COMMISSION ON ELECTIONS, ROMMEL ARNADO Y CAGOCO, LINOG G. BALUA, RESPONDENTS

That Maquiling case and Sen. Grace Poe


Sen. Grace Poe is set to make an announcement today, which is presumably about her
intention to run as President. But sponsored Facebook and Twitter feeds abound with legal
questions about her legal fitness to run for the position. I have raised my reservations too in
paragraphs 6 and 53 but have not found the occasion to look it up myself until today. One of
the cases being cited is that of the former Mayor of Kauswagan, Lanao del Norte, known as
Maquiling v. Comelec (G.R. 195649, April 16, 2013). The facts of that case are as follows:
Rommel Arnado, a natural born Filipino, acquired American citizenship, became a dual Filipino
and American citizen, renounced his American citizenship under oath as prescribed under
Republic Act No. 9225, got elected as Mayor of Kauswagan, Lanao del Norte, and used his
American passport twice while serving as Mayor. The Supreme Court removed him from his
position as Mayor for being ineligible. The Court said, "by using his US passport after
renouncing his American citizenship, (Arnado) has recanted the same Oath of Renunciation he
took." The logic is that by nullifying his Oath of Renunciation, Arnado was still beholden to his
American citizenship, which under the Local Government Code was a ground for
disqualification as the law expressly disqualifies those who have dual citizenship from running
for local office. The key action that got Arnado disqualified was his use of his American
passport, in spite of holding the position of Mayor of a local town. How he thought he could get
away with it is beyond me, but this case is now being cited to disqualify Sen. Grace Poe.
Reading the materials being peddled around by her friends and enemies, the accusation is she
had used her American passport too while serving as MTRCB Chair. This is something that she
has, however, repeatedly denied. She renounced her American citizenship on October 20,
2010, and she never used her American passport thereafter. The proof that will best show it
was never used is the passport itself. But that is evidence that comes during trial. Yet in her
paragraph 1.23.2 of her Answer to the disqualification case filed against her in the Senate
Electoral Tribunal, she swore under oath that "At no time after she executed the (Affidavit of
Renunciation), did (she) ever use her U.S.A. passport." Thus, Arnado's case is irrelevant to
Senator Grace Poe's legal fitness to be a Senator or President of the Philippines. Personally, I
thought the Maquiling case was the strongest objection against her candidacy; but so long as
the proposition holds true that the good senator never used her U.S.A passport after she
executed her Affidavit of Renunciation, the Maquiling argument is weak.

17
The use of foreign passport and its impact on dual citizenship, effective
renunciation, and holding of public office under RA 9225
The use of a foreign passport after taking the oath of allegiance and executing an
affidavit of renunciation under Republic Act No. 9225, or the "Citizenship Retention and Re-
acquisition Act of 2003," is a positive act showing the applicant's continued possession of a
foreign citizenship. While it does not divest him of his reacquired Filipino citizenship, it negates
his qualification to run for an elective post or be appointed to a government position. This, in a
nutshell, is the ruling in the 2013 case of Maquiling vs. Comelec, et. al. (G.R. No. 195649),
penned by Chief Justice Maria Lourdes P.A. Sereno.

In the Maquiling case, it has been established that private respondent Rommel
Arnado is a natural born Filipino citizen. Subsequently, however, he was naturalized as a US
citizen, thereby losing his Filipino citizenship. In July 2008, with the intention for repatriation,
he took his oath of allegiance to the Republic of the Philippines. His application was approved.
In April 2009, he again took an oath of allegiance and executed an affidavit of renunciation of
his US citizenship. In November 2009, he filed his certificate of candidacy for mayor in a
certain town in Mindanao.

In April 2010, another mayoralty candidate (and also private respondent), Linog
Balua, sought the disqualification and/or the cancellation of Arnados cerficate of candidacy.
Apparently, Arnado used his US passport in entering and leaving the Philippines between the
period April 2009 and June 2009, July 2009 and November 2009, January 2010 and March
2010. Balua presented as evidence a computer-generated travel record and a certification from
the Bureau of Immigration and Deportation (BID).

In so declaring that Arnado is disqualified from holding public office and even from
being a candidate during the 2010 elections, C.J. Sereno explained:

Between 03 April 2009, the date he renounced his foreign citizenship, and 30
November 2009, the date he filed his COC, he used his US passport four times, actions that run
counter to the affidavit of renunciation he had earlier executed. By using his foreign passport,
Arnado positively and voluntarily represented himself as an American, in effect declaring
before immigration authorities of both countries that he is an American citizen, with all
attendant rights and privileges granted by the United States of America.

While the act of using a foreign passport is not one of the acts enumerated in
Commonwealth Act No. 63 constituting renunciation and loss of Philippine citizenship, it is
nevertheless an act which repudiates the very oath of renunciation required for a former
Filipino citizen who is also a citizen of another country to be qualified to run for a local elective
position.

When Arnado used his US passport on 14 April 2009, or just eleven days after he
renounced his American citizenship, he recanted his Oath of Renunciation that he absolutely
and perpetually renounce(s) all allegiance and fidelity to the UNITED STATES OF AMERICA and
that he divest(s) [him]self of full employment of all civil and political rights and privileges of
the United States of America.

18
We agree with the COMELEC En Banc that such act of using a foreign passport does
not divest Arnado of his Filipino citizenship, which he acquired by repatriation. However, by
representing himself as an American citizen, Arnado voluntarily and effectively reverted to his
earlier status as a dual citizen. Such reversion was not retroactive; it took place the instant
Arnado represented himself as an American citizen by using his US passport.

With that, C.J. Sereno passionately said:

The renunciation of foreign citizenship is not a hollow oath that can simply be
professed at any time, only to be violated the next day. It requires an absolute and perpetual
renunciation of the foreign citizenship and a full divestment of all civil and political rights
granted by the foreign country which granted the citizenship.

Citizenship is not a matter of convenience. It is a badge of identity that comes with


attendant civil and political rights accorded by the state to its citizens. It likewise demands the
concomitant duty to maintain allegiance to ones flag and country. While those who acquire
dual citizenship by choice are afforded the right of suffrage, those who seek election or
appointment to public office are required to renounce their foreign citizenship to be deserving
of the public trust. Holding public office demands full and undivided allegiance to the Republic
and to no other.

Bohol News Today

om learns that Sen. Grace Poe has hired a team of lawyers to study legal challenges that
might be raised against her eligibility or qualification in the 2016 presidential elections. In
2013, the Senate Electoral Tribunal (SET) relaxed the rule on quo warranto petitions which now
allows anyone to raise qualification issues and challenge a senators right to the post at any
time during his or her term. Poe has tapped a pool of lawyers to study the possible
disqualification cases to be filed against her, either at the SET or the Comelec. Poes frequent
use of her US passport between 2005 and 2009 appears to negate an intent to stay in the
Philippines during that time. Citizenship, under the UN Convention relating to the status of
Stateless Persons, is not automatically conferred, as stated under Article 32.We are thus
reprinting an in-depth article written by Aries Rufo which was posted in its website lately.
DAB)

The intent to return principle or animus revertendi was used as basis by the Supreme Court
in 1995 in allowing former first lady Imelda Marcos to run for Congress as Leyte representative
despite her long absence here.

But Poes repeated use of her US passport between 2005 to 2009 may negate Poes intent,
according to an insider of the SC. Published reports said that Poe used her US passport from
2005 to December 2009 at least 21 times in entering and leaving the country. These repeated
acts alone may weaken her defense of animus revertendi or intention to return to domicile.

Besides, there was no question on Mrs. Marcos citizenship, unlike in Poes case, the SC
insider said.

19
Maquiling vs Comelec

One SC ruling that can be instructive for Poes case is the Maquiling vs Comelec case that was
decided in 2013. Penned by Chief Justice Maria Lourdes Sereno, the High Court disqualified
Rommel Arnado as mayor of Kauswagan, Lanao del Norte after it concluded that Arnado had
not effectively renounced his US citizenship by the time he ran for mayor.

A year before the elections in 2010, Arnado renounced his American citizenship and reassumed
his Filipino citizenship. However, immigration records showed he continued to use his US
passport until March 2010.

In disqualifying Arnado, the justices agreed with the Comelec that Arnado effectively recanted
his oath of renunciation when he continued to use his US passport even after he has renounced
his US citizenship.

We agree with the Comelec en banc that such act of using a foreign passport does not divest
Arnado of his Filipino citizenshipHowever by representing himself as an American citizen,
Arnado voluntarily and effectively reverted to his earlier status as a dual citizen. Such
reversion was not retroactive; it took place the instant Arnado represented himself as an
American citizen by using his US passport, the Court said in its ruling.

As the SC insider pointed out, Poes frequent use of her US passport between 2005 and 2009
negates her intent to return to the Philippines during those times. What is clear is that she
renounced her US citizenship in 2010 and was only approved by the US government in 2012.

Province of North Cotabato, Province of Zamboanga Del Norte, City of Iligan, City of
Zamboanga, petitioners in intervention Province of Sultan Kudarat, City of Isabela
and Municipality of Linnamon, Intervenors Franklin Drilon and Adel Tamano and Sec.
Mar Roxas

-vs-

Ermita Exec.Sec., Romulo Sec DFA, Andaya Sec DBM, Ventura Administrator National
Mapping & Resource Information Authority and Davide Jr. and respondents in
intervention Muslim Multi-Sectoral Movement for Peace and Development and
Muslim Legal Assistance Foundation Inc.,

Facts:

Subject of this case is the Memorandum of Agreement on the Ancestral Domain (MOA-AD)
which is scheduled to be signed by the Government of the Republic of the Philippines and the
MILF in August 05, 2008. Five cases bearing the same subject matter were consolidated by this
court namely:-

GR 183591 by the Province of Cotabato and Vice Governor Pinol on its prayer to
declare unconstitutional and to have the MOA-AD disclosed to the public and be open
for public consultation.

20
GR 183752 by the City of Zamboanga et al on its prayer to declare null and void said
MOA-AD and to exclude the city to the BJE.

GR 183893 by the City of Iligan enjoining the respondents from signing the MOA-AD
and additionally impleading Exec. Sec. Ermita.

GR 183951 by the Province of Zamboanga del Norte et al, praying to declare null and
void the MOA-AD and without operative effect and those respondents enjoined from
executing the MOA-AD.

GR 183692 by Maceda, Binay and Pimentel III, 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 and impleading Iqbal.

The MOA-AD is a result of various agreements entered into by and between the
government and the MILF starting in 1996; then in 1997, they signed the Agreement on
General Cessation of Hostilities; and the following year, they signed the General Framework of
Agreement of Intent on August 27, 1998. However, in 1999 and in the early of 2000, the MILF
attacked a number of municipalities in Central Mindanao. In March 2000, they took the hall of
Kauswagan, Lanao del Norte; hence, then Pres. Estrada declared an all-out war-which tolled the
peace negotiation. It was when then Pres. Arroyo assumed office, when the negotiation
regarding peace in Mindanao continued. MILF was hesitant; however, this negotiation
proceeded when the government of Malaysia interceded. Formal peace talks resumed and MILF
suspended all its military actions. The Tripoli Agreement in 2001 lead to the ceasefire between
the parties. After the death of MILF Chairman Hashim and Iqbal took over his position, the
crafting of MOA-AD in its final form was born.

MOA-AD Overview

This is an agreement to be signed by the GRP and the MILF. Used as reference in the birth of
this MOA-AD are the Tripoli Agreement, organic act of ARMM, IPRA Law, international laws such
as ILO Convention 169, the UN Charter etc., and the principle of Islam i.e compact right
entrenchment (law of compact, treaty and order). The body is divided into concepts and
principles, territory, resources, and governance.

Embodied in concepts and principles, is the definition of Bangsamoro as all indigenous peoples
of Mindanao and its adjacent islands. These people have the right to self- governance of their
Bangsamoro homeland to which they have exclusive ownership by virtue of their prior rights of
occupation in the land. 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." It 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.

As defined in the territory of the MOA-AD, the BJE shall embrace the Mindanao-Sulu-Palawan
geographic region, involving the present ARMM, parts of which are those which voted in the
inclusion to ARMM in a plebiscite. The territory is divided into two categories, A which will be

21
subject to plebiscite not later than 12 mos. after the signing and B which will be subject to
plebiscite 25 years from the signing of another separate agreement. Embodied in the MOA-AD
that the BJE shall have jurisdiction over the internal waters-15kms from the coastline of the BJE
territory; they shall also have "territorial waters," which shall stretch beyond the BJE internal
waters up to the baselines of the Republic of the Philippines (RP) south east and south west of
mainland Mindanao; and that within these territorial waters, the BJE and the government shall
exercise joint jurisdiction, authority and management over all natural resources. There will also
be sharing of minerals in the territorial waters; but no provision on the internal waters.

Included in the resources is the stipulation 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, as well as environmental cooperation agreements, but not to
include aggression in the GRP. The external defense of the BJE is to remain the duty and
obligation of the government. The BJE shall have participation in international meetings and
events" like those of the ASEAN and the specialized agencies of the UN. They are 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. The BJE shall also have the right to explore its resources and that 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. And they shall have the right to cancel or modify
concessions and TLAs.

And lastly in the governance, the MOA-AD claims that the relationship between the GRP and
MILF is associative i.e. characterized by shared authority and responsibility. This structure of
governance shall be further discussed in the Comprehensive Compact, a stipulation which was
highly contested before the court. The BJE shall also be given the right to build, develop and
maintain its own institutions, the details of which shall be discussed in the comprehensive
compact as well.

Issues:

1. WON the petitions have complied with the procedural requirements for the exercise of
judicial review

2. WON respondents violate constitutional and statutory provisions on public consultation and
the right to information when they negotiated and later initialed the MOA-AD; and

3. WON the contents of the MOA-AD violated the Constitution and the laws

Ruling:

The SC declared the MOA-AD contrary to law and the Constitution.

On the Procedural Issue


1st issue: As regards the procedural issue, SC upheld that there is indeed a need for the
exercise of judicial review.

The power of judicial review is limited to actual cases or controversy, that is the court will
decline on issues that are hypothetical, feigned problems or mere academic questions. Related
to the requirement of an actual case or controversy is the requirement of ripeness. The
contention of the SolGen is that there is no issue ripe for adjudication since the MOA-AD is only
a proposal and does not automatically create legally demandable rights and obligations. Such
was denied.

22
The SC emphasized that the petitions are alleging acts made in violation of their duty or in
grave abuse of discretion. Well-settled jurisprudence states that acts made by authority which
exceed their authority, by violating their duties under E.O. No. 3 and the provisions of the
Constitution and statutes, the petitions make a prima facie case for Certiorari, Prohibition, and
Mandamus, and an actual case or controversy ripe for adjudication exists. When an act of a
branch of government is seriously alleged to have infringed the Constitution, it becomes not
only the right but in fact the duty of the judiciary to settle the dispute. This is aside from the
fact that concrete acts made under the MOA-AD are not necessary to render the present
controversy ripe and that the law or act in question as not yet effective does not negate
ripeness.

With regards to the locus standi, the court upheld the personalities of the Province of Cotabato,
Province of Zamboanga del norte, City of Iligan, City of Zamboanga, petitioners in intervention
Province of Sultan Kudarat, City of Isabela and Municipality of Linnamon to have locus standi
since it is their LGUs which will be affected in whole or in part if include within the BJE.
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.
Senator Mar Roxas is also given a standing as an intervenor. And lastly, the Intervening
respondents Muslim Multi-Sectoral Movement for Peace and Development, an advocacy group
for justice and the attainment of peace and prosperity in Muslim Mindanao; and Muslim Legal
Assistance Foundation Inc., a non-government organization of Muslim lawyers since they stand
to be benefited or prejudiced in the resolution of the petitions regarding the MOA-AD.

On the contention of mootness of the issue considering the signing of the MOA-AD has already
been suspended and that the President has already disbanded the GRP, the SC disagrees. The
court reiterates that the moot and academic principle is a general rule only, the exceptions,
provided in David v. Macapagal-Arroyo, that it will decide cases, otherwise moot and
academic, if it finds that (a) there is a grave violation of the Constitution; (b) the situation is of
exceptional character and paramount public interest is involved; (c) the constitutional issue
raised requires formulation of controlling principles to guide the bench, the bar, and the public;
and (d) the case is capable of repetition yet evading review; and that where there is a
voluntary cessation of the activity complained of by the defendant or doer, it does not divest
the court the power to hear and try the case especially when the plaintiff is seeking for
damages or injunctive relief.

Clearly, the suspension of the signing of the MOA-AD and the disbandment of the GRP did not
render the petitions moot and academic. 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.

At all events, the Court has jurisdiction over most if not the rest of the petitions. There is a
reasonable expectation that petitioners will again be subjected to the same problem in the
future as respondents' actions are capable of repetition, in another or any form. But with
respect to the prayer of Mandamus to the signing of the MOA-AD, such has become moot and
academic considering that parties have already complied thereat.

On the Substantive Issue


2nd Issue: The SC ruled that the MOA-AD is a matter 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.

23
As enshrined in the Constitution, the right to information guarantees the right of the people to
demand information, and integrated therein is the recognition of the duty of the officialdom to
give information even if nobody demands. The policy of public disclosure establishes a
concrete ethical principle for the conduct of public affairs in a genuinely open democracy, with
the people's right to know as the centerpiece. It is a mandate of the State to be accountable by
following such policy. These provisions are vital to the exercise of the freedom of expression
and essential to hold public officials at all times accountable to the people.

Also, it was held that such stipulation in the Constitution is self-executory with reasonable
safeguards the effectivity of which need not await the passing of a statute. Hence, it is
essential 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.

The idea of a feedback mechanism was also sought for since it is corollary to the twin rights to
information and disclosure. And feedback means not only the conduct of the plebiscite as per
the contention of the respondents. Clearly, what the law states is the right of the petitioners to
be consulted in the peace agenda as corollary to the constitutional right to information and
disclosure. As such, respondent Esperon committed grave abuse of discretion for failing to
carry out 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 thereto. Moreover, he cannot invoke of executive privilege
because he already waived it when he complied with the Courts order to the unqualified
disclosure of the official copies of the final draft of the MOA-AD.

In addition, the LGU petitioners has the right to be involved in matters related to such peace
talks as enshrined in the State policy. 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.

With respect to the ICC/IPPs they also have the right to participate fully at all levels on
decisions that would clearly affect their lives, rights and destinies. The MOA-AD is an
instrument recognizing ancestral domain, hence it should have observed the free and prior
informed consent to the ICC/IPPs; but it failed to do so. More specially noted by the court is the
excess in authority exercised by the respondentsince they allowed delineation and
recognition of ancestral domain claim by mere agreement and compromise; such power
cannot be found in IPRA or in any law to the effect.

3rd issue: With regard to the provisions of the MOA-AD, there can be no question that they
cannot be all accommodated under the present Constitution and laws. Not only its specific
provisions but the very concept underlying them:

On matters of the Constitution.


Association as the type of relationship governing between the parties. The parties
manifested that in crafting the MOA-AD, the term association was adapted from the
international law. In international law, association happens when two states of equal power
voluntarily establish durable links i.e. the one state, the associate, delegates certain
responsibilities to the other, principal, while maintaining its international status as state; free
association is a middle ground between integration and independence. The MOA-AD contains
many provisions that are consistent with the international definition of association which fairly
would deduced that the agreement vest into the BJE a status of an associated state, or at any

24
rate, a status closely approximating it. The court vehemently objects because the principle of
association is not recognized under the present Constitution.

On the recognition of the BJE entity as a state. The concept implies power beyond
what the Constitution can grant to a local government; even the ARMM do not have
such recognition; and the fact is such concept implies recognition of the associated
entity as a state. There is nothing in the law that contemplate any state within the
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. The
court disagrees with the respondent that the MOA-AD merely expands the ARMM. BJE
is a state in all but name as it meets the criteria of a state laid down in the
Montevideo Convention, namely, a permanent population, a defined territory, a
government, and a capacity to enter into relations with other states. As such the
MOA-AD clearly runs counter to the national sovereignty and territorial integrity of
the Republic.

On the expansion of the territory of the BJE. The territory included in the BJE includes
those areas who voted in the plebiscite for them to become part of the ARMM. The
stipulation of the respondents in the MOA-AD that these areas need not participate in
the plebiscite is in contrary to the express provision of the Constitution. The law
states that 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." Clearly,
assuming that the BJE is just an expansion of the ARMM, it would still run afoul the
wordings of the law since those included in its territory are areas which voted in its
inclusion to the ARMM and not to the BJE.

On the powers vested in the BJE as an entity. The respondents contend that the
powers vested to the BJE in the MOA-AD shall be within sub-paragraph 9 of sec 20,
art. 10 of the constitution and that a mere passage of a law is necessary in order to
vest in the BJE powers included in the agreement. The Court was not persuaded. SC
ruled that such conferment calls for amendment of the Constitution; otherwise new
legislation will not concur with the Constitution. Take for instance the treaty making
power vested to the BJE in the MOA-AD. The Constitution is clear that only the
President has the sole organ and is the countrys sole representative with foreign
nation. Should the BJE be granted with the authority to negotiate with other states,
the former provision must be amended consequently. Section 22 must also be
amendedthe provision of the law that promotes national unity and development.
Because clearly, associative arrangement of the MOA-AD does not epitomize national
unity but rather, of semblance of unity. 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.

On matters of domestic statutes.


o Provisions contrary to the organic act of ARMM. RA 9054 is a bar to the adoption of the
definition of Bangsamoro people used in the MOA-AD. Said law specifically distinguishes
between the Bangsamoro people and the Tribal peoples that is contrary with the definition of
the MOA-AD which includes all indigenous people of Mindanao.

25
o Provisions contrary to the IPRA law. Also, the delineation and recognition of the ancestral
domain is a clear departure from the procedure embodied in the IPRA law which ironically is
the term of reference of the MOA-AD.

On matters of international law.

The Philippines adopts the generally accepted principle of international law as part of the law
of the land. In international law, the right to self-determination has long been recognized which
states that people can freely determine their political status and freely pursue their economic,
social, and cultural development. There are the internal and external self-determination
internal, meaning the self-pursuit of man and the external which takes the form of the
assertion of the right to unilateral secession. This principle of self-determination is viewed with
respect accorded to the territorial integrity of existing states. External self-determination is
only afforded in exceptional cases when there is an actual block in the meaningful exercise of
the right to internal self-determination. International law, as a general rule, subject only to
limited and exceptional cases, recognizes that the right of disposing national territory is
essentially an attribute of the sovereignty of every state.

On matters relative to indigenous people, international law states that indigenous peoples
situated within states do not have a general right to independence or secession from those
states under international law, but they do have rights amounting to what was discussed
above as the right to internal 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; have the right to the lands, territories and resources
which they have traditionally owned, occupied or otherwise used or acquired.

Clearly, there is nothing in the law that required the State to guarantee the indigenous people
their own police and security force; but rather, it shall be the State, through police officers, that
will provide for the protection of the people. With regards to the autonomy of the indigenous
people, the law does not obligate States to grant indigenous peoples the near-independent
status of a state; since it would impair the territorial integrity or political unity of sovereign and
independent states.

On the basis of the suspensive clause.


o It was contented by the respondents that grave abuse of discretion cannot be had, since
the provisions assailed as unconstitutional shall not take effect until the necessary changes to
the legal framework are effected.

The Court is not persuaded. This suspensive clause runs contrary to Memorandum of
Instructions from the President stating that negotiations shall be conducted in accordance to
the territorial integrity of the countrysuch was negated by the provision on association
incorporated in the MOA-AD. Apart from this, the suspensive clause was also held invalid
because of the delegated power to the GRP Peace panel to advance peace talks even if it will
require new legislation or even constitutional amendments. The legality of the suspensive
clause hence hinges on the query whether the President can exercise such power as delegated
by EO No.3 to the GRP Peace Panel. Well settled is the rule that the President cannot delegate
a power that she herself does not possess. The power of the President to conduct peace
negotiations is not explicitly mentioned in the Constitution but is rather implied from her
powers as Chief Executive and Commander-in-chief. As Chief Executive, the President has the
general responsibility to promote public peace, and as Commander-in-Chief, she has the more
specific duty to prevent and suppress rebellion and lawless violence.

26
As such, the President is given the leeway to explore, in the course of peace negotiations,
solutions that may require changes to the Constitution for their implementation. At all event,
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.

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. Clearly, 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. The Presidents power is limited only to the preservation
and defense of the Constitution but not changing the same but simply recommending
proposed amendments or revisions.

o The Court ruled that the suspensive clause is not a suspensive condition but is a term
because it is not a question of whether the necessary changes to the legal framework will take
effect; but, when. Hence, the stipulation is mandatory for the GRP to effect the changes to the
legal framework which changes would include constitutional amendments. Simply put, the
suspensive clause is inconsistent with the limits of the President's authority to propose
constitutional amendments, it being a virtual guarantee that the Constitution and the laws of
the Republic of the Philippines will certainly be adjusted to conform to all the "consensus
points" found in the MOA-AD. Hence, it must be struck down as unconstitutional.

On the concept underlying the MOA-AD.


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. The MOA-AD not being a document that can bind the Philippines under international
law notwithstanding, respondents' almost consummated act of guaranteeing amendments to
the legal framework is, by itself, sufficient to constitute grave abuse of discretion. The grave
abuse lies not in the fact that they considered, as a solution to the Moro Problem, the creation
of a state within a state, but in their brazen willingness to guarantee that Congress and the
sovereign Filipino people would give their imprimatur to their solution. Upholding such an act
would amount to authorizing a usurpation of the constituent powers vested only in Congress, a
Constitutional Convention, or the people themselves through the process of initiative, for the
only way that the Executive can ensure the outcome of the amendment process is through an
undue influence or interference with that process.

G.R. No. 183591 October 14 2008


Province of North Cotabato vs Government of the Republic of the Philippines

FACTS:
On August 5, 2008, the Government of the Republic of the Philippines and the Moro Islamic
Liberation Front (MILF) were scheduled to sign a Memorandum of Agreement of the Ancestral
Domain Aspect of the GRP - MILF Tripoli Agreement on Peace of 2001 in Kuala Lumpur,
Malaysia.
Invoking the right to information on matters of public concern, the petitioners seek to compel
respondents to disclose and furnish them the complete and official copies of the MA-AD and to

27
prohibit the slated signing of the MOA-AD and the holding of public consultation thereon. They
also pray that the MOA-AD be declared unconstitutional. The Court issued a TRO enjoining the
GRP from signing the same.

ISSUES:
1. Whether or not the constitutionality and the legality of the MOA is ripe for adjudication;
2. Whether or not there is a violation of the people's right to information on matters of public
concern (Art 3 Sec. 7) under a state policy of full disclosure of all its transactions involving
public interest (Art 2, Sec 28) including public consultation under RA 7160 (Local Government
Code of 1991)
3. Whether or not the signing of 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)

RULINGS:
1. Yes, the petitions are ripe for adjudication. The failure of the respondents to consult the local
government units or communities affected constitutes a departure by respondents from their
mandate under EO No. 3. Moreover, the respondents exceeded their authority by the mere act
of guaranteeing amendments to the Constitution. Any alleged violation of the Constitution by
any branch of government is a proper matter for judicial review.
As the petitions involve constitutional issues which are of paramount public interest or of
transcendental importance, the Court grants the petitioners, petitioners-in-intervention and
intervening respondents the requisite locus standi in keeping with the liberal stance adopted in
David v. Macapagal- Arroyo.
In Pimentel, Jr. v. Aguirre, 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.x x x x
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.
That the law or act in question is not yet effective does not negate ripeness.

2. Yes. The Court finds that there is a grave violation of the Constitution involved in the matters
of public concern (Sec 7 Art III) under a state policy of full disclosure of all its transactions
involving public interest (Art 2, Sec 28) including public consultation under RA 7160 (Local
Government Code of 1991).
(Sec 7 ArtIII) The right to information guarantees the right of the people to demand
information, while Sec 28 recognizes the duty of officialdom to give information even if nobody
demands. The complete and effective exercise of the right to information necessitates that its
complementary provision on public disclosure derive the same self-executory nature, subject
only to reasonable safeguards or limitations as may be provided by law.
The contents of the MOA-AD is a matter of paramount public concern involving public interest
in the highest order. In declaring that the right to information contemplates steps and
negotiations leading to the consummation of the contract, jurisprudence finds no distinction as
to the executory nature or commercial character of the agreement.

28
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.

3.
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;

Yes. The provisions of the MOA indicate, among other things, that the Parties aimed
to vest in the BJE the status of an associated state or, at any rate, a status closely
approximating it.
The concept of association is not recognized under the present Constitution.

No province, city, or municipality, not even the ARMM, is recognized under our laws as having
an associative relationship with the national government. Indeed, the concept implies
powers that go beyond anything ever granted by the Constitution to any local or regional
government. It also implies the recognition of the associated entity as a state. The
Constitution, however, does not contemplate any state in this jurisdiction other than the
Philippine State, much less does it provide for a transitory status that aims to prepare any part
of Philippine territory for independence.

The BJE is a far more powerful entity than the autonomous region recognized in the
Constitution. It is not merely an expanded version of the ARMM, the status of its relationship
with the national government being fundamentally different from that of the ARMM. Indeed,
BJE is a state in all but name as it meets the criteria of a state laid down in the
Montevideo Convention, 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. 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.

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

The MOA-AD provides that any provisions of the MOA-AD requiring amendments to the
existing legal framework shall come into force upon the signing of a Comprehensive Compact
and upon effecting the necessary changes to the legal framework, implying an amendment
of the Constitution to accommodate the MOA-AD. This stipulation, in effect,
guaranteed to the MILF the amendment of the Constitution .

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

29
proper procedure for constitutional amendments and revision, her mere recommendation need
not be construed as an unconstitutional act.

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

Given the limited nature of the Presidents 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.

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

Thus, the concept of Bangsamoro, as defined in this strand of the MOA-AD, includes not only
Moros as traditionally understood even by Muslims, 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. Both
parties to the MOA-AD acknowledge that ancestral domain does not form part of the public
domain.

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.

Two, Republic Act No. 7160 or the Local Government Code of 1991 requires all national offices
to conduct consultations beforeany 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.

CONCLUSION:
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.

30
The MOA-AD cannot be reconciled with the present Constitution and laws. Not only its specific
provisions but the very concept underlying them, namely, the associative relationship
envisioned between the GRP and the BJE, are unconstitutional, for the concept presupposes
that the associated entity is a state and implies that the same is on its way to independence.
G.R. No. 183591 October 14 2008
Province of North Cotabato vs Government of the Republic of the Philippines

FACTS:
On August 5, 2008, the Government of the Republic of the Philippines and the Moro Islamic
Liberation Front (MILF) were scheduled to sign a Memorandum of Agreement of the Ancestral
Domain Aspect of the GRP - MILF Tripoli Agreement on Peace of 2001 in Kuala Lumpur,
Malaysia.
Invoking the right to information on matters of public concern, the petitioners seek to compel
respondents to disclose and furnish them the complete and official copies of the MA-AD and to
prohibit the slated signing of the MOA-AD and the holding of public consultation thereon. They
also pray that the MOA-AD be declared unconstitutional. The Court issued a TRO enjoining the
GRP from signing the same.

ISSUES:
1. Whether or not the constitutionality and the legality of the MOA is ripe for adjudication;
2. Whether or not there is a violation of the people's right to information on matters of public
concern (Art 3 Sec. 7) under a state policy of full disclosure of all its transactions involving
public interest (Art 2, Sec 28) including public consultation under RA 7160 (Local Government
Code of 1991)
3. Whether or not the signing of 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)

RULINGS:
1. Yes, the petitions are ripe for adjudication. The failure of the respondents to consult the local
government units or communities affected constitutes a departure by respondents from their
mandate under EO No. 3. Moreover, the respondents exceeded their authority by the mere act
of guaranteeing amendments to the Constitution. Any alleged violation of the Constitution by
any branch of government is a proper matter for judicial review.
As the petitions involve constitutional issues which are of paramount public interest or of
transcendental importance, the Court grants the petitioners, petitioners-in-intervention and
intervening respondents the requisite locus standi in keeping with the liberal stance adopted in
David v. Macapagal- Arroyo.
In Pimentel, Jr. v. Aguirre, 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.x x x x
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.
That the law or act in question is not yet effective does not negate ripeness.

31
2. Yes. The Court finds that there is a grave violation of the Constitution involved in the matters
of public concern (Sec 7 Art III) under a state policy of full disclosure of all its transactions
involving public interest (Art 2, Sec 28) including public consultation under RA 7160 (Local
Government Code of 1991).
(Sec 7 ArtIII) The right to information guarantees the right of the people to demand
information, while Sec 28 recognizes the duty of officialdom to give information even if nobody
demands. The complete and effective exercise of the right to information necessitates that its
complementary provision on public disclosure derive the same self-executory nature, subject
only to reasonable safeguards or limitations as may be provided by law.
The contents of the MOA-AD is a matter of paramount public concern involving public interest
in the highest order. In declaring that the right to information contemplates steps and
negotiations leading to the consummation of the contract, jurisprudence finds no distinction as
to the executory nature or commercial character of the agreement.
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.

3.
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;

Yes. The provisions of the MOA indicate, among other things, that the Parties aimed
to vest in the BJE the status of an associated state or, at any rate, a status closely
approximating it.
The concept of association is not recognized under the present Constitution.

No province, city, or municipality, not even the ARMM, is recognized under our laws as having
an associative relationship with the national government. Indeed, the concept implies
powers that go beyond anything ever granted by the Constitution to any local or regional
government. It also implies the recognition of the associated entity as a state. The
Constitution, however, does not contemplate any state in this jurisdiction other than the
Philippine State, much less does it provide for a transitory status that aims to prepare any part
of Philippine territory for independence.

The BJE is a far more powerful entity than the autonomous region recognized in the
Constitution. It is not merely an expanded version of the ARMM, the status of its relationship
with the national government being fundamentally different from that of the ARMM. Indeed,
BJE is a state in all but name as it meets the criteria of a state laid down in the
Montevideo Convention, 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. 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.

32
b) to revise or amend the Constitution and existing laws to conform to the MOA:

The MOA-AD provides that any provisions of the MOA-AD requiring amendments to the
existing legal framework shall come into force upon the signing of a Comprehensive Compact
and upon effecting the necessary changes to the legal framework, implying an amendment
of the Constitution to accommodate the MOA-AD. This stipulation, in effect,
guaranteed to the MILF the amendment of the Constitution .

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

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

Given the limited nature of the Presidents 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.

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

Thus, the concept of Bangsamoro, as defined in this strand of the MOA-AD, includes not only
Moros as traditionally understood even by Muslims, 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. Both
parties to the MOA-AD acknowledge that ancestral domain does not form part of the public
domain.

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.

Two, Republic Act No. 7160 or the Local Government Code of 1991 requires all national offices
to conduct consultations beforeany 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

33
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.

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

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

SC Declares GRP-MILF MOA-AD Unconstitutional

The Government and the MILF 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 GRP-MILF agreement is
the result of a formal peace talks between the parties in Tripoli, Libya in 2001. The
pertinent provisions in the MOA-AD provides for the establishment of an associative
relationship between the Bangsamoro Juridical Entity (BJE) and the Central
Government. It speaks of the relationship between the BJE and the Philippine
government as associative, thus implying an international relationship and
therefore suggesting an autonomous state. Furthermore, under the MOA-AD, the
GRP Peace Panel guarantees that necessary amendments to the Constitution and
the laws will eventually be put in place. Is the said MOA-AD constitutional?

ANSWER:

No. The SC ruled that the MOA-AD cannot be reconciled with the present Constitution and laws.
Not only its specific provisions but the very concept underlying them, namely, the associative
relationship envisioned between the GRP and the BJE, are unconstitutional, for the concept
presupposes that the associated entity is a state and implies that the same is on its way to
independence, it said. 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,

34
respondents act of guaranteeing amendments is, by itself, already a constitutional violation
that renders the MOA-AD fatally defective.

Justice Santiago said, among others, that the MOA-AD contains provisions which are
repugnant to the Constitution and which will result in the virtual surrender of part of the
Philippines territorial sovereignty. She further said that had the MOA-AD been signed by
parties, would have bound the government to the creation of a separate Bangsamoro state
having its own territory, government, civil institutions, and armed forcesThe sovereignty
and territorial integrity of the Philippines would have been compromised. (GR No.
183591, Province of North Cotabato v. Republic, October 14, 2008)

Notes:

In this case, The Court explained that 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 EO No. 3, RA 7160, and RA 8371.

EO No. 3 is replete with mechanics for continuing consultations on both national and
local levels and for a principal forum for consensus-building.

RA 7160 (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.

RA 8371 (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 (FPIC) of the Indigenous Cultural
Communities/Indigenous Peoples. (GR No. 183591, Province of North Cotabato v.
Republic, October 14, 2008)

FACTS: The Memorandum of Agreement on the Ancestral Domain (MOA-AD) brought about by
the Government of the republic of the Philippines (GRP) and the Moro Islamic Liberation Front
(MILF) as an aspect of Tripoli Agreement of Peace in 2001 is scheduled to be signed in Kuala
Lumpur, Malaysia.
This agreement was petitioned by the Province of North Cotabato for Mandamus and
Prohibition with Prayer for the Issuance of Writ of Preliminary Injunction and Temporary
Restraining Order. The agreement mentions Bangsamoro Juridical Entity (BJE) to which it
grants the authority and jurisdiction over the Ancestral Domain and Ancestral Lands of the
Bangsamoro; authority and jurisdiction over all natural resources within internal waters. The
agreement is composed of two local statutes: the organic act for autonomous region in Muslim
Mindanao and the Indigenous Peoples Rights Act (IPRA).

35
ISSUE: Whether or not the GRP violated the Constitutional and statutory provisions on public
consultation and the right to information when they negotiated and initiated the MOA-AD and
Whether or not the MOA-AD brought by the GRP and MILF is constitutional

HELD:GRP violated the Constitutional and statutory provisions on public consultation and the
right to information when they negotiated and initiated the MOA-AD and it are unconstitutional
because it is contrary to law and the provisions of the constitution thereof.

REASONING: The GRP is required by this law to carry out public consultations on both national
and local levels to build consensus for peace agenda and process and the mobilization and
facilitation of peoples participation in the peace process.

Article III (Bill of Rights)

Sec. 7. The right of people 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.

Article II
Sec. 28. Subject to reasonable conditions prescribed by law , that state adopts and implements
a policy of full public disclosure of all its transactions involving public interest.

LGC (1991), require all national agencies and officers to conduct periodic consultations. No
project or program be implemented unless such consultations are complied with and approval
mus be obtained.

Article VII (Executive Department)

Sec. 21. No treaty or international agreement shall be valid and effective unless concurred in
by at least two-thirds of all the Members of the Senate.

Article X. (Local Government)

Sec. 1. The territorial and political subdivisions of the Republic of the Philippines are the
province, cities, municipalities and barangays. There shall be autonomous regions on Muslim
Mindanao and the Cordillera as hereinafter provided.

Sec. 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.

Section 16. The President shall exercise general supervision over autonomous regions to
ensure that laws are faithfully executed.

36
Sec. 18. The creation of autonomous region shall be effective when approved by a majority of
the votes cast by the constituents units in a plebiscite called for the purpose, provided that
only provinces, cities and geographic areas voting favourably in such plebiscite shall be
included in the autonomous region.

Sec. 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.

The President has sole authority in the treaty-making.

ARTICLE XVII (AMENDMENTS OR REVISIONS)

Section 1. Any amendment to, or revision of, this Constitution may be proposed by:
1. The Congress, upon a vote of three-fourths of all its Members; or
2. A constitutional convention.

Section 4. Any amendment to, or revision of, this Constitution under Section 1 hereof shall be
valid when ratified by a majority of the votes cast in a plebiscite which shall be held not earlier
than sixty days nor later than ninety days after the approval of such amendment or revision.

MOA-AD states 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. The presidents authority is
limited to proposing 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.
MOA-AD itself presents the need to amend therein.

Province of North Cotabato vs Government of the Republic of the Philippines Peace


Panel

The Government of the Republic of the Philippines (GRP) and the Moro Islamic
Liberation Front (MILF) were scheduled to sign a Memorandum of Agreement on the
Ancestral Domain (MOA-AD). This Memorandum of Agreement on the Ancestral
Domain Aspect of the GRP-MILF Tripoli Agreement of Peace of 2001 is a codification
of consensus points reached between GRP and MILF Peace Panel and of the
aspiration of the MILF to have a Bangasmoro Homeland

37
According to the stipulations in the MOA-AD, Ownership of the Bangasmoro
Homeland is vested to the Bangasmoro people. MOA-AD describes the Bangasmoro
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
Bangasmoro Juridical Entity (BJE) is granted by the MOA-AD the authority and
jurisdiction over the Ancestral Domain and Ancestral Lands of the Bangasmoro. It
was also stipulated that BJE shall have jurisdiction over all natural resources within
its internal waters.

Issues:
1. Whether the petitions have become moot and academic
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.
4. Whether there is a violation of the peoples right to information
on matters of public concern.
5. Whether by signing the MOA, the Government of the Republic of the
Philippines would be BINDING itself.
6. cralawWhether 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. cralawWhether MOA-AD is constitutional

Held:

Issue 1:

The court believes that the petitions in the case at bar 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.

Issue 2:

38
Yes. Any alleged violation of the consti by any branch of the government is a proper

matter for judicial review. In the case at bar, the failure of the respondents to

consult the local government units or communities affected amounts to a departure

from the mandate under E.O. No. 3 and the fact that the respondents exceeded

their authority by the mere act of guaranteeing amendments to the Constitution,

rendered the petition ripe for adjudication.

Issue 3:

The MOA-AD not being a document that can bind the Philippines under international

law notwithstanding, respondents almost consummated act of guaranteeing

amendments to the legal framework is, by itself, sufficient to constitute grave abuse

of discretion. The grave abuse lies not in the fact that they considered, as a solution

to the Moro Problem, the creation of a state within a state, but in their brazen

willingness to guarantee that Congress and the sovereign Filipino people would give

their imprimatur to their solution.

Issue 4:

Yes, there is a violation of the peoples right to information.An essential element of

this right is to keep a continuing dialogue or process of communication between the

government and the people.The contents of the MOA-AD is a matter of paramount

public concern involving public interest in the highest order.

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.

Issue 5:

39
No. The MOA-AD is not a document that can bind the Philippines under international

law. It would have been signed by representatives of States and international

organizations not parties to the Agreement, this would not have sufficed to vest in

it a binding character under international law.

Issue 6:

Yes. 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. These 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.

Issue 7:

Yes. The MOA-AD is unconstitutional because it cannot be reconciled with the

present constitution. Not only its specific provisions but the very concept

underlying them. The associative relationship between the GRP and the BJE is

unconstitutional because the concept presupposes that the associated entity is a

state and implies that the same is on its way to independence.

The court denied the respondents motion to dismiss and granted the main and

intervening petitions.
Full disclosure

In the very recent case of THE PROVINCE OF NORTH COTABATO, et. al. vs. THE GOVERNMENT
OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP), G.R. No.
183591, October 14, 2008, and companion cases, the Philippine Supreme Court declared as
contrary to the Philippine Constitution the controversial and widely condemned Memorandum
of Agreement on the Ancestral Domain Aspect of the GRP-MILF Tripoli Agreement on Peace of
2001.

The basic procedural and substantive doctrines cited in the said decision are summarized
below for purposes of legal research of the visitors of this blog insofar as basic principles
affecting the Justice System and the Rule of Law are concerned, notable among which are the

40
exceptions to the moot and academic rule, the liberality in the interpretation of the ripeness
for judicial review rule, the expanded scope of the locus standi rule, the constitutional right of
full access to information on matters of public concern, and the duty of public officials to
conduct local consultations. Thus:

1. 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.

2. The respondents exceeded their authority by the act of guaranteeing amendments to the
Constitution.

3. Any alleged violation of the Constitution by any branch of government is a proper matter
for judicial review.

4. As the petitions involve constitutional issues which are of paramount public interest or of
transcendental importance, the petitioners have the requisite locus standi.

5. The non-signing of the MOA-AD and the eventual dissolution of the GRP Peace Panel did not
moot the petitions. The present petitions are 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.

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

7. The contents of the MOA-AD are a matter of paramount public concern involving public
interest in the highest order.

8. E.O. No. 3 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,

41
comments, advice, and recommendations from peace partners and concerned sectors of
society.

9. 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.

10. 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.

11. 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.

12. 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.

13. 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.

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

15. The inclusion of provisions in the MOA-AD establishing an associative relationship between
the BJE and the Central Government is a violation of the Memorandum of Instructions From The
President dated March 1, 2001, addressed to the government peace panel.

16. As the said 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.

17. While the MOA-AD would not amount to an international agreement or unilateral
declaration binding on the Philippines under international law, respondents act of

42
guaranteeing amendments is, by itself, already a constitutional violation that renders the
MOA-AD fatally defective.

TANADA v. ANGARA 272 SCRA 18, May 2, 1997

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 : Whether or not there has been a grave abuse of discretion amounting to lack or excess
of jurisdiction on the part of the Senate in giving its concurrence of the said WTO agreement.

Held:
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 automatically part of our own laws. Pacta sunt servanda international
agreements must be performed in good faith. A treaty is not a mere moral obligation but
creates a legally binding obligation on the parties.
Through WTO the sovereignty of the state cannot in fact and reality be considered as absolute
because it is a regulation of commercial relations among nations. Such as when Philippines
joined the United Nations (UN) it consented to restrict its sovereignty right under the concept
of sovereignty as autolimitation. What Senate did was a valid exercise of authority. As to
determine whether such exercise is wise, beneficial or viable is outside the realm of judicial
inquiry and review. The act of signing the said agreement is not a legislative restriction as WTO
allows withdrawal of membership should this be the political desire of a member. Also, it
should not be viewed as a limitation of economic sovereignty. WTO remains as the only viable
structure for multilateral trading and the veritable forum for the development of international
trade law. Its alternative is isolation, stagnation if not economic self-destruction. Thus, the
people be allowed, through their duly elected officers, make their free choice.
Petition is DISMISSED for lack of merit.

43
Taada, et al., v. Angara, et al., G.R. No. 118295, May 2, 1997

En Banc PANGANIBAN, J.:


I. THE FACTS
Petitioners Senators Taada, et al. questioned the constitutionality of the
concurrence by the Philippine Senate of the Presidents ratification of the international
Agreement establishing the World Trade Organization (WTO). They argued that the WTO
Agreement violates the mandate of the 1987 Constitution to develop a self-reliant and
independent national economy effectively controlled by Filipinos . . . (to) give preference to
qualified Filipinos (and to) promote the preferential use of Filipino labor, domestic materials
and locally produced goods. Further, they contended that the national treatment and parity
provisions of the WTO Agreement place nationals and products of member countries on the
same footing as Filipinos and local products, in contravention of the Filipino First policy of
our Constitution, and render meaningless the phrase effectively controlled by Filipinos.
II. THE ISSUE
Does the 1987 Constitution prohibit our country from participating in worldwide trade
liberalization and economic globalization and from integrating into a global economy that is
liberalized, deregulated and privatized?
III. THE RULING
[The Court DISMISSED the petition. It sustained the concurrence of the Philippine
Senate of the Presidents ratification of the Agreement establishing the WTO.]

NO, the 1987 Constitution DOES NOT prohibit our country from
participating in worldwide trade liberalization and economic globalization and from
integrating into a global economy that is liberalized, deregulated and privatized.
There are enough balancing provisions in the Constitution to allow the Senate to
ratify the Philippine concurrence in the WTO Agreement.
[W]hile 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.
[T]he constitutional policy of a self-reliant and independent national economy does
not necessarily rule out the entry of foreign investments, goods and services. It contemplates
neither economic seclusion nor mendicancy in the international community. As explained
by Constitutional Commissioner Bernardo Villegas, sponsor of this constitutional policy:
Economic self-reliance is a primary objective of a developing country that is keenly
aware of overdependence on external assistance for even its most basic needs. It does not
mean autarky or economic seclusion; rather, it means avoiding mendicancy in the
international community. Independence refers to the freedom from undue foreign control of the

44
national economy, especially in such strategic industries as in the development of natural
resources and public utilities.

The WTO reliance on most favored nation, national treatment, and trade without
discrimination cannot be struck down as unconstitutional as in fact they are rules of equality
and reciprocity that apply to all WTO members. Aside from envisioning a trade policy based on
equality and reciprocity, 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.
It is true, as alleged by petitioners, that broad constitutional principles require the
State to develop an independent national economy effectively controlled by Filipinos; and to
protect and/or prefer Filipino labor, products, domestic materials and locally produced goods.
But it is equally true that such principles while serving as judicial and legislative guides
are not in themselves sources of causes of action. Moreover, there are other equally
fundamental constitutional principles relied upon by the Senate which mandate the pursuit of a
trade policy that serves the general welfare and utilizes all forms and arrangements of
exchange on the basis of equality and reciprocity and the promotion of industries which are
competitive in both domestic and foreign markets, thereby justifying its acceptance of said
treaty. So too, the alleged impairment of sovereignty in the exercise of legislative and judicial
powers is balanced by the adoption of the generally accepted principles of international law as
part of the law of the land and the adherence of the Constitution to the policy of cooperation
and amity with all nations.
That the Senate, after deliberation and voting, voluntarily and overwhelmingly gave
its consent to the WTO Agreement thereby making it a part of the law of the land is a
legitimate exercise of its sovereign duty and power. We find no patent and gross
arbitrariness or despotism by reason of passion or personal hostility in such exercise. It is not
impossible to surmise that this Court, or at least some of its members, may even agree with
petitioners that it is more advantageous to the national interest to strike down Senate
Resolution No. 97. But that is not a legal reason to attribute grave abuse of discretion to the
Senate and to nullify its decision. To do so would constitute grave abuse in the exercise of our
own judicial power and duty. Ineludibly, what the Senate did was a valid exercise of its
authority. As to whether such exercise was wise, beneficial or viable is outside the realm of
judicial inquiry and review. That is a matter between the elected policy makers and the people.
As to whether the nation should join the worldwide march toward trade liberalization and
economic globalization is a matter that our people should determine in electing their policy
makers. After all, the WTO Agreement allows withdrawal of membership, should this be the
political desire of a member.
Tanada vs Angara 272 SCRA 18

Facts

On April 15, 1994, the Philippine Government represented by its Secretary of the Department
of Trade and Industry signed the Final Act binding the Philippine Government to submit to its
respective competent authorities the WTO (World Trade Organization) Agreements to seek

45
approval for such. On December 14, 1994, Resolution No. 97 was adopted by the Philippine
Senate to ratify the WTO Agreement.
This is a petition assailing the constitutionality of the WTO agreement as it violates Sec 19,
Article II, providing for the development of a self reliant and independent national economy,
and Sections 10 and 12, Article XII, providing for the Filipino first policy.

Issue

Whether or not the Resolution No. 97 ratifying the WTO Agreement is unconstitutional

Ruling

The Supreme Court ruled the Resolution No. 97 is not unconstitutional. While the constitution
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 interests only against foreign competition and
trade practices that are unfair. In other words, the Constitution did not intend to pursue an
isolationalist policy. Furthermore, the constitutional policy of a self-reliant and independent
national economy does not necessarily rule out the entry of foreign investments, goods and
services. It contemplates neither economic seclusion nor mendicancy in the international
community.
The Senate, after deliberation and voting, gave its consent to the WTO Agreement thereby
making it a part of the law of the land. The Supreme Court gave due respect to an equal
department in government. It presumes its actions as regular and done in good faith unless
there is convincing proof and persuasive agreements to the contrary. As a result, the
ratification of the WTO Agreement limits or restricts the absoluteness of sovereignty. A treaty
engagement is not a mere obligation but creates a legally binding obligation on the parties. A
state which has contracted valid international obligations is bound to make its legislations such
modifications as may be necessary to ensure the fulfillment of the obligations undertaken.
TAADA vs. ANGARA

[272 SCRA 18, May 2, 1997]


Facts:
Petitioner sought to have the agreement to join the World Trade Organization (WTO) declared
unconstitutional on the grounds that: (1) that the WTO requires the Philippines .to place
nationals and products of member-countries on the same footing as Filipinos and local
products. and (2) that the WTO .intrudes, limits and/or impairs. the constitutional powers of
both Congress and the Supreme Court, the instant petition before this Court assails the WTO
Agreement for violating the mandate of the 1987 Constitution to .develop a self-reliant and
independent national economy effectively controlled by Filipinos . . . (to) give preference to
qualified Filipinos (and to) promote the preferential use of Filipino labor, domestic materials
and locally produced goods..
Issues:
1. Whether or not the petition presents a justiciable controversy or involves a political
question.

46
2. Whether or not the provisions of the Agreement contravene Sec. 19, Art II and Secs.
10 and 12, Art. XII, of the Philippine Constitution.
3. Whether or not the Provisions unduly impair or interfere with Legislative Power.
4. Whether or not the Provisions unduly impair or interfere with Judicial Power.
5. Whether or not the Concurrence of the Senate with the WTO Agreement and its
Annexes sufficient and/or valid.
Held:
Justiciable Controversy
There is a justiciable controversy. A part of the Court.s decision reads:
We should stress that, in deciding to take jurisdiction over this petition, this Court will not
review the wisdom of the decision of the President and the Senate in enlisting the country into
the WTO, or pass upon the merits of trade liberalization as a policy espoused by said
international body. Neither will it rule on the propriety of the government.s economic policy of
reducing/removing tariffs, taxes, subsidies, quantitative restrictions, and other import/trade
barriers. Rather, it will only exercise its constitutional duty to determine whether or not there
had been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of
the Senate in ratifying the WTO Agreement and its three annexes.
Contravention of the Constitution
The Court held that there was no contravention of the Constitution since Art. II or the
Declaration of Principles and State Policies is not self-executory. Secs. 10 and 12, Art. XII, on
the other hand, the Court said:
Secs. 10 and 12 of Article XII, apart from merely laying down general principles relating to the
national economy and patrimony, should be read and understood in relation to the other
sections in said article, especially Secs. 1 and 13 thereof which read:7
Sec. 1. The goals of the national economy are a more equitable distribution of opportunities,
income, and wealth; a sustained increase in the amount of goods and services produced by the
nation for the benefit of the people; and an expanding productivity as the key to raising the
quality of life for all especially the underprivileged.
The State shall promote industrialization and full employment based on sound agricultural
development and agrarian reform, through industries that make full and efficient use of human
and natural resources, and which are competitive in both domestic and foreign markets.
However, the State shall protect Filipino enterprises against unfair foreign competition and
trade practices.

In the pursuit of these goals, all sectors of the economy and all regions of the country shall be
given optimum opportunity to develop. . . .
Sec. 13. The State shall pursue a trade policy that serves the general welfare and utilizes all
forms and arrangements of exchange on the basis of equality and reciprocity.
The Court further stated that the WTO comes with safeguards to protect weaker economies
and that the Constitution does not rule out foreign competition
The WTO Agreement and Legislative Power
The court held that:

47
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.
The WTO Agreement and Judicial Power
A portion of the decision reads:
By and large, the arguments adduced in connection with our disposition of the third issue
derogation of legislative power will apply to this fourth issue also. Suffice it to say that the
reciprocity clause more than justifies such intrusion, if any actually exists. Besides, Article 34
does not contain an unreasonable burden, consistent as it is with due process and the concept
of adversarial dispute settlement inherent in our judicial system.
So too, since the Philippine is a signatory to most international conventions on patents,
trademarks and copyrights, the adjustment in legislation and rules of procedure will not be
substantial.
Validity of the Concurrence of the Senate with the WTO Agreement and its Annexes
Excerpts from the decision read:
Petitioners allege that the Senate concurrence in the WTO Agreement and its annexes but
not in the other documents referred to in the Final Act, namely the Ministerial Declaration and
Decisions and the Understanding on Commitments in Financial Services is defective and
insufficient and thus constitutes abuse of discretion. They submit that such concurrence in the
WTO Agreement alone is flawed because it is in effect a rejection of the Final Act, which in turn
was the document signed by Secretary Navarro, in representation of the Republic upon
authority of the President. They contend that the second letter of the President to the Senate
which enumerated what constitutes the Final Act should have been the subject of concurrence
of the Senate.
A final act, sometimes called protocol de cloture, is an instrument which records the winding
up of the proceedings of a diplomatic conference and usually includes a reproduction of the
texts of treaties, conventions, recommendations and other acts agreed upon and signed by the
plenipotentiaries attending the conference. It is not the treaty itself. It is rather a summary of
the proceedings of a protracted conference which may have taken place over several years.
The text of the Final Act Embodying the Results of the Uruguay Round of Multilateral Trade
Negotiations is contained in just one page in Vol. I of the 36-volume Uruguay Round of
Multilateral Trade Negotiations. By signing said Final Act, Secretary Navarro as representative
of the Republic of the Philippines undertook:
(a) to submit, as appropriate, the WTO Agreement for the consideration of their respective
competent authorities with a view to seeking approval of the Agreement in accordance with
their procedures; and
(b) to adopt the Ministerial Declarations and Decisions.

The assailed Senate Resolution No. 97 expressed concurrence in exactly what the Final Act
required from its signatories, namely, concurrence of the Senate in the WTO Agreement.
The Ministerial Declarations and Decisions were deemed adopted without need for ratification.
They were approved by the ministers by virtue of Article XXV: 1 of GATT which provides that
representatives of the members can meet to give effect to those provisions of this Agreement

48
which invoke joint action, and generally with a view to facilitating the operation and furthering
the objectives of this Agreement. [Footnotes Omitted]
Disposition:
Petition was denied.
Memorandum of Ambassador Lilia Bautista
Ambassador Bautista submitted a memorandum as amicus curiae which contained a
chronology of the GATT reproduced as follows:
1947 The birth of GATT. On 30 October 1947, the General Agreement on Tariffs and Trade
(GATT) was signed by 23 nations at the Palais des Nations in Geneva. The Agreement
contained tariff concessions agreed to in the first multilateral trade negotiations and a set of
rules designed to prevent these concessions from being frustrated by restrictive trade
measures.
The 23 founding contracting parties were members of the Preparatory Committee established
by the United Nations Economic and Social Council in 1946 to draft the charter of the
International Trade Organization (ITO). The ITO was envisaged as the final leg of a triad of post-
War economic agencies (the other two were the International Monetary Fund and the
International Bank for Reconstruction later the World Bank).
In parallel with this task, the Committee members decided to negotiate tariff concessions
among themselves. From April to October 1947, the participants completed some 123
negotiations and established 20 schedules containing the tariff reductions and bindings which
became an integral part of GATT. These schedules resulting from the first Round covered some
45,000 tariff concessions and about $10 billion in trade.
GATT was conceived as an interim measure that put into effect the commercial-policy
provisions of the ITO. In November, delegations from 56 countries met in Havana, Cuba, to
consider the to ITO draft as a whole. After long and difficult negotiations, some 53 countries
signed the Final Act authenticating the text of the Havana Charter in March 1948. There was no
commitment, however, from governments to ratification and, in the end, the ITO was stillborn,
leaving GATT as the only international instrument governing the conduct of world trade.
1948 Entry into force. On 1 January 1948, GATT entered into force. The 23 founding members
were: Australia, Belgium, Brazil, Burma, Canada, Ceylon, Chile, China, Cuba, Czechoslovakia,
France, India, Lebanon, Luxembourg, Netherlands, New Zealand, Norway, Pakistan, Southern
Rhodesia, Syria, South Africa, United Kingdom and the United States. The first Session of the
Contracting Parties was held from February to March in Havana, Cuba. The secretariat of the
Interim Commission for the ITO, which served as the ad hoc secretariat of GATT, moved from
Lake Placid, New York, to Geneva. The Contracting Parties held their second session in Geneva
from August to September.
1949 Second Round at Annecy. During the second Round of trade negotiations, held from April
to August at Annecy, France, the contracting parties exchanged some 5,000 tariff concessions.
At their third Session, they also dealt with the accession of ten more countries.
1950 Third Round at Torquay. From September 1950 to April 1951, the contracting parties
exchanged some 8,700 tariff concessions in the English town, yielding tariff reduction of about
25 per cent in relation to the 1948 level. Four more countries acceded to GATT. During the fifth
Session of the Contracting Parties, the United States indicated that the ITO Charter would not

49
be re-submitted to the US Congress; this, in effect, meant that ITO would not come into
operation.
1956 Fourth Round at Geneva. The fourth Round was completed in May and produced some
$2.5 billion worth of tariff reductions. At the beginning of the year, the GATT commercial policy
course for officials of developing countries was inaugurated.
1958 The Haberler Report. GATT published Trends in International Trade in October. Known as
the Haberler Report in honour of Professor Gottfried Haberler, the chairman of the panel of
eminent economists, it provided initial guidelines for the work of GATT. The Contracting Parties
at their 13th Sessions, attended by Ministers, subsequently established three committees in
GATT: Committee I to convene a further tariff negotiating conference; Committee II to review
the agricultural policies of member governments and Committee III to tackle the problem
facing developing countries in their trade. The establishment of the European Economic
Community during the previous year also demanded large-scale tariff negotiations under
Article XXIV: 6 of the General Agreement.
1960 The Dillon Round. The fifth Round opened in September and was divided into two phases:
the first was concerned with negotiations with EEC member states for the creation of a single
schedule of concessions for the Community based on its Common External Tariff; and the
second was a further general round of tariff negotiations. Named in honour of US Under-
Secretary of State Douglas Dillon who proposed the negotiations, the Round was concluded in
July 1962 and resulted in about 4,400 tariff concessions covering $4.9 billion of trade.
1961 The Short-Term Arrangement covering cotton textiles was agreed as an exception to the
GATT rules. The arrangement permitted the negotiation of quota restrictions affecting the
exports of cotton-producing countries. In 1962 the Short Term Arrangement became the
Long term Arrangement, lasting until 1974 when the Multifibre Arrangement entered into
force.
1964 The Kennedy Round. Meeting at Ministerial level, a Trade Negotiations Committee
formally opened the Kennedy Round in May. In June 1967, the Round.s Final Act was signed by
some 50 participating countries which together accounted for 75 per cent of world trade. For
the first time, negotiations departed from the product-by-product approach used in the
previous Rounds to an across-the-board or linear method of cutting tariffs for industrial goods.
The working hypothesis of a 50 per cent target cut in tariff levels was achieved in many areas.
Concessions covered an estimated total value of trade of about $410 billion. Separate
agreements were reached on grains, chemical products and a Code on Anti-Dumping.
1965 A New Chapter. The early 1960s marked the accession to the general Agreement of many
newly-independent developing countries. In February, the Contracting Parties, meeting in a
special session, adopted the text of Part IV on Trade and Development. The additional chapter
to the GATT required developed countries to accord high priority to the reduction of trade
barriers to products of developing countries. A Committee on Trade and Development was
established to oversee the functioning of the new GATT provisions. In the preceding year, GATT
had established the International Trade Centre (ITC) to help developing countries in trade
promotion and identification of potential markets. Since 1968, the ITC had been jointly
operated by GATT and the UN Conference on Trade and Development (UNCTAD).
1973 The Tokyo Round. The seventh Round was launched by Ministers in September at the
Japanese capital. Some 99 countries participated in negotiating a comprehensive body of
agreements covering both tariff and non-tariff matters. At the end of the Round in November

50
1979, participants exchanged tariff reductions and bindings which covered more than $300
billion of trade. As a result of these cuts, the weighted average tariff on manufactured goods in
the world.s nine major industrial markets declined from 7.0 to 4.7 per cent. Agreements were
reached in the following areas: subsidies and countervailing measures, technical barriers to
trade, import licensing procedures, government procurement, customs valuation, a revised
anti-dumping code, trade in bovine meat, trade in dairy products and trade in civil aircraft. The
first concrete result of the Round was the reduction of import duties and other trade barriers by
industrial countries on tropical products exported by developing countries.
1974 On 1 January 1974, the Arrangement Regarding International Trade in Textiles, otherwise
known as the Multifibre Arrangement (MFA), entered into force. It superseded the
arrangements that had been governing trade in cotton textiles since 1961. The MFA seeks to
promote the expansion and progressive liberalization of trade in textile products while at the
same time avoiding disruptive effects in individual markets and lines of production. The MFA
was extended in 1978, 1982, 1986, 1991 and 1992. MFA members account for most of the
world exports of textiles and clothing which in 1986 amounted to US$128 billion.
1982 Ministerial Meeting. Meeting for the first time in nearly ten years, the GATT Ministers in
November at Geneva reaffirmed the validity of GATT rules for the conduct of international
trade and committed themselves to combating protectionist pressures. They also established a
wide-ranging work programme for the GATT which was to lay down the groundwork for a new
Round 1986. The Uruguay Round. The GATT Trade Ministers meeting at Punta del Este,
Uruguay, launched the eighth Round of trade negotiations on 20 September. The Punta del
Este Declaration, while representing a single political undertaking, was divided into two
sections. The first covered negotiations on trade in goods and the second initiated negotiation
on trade in services. In the area of trade in goods, the Ministers committed themselves to a
standstill on new trade measures inconsistent with their GATT obligations and to a rollback
programme aimed at phasing out existing inconsistent measures. Envisaged to last four years,
negotiations started in early February 1987 in the following areas tariffs, non-tariff measures,
tropical products, natural resource-based products, textiles and clothing, agriculture, subsidies,
safe-guards, trade-related aspects of intellectual property rights including trade in counterfeit
goods, and trade-related investment measures. The work of other groups included a review of
GATT articles, the GATT dispute settlement procedure, the Tokyo Round agreements, as well as
the functioning of the GATT system as a whole.
1994 GATT 1994 is the updated version of GATT 1947 and takes into account the substantive
and institutional changes negotiated in the Uruguay Round GATT 1994 is an integral part of the
World Trade Organization established on 1 January 1995. It is agreed that there be a one year
transition period during which certain GATT 1947 bodies and commitments would co-exist with
those of the World Trade Organization.
TAADA VS. ANGARA 272 SCRA 18
Facts:

On April 15, 1994, respondent Navarro, Secretary of Department of Trade and Industry and a
representative of the Philippine government, signed in the Final Act Embodying the Results of
the Uruguay Round of Multilateral Negotiations. Bys signing the Final Act, the Philippines
agreed to submit the agreement establishing the World Trade Organization that require the
Philippines, among others, to place nationals and products of member-countries on the same
footing as Filipinos and local products. To that effect, the President ratified and submitted the
same to the Senate for its concurrence pursuant to Section21, Article VII of the Constitution.
Hence the petitioner assailed the WTO Agreement for violating the mandate of the 1987

51
Constitution to develop a self-reliant and independent national economy effectively controlled
by Filipinos . . . (to) give preference to qualified Filipinos (and to) promote the preferential use
of Filipino labor, domestic materials and locally produced goods.

Issue: Whether the provisions of the Agreement Establishing the World Trade Organization
contravene the provisions of Sec. 19, Art. II, and Secs. 10 and 12, Art. XII, all of the 1987
Philippines Constitution.

Held:

The court ruled the petition in favor of the respondents.

Article II of the Constitution is a "declaration of principles and state policies." 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.

The provisions of Sec. 10 and 12, Article XII of the Constitution, general principles relating to
the national economy and patrimony, is enforceable only in regard to the grants or rights,
privileges and concessions covering national economy and patrimony and not to every aspect
of trade and commerce. While the Constitution 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.

On the other hand, there is no basis on the contention that under WTO, local industries will all
be wiped out and that Filipino will be deprived of control of the economy, in fact, WTO
recognizes need to protect weak economies like the Philippines.

Summary:
The Supreme Court of the Republic of the Philippines ruled that a service contract for oil
exploration, development, and production issued by the government of the Philippines in the
protected area of the Taon Strait was unconstitutional.

Case Note:
Resident Marine Mammals of the Protected Seascape Taon Strait v. Secretary Angelo Reyes,
G.R. No. 180771 (April 21, 2015)
Supreme Court of the Philippines

Two sets of petitioners filed separate cases challenging the legality of Service Contract No. 46
(SC-46) awarded to Japan Petroleum Exploration Co. (JAPEX). The service contract allowed
JAPEX to conduct oil exploration in the Taon Strait during which it performed seismic surveys
and drilled one exploration well. The first petition was brought on behalf of resident marine
mammals in the Taon Strait by two individuals acting as legal guardians and stewards of the
marine mammals. The second petition was filed by a non-governmental organization

52
representing the interests of fisherfolk, along with individual representatives from fishing
communities impacted by the oil exploration activities. The petitioners filed their cases in
2007, shortly after JAPEX began drilling in the strait. In 2008, JAPEX and the government of the
Philippines mutually terminated the service contract and oil exploration activities ceased. The
Supreme Court consolidated the cases for the purpose of review.

In its decision, the Supreme Court first addressed the important procedural point of whether
the case was moot because the service contract had been terminated. The Court declared
that mootness is not a magical formula that can automatically dissuade the courts in resolving
a case. Id., p. 12. Due to the alleged grave constitutional violations and paramount public
interest in the case, not to mention the fact that the actions complained of could be repeated,
the Court found it necessary to reach the merits of the case even though the particular service
contract had been terminated. Id.

Reviewing the numerous claims filed by the petitioners, the Supreme Court narrowed them
down to two: 1) whether marine mammals, through their stewards, have legal standing to
pursue the case; and 2) whether the service contract violated the Philippine Constitution or
other domestic laws. Id., p. 11.

As to standing, the Court declined to extend the principle of standing beyond natural and
juridical persons, even though it recognized that the current trend in Philippine jurisprudence
moves towards simplification of procedures and facilitating court access in environmental
cases. Id., p. 15. Instead, the Court explained, the need to give the Resident Marine
Mammals legal standing has been eliminated by our Rules, which allow any Filipino citizen, as
a steward of nature, to bring a suit to enforce our environmental laws. Id., p. 16-17.

The Court then held that while SC-46 was authorized Presidential Decree No. 87 on oil
extraction, the contract did not fulfill two additional constitutional requirements. Section 2
Article XII of the 1987 Constitution requires a service contract for oil exploration and extraction
to be signed by the president and reported to congress. Because the JAPEX contract was
executed solely by the Energy Secretary, and not reported to the Philippine congress, the Court
held that it was unconstitutional. Id., pp. 24-25.

In addition, the Court also ruled that the contract violated the National Integrated Protected
Areas System Act of 1992 (NIPAS Act), which generally prohibits exploitation of natural
resources in protected areas. In order to explore for resources in a protected area, the

53
exploration must be performed in accordance with an environmental impact assessment (EIA).
The Court noted that JAPEX started the seismic surveys before any EIA was performed;
therefore its activity was unlawful. Id., pp. 33-34. Furthermore, the Tanon Strait is a NIPAS
area, and exploration and utilization of energy resources can only be authorized through a law
passed by the Philippine Congress. Because Congress had not specifically authorized the
activity in Taon Strait, the Court declared that no energy exploration should be permitted in
that area. Id., p. 34.

CEBU CITY, PhilippinesPeople used to laugh at him for having dolphins and sea mammals for
clients in 2007.
But after almost eight years of court battle, environmental lawyer Benjamin Cabrido Jr., had the
last laugh.
The Supreme Court on Tuesday declared unconstitutional the oil exploration, development
and exploitation of petroleum resources by Japan Petroleum Exploration Co. Ltd. (Japex) in
Taon Strait, which lies between the islands of Cebu and Negros.

Cabrido said the oil exploration in the strait from late 2007 until early 2008 affected dolphins
and other marine species in the area, while the drilling damaged the protected seascape and
displaced the fishermen.

A lot of dolphins are in that area, the lawyer explained. During the oil exploration, they
moved to another location, he added.
In a decision penned by Associate Justice Teresita Leonardo-De Castro, the high court nullified
the service contract awarded by the Department of Energy (DOE) to Japex for oil exploration
and drilling.
The court also ruled that the contract violated Republic Act No. 7586, or the National
Integrated Protected Areas System (Nipas) Act of 1992. Taon Strait is considered an
environmentally critical area, where exploitation of natural resources is restricted
Respondents
In the case labeled Resident Marine Mammals of the Protected Seascape Taon Strait et al. v.
Secretary Angelo Reyes et al., also named respondents were former Environment Secretary
Lito Atienza, former Agriculture Secretary Arthur Yap, Leonardo Sibbaluca of the Department of
Environment and Natural Resources Central Visayas and Japex, represented by its Philippine
agent, Supply Oilfield Services.
Ecology lawyers Gloria Estenzo-Ramos and Liza Osorio joined Cabrido in filing the case on
behalf of the dolphins, toothed whales, porpoises and other cetacean species in Taon Strait.
When Cabrido filed the case on his birthday on Dec. 20, 2007, people ridiculed him and said
the case would not prosper.
There were questions raised on the legal standing of dolphins, he recalled. But then, I felt
confident because I knew the oil exploration in Taon Strait was absolutely unconstitutional,
he added.
The high court initially said dolphins and other sea mammals have no legal personality to sue,
the lawyer said, but as guardians of the marine species, they eventually gave due course to
the merits of the case.
Dumbfounded

54
When Cabrido learned he won the landmark case on Tuesday night, he was dumbfounded. It
was the first time that marine mammals won a court case in the Philippines, he said.
Now, vindication comes, said the lawyer from the Philippine Earth Justice Center (PEJC).
Its a victory shared with dolphins and sea mammals, Cabrido said. They too won in the
lawsuit.
The high courts ruling should serve as a lesson to those who intend to disrupt marine ecology
through illegal means, Cabrido said of the decision that was more of a moral victory than a
material one. Japex had voluntarily relinquished the oil drilling project in 2008, reportedly due
to the lack of commercial oil and gas on the site, the lawyer said.

BAGUIO CITY, PhilippinesFor the sake of endangered dolphins, whales and other marine
mammals, the Supreme Court on Tuesday struck down as unconstitutional, a deal between the
Department of Energy (DOE) and a Japanese firm for oil exploration, development and
exploitation in Taon Strait, an environmentally critical area between the islands of Cebu
and Negros.

In a unanimous vote, the high court declared as null and void Service Contract No. 46 (SC 46)
between the DOE and the Japan Petroleum Exploration Co. (Japex) for oil exploration activities
in the protected waters that was signed in 2004.
The high court ruled that SC 46 was in violation of Republic Act No. 7586, or the National
Integrated Protected Areas System Act of 1992 (Nipas), which deemed Taon Strait to be a
critical area.

According to the high tribunal, there were safeguards covering such service contracts in the
Constitution but which SC 46 failed to comply withauthority by general law, a signature by
the President and reporting to Congress.

[B]ecause Taon Strait is a Nipas area, the exploitation and utilization of this energy resource
may be allowed only through a law passed by Congress, court spokesperson Theodore Te told
a press briefing here yesterday.
[A]ny activity outside the scope of its management plan may only be implemented pursuant
to an environmental compliance certificate secured after undergoing an environmental impact
assessment to determine the effects of such activity on its ecological system, the high court
ruled.
Taon Strait is a narrow body of water between Negros and Cebu islands which harbors a rich
biodiversity of marine life, including endangered species of dolphins and whales, the high
court said.
Former President Fidel Ramos declared the waters a protected seascape in 1998. President
Joseph Estrada, who succeeded Ramos, issued an executive order to ensure the optimum and
sustained use of the resources in the area without threatening its marine life.
Estrada also created a commission representing local government units where the waters lie.
The commission was later abolished through an executive order by President Gloria Macapagal-
Arroyo.
The high court also said that while Presidential Decree
No. 87, a 1972 law, provides for the discovery and production of indigenous petroleum, the
Nipas Act specifically requires a law passed by Congress before exploitation in a Nipas area
may be done.

55
Te said the court considered the legality of SC 46 in relation to Section 2, Article 12 of the
1987 Constitution, which mandates the state to protect the nations marine wealth.
The provision also provides that only the President, with notification to Congress, may enter
into development contracts with foreign firms based on real contributions to the economic
growth and welfare of the country.
The ruling was in response to petitions separately filed through counsel by the Resident Marine
Mammals of the Protected Seascape Taon Straitthe marine mammals themselvesand the
Central Visayan Fisherfolk Development Center against the then Secretary of Energy and
Japex, among other respondents.
While it issued a favorable ruling, the court noted that only humans have [the] personality to
sue.

A novel lawsuit filed by Cebu lawyers on behalf of dolphins, whales and other marine
mammals to protect the Taon Strait seven years ago scored a victory.

The Supreme Court in a unanimous decision yesterday struck down as unconstitutional the
service contract granted in 2004 to Japan Petroleum Exploration Co. Ltd. (Japex) for oil
exploration and drilling in the Taon Strait.
The narrow body of water between the islands of Cebu and Negros is the largest protected
seascape in the country.

The court, however, also ruled that dolphins and other marine animals have no legal
personality to sue.

Only humans have personality to sue, said the Supreme Courts public information office.
The ruling is deemed moot and academic after Japex pulled out of the Taon Strait in 2008
for lack of commercial oil and gas deposits in the area.
Japex conducted the exploratory drilling from late 2007 until early 2008.
Cebu environment advocates strongly opposed it and local fishermen complained that their
fish catch declined due to the disturbance in the sea.
Taon Strait was declared a protected seascape in 1998 by President Fidel V. Ramos through
Proclamation No. 1234 to protect its marine resources, including endangered species of
dolphins and whales.
In a decision penned by Associate Justice Teresita Leonardo de Castro, the High Court nullified
Service Contract 46 (SC-46) because it failed to comply with constitutional safeguards.
The court noted that the contract was signed only by then Energy Secretary Vincent Perez Jr.
and not by the President. Neither was the contract submitted to Congress.
The 1987 Constitution requires that a service contract be authorized by a general law, signed
by the President, and reported to Congress.
The court also ruled that the contract violated Republic Act Number 7586 or the National
Integrated Protected Areas System (NIPAS) Act of 1992. Taon Strait is considered an
environmentally critical area, where exploitation of natural resources is restricted.\
READ: Summit pushes for Taon Strait plan after 17 years of waiting
Cebu lawyer Gloria Estenzo-Ramos, one of the petitioners, representing the marine mammals,
hailed the SC decision as a landmark ruling that would compel government agencies to follow
the rule of law.

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Im happy about the decision, except that the Supreme Court is not yet ready to appreciate
the legal standing to sue of the environment. They are still stuck with traditional
(parameters), she said in an interview.
Ramos filed the case with colleagues Benjamin Cabrido and Liza Osorio in 2007.
Ramos is now vice president of Oceana-Philippines, an international NGO dedicated to marine
conservation.
Cabrido recalled how people laughed at him for filing suit on behalf of dolphins.

Hammerhead sharks are some of the endangered species found in the Taon Strait
between Cebu and Negros islands. Photo courtesy of OCEANA.
This victory is not for me but for all those who expressed concern about the welfare of our
marine mammals, he said.
Vince Cinches of Greenpeace , who said the court should consider that nature has a legal
right, welcomed the decision: This a good reason to celebrate Earth Day.
Marine biologist Lemuel Aragones, who added his expert voice in the controversy in 2008,
said the drilling affected the surface behavior of the population of cetaceans, which refers to
species that include dolphins, porpoises and toothed whales, in the Taon Strait.
The court case was labeled Resident Marine Mammals of the Protected Seascape Taon Strait,
et al. vs. Secretary Angelo Reyes et. al.
Named respondents were former Energy secretary Angelo Reyes, former Environment
secretary Jose Atienza, former Agriculture Secretary Arthur C. Yap, Leonardo Sibbaluca of DENR
7, and Japex, represented by its Philippine agent, Supply Oilfield Services.

Environmental Defenders Score Big SC Ruling for Taon Strait Cetaceans

Foundation for the Philippine Environment (FPE) Chair and CEO Atty. Rose Liza E. Osorio,
together with fellow environmental lawyers, Atty. Gloria Estenzo-Ramos (Oceana vice
president) and Atty. Benjamin Cabrido, Jr., recently earned a critical Supreme Court (SC) ruling
on behalf of the dolphins and other resident cetaceans of Taon Strait, thus protecting them
and their natural habitat from further oil exploration, development, and exploitation of
petroleum resources by Japan Petroleum Exploration Co. Ltd. (JAPEX).
On April 21, 2015, the high court made a decision on the case labeled Resident Marine
Mammals of the Protected Seascape Taon Strait et al. v. Secretary Angelo Reyes et al., ruling
in favor of the former. The SC declared unconstitutional the oil exploration operations on the
Strait, a rich cetacean habitat located between the islands of Cebu and Negros. As a result, the
service contract that the Department of Energy (DOE), then under the leadership of Sec.
Reyes, awarded to JAPEX in late 2004 was nullified.
According to Cabrido, exploratory drilling operations conducted by JAPEX in late 2007 until
early 2008 displaced dolphins and other marine species in the area, causing them to move
away from their natural territory. Drilling operations also damaged the protected seascape and
likewise displaced and affected the livelihood resource of over 40,000 local fisherfolk.
This decision marks the first time that marine mammals won a court case in the Philippines,
he says further. When the case was first filed in December 2007, the lawyer was mocked for
being filed on behalf of toothed whales, dolphins, porpoises, and other cetacean species.
Estenzo-Ramos noted that the development is a landmark ruling which should prevent any
project which destroys the ecological integrity especially of a protected seascape."
The Supreme Court also ruled that the contract is in violation of the National Integrated
Protected Areas System (NIPAS) Act of 1992 (Republic Act No. 7586), which protects critical
natural habitats such as Taon Strait from resource exploitation.

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In 2007, one of the pioneer actions in the campaign against the operations of JAPEX in the
Taon Strait protected seascape was the project, Urgent Environmental Legal Action Against
Oil Exploration in the Visayas, an initiative of the Central Visayas Fisherfolk Development
Center (FIDEC) funded through small grant awarded by FPE.

PDAF and DAF

HISTORY

In the Philippines, the pork barrel (a term of American-English origin) has been commonly
referred to as lump-sum, discretionary funds of Members of the Legislature (Congressional
Pork Barrel). However, it has also come to refer to certain funds to the Executive. The
Congressional Pork Barrel can be traced from Act 3044 (Public Works Act of 1922), the
Support for Local Development Projects during the Marcos period, the Mindanao Development
Fund and Visayas Development Fund and later the Countrywide Development Fund (CDF)
under the Corazon Aquino presidency, and the Priority Development Assistance Fund (PDAF)
under the Joseph Estrada administration, as continued by the Gloria-Macapagal Arroyo and the
present Benigno Aquino III administrations.

SPECIAL PROVISIONS OF THE 2013 PDAF ARTICLE

2. Project Identification. Identification of projects and/or designation of beneficiaries shall


conform to the priority list, standard or design prepared by each implementing agency:
PROVIDED, That preference shall be given to projects located in the 4th to 6th class
municipalities or indigents identified under the MHTS-PR by the DSWD. For this purpose, the
implementing agency shall submit to Congress said priority list, standard or design within
ninety (90) days from effectivity of this Act.

All programs/projects, except for assistance to indigent patients and scholarships, identified by
a member of the House of Representatives outside of his/her legislative district shall have the
written concurrence of the member of the House of Representatives of the recipient or
beneficiary legislative district, endorsed by the Speaker of the House of Representatives.

3. Legislators Allocation. The Total amount of projects to be identified by legislators shall be as


follows:

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a. For Congressional District or Party-List Representative: Thirty Million Pesos (P30,000,000) for
soft programs and projects listed under Item A and Forty Million Pesos (P40,000,000) for
infrastructure projects listed under Item B, the purposes of which are in the project menu of
Special Provision No. 1; and

b. For Senators: One Hundred Million Pesos (P100,000,000) for soft programs and projects
listed under Item A and One Hundred Million Pesos (P100,000,000) for infrastructure projects
listed under Item B, the purposes of which are in the project menu of Special Provision No. 1.

Subject to the approved fiscal program for the year and applicable Special Provisions on the
use and release of fund, only fifty percent (50%) of the foregoing amounts may be released in
the first semester and the remaining fifty percent (50%) may be released in the second
semester.

4. Realignment of Funds. Realignment under this Fund may only be allowed once. The
Secretaries of Agriculture, Education, Energy, Interior and Local Government, Labor and
Employment, Public Works and Highways, Social Welfare and Development and Trade and
Industry are also authorized to approve realignment from one project/scope to another within
the allotment received from this Fund, subject to the following: (i) for infrastructure projects,
realignment is within the same implementing unit and same project category as the original
project; (ii) allotment released has not yet been obligated for the original project/scope of
work; and (iii) request is with the concurrence of the legislator concerned. The DBM must be
informed in writing of any realignment within five (5) calendar days from approval thereof:
PROVIDED, That any realignment under this Fund shall be limited within the same classification
of soft or hard programs/projects listed under Special Provision 1 hereof: PROVIDED, FURTHER,
That in case of realignments, modifications and revisions of projects to be implemented by
LGUs, the LGU concerned shall certify that the cash has not yet been disbursed and the funds
have been deposited back to the BTr.

Any realignment, modification and revision of the project identification shall be submitted to
the House Committee on Appropriations and the Senate Committee on Finance, for favorable
endorsement to the DBM or the implementing agency, as the case may be.

59
5. Release of Funds. All request for release of funds shall be supported by the documents
prescribed under Special Provision No. 1 and favorably endorsed by the House Committee on
Appropriations and the Senate Committee on Finance, as the case may be. Funds shall be
released to the implementing agencies subject to the conditions under Special Provision No. 1
and the limits prescribed under Special Provision No. 3.

PRESIDENTIAL PORK BARREL

The Presidential Pork Barrel questioned by the petitioners include the Malampaya Fund and
the Presidential Social Fund. The Malampaya Fund was created as a special fund under Section
8, Presidential Decree (PD) 910 by then-President Ferdinand Marcos to help intensify,
strengthen, and consolidate government efforts relating to the exploration, exploitation, and
development of indigenous energy resources vital to economic growth. The Presidential Social
Fund was created under Section 12, Title IV, PD 1869 (1983) or the Charter of the Philippine
Amusement and Gaming Corporation (PAGCOR), as amended by PD 1993 issued in 1985. The
Presidential Social Fund has been described as a special funding facility managed and
administered by the Presidential Management Staff through which the President provides direct
assistance to priority programs and projects not funded under the regular budget. It is sourced
from the share of the government in the aggregate gross earnings of PAGCOR.

* ISSUES:

A. Procedural Issues

1.) Whether or not (WON) the issues raised in the consolidated petitions involve an actual and
justiciable controversy

2.) WON the issues raised in the consolidated petitions are matters of policy subject to
judicial review

3.) WON petitioners have legal standing to sue

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4.) WON the 1994 Decision of the Supreme Court (the Court) on Philippine Constitution
Association v. Enriquez (Philconsa) and the 2012 Decision of the Court on Lawyers Against
Monopoly and Poverty v. Secretary of Budget and Management (LAMP) bar the re-litigation of
the issue of constitutionality of the pork barrel system under the principles of res
judicata and stare decisis

B. Substantive Issues on the Congressional Pork Barrel

WON the 2013 PDAF Article and all other Congressional Pork Barrel Laws similar to it are
unconstitutional considering that they violate the principles of/constitutional provisions on

1.) separation of powers

2.) non-delegability of legislative power

3.) checks and balances

4.) accountability

5.) political dynasties

6.) local autonomy

C. Substantive Issues on the Presidential Pork Barrel

WON the phrases:

(a) and for such other purposes as may be hereafter directed by the President under Section
8 of PD 910 relating to the Malampaya Funds, and

(b) to finance the priority infrastructure development projects and to finance the restoration
of damaged or destroyed facilities due to calamities, as may be directed and authorized by
the Office of the President of the Philippines under Section 12 of PD 1869, as amended by PD
1993, relating to the Presidential Social Fund,

61
are unconstitutional insofar as they constitute undue delegations of legislative power

* HELD AND RATIO:

A. Procedural Issues

No question involving the constitutionality or validity of a law or governmental act may be


heard and decided by the Court unless there is compliance with the legal requisites for
judicial inquiry, namely: (a) there must be an actual case or controversy calling for the
exercise of judicial power; (b) the person challenging the act must have the standing to
question the validity of the subject act or issuance; (c) the question of constitutionality must
be raised at the earliest opportunity; and (d) the issue of constitutionality must be
the very lis mota of the case.

1.) YES. There exists an actual and justiciable controversy in these cases. The
requirement of contrariety of legal rights is clearly satisfied by the antagonistic
positions of the parties on the constitutionality of the Pork Barrel System. Also,
the questions in these consolidated cases are ripe for adjudication since the challenged
funds and the provisions allowing for their utilization such as the 2013 GAA for the
PDAF, PD 910 for the Malampaya Funds and PD 1869, as amended by PD 1993, for
the Presidential Social Fund are currently existing and operational; hence, there exists
an immediate or threatened injury to petitioners as a result of the unconstitutional use of these
public funds.

As for the PDAF, the Court dispelled the notion that the issues related thereto had been
rendered moot and academic by the reforms undertaken by respondents. A case becomes
moot when there is no more actual controversy between the parties or no useful
purpose can be served in passing upon the merits. The respondents proposed line-
item budgeting scheme would not terminate the controversy nor diminish the useful
purpose for its resolution since said reform is geared towards the 2014 budget, and not
the 2013 PDAF Article which, being a distinct subject matter, remains legally
effective and existing. Neither will the Presidents declaration that he had
already abolished the PDAF render the issues on PDAF moot precisely because the

62
Executive branch of government has no constitutional authority to nullify or annul
its legal existence.

Even on the assumption of mootness, nevertheless, jurisprudence dictates that the moot and
academic principle is not a magical formula that can automatically dissuade the Court in
resolving a case. The Court will decide cases, otherwise moot, if:

i.) There is a grave violation of the Constitution: This is clear from the
fundamental posture of petitioners they essentially allege grave violations of
the Constitution with respect to the principles of separation of powers, non-
delegability of legislative power, checks and balances, accountability and local
autonomy.

ii.) The exceptional character of the situation and the paramount public interest is
involved: This is also apparent from the nature of the interests involved
the constitutionality of the very system within which significant amounts of public
funds have been and continue to be utilized and expended undoubtedly presents a
situation of exceptional character as well as a matter of paramount public interest. The
present petitions, in fact, have been lodged at a time when the systems flaws
have never before been magnified. To the Courts mind, the coalescence of the CoA
Report, the accounts of numerous whistle-blowers, and the governments own
recognition that reforms are needed to address the reported abuses of the
PDAF demonstrates a prima facie pattern of abuse which only underscores the
importance of the matter.

It is also by this finding that the Court finds petitioners claims as not merely
theorized, speculative or hypothetical. Of note is the weight accorded by the Court to the
findings made by the CoA which is the constitutionally-mandated audit arm of the
government. if only for the purpose of validating the existence of an actual and justiciable
controversy in these cases, the Court deems the findings under the CoA Report to be
sufficient.

iii.) When the constitutional issue raised requires formulation of controlling


principles to guide the bench, the bar, and the public: This is applicable largely due to

63
the practical need for a definitive ruling on the systems constitutionality. There is a
compelling need to formulate controlling principles relative to the issues raised herein in order
to guide the bench, the bar, and the public, not just for the expeditious resolution of the
anticipated disallowance cases, but more importantly, so that the government may be guided
on how public funds should be utilized in accordance with constitutional principles.

iv.) The case is capable of repetition yet evading review. This is called for by the
recognition that the preparation and passage of the national budget is,
by constitutional imprimatur, an affair of annual occurrence. The myriad of issues
underlying the manner in which certain public funds are spent, if not resolved at this most
opportune time, are capable of repetition and hence, must not evade judicial review.

2.) YES. The intrinsic constitutionality of the Pork Barrel System is not an issue
dependent upon the wisdom of the political branches of government but rather a
legal one which the Constitution itself has commanded the Court to act
upon. Scrutinizing the contours of the system along constitutional lines is a task that the
political branches of government are incapable of rendering precisely because it is an exercise
of judicial power. More importantly, the present Constitution has not only vested the Judiciary
the right to exercise judicial power but essentially makes it a duty to proceed therewith
(Section 1, Article VIII of the 1987 Constitution).

3. YES. Petitioners have sufficient locus standi to file the instant cases. Petitioners have come
before the Court in their respective capacities as citizen-taxpayers and accordingly, assert that
they dutifully contribute to the coffers of the National Treasury. As taxpayers, they
possess the requisite standing to question the validity of the existing Pork Barrel
System under which the taxes they pay have been and continue to be utilized. They
are bound to suffer from the unconstitutional usage of public funds, if the Court so rules.
Invariably, taxpayers have been allowed to sue where there is a claim that public funds are
illegally disbursed or that public money is being deflected to any improper purpose, or that
public funds are wasted through the enforcement of an invalid or unconstitutional law, as in
these cases.

Moreover, as citizens, petitioners have equally fulfilled the standing requirement given
that the issues they have raised may be classified as matters of transcendental

64
importance, of overreaching significance to society, or of paramount public
interest. The CoA Chairpersons statement during the Oral Arguments that the present
controversy involves not [merely] a systems failure but a complete breakdown of controls
amplifies the seriousness of the issues involved. Indeed, of greater import than the damage
caused by the illegal expenditure of public funds is the mortal wound inflicted upon the
fundamental law by the enforcement of an invalid statute.

4.) NO. On the one hand, res judicata states that a judgment on the merits in a previous case
rendered by a court of competent jurisdiction would bind a subsequent case if, between the
first and second actions, there exists an identity of parties, of subject matter, and of causes of
action. This required identity is not attendant hereto since Philconsa and LAMP involved
constitutional challenges against the 1994 CDF Article and 2004 PDAF Article respectively.
However, the cases at bar call for a broader constitutional scrutiny of the entire Pork Barrel
System. Also, the ruling in LAMP is essentially a dismissal based on a procedural technicality
and, thus, hardly a judgment on the merits. Thus, res judicata cannot apply.

On the other hand, the doctrine of stare decisis is a bar to any attempt to re-litigate where
the same questions relating to the same event have been put forward by the
parties similarly situated as in a previous case litigated and decided by a
competent court. Absent any powerful countervailing considerations, like cases ought
to be decided alike. Philconsa was a limited response to a separation of powers problem,
specifically on the propriety of conferring post-enactment identification authority to Members
of Congress. On the contrary, the present cases call for a more holistic examination of
(a) the inter-relation between the CDF and PDAF Articles with each other, formative as they
are of the entire Pork Barrel System as well as (b) the intra-relation of post-enactment
measures contained within a particular CDF or PDAF Article, including not only those related to
the area of project identification but also to the areas of fund release and realignment.
The complexity of the issues and the broader legal analyses herein warranted may be,
therefore, considered as a powerful countervailing reason against a wholesale
application of the stare decisis principle.

In addition, the Court observes that the Philconsa ruling was actually riddled with
inherent constitutional inconsistencies which similarly countervail against a full
resort to stare decisis. Since the Court now benefits from hindsight and current findings

65
(such as the CoA Report), it must partially abandon its previous ruling
in Philconsa insofar as it validated the post-enactment identification authority of
Members of Congress on the guise that the same was merely recommendatory.

Again, since LAMP was dismissed on a procedural technicality and, hence, has not set any
controlling doctrine susceptible of current application to the substantive issues in these
cases, stare decisis would not apply.

B. Substantive Issues on the Congressional Pork Barrel

1.) YES. At its core, legislators have been consistently accorded post-enactment
authority to identify the projects they desire to be funded through various Congressional
Pork Barrel allocations. Under the 2013 PDAF Article, the statutory authority of legislators to
identify projects post-GAA may be construed from Special Provisions 1 to 3 and the second
paragraph of Special Provision 4. Legislators have also been accorded post-enactment
authority in the areas of fund release (Special Provision 5 under the 2013 PDAF
Article) and realignment (Special Provision 4, paragraphs 1 and 2 under the 2013 PDAF
Article).

Thus, legislators have been, in one form or another, authorized to participate in


the various operational aspects of budgeting, including the evaluation of work and
financial plans for individual activities and the regulation and release of funds, in violation
of the separation of powers principle. That the said authority is treated as merely
recommendatory in nature does not alter its unconstitutional tenor since the prohibition covers
any role in the implementation or enforcement of the law. Towards this end, the Court must
therefore abandon its ruling in Philconsa. The Court also points out that respondents
have failed to substantiate their position that the identification authority of legislators is only of
recommendatory import.

In addition to declaring the 2013 PDAF Article as well as all other provisions of law which
similarly allow legislators to wield any form of post-enactment authority in the implementation
or enforcement of the budget, the Court also declared that informal practices, through
which legislators have effectively intruded into the proper phases of

66
budget execution, must be deemed as acts of grave abuse of discretion amounting to
lack or excess of jurisdiction and, hence, accorded the same unconstitutional treatment.

2.) YES. The 2013 PDAF Article violates the principle of non-delegability since
legislators are effectively allowed to individually exercise the power
of appropriation, which, as settled in Philconsa, is lodged in Congress. The power to
appropriate must be exercised only through legislation, pursuant to Section 29(1), Article VI of
the 1987 Constitution which states: No money shall be paid out of the Treasury except in
pursuance of an appropriation made by law. The power of appropriation, as held by the
Court in Bengzon v. Secretary of Justice and Insular Auditor, involves (a) setting apart by
law a certain sum from the public revenue for (b) a specified purpose. Under the 2013
PDAF Article, individual legislators are given a personal lump-sum fund from
which they are able to dictate (a) how much from such fund would go to (b) a specific
project or beneficiary that they themselves also determine. Since these two
acts comprise the exercise of the power of appropriation as described in Bengzon, and
given that the 2013 PDAF Article authorizes individual legislators to perform the
same, undoubtedly, said legislators have been conferred the power to legislate which
the Constitution does not, however, allow.

3.) YES. Under the 2013 PDAF Article, the amount of P24.79 Billion only appears as a
collective allocation limit since the said amount would be further divided among individual
legislators who would then receive personal lump-sum allocations and could, after the GAA is
passed, effectively appropriate PDAF funds based on their own discretion. As
these intermediate appropriations are made by legislators only after the GAA
is passed and hence, outside of the law, it means that the actual items of PDAF
appropriation would not have been written into the General Appropriations Bill and
thus effectuated without veto consideration. This kind of lump-sum/post-enactment
legislative identification budgeting system fosters the creation of a budget within a budget
which subverts the prescribed procedure of presentment and consequently impairs
the Presidents power of item veto. As petitioners aptly point out, the President is forced
to decide between (a) accepting the entire P24. 79 Billion PDAF allocation without knowing the
specific projects of the legislators, which may or may not be consistent with his
national agenda and (b) rejecting the whole PDAF to the detriment of all other legislators with
legitimate projects.

67
Even without its post-enactment legislative identification feature, the 2013 PDAF Article
would remain constitutionally flawed since the lump-sum amount of P24.79 Billion
would be treated as a mere funding source allotted for multiple purposes of
spending (i.e. scholarships, medical missions, assistance to indigents, preservation of
historical materials, construction of roads, flood control, etc). This setup connotes that
the appropriation law leaves the actual amounts and purposes of the appropriation
for further determination and, therefore, does not readily indicate a discernible item
which may be subject to the Presidents power of item veto.

The same lump-sum budgeting scheme has, as the CoA Chairperson relays, limit[ed] state
auditors from obtaining relevant data and information that would aid in more stringently
auditing the utilization of said Funds. Accordingly, she recommends the adoption of a line by
line budget or amount per proposed program, activity or project, and per implementing
agency.

4.) YES. To a certain extent, the conduct of oversight would be tainted as said
legislators, who are vested with post-enactment authority, would, in effect, be
checking on activities in which they themselves participate. Also, this very same
concept of post-enactment authorization runs afoul of Section 14, Article VI of the
1987 Constitution which provides that: [A Senator or Member of the House of
Representatives] shall not intervene in any matter before any office of the Government for his
pecuniary benefit or where he may be called upon to act on account of his office. Allowing
legislators to intervene in the various phases of project implementation renders them
susceptible to taking undue advantage of their own office.

However, the Court cannot completely agree that the same post-enactment authority and/or
the individual legislators control of his PDAF per se would allow him to perpetrate himself in
office. This is a matter which must be analyzed based on particular facts and on a case-to-
case basis.

Also, while the Court accounts for the possibility that the close operational proximity between
legislators and the Executive department, through the formers post-enactment participation,
may affect the process of impeachment, this matter largely borders on the domain of politics

68
and does not strictly concern the Pork Barrel Systems intrinsic constitutionality. As such, it is
an improper subject of judicial assessment.

5.) NO. Section 26, Article II of the 1987 Constitution is considered as not self-executing due to
the qualifying phrase as may be defined by law. In this respect, said provision does not, by
and of itself, provide a judicially enforceable constitutional right but merely specifies
a guideline for legislative or executive action. Therefore, since there appears to be no standing
law which crystallizes the policy on political dynasties for enforcement, the Court must defer
from ruling on this issue.

In any event, the Court finds the above-stated argument on this score to be largely speculative
since it has not been properly demonstrated how the Pork Barrel System would be able to
propagate political dynasties.

6.) YES. The Court, however, finds an inherent defect in the system which actually belies the
avowed intention of making equal the unequal (Philconsa, 1994). The gauge of PDAF and
CDF allocation/division is based solely on the fact of office, without taking into
account the specific interests and peculiarities of the district the legislator
represents. As a result, a district representative of a highly-urbanized metropolis gets the
same amount of funding as a district representative of a far-flung rural province which would
be relatively underdeveloped compared to the former. To add, what rouses graver scrutiny is
that even Senators and Party-List Representatives and in some years, even the Vice-President
who do not represent any locality, receive funding from the Congressional Pork Barrel as well.

The Court also observes that this concept of legislator control underlying the CDF and PDAF
conflicts with the functions of the various Local Development Councils (LDCs) which are
already legally mandated to assist the corresponding sanggunian in setting the direction of
economic and social development, and coordinating development efforts within its territorial
jurisdiction. Considering that LDCs are instrumentalities whose functions are essentially
geared towards managing local affairs, their programs, policies and resolutions should not be
overridden nor duplicated by individual legislators, who are national officers that have no law-
making authority except only when acting as a body.

C. Substantive Issues on the Presidential Pork Barrel

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YES. Regarding the Malampaya Fund: The phrase and for such other purposes as may be
hereafter directed by the President under Section 8 of PD 910 constitutes an undue
delegation of legislative power insofar as it does not lay down a sufficient standard
to adequately determine the limits of the Presidents authority with respect to the
purpose for which the Malampaya Funds may be used. As it reads, the said phrase gives
the President wide latitude to use the Malampaya Funds for any other purpose he may direct
and, in effect, allows him to unilaterally appropriate public funds beyond the purview of the
law.

That the subject phrase may be confined only to energy resource development and
exploitation programs and projects of the government under the principle
of ejusdem generis, meaning that the general word or phrase is to be construed to include
or be restricted to things akin to, resembling, or of the same kind or class as those
specifically mentioned, is belied by three (3) reasons: first, the phrase energy
resource development and exploitation programs and projects of the government states a
singular and general class and hence, cannot be treated as a statutory reference of specific
things from which the general phrase for such other purposes may be limited; second,
the said phrase also exhausts the class it represents, namely energy development
programs of the government; and, third, the Executive department has used
the Malampaya Funds for non-energy related purposes under the subject
phrase, thereby contradicting respondents own position that it is limited only to energy
resource development and exploitation programs and projects of the government.

However, the rest of Section 8, insofar as it allows for the use of the Malampaya Funds to
finance energy resource development and exploitation programs and projects of the
government, remains legally effective and subsisting.

Regarding the Presidential Social Fund: Section 12 of PD 1869, as amended by PD 1993,


indicates that the Presidential Social Fund may be used to [first,] finance the
priority infrastructure development projects and [second,] to finance the restoration of
damaged or destroyed facilities due to calamities, as may be directed and authorized by the
Office of the President of the Philippines.

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The second indicated purpose adequately curtails the authority of the President to spend the
Presidential Social Fund only for restoration purposes which arise from calamities. The first
indicated purpose, however, gives him carte blanche authority to use the same fund
for any infrastructure project he may so determine as a priority. Verily, the law
does not supply a definition of priority infrastructure development projects and
hence, leaves the President without any guideline to construe the same. To note,
the delimitation of a project as one of infrastructure is too broad of
a classification since the said term could pertain to any kind of facility. Thus, the phrase to
finance the priority infrastructure development projects must be stricken down as
unconstitutional since similar to Section 8 of PD 910 it lies independently unfettered
by any sufficient standard of the delegating law. As they are severable, all other
provisions of Section 12 of PD 1869, as amended by PD 1993, remains legally effective and
subsisting.

G.R. No. 208566 November 19, 2013 BELGICA vs. HONORABLE EXECUTIVE SECRETARY
PAQUITO N. OCHOA JR, et al, Respondents

G.R. No. 208566 November 19, 2013


GRECO ANTONIOUS BEDA B. BELGICA JOSE M. VILLEGAS JR. JOSE L. GONZALEZ
REUBEN M. ABANTE and QUINTIN PAREDES SAN DIEGO, Petitioners,
vs.HONORABLE EXECUTIVE SECRETARY PAQUITO N. OCHOA JR, et al, Respondents
PERLAS-BERNABE, J.:
NATURE:
These are consolidated petitions taken under Rule 65 of the Rules of Court, all of which assail
the constitutionality of the Pork Barrel System.
FACTS:
The NBI Investigation was spawned by sworn affidavits of six (6) whistle-blowers who declared
that JLN Corporation (Janet Lim Napoles) had swindled billions of pesos from the public coffers
for "ghost projects" using dummy NGOs. Thus, Criminal complaints were filed before the Office
of the Ombudsman, charging five (5) lawmakers for Plunder, and three (3) other lawmakers for
Malversation, Direct Bribery, and Violation of the Anti-Graft and Corrupt Practices Act. Also
recommended to be charged in the complaints are some of the lawmakers chiefs -of-staff or
representatives, the heads and other officials of three (3) implementing agencies, and the
several presidents of the NGOs set up by Napoles.
Whistle-blowers alleged that" at least P900 Million from royalties in the operation of the
Malampaya gas project off Palawan province intended for agrarian reform beneficiaries has
gone into a dummy NGO. Several petitions were lodged before the Court similarly seeking that
the "Pork Barrel System" be declared unconstitutional

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G.R. No. 208493 SJS filed a Petition for Prohibition seeking that the "Pork Barrel System" be
declared unconstitutional, and a writ of prohibition be issued permanently
G.R. No. 208566 - Belgica, et al filed an Urgent Petition For Certiorari and Prohibition With
Prayer For The Immediate Issuance of Temporary Restraining Order and/or Writ of Preliminary
Injunction seeking that the annual "Pork Barrel System," presently embodied in the provisions
of the GAA of 2013 which provided for the 2013 PDAF, and the Executives lump-sum,
discretionary funds, such as the Malampaya Funds and the Presidential Social Fund, be
declared unconstitutional and null and void for being acts constituting grave abuse of
discretion. Also, they pray that the Court issue a TRO against respondents
UDK-14951 A Petition filed seeking that the PDAF be declared unconstitutional, and a cease
and desist order be issued restraining President Benigno Simeon S. Aquino III (President
Aquino) and Secretary Abad from releasing such funds to Members of Congress
ISSUES:
1. Whether or not the 2013 PDAF Article and all other Congressional Pork Barrel Laws similar
thereto are unconstitutional considering that they violate the principles of/constitutional
provisions on (a) separation of powers; (b) non-delegability of legislative power; (c) checks and
balances; (d) accountability; (e) political dynasties; and (f) local autonomy.
2. Whether or not the phrases (under Section 8 of PD 910, 116 relating to the Malampaya Funds,
and under Section 12 of PD 1869, as amended by PD 1993, relating to the Presidential Social
Fund, are unconstitutional insofar as they constitute undue delegations of legislative power.
HELD:
1. Yes, the PDAF article is unconstitutional. The post-enactment measures which govern the
areas of project identification, fund release and fund realignment are not related to functions of
congressional oversight and, hence, allow legislators to intervene and/or assume duties that
properly belong to the sphere of budget execution. This violates the principle of separation of
powers. Congressrole must be confined to mere oversight that must be confined to: (1)
scrutiny and (2) investigation and monitoring of the implementation of laws. Any action or step
beyond that will undermine the separation of powers guaranteed by the constitution.

Thus, the court declares the 2013 pdaf article as well as all other provisions of law which
similarly allow legislators to wield any form of post-enactment authority in the implementation
or enforcement of the budget, unrelated to congressional oversight, as violative of the
separation of powers principle and thus unconstitutional.

2. Yes. Sec 8 of PD 910- the phrase and for such other purposes as may be hereafter directed
by the President constitutes an undue delegation of legislative power insofar as it does not
lay down a sufficient standard to adequately determine the limits of the Presidents authority
with respect to the purpose for which the Malampaya Funds may be used. It gives the
President wide latitude to use the Malampaya Funds for any other purpose he may direct and,
in effect, allows him to unilaterally appropriate public funds beyond the purview of the law.

Section 12 of PD 1869, as amended by PD 1993- the phrases:

(b) "to finance the priority infrastructure development projects was declared constitutional. IT
INDICATED PURPOSE ADEQUATELY CURTAILS THE AUTHORITY OF THE PRESIDENT TO SPEND

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THE PRESIDENTIAL SOCIAL FUND ONLY FOR RESTORATION PURPOSES WHICH ARISE FROM
CALAMITIES.

(b) and to finance the restoration of damaged or destroyed facilities due to calamities, as may
be directed and authorized by the Office of the President of the Philippines was declared
unconstitutional.IT GIVES THE PRESIDENT CARTE BLANCHE AUTHORITY TO USE THE SAME
FUND FOR ANY INFRASTRUCTURE PROJECT HE MAY SO DETERMINE AS A PRIORITY. VERILY,
THE LAW DOES NOT SUPPLY A DEFINITION OF PRIORITY INFRASTRUCTURE DEVELOPMENT
PROJECTS AND HENCE, LEAVES THE PRESIDENT WITHOUT ANY GUIDELINE TO CONSTRUE THE
SAME.
Belgica vs. Executive Secretary Ochoa (digest)
BELGICA, ET AL. VS. EXECUTIVE SECRETARY, ET AL. (G.R. NO. 208566; SOCIAL
JUSTICE SOCIETY VS. HON. FRANKLIN DRILON, ET AL. (G.R. NO. 208493);
NEPOMUCENO VS. PRES. AQUINO (G.R. NO. 209251) NOVEMBER 19, 2013

FACTS
HISTORY of CONGRESSIONAL PORK BARREL

The term pork barrel, a political parlance of American-English origin, refers to an


appropriation of government spending meant for localized projects and secured solely or
primarily to bring money to a representatives district.
The earliest form of the pork barrel system is found in Section 3 of Act 3044, otherwise known
as the Public Works Act of 1922. Under this provision, release of funds and realignment of
unexpended portions of an item or appropriation were subject to the approval of a joint
committee elected by the Senate and the House of Representatives.
In 1950, members of Congress, by virtue of being representatives of the people, also became
involved in project identification.
The pork barrel system was temporarily discontinued when martial law was declared.
It reappeared in 1982 through an item in the General Appropriations Act (GAA) called
Support for Local Development Projects (SLDP). SLDP started the giving of lump-sum
allocations to individual legislators. The SLDP also began to cover not only public works
project or hard projects but also covered soft projects such as those which would fall under
education, health and livelihood.
After the EDSA People Power Revolution and the restoration of democracy, the pork barrel was
revived through the Mindanao Development Fund and the Visayas Development Fund.
In 1990, the pork barrel was renamed Countrywide Development Fund (CDF). The CDF was
meant to cover small local infrastructure and other priority community projects.
CDF Funds were, with the approval of the President, released directly to implementing
agencies subject to the submission of the required list of projects and activities. Senators and
congressmen could identify any kind of project from hard projects such as roads, buildings
and bridges to soft projects such as textbooks, medicines, and scholarships.
In 1993, the CDF was further modified such that the release of funds was to be made upon the
submission of the list of projects and activities identified by individual legislators. This was
also the first time when the Vice-President was given an allocation.

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The CDF contained the same provisions from 1994-1996 except that the Department of Budget
and Management was required to submit reports to the Senate Committee on Finance and the
House Committee on Appropriations regarding the releases made from the funds.
Congressional insertions (CIs) were another form of congressional pork barrel aside from the
CDF. Examples of the CIs include the DepEd School Building Fund, the Congressional Initiative
Allocations, and the Public Works Fund, among others.
The allocations for the School Building Fund were made upon prior consultation with the
representative of the legislative district concerned and the legislators had the power to direct
how, where and when these appropriations were to be spent.
In 1999, the CDF was removed from the GAA and replaced by three separate forms of CIs: (i)
Food Security Program Fund, (ii) Lingap Para sa Mahihirap Fund, and (iii) Rural/Urban
Development Infrastructure Program Fund. All three contained a provision requiring prior
consultation with members of Congress for the release of funds.
In 2000, the Priority Development Assistance Fund (PDAF) appeared in the GAA. PDAF
required prior consultation with the representative of the district before the release of funds.
PDAF also allowed realignment of funds to any expense category except personal services and
other personnel benefits.
In 2005, the PDAF introduced the program menu concept which is essentially a list of general
programs and implementing agencies from which a particular PDAF project may be
subsequently chosen by the identifying authority. This was retained in the GAAs from 2006-
2010.
It was during the Arroyo administration when the formal participation of non-governmental
organizations in the implementation of PDAF projects was introduced.
The PDAF articles from 2002-2010 were silent with respect to specific amounts for individual
legislators.
In 2011, the PDAF Article in the GAA contained an express statement on lump-sum amounts
allocated for individual legislators and the Vice-President. It also contained a provision on
realignment of funds but with the qualification that it may be allowed only once.
The 2013 PDAF Article allowed LGUs to be identified as implementing agencies. Legislators
were also allowed identify programs/projects outside of his legislative district. Realignment of
funds and release of funds were required to be favorably endorsed by the House Committee on
Appropriations and the Senate Committee on Finance, as the case may be.
MALAMPAYA FUNDS AND PRESIDENTIAL SOCIAL FUND
The use of the term pork barrel was expanded to include certain funds of the President such as
the Malampaya Fund and the Presidential Social Fund (PSF).
The Malampaya Fund was created as a special fund under Section 8 of Presidential Decree
(PD) No. 910 issued by President Ferdinand Marcos on March 22, 1976.
The PSF was created under Section 12, Title IV of PD No. 1869, or the Charter of the Philippine
Amusement and Gaming Corporation (PAGCOR), as amended by PD No. 1993. The PSF is
managed and administered by the Presidential Management Staff and is sourced from the
share of the government in the aggregate gross earnings of PAGCOR.
PORK BARREL MISUSE
In 1996, Marikina City Representative Romeo Candozo revealed that huge sums of money
regularly went into the pockets of legislators in the form of kickbacks.

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In 2004, several concerned citizens sought the nullification of the PDAF but the Supreme Court
dismissed the petition for lack of evidentiary basis regarding illegal misuse of PDAF in the form
of kickbacks.
In July 2013, the National Bureau of Investigation probed the allegation that a syndicate
defrauded the government of P10 billion using funds from the pork barrel of lawmakers and
various government agencies for scores of ghost projects.
In August 2013, the Commission on Audit released the results of a three-year audit
investigation detailing the irregularities in the release of the PDAF from 2007 to 2009.
Whistle-blowers also alleged that at least P900 million from the Malampaya Funds had gone
into a dummy NGO.
ISSUE/S
PROCEDURAL ISSUES
Whether or not (a) the issues raised in the consolidated petitions involve an actual and
justiciable controversy, (b) the issues raised are matters of policy not subject to judicial
review, (c) petitioners have legal standing to sue, (d) previous decisions of the Court bar the
re-litigation of the constitutionality of the Pork Barrel system.
SUBSTANTIVE ISSUES
Whether or not the 2013 PDAF Article and all other Congressional Pork Barrel laws are
unconstitutional for violating the constitutional provisions on (a)separation of powers, (b) non-
delegability of legislative power, (c) checks and balances, (d) accountability, (e) political
dynasties, (f) local autonomy.

RULING
PROCEDURAL ISSUES
(a) There is an actual and justiciable controversy
There exists an actual and justiciable controversy in the cases. The requirement of contrariety
of legal rights is satisfied by the antagonistic positions of the parties regarding the
constitutionality of the pork barrel system.
The case is ripe for adjudication since the challenged funds and the laws allowing for their
utilization are currently existing and operational and thereby posing an immediate or
threatened injury to petitioners.
The case is not moot as the proposed reforms on the PDAF and the abolition thereof does not
actually terminate the controversy on the matter. The President does not have constitutional
authority to nullify or annul the legal existence of the PDAF.
The moot and academic principle cannot stop the Court from deciding the case considering
that: (a) petitioners allege grave violation of the constitution, (b) the constitutionality of the
pork barrel system presents a situation of exceptional character and is a matter of paramount
public interest, (c) there is a practical need for a definitive ruling on the systems
constitutionality to guide the bench, the bar and the public, and (d) the preparation and
passage of the national budget is an annual occurrence.
(b) Political Question Doctrine is Inapplicable
The intrinsic constitutionality of the Pork Barrel System is not an issue dependent upon the
wisdom of the political branches of the government but rather a legal one which the
Constitution itself has commanded the Court to act upon.

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The 1987 Constitution expanded the concept of judicial power such that the Supreme Court
has the power to determine whether there has been grave abuse of discretion amounting to
lack or excess of jurisdiction on the part of any branch or instrumentality on the part of the
government.
(c) Petitioners have legal standing to Sue
Petitioners have legal standing by virtue of being taxpayers and citizens of the Philippines.
As taxpayers, they are bound to suffer from the unconstitutional usage of public funds.
As citizens, the issues they have raised are matters of transcendental importance, of
overreaching significance to society, or of paramount public interest.
(d) The Petition is not barred by previous cases
The present case is not barred by the ruling in Philconsa vs. Enriquez [1] because
the Philconsa case was a limited response to a separation of powers problem, specifically on
the propriety of conferring post-enactment identification authority to Members of Congress.
On the contrary, the present cases involve a more holistic examination of (a) the inter-relation
between the CDF and the PDAF Articles with each other, and (b) the inter-relation of post-
enactment measures contained within a particular CDF or PDAF article, including not only
those related to the area of project identification but also to the areas of fund release and
realignment.
Moreover, the Philconsa case was riddled with inherent constitutional inconsistencies
considering that the authority to identify projects is an aspect of appropriation and the power
of appropriation is a form of legislative power thereby lodged in Congress. This power cannot
be exercised by individual members of Congress and the authority to appropriate cannot be
exercised after the GAA has already been passed.
The case of Lawyers Against Monopoly and Poverty vs. Secretary of Budget and
Management[2] does not also bar judgment on the present case because it was dismissed on
a procedural technicality and hence no controlling doctrine was rendered.
SUBSTANTIVE ISSUES ON CONGRESSIONAL PORK BARREL
(a) The separation of powers between the Executive and the Legislative
Departments has been violated.
The post-enactment measures including project identification, fund release, and fund
realignment are not related to functions of congressional oversight and, hence, allow
legislators to intervene and/or assume duties that properly belong to the sphere of budget
execution, which belongs to the executive department.
Legislators have been, in one form or another, authorized to participate in the various
operational aspects of budgeting, including the evaluation of work and financial plans for
individual activities and the regulation and release of funds in violation of the separation of
powers principle.
Any provision of law that empowers Congress or any of its members to play any role in the
implementation or enforcement of the law violates the principle of separation of powers and is
thus unconstitutional.
That the said authority to identify projects is treated as merely recommendatory in nature does
not alter its unconstitutional tenor since the prohibition covers any role in the implementation
or enforcement of the law.

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Respondents also failed to prove that the role of the legislators is only recommendatory in
nature. They even admitted that the identification of the legislator constitutes a mandatory
requirement before the PDAF can be tapped as a funding source.
(b)The principle of non-delegability of legislative powers has been violated
The 2013 PDAF Article, insofar as it confers post-enactment identification authority to
individual legislators, violates the principle of non-delegability since said legislators are
effectively allowed to individually exercise the power of appropriation, which as settled
in Philconsa is lodged in Congress.
That the power to appropriate must be exercised only through legislation is clear from Section
29(1), Article VI of the 1987 Constitution which states that: No money shall be paid out of
the Treasury except in pursuance of an appropriation made by law.
The legislators are individually exercising the power of appropriation because each of them
determines (a) how much of their PDAF fund would go to and (b) a specific project or
beneficiary that they themselves also determine.
(c) Checks and balances
Under the 2013 PDAF Article, the amount of P24.79 Billion only appears as a collective
allocation limit since the said amount would be further divided among individual legislators
who would then receive personal lump-sum allocations and could, after the GAA is passed,
effectively appropriate PDAF funds based on their own discretion.
This kind of lump-sum/post-enactment legislative identification budgeting system fosters the
creation of a budget within a budget which subverts the prescribed procedure of
presentment and consequently impairs the Presidents power of item veto.
It forces the President to decide between (a) accepting the entire PDAF allocation without
knowing the specific projects of the legislators, which may or may not be consistent with his
national agenda and (b) rejecting the whole PDAF to the detriment of all other legislators with
legitimate projects.
In fact, even without its post-enactment legislative identification feature, the 2013 PDAF Article
would remain constitutionally flawed since it would then operate as a prohibited form of lump-
sum appropriation. This is because the appropriation law leaves the actual amounts and
purposes of the appropriation for further determination and, therefore, does not readily
indicate a discernible item which may be subject to the Presidents power of item veto.
(d) The Congressional Pork Barrel partially prevents accountability as
Congress is incapable of checking itself or its members.
The fact that individual legislators are given post-enactment roles in the implementation of the
budget makes it difficult for them to become disinterested observers when scrutinizing,
investigating or monitoring the implementation of the appropriation law.
The conduct of oversight would be tainted as said legislators, who are vested with post-
enactment authority, would, in effect, be checking on activities in which they themselves
participate.
The concept of post-enactment authorization violates Section 14, Article VI of the 1987
Constitution, which prohibits members of Congress to intervene in any matter before any office
of the Government, because it renders them susceptible to taking undue advantage of their
own office.

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The Court, however, cannot completely agree that the same post-enactment authority and/or
the individual legislators control of his PDAF per se would allow him to perpetuate himself in
office.
The use of his PDAF for re-election purposes is a matter which must be analyzed based on
particular facts and on a case-to-case basis.
(e) The constitutional provision regarding political dynasties is not self-
executing.
Section 26, Article II of the 1987 Constitution, which provides that the state shall prohibit
political dynasties as may be defined by law, is not a self-executing provision.
Since there appears to be no standing law which crystallizes the policy on political dynasties
for enforcement, the Court must defer from ruling on this issue.
(f) The Congressional Pork Barrel violates constitutional principles on local
autonomy
The Congressional Pork Barrel goes against the constitutional principles on local autonomy
since it allows district representatives, who are national officers, to substitute their judgments
in utilizing public funds for local development.
The gauge of PDAF and CDF allocation/division is based solely on the fact of office, without
taking into account the specific interests and peculiarities of the district the legislator
represents.
The allocation/division limits are clearly not based on genuine parameters of equality, wherein
economic or geographic indicators have been taken into consideration.
This concept of legislator control underlying the CDF and PDAF conflicts with the functions of
the various Local Development Councils (LDCs) which are already legally mandated
toassist the corresponding sanggunian in setting the direction of economic and social
development, and coordinating development efforts within its territorial jurisdiction.
Considering that LDCs are instrumentalities whose functions are essentially geared towards
managing local affairs, their programs, policies and resolutions should not be overridden nor
duplicated by individual legislators, who are national officers that have no law-making
authority except only when acting as a body.
SUBSTANTIVE ISSUES ON PRESIDENTIAL PORK BARREL
(a) Section 8 of PD No. 910 and Section 12 of PD No. 1869 are valid
appropriation laws.
For an appropriation law to be valid under Section 29 (1), Article VI of the 1987 Constitution,
which provides that No money shall be paid out of the Treasury except in pursuance of an
appropriation made by law, it is enough that (a) the provision of law sets apart a determinate
or determinable amount of money and(b) allocates the same for a particular public purpose.
Section 8 of PD 910 is a valid appropriation law because it set apart a determinable amount: a
Special Fund comprised of all fees, revenues, and receipts of the [Energy Development]
Board from any and all sources.
It also specified a public purpose: energy resource development and exploitation programs and
projects of the government and for such other purposes as may be hereafter directed by the
President.
Section 12 of PD No. 1869 is also a valid appropriation law because it set apart a determinable
amount: [a]fter deducting five (5%) percent as Franchise Tax, the Fifty (50%) percent share of

78
the Government in the aggregate gross earnings of [PAGCOR], or 60%[,] if the aggregate gross
earnings be less thanP150,000,000.00.
It also specified a public purpose: priority infrastructure development projects and x x x the
restoration of damaged or destroyed facilities due to calamities, as may be directed and
authorized by the Office of the President of the Philippines.
(b) Section 8 of PD No. 910 and Section 12 of PD No. 1869 constitutes undue
delegation of legislation powers.
The phrase and for such other purposes as may be hereafter directed by the President under
Section 8 of PD 910 constitutes an undue delegation of legislative power insofar as it does not
lay down a sufficient standard to adequately determine the limits of the Presidents authority
with respect to the purpose for which the Malampaya Funds may be used.
This phrase gives the President wide latitude to use the Malampaya Funds for any other
purpose he may direct and, in effect, allows him to unilaterally appropriate public funds
beyond the purview of the law.
This notwithstanding, it must be underscored that the rest of Section 8, insofar as it allows for
the use of the Malampaya Funds to finance energy resource development and exploitation
programs and projects of the government, remains legally effective and subsisting.
Section 12 of PD No. 1869 constitutes an undue delegation of legislative powers because it lies
independently unfettered by any sufficient standard of the delegating law.
The law does not supply a definition of priority infrastructure development projects and
hence, leaves the President without any guideline to construe the same.
The delimitation of a project as one of infrastructure is too broad of a classification since the
said term could pertain to any kind of facility.

MA. CAROLINA P. ARAULLO ET AL. v. BENIGNO SIMEON C. AQUINO III ET AL., G.R. NO. 209287,
July 1, 2014

In a Decision dated July 1, 2014, the Supreme Court partially granted the consolidated
petitions for certiorari and prohibition and declared the following acts and practices under the
Disbursement Acceleration Program (DAP), National Budget Circular No. 541 and related
executive issuances unconstitutional for violating Section 25(5), Article VI of the 1987
Constitution and the doctrine of separation of powers, namely:

(a) The withdrawal of unobligated allotments from the implementing agencies, and the
declaration of the withdrawn unobligated allotments and unreleased appropriations as savings
prior to the end of the fiscal year and without complying with the statutory definition of
savings contained in the General Appropriations Acts;

(b) The cross-border transfers of the savings of the Executive to augment the appropriations of
other offices outside the Executive; and

(c) The funding of projects, activities and programs that were not covered by any appropriation
in the General Appropriations Acts.

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The Court further declared void the use of unprogrammed funds despite the absence of a
certification by the National Treasurer that the revenue collections exceeded the revenue
targets for non-compliance with the conditions provided in the relevant General Appropriations
Acts (GAAs).

Remedial law; Certiorari and prohibition. The remedies of certiorari and prohibition are
necessarily broader in scope and reach, and the writ of certiorari or prohibition may be issued
to correct errors of jurisdiction committed not only by a tribunal, corporation, board or officer
exercising judicial, quasi-judicial or ministerial functions but also to set right, undo and restrain
any act of grave abuse of discretion amounting to lack or excess of jurisdiction by any branch
or instrumentality of the Government, even if the latter does not exercise judicial, quasi-judicial
or ministerial functions. Thus, petitions for certiorari and prohibition are appropriate
remedies to raise constitutional issues and to review and/or prohibit or nullify the acts of
legislative and executive officials.

Remedial law; Locus standi. Citing De Castro v. Judicial and Bar Council, the Supreme Court
ruled that the assertion of a public right as a predicate for challenging a supposedly illegal or
unconstitutional executive or legislative action rests on the theory that the petitioner
represents the public in general. Although such petitioner may not be as adversely affected by
the action complained against as are others, it is enough that he sufficiently demonstrates in
his petition that he is entitled to protection or relief from the Court in the vindication of a public
right. The Court likewise cited Agan, Jr. v. Philippine International Air Terminals Co., Inc., to
explain that [s]tanding is a peculiar concept in constitutional law because in some cases, suits
are not brought by parties who have been personally injured by the operation of a law or any
other government act but by concerned citizens, taxpayers or voters who actually sue in the
public interest.

Transcendental importance as a ground to waive locus standi. Each of the petitioners


has established sufficient interest in the outcome of the controversy as to confer locus
standi on each of them. In addition, considering that the issues center on the extent of
the power of the Chief Executive to disburse and allocate public funds, whether appropriated
by Congress or not, these cases pose issues that are of transcendental importance to the
entire Nation, the petitioners included. As such, the determination of such important issues call
for the Courts exercise of its broad and wise discretion to waive the requirement and so
remove the impediment to its addressing and resolving the serious constitutional questions
raised.

Administrative law; Budget process; Implementation and funding of the Disbursement


Allocation Program (DAP). Four phases comprise the Philippine budget process, specifically:
(1) Budget Preparation; (2) Budget Legislation; (3) Budget Execution; and (4) Accountability.

The DAP was to be implemented and funded (1) by declaring savings coming from the
various departments and agencies derived from pooling unobligated allotments and
withdrawing unreleased appropriations; (2) releasing unprogrammed funds; and (3)
applying the savings and unprogrammed funds to augment existing [program, activity or
project] or to support other priority PAPs.

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Administrative law; Nature of the DAP. The DAP was a government policy or strategy designed
to stimulate the economy through accelerated spending. In the context of the DAPs adoption
and implementation being a function pertaining to the Executive as the main actor during
the Budget Execution Stage under its constitutional mandate to faithfully execute the laws,
including the GAAs, Congress did not need to legislate to adopt or to implement the DAP.

Constitutional law; The DAP is not an appropriation measure and does not contravene Section
29(1), Article VI. The President, in keeping with his duty to faithfully execute the laws, had
sufficient discretion during the execution of the budget to adapt the budget to changes in the
countrys economic situation. He could adopt a plan like the DAP for the purpose. He could pool
the savings and identify the PAPs to be funded under the DAP. The pooling of savings pursuant
to the DAP, and the identification of the PAPs to be funded under the DAP did not involve
appropriation in the strict sense because the money had been already set apart from the
public treasury by Congress through the GAAs. In such actions, the Executive did not usurp the
power vested in Congress under Section 29(1), Article VI of the Constitution [that no money
shall be paid out of the Treasury except in pursuance of an appropriation made by law].

Requisites of a valid transfer of appropriated funds under Section 25(5), Article VI. The transfer
of appropriated funds, to be valid under Section 25(5), [Article VI of the Constitution], must be
made upon a concurrence of the following requisites, namely: (1) There is a law authorizing the
President, the President of the Senate, the Speaker of the House of Representatives, the Chief
Justice of the Supreme Court, and the heads of the Constitutional Commissions to transfer
funds within their respective offices; (2) The funds to be transferred are savings generated
from the appropriations for their respective offices; and (3) The purpose of the transfer is to
augment an item in the general appropriations law for their respective offices.

It is then indubitable that the power to augment was to be used only when the purpose for
which the funds had been allocated were already satisfied, or the need for such funds
had ceased to exist, for only then could savings be properly realized. This interpretation
prevents the Executive from unduly transgressing Congress power of the purse.

Savings, defined. The definition of savings under the 2011, 2012 and 2013 GAAs refer to
portions or balances of any programmed appropriation in this Act free from any obligation or
encumbrance which are: (i) still available after the completion or final discontinuance
or abandonment of the work, activity or purpose for which the appropriation is authorized;
(ii) from appropriations balances arising from unpaid compensation and related costs
pertaining to vacant positions and leaves of absence without pay; and (iii) from appropriations
balances realized from the implementation of measures resulting in improved systems and
efficiencies and thus enabled agencies to meet and deliver the required or planned targets.

The Court agreed with petitioners that respondents were forcing the generation of savings in
order to have a larger fund available for discretionary spending. Respondents, by withdrawing
unobligated allotments in the middle of the fiscal year, in effect deprived funding for PAPs
with existing appropriations under the GAAs.

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The mandate of Section 28, Chapter IV, Book VI of the Administrative Code is to revert to the
General Fund balances of appropriations that remained unexpended at the end of the fiscal
year. The Executive could not circumvent this provision by declaring unreleased appropriations
and unobligated allotments as savings prior to the end of the fiscal year.

Augmentation is valid only when funding is deficient. The GAAs for 2011, 2012 and 2013 set as
a condition for augmentation that the appropriation for the PAP item to be augmented must be
deficient, to wit: x x x Augmentation implies the existence in this Act of a program, activity,
or project with an appropriation, which upon implementation, or subsequent evaluation of
needed resources, is determined to be deficient. In no case shall a non-existent program,
activity, or project, be funded by augmentation from savings or by the use of
appropriations otherwise authorized in this Act.

The President cannot substitute his own will for that of Congress. The Court held that the
savings pooled under the DAP were allocated to PAPs that were not covered by any
appropriations in the pertinent GAAs. Although the [Office of the Solicitor General] rightly
contends that the Executive was authorized to spend in line with its mandate to faithfully
execute the laws (which included the GAAs), such authority did not translate to unfettered
discretion that allowed the President to substitute his own will for that of Congress. He was still
required to remain faithful to the provisions of the GAAs, given that his power to spend
pursuant to the GAAs was but a delegation to him from Congress. Verily, the power to spend
the public wealth resided in Congress, not in the Executive. Moreover, leaving the spending
power of the Executive unrestricted would threaten to undo the principle of separation of
powers.

Cross-border transfers or augmentations are prohibited. By providing that the President, the
President of the Senate, the Speaker of the House of Representatives, the Chief Justice of the
Supreme Court, and the Heads of the Constitutional Commissions may be authorized to
augment any item in the GAA for their respective offices, Section 25(5) has delineated
borders between their offices, such that funds appropriated for one office are prohibited from
crossing over to another office even in the guise of augmentation of a deficient item or items.
Thus, we call such transfers of funds cross-border transfers or cross-border augmentations.

Regardless of the variant characterizations of the cross-border transfers of funds, the plain text
of Section 25(5) disallowing cross-border transfers was disobeyed. Cross-border transfers,
whether as augmentation, or as aid, are prohibited under Section 25(5).

No violation of equal protection. Petitioners claim that the Executive discriminated against
some legislators on the ground alone of their receiving less than the others could not of itself
warrant a finding of contravention of the Equal Protection Clause. The denial of equal
protection of any law should be an issue to be raised only by parties who supposedly suffer it,
and, in these cases, such parties would be the few legislators claimed to have been
discriminated against in the releases of funds under the DAP. The reason for the requirement is
that only such affected legislators could properly and fully bring to the fore when and how the
denial of equal protection occurred, and explain why there was a denial in their situation. The
requirement was not met here.

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Operative fact doctrine. The doctrine of operative fact recognizes the existence of the law or
executive act prior to the determination of its unconstitutionality as an operative fact that
produced consequences that cannot always be erased, ignored or disregarded. In short, it
nullifies the void law or executive act but sustains its effects. It provides an exception to the
general rule that a void or unconstitutional law produces no effect. But its use must be
subjected to great scrutiny and circumspection, and it cannot be invoked to validate an
unconstitutional law or executive act, but is resorted to only as a matter of equity and fair play.
It applies only to cases where extraordinary circumstances exist, and only when the
extraordinary circumstances have met the stringent conditions that will permit its application.

The operative fact doctrine applies to the implementation of the DAP. To declare the
implementation of the DAP unconstitutional without recognizing that its prior implementation
constituted an operative fact that produced consequences in the real as well as juristic worlds
of the Government and the Nation is to be impractical and unfair. Unless the doctrine is held to
apply, the Executive as the disburser and the offices under it and elsewhere as the recipients
could be required to undo everything that they had implemented in good faith under the
DAP. That scenario would be enormously burdensome for the Government. Equity alleviates
such burden.

The DAP decision: Lessons on politics, governance

With the decision in the consolidated case of Araullo v. Aquino III, the Supreme Court had found
the Disbursement Acceleration Program (DAP) of the administration of President Benigno S.
Aquino partially constitutional, partially unconstitutional.

In its wake, as seen in the news, critics have gladly seized on DAPs partial unconstitutionality
to raise scenarios of impeachment against the President, or raised calls for the resignation of
Budget Secretary Florencio Butch Abad.

These criticisms ride on the popular anger against pork barrel freely-disbursed lump sum
allocations such as the Priority Development Assistance Fund (PDAF) declared unconstitutional
in Belgica v. Executive Secretary this time aimed at Malacaang rather than Congress.

We will not join the bandwagon. We do not support the impeachment of the president and we
leave it up to Secretary Abad, an exemplary public official by any standard, to discern whether
his resignation will benefit the country. We trust he will make the right decision.

In this article, we think beyond this politics of outrage, which could just be a moment or are
warnings of major upheavals ahead, and reflect on the longer term political and governance
implications of the DAP decision.

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A judicial challenge to an act of the executive (or the legislative, for that matter), is ultimately
an act that seeks to limit an instance of the exercise of that governmental power when done
right, in an effort to curb abuse and protect what is right. In parsing DAP, in declaring some of
Aquinos actions constitutional, and some unconstitutional, the Supreme Court had essentially
left the Presidents prerogative to augment proper budget expenditures from proper budget
savings intact, but clearly defined what augmentation is not.

What augmentation is, according to the ponencia, and defined in Art. VI, Sec. 25 (5) of the
1987 Constitution, and authorized within each years General Appropriations Act (GAA), is the
use of clearly-identified savings in the expenditures of government departments and offices to
augment clearly-identified, actual deficiencies within those respective government
departments and offices. What augmentation is not, however, is to allocate what
was notauthorized as an expenditure in the GAA. It is not a transfer of executive department
savings to legislative lump sum allocations (cross-border augmentation) by virtue of the
latters unconstitutionality, or at the very least, because such itself violates Art. VI Sec. 25 (5).

Savings

There, too, was a problem in addressing the definition of actual savings that is the source of
augmentations. To quote from the ponencia, actual savings, strictly speaking, is the money left
over from GAA-authorized items which are authorized was completed, finally discontinued, or
abandoned; or because the policy targets were reached at lower cost due to increased
efficiencies; or because of vacant government positions or leaves-of-absence without
pay.Araullo held that it did not contemplate the use of money that had yet to be used: the
controversial unobligated allotments of slow-moving government projects; or the
unprogrammed funds, which are standby appropriations authorized in the GAA, which are
available only under specific circumstances and conditions. One of DAPs errors, but a critical
one, was that it considered funds otherwise not considered by law as actual savings, as
actual savings, making them available for disbursement by the President.

As with Belgica, Araullo exposes the underbelly of Philippine money politics: the roles and
powers over the budget-crossing borders. With PDAF, it was the legislature getting an all-but-
assured slice of the pie for legislators to spend on their own programs as they see fit; a
usurpation of executive roles. With the unconstitutional portions of DAP, it was the Chief
Executive allocating savings and unprogrammed funds to projects or programs independent of

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authorized GAA allocations (including DAP handovers to legislators); a usurpation of legislative
functions. It would be crude but otherwise uncomfortably close to the mark to describe a
DAPed president as a mini-Congress, and a PDAFed legislator as a mini-president.

Yet this confluence and contradiction of roles has likely subsisted in the foundations of
Philippine politics-in-practice certainly since PHILCONSA v. Enriquez earlier ruled pork barrel
as constitutional, allowing the practice to continue with judicial leave. For all the diatribes
raised against Aquino in the wake of the PDAF scandal, the truth is that, as with his
predecessors, he had inherited prior practices of Philippine government that have become so
ingrained in political culture.

Malice

Other than outright malice (which has to be proven first!), nothing else but the honest belief
that pork is right (if used right) would have motivated congressmen who cried foul and
threats of impeachment over Belgica. And I do believe (despite others that claim otherwise)
that what motivated the administration on the exercise of and its defensiveness with DAP was
not the malice they denounce, but a similar honest belief that the Executive could reallocate
unused money as it did, for the good of the nation.

Ironically, it was Aquinos own high standards of daang matuwid that allowed the Court to
resolve the DAP question as it did or for the question to explode into public consciousness as
it did. The records of the case will reflect the packages of memoranda and orders in relation to
DAP money movements: amply documented and volunteered upon summons.

Admittedly, and as will be elaborated later, an audit will still be necessary to uncover the full
story of DAP (and the Court did note that documents relating to DAPs conceptualization were
scarce), but the evidence package offered in Court was enough for the Justices to parse how
the President exercised his powers, the bone of contention in Araullo.

If anything, such level of documentary detail, readily presented upon order, would be evidence
of good faith on the part of the administration. Which is where our discussion now turns to the
question of impeachment against Aquino, or calls for Abad to resign. Ever since last year, there
has been an undercurrent of vindictiveness in the campaign against pork. Understandable,
given the scale of the scandal, and the defenses offered by all the parties under attack
whether Senators Enrile, Estrada, or Revilla; or Aquino or Abad that some feel are just

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attempts to deflect or delay the inevitable condemnation. And we feel that anger in critical op-
eds, or the vitriol in the comment boards of news outfits and social media.

Unconstitutional but not criminal

Yet here we must demur. Legally and morally, to condemn requires proper evidence culpable
violation in case of impeachment, or the commission of the elements of the crime charged, in
case of criminal prosecution. As Professor Randy David observed in his Inquirer column,
reflecting on his arrest in the wake of President Arroyos Proclamation 1017, a policy being
unconstitutional does not always mean the policy-maker being criminal or culpable for that
matter.

Justice Marvic Leonen pointed it out clearly in his separate opinion: to rule that a declaration
of unconstitutionality per se is the basis for determining liability is a dangerous proposition. It
is not proper that there are suggestions of administrative or criminal liability even before the
proper charges are raised, investigated, and filed.

If we keep insisting that government officials should always be held liable, especially criminally
liable, for acts subsequently declared to be unconstitutional by the Court, then all government
would be paralyzed by terror, unable to exercise such powers even granted to them by the
Constitution, for fear of the next prosecution (whether truly aggrieved or politically motivated)
thrown in their direction.

The Supreme Court may be the final arbiter of constitutionality, but by virtue of separation of
powers, the Executive and Legislature get first crack at interpretation of the constitutionality of
their acts (contemporaneous construction). Such interpretation is still open to challenge by
any aggrieved party, but a principle of law is that constitutionality is generally presumed; its
unconstitutionality must be proved. Until proven otherwise, the law grants the President or
Congress the benefit of the doubt.

Absent further evidence on malicious or culpable acts of the Administration, it is enough


that Araullo reestablishes the proper budget-handling borders of the separated powers of
government.

Governance

This leads us to our next set of implications: governance. As pork had become ingrained in
national politics, it had also wormed its way into governance, into the implementation of policy
and the spending of money on policy. PDAF again demonstrates how dependent public

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services, even those provided by NGOs, were on the largesse of legislators, such that the
system could be manipulated with ghost NGOs. It feeds into the patronage politics of Philippine
governance: that public services and the benefits every citizen receives, by law, from
government is held hostage by the political elite, who can then extract staying power and the
occasional graft from his constituency and budgetary allocation.

It should be noted that the same Secretary Abad critics are now wont to hang for DAP, is the
same Secretary Abad who declared, in his Metrobank Professorial Chair lecture last year at the
Ateneo School of Government, that the budget could be a tool for citizen empowerment
(particularly though inclusive budgeting reforms introduced under his watch, such as bottom-
up budgeting).

Weeding governance of bad budgetary habits strengthens good and responsive governance.
Subjecting government allocations and allotments to stricter scrutiny and controls, thanks to
the restoration of the borders, will ultimately help in restoring fiscal credibility to Philippine
governance: the legislature authorizes where the money goes, the executive releases the
money to such expenditures, with the citizenry participating at the budget planning,
deliberation, and execution stages, either through their elected representatives or as citizen
organizations.

Still, good governance has up to 27 years to catch up on a history of bad budgetary habits,
since the restoration of traditional political dynamics following the fall of the Marcos regime. In
the short term, government and citizenry both will have to break some of those habits:
congressionally-branded scholarships and free clinics; the basketball courts and multi-
purpose halls, that seem to be the low-hanging fruit of GAA allocations to public works.

Padrino system

There will likely be a painful adjusting period as constituents suddenly find themselves without
a padrino, learning instead political habits of interest aggregation, interfacing with
representatives and bureaucrats, of leveraging policy planning and execution to their benefit.
As our colleagues have found in the G-Watch project, this learning process is more needed
and more painful outside the cities, in the bailiwicks of trapo dynasties, and among a
population so used to binyag-kasal-libing interaction with their political representatives.

Padrinos and trapo dynasties may seem more the terrain of Congress, but Abads concept of
budget-as-empowering is sorely needed in Malacaang as well. Keynesian economics does

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hold that government spending does have a stimulus effect on the economy Justice Leonens
concurrence to Araullonoted this; exemplified by the World Bank report cited in the majority
that found DAP to have contributed 1.3% to the 2011 gross domestic product growth.

Yet a dependence on DAP as a stimulus tool may yet breed dependence on executive
augmentations in the name of economic growth.

In the earlier-referred Metrobank lecture, Abad had rightly described the national budget as an
arena of struggle among competing interests but heretofore that struggle and those interests
were assumed to be in congressional deliberation, not executive execution. This is the danger
implied in Araullos finding that augmentations made outside of GAA line items were
unconstitutional, as were cross-border releases to Congress.

The accusation that DAP may have been used to secure the votes needed for Chief Justice
Renato Coronas impeachment, or the RH Bills passage, stings the most in this regard. True or
untrue (or simply very uncomfortable timing), it has become highly embarrassing for the Office
of the President at the least. At most, it makes the Office of the President as much a padrino of
his own constituency (e.g., Congress) as a local political lord.

Mitigating such dangers requires robust accountability. Araullo complementsBelgica by


delineating, once and for all, the roles and functions of the branches of government in the
budgetary process. It is easier to color within the lines, after all, when the lines themselves are
clear.

Accountability

Judicial decisions alone, however, will not color between the lines, so to speak. Financial
accountability is the reserve of the system of checks and balances among the branches of
government (which Araullo and Belgica thankfully clarify), and of the Commission of Audit,
its raison detre.

It also ought to be the resolve of citizens to watch over the effective and equitable expenditure
of public funds through project monitoring, and working with government a cause our school,
the Ateneo School of Government, has championed through the social accountability
framework.

However, there is something Malacaang ought to do now, in the wake ofAraullo. So far, what
has been made public by court action were the DAP-related memos and subsequent
documentation of the Office of the President. As noted in the ponencia, other documents

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remain to be revealed, such as the decision-making process behind DAPs creation, and of
course the proverbial paper trail of the money, especially once it left executive hands. This
goes double for the releases to legislators, in case it can help clarify the paper trail in the PDAF
cases on file now and later, and to clarify which personalities or programs may benefit from the
doctrine of operative fact under a good-faith defense (as Justice Antonio Carpio cautions in his
separate opinion).

We would like to repeat, however, that this exercise in accountability must not turn into an
exercise of vindictiveness. Accountability based on threat (or at least threat alone), a climate
of fear of the hangmans noose, will not be sustainable. Where liabilities can be established, as
Justice Leonen observed, there the proper cases may be filed (and if the travails of the PDAF
prosecution team be instructive, then those liabilities must be thoroughly established).

But as with the Benhur Luy revelations, Araullo can help guide everyones hand in establishing
a better structure of public finance management and accountability. Fully threshing out this
promise is best left to a future article, but suffice to say that Araullo and Belgica mitigate, if not
eliminate, the risks opened up by the earlier PHILCONSA ruling.

The administrations habit of documentation, too, is a hopeful portent of practices to come,


and a willingness of Aquino officials to further disclose the extents and consequences of DAP in
the name of accountability and better governance design. (Besides, a working Keynesian
stimulus is a good achievement, especially for an administration earlier criticized for dragging
its feet on post-Arroyo government spending.)

Admit mistakes

And to help stimulate both accountability and discussions for governance redesign, here we
must submit unsolicited, but hopefully useful, advice for the administration, to tone down the
self-righteous defensiveness.

Araullo, as well as Aquinos forthcoming submission of the requested evidences, already point
to good faith exercised in the execution of DAP. The presidential prerogative for constitutional
augmentation has not been stripped. It is possible to look at the Supreme Court decision as a
starting point for dialogue and reform. As with persons, it helps for governments to admit their
mistakes as a step towards reconciliation and recovery. It also helps that the populace be ready
to dialogue with its mistaken, but cooperative, government but we have already stressed this
point in previous paragraphs.

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So where does the country go from here? How does the Philippine polity go cold turkey, bear
the withdrawal symptoms from weaning itself from a dependence on pork barrel? Money,
legitimately or illegitimately appropriated and disbursed, had been used in times past to
grease the wheels of legislation and execution.

This is what Congress crowed about in the wake of Belgica, to take away the proverbial prop
upon which their Houses stand. But the very picture of political horse-trading did not
envision the exchange of money, especially the peoples money, but the aggregation and
trading of political, economic, and social interests deliberated openly, for which the money will
then be disbursed, and the reward is continued political (and practical) relevance to their
constituencies (as well as their respective salaries).

Idealistic, we know even America struggles with corrupt money politics and pork, though
manifested in different forms (e.g., earmarks).

Yet it is high time we learned the habits of modern, accountable politics.


Consider Araullo and Belgica a badly-needed intervention, a judicially-mandated stint in rehab
that may finally give Philippine politics a chance to detoxify, shed some bad money habits, and
come clean into the 21st century.

As with any intervention, it would help for the intervenors to approach their addict-subject with
detachment and compassion; with sensitivity as well as resolve. Rappler.com

Araullo vs. Aquino III, G.R. No. 209287, February 3, 2015


POLITICAL LAW; POWER OF THE SUPREME COURT; JUDICIAL REVIEW. We have already said that
the Legislature under our form of government is assigned the task and the power to make and
enact laws, but not to interpret them. This is more true with regard to the interpretation of the
basic law, the Constitution, which is not within the sphere of the Legislative department. If the
Legislature may declare what a law means, or what a specific portion of the Constitution
means, especially after the courts have in actual case ascertain its meaning by interpretation
and applied it in a decision, this would surely cause confusion and instability in judicial
processes and court decisions. Under such a system, a final court determination of a case
based on a judicial interpretation of the law of the Constitution may be undermined or even
annulled by a subsequent and different interpretation of the law or of the Constitution by the
Legislative department. That would be neither wise nor desirable, besides being clearly
violative of the fundamental, principles of our constitutional system of government, particularly
those governing the separation of powers.

ADMINISTRATIVE LAW; STRICT CONSTRUCTION ON THE ACCUMULATION AND UTILIZATION OF


SAVINGS. The decision of the Court has underscored that the exercise of the power to augment
shall be strictly construed by virtue of its being an exception to the general rule that the
funding of PAPs shall be limited to the amount fixed by Congress for the purpose. Necessarily,

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savings, their utilization and their management will also be strictly construed against
expanding the scope of the power to augment. Such a strict interpretation is essential in order
to keep the Executive and other budget implementors within the limits of their prerogatives
during budget execution, and to prevent them from unduly transgressing Congress power of
the purse. Hence, regardless of the perceived beneficial purposes of the DAP, and regardless of
whether the DAP is viewed as an effective tool of stimulating the national economy, the acts
and practices under the DAP and the relevant provisions of NBC No. 541 cited in the Decision
should remain illegal and unconstitutional as long as the funds used to finance the projects
mentioned therein are sourced from savings that deviated from the relevant provisions of the
GAA, as well as the limitation on the power to augment under Section 25(5), Article VI of the
Constitution. In a society governed by laws, even the best intentions must come within the
parameters defined and set by the Constitution and the law. Laudable purposes must be
carried out through legal methods.

ADMINISTRATIVE LAW; POWER TO AUGMENT; CANNOT BE USED TO FUND NON-EXISTENT


PROVISION IN THE GAA. Further, in Nazareth v. Villar, we clarified that there must be an
existing item, project or activity, purpose or object of expenditure with an appropriation to
which savings may be transferred for the purpose of augmentation. Accordingly, so long as
there is an item in the GAA for which Congress had set aside a specified amount of public fund,
savings may be transferred thereto for augmentation purposes. This interpretation is
consistent not only with the Constitution and the GAAs, but also with the degree of flexibility
allowed to the Executive during budget execution in responding to unforeseeable
contingencies.

UN Security Council Resolutions on North Korea

The United Nations Security Council has adopted five major resolutions since 2006 that impose
and strengthen sanctions on North Korea for continuing to develop its nuclear weapons
program and call on Pyongyang to dismantle its nuclear program in a complete, verifiable,
and irreversible manner" and refrain from ballistic missile tests. The first two resolutions were
passed shortly after North Korean nuclear tests in 2006 and 2009. The third came a month
after North Korea successfully launched a satellite in December 2012. North Korea is prohibited
from such launches under previous UN Security Council Resolutions because the technology in
a satellite launch vehicle has potential dual use applications to ballistic missile development.
The fourth was passed after North Koreas most recent nuclear test in February 2013. The most
recent was adopted in March 2016 after a nuclear test and satellite launch early in the year.
The resolutions since 2009 furnished UN member states with interdiction authority, calling
upon states to inspect North Korean cargo within their territory, and subsequently seize and
dispose of goods prohibited by UNSC Resolutions.

All five resolutions were passed unanimously by the Security Council under Chapter VII, Article
41 of the United Nations Charter. While legally binding, states are prohibited from using force
to carry out the obligations of the resolutions. The resolutions call upon North Korea to rejoin
the nuclear Non-Proliferation Treaty (NPT), which it acceded to in 1985 but withdrew from in
2003 after U.S. allegations that the country was pursuing an illegal uranium enrichment
program. The Security Council also has called for North Korea to return to negotiations in the
Six-Party Talks, which include South Korea, North Korea, China, Japan, Russia and the United

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States. The talks began in 2003 and aim to peacefully dismantle North Koreas nuclear
weapons program. Little progress was made until September 2005, when the six parties
achieved a breakthrough and issued a joint statement on agreed steps for the denuclearization
of the Korean peninsula. Pursuant to the joint statement, in February 2007 negotiators reached
an agreement with North Korea to shut down its nuclear program in exchange for humanitarian
aid. Progress on this front broke down, however, in 2009 when North Korea completely
withdrew from the talks in response to international condemnation of its attempt to launch a
satellite in April 2009.

To this date, UN Security Council resolutions have been largely unsuccessful in preventing
North Korea from advancing its nuclear weapons and ballistic missile programs, although the
sanctions have slowed development in these areas. The United Nations continues to closely
monitor these programs. The 1718 Committee, established by Security Council Resolution
1718 in 2006, oversees implementation and enforcement of sanctions against North Korea.
The committee mandate has been renewed on an annual basis and is now extended until April
2016. A Panel of Experts, established by Security Council Resolution 1874 in 2006, produces
regular reports to the Security Council on the status of the sanctions and enforcement. In the
February 2015 report , the Panel found that the Democratic Peoples Republic of Korea
continued to defy Security Council resolutions by persisting with its nuclear and ballistic missile
programmes and also found no evidence that the country intends to cease prohibited
activities. The panel also offers recommendations to strengthen enforcement of the sanctions.

The sanctions-enacting resolutions since 2006 are preceded by Security Council resolutions
condemning North Korean nuclear and missile proliferation. In response to North Koreas
announcement of intent to withdraw from the NPT, the Security Council passed Resolution 825
in 1993, urging North Korea not to withdraw from the NPT to and honor its nonproliferation
obligations under the treaty. Resolution 1695 was passed in 2006 in response to ballistic
missile launches in July, and calls on North Korea to suspend activities related to its ballistic
missile program. Additional Security Council resolutions on North Korea serve to extend the
1718 Committee mandate.

Security Council Resolution 2270

The Security Council unanimously adopted Resolution 2270 on March 2, 2016 after North Korea
conducted a fourth nuclear test and launched a satellite for the second time. The nuclear test
of Jan. 6, 2016 and the launch of Feb. 7, 2016 using ballistic missile technology were violations
of Security Council resolutions 1718 (2006), 1874 (2009), 2087 (2013), and 2094 (2013).

Resolution 2270s Principal Provisions

Resolution 2270 condemned North Koreas fourth nuclear test and launch using ballistic missile
technology. It is the fifth Security Council resolution against North Korea since 2006 that
sanctions Pyongyang for continuing to pursue these programs. Like previous resolutions, it
demands that North Korea abandon all weapons of mass destruction programs in a complete,
verifiable and irreversible manner, and calls for the resumption of the six party talks.

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The resolution aims to cease further progress on its nuclear and missile programs by North
Korea by imposing new financial sanctions to stop the flow of cash to these illicit activities, and
imposes new sanctions on shipping which aim to eliminate the possibility of trafficking
prohibited goods into and out of North Korea. It also prohibits states from providing any
specialized teaching or training of North Korean nationals in disciplines which could contribute
to North Koreas proliferation.

The resolution also emphasizes that the North Korean regime has seriously neglected to meet
the needs of the North Korean people and has instead prioritized development of its nuclear
weapons and ballistic missile programs in contravention of demands in previous Security
Council resolutions and sanctions.

Resolution 2270s Sanctions

New financial sanctions place limits on banking activities of North Korean entities abroad. The
resolution prohibits UN member states from hosting North Korean financial institutions that
may be supporting proliferation activities in North Korea. In addition, states are prohibited from
opening new financial institutions or bank branches in North Korea and are required to
terminate existing joint ventures within ninety days of the adoption of the resolution.
Resolution 2270 also imposes an asset freeze on economic resources located outside North
Korea owned, either directly or indirectly, by the North Korean government or Workers Party of
Korea determined by the member state to be associated with North Koreas nuclear or ballistic
missile programs or other activities prohibited by resolutions. These measures are aimed to
prevent North Korea from accruing and diverting income to its nuclear and ballistic missile
programs.

The resolution imposes a travel ban and asset freeze on 16 additional individuals, an asset ban
on 12 additional entities, and names 31 specific vessels associated with the North Korean firm
Ocean Maritime Management (OMM), under asset freeze since 2006 under Resolution 1718. It
also requires that member states repatriate North Korean or other foreign nationals found to be
working on behalf of a Security Council resolution-designated entity.

The resolution requires member states to inspect all cargo travelling to or from North Korea, or
on a vessel brokered by North Korea, by air, land, or sea to ensure that no items are
transferred in violation of existing Security Council resolutions. Member states are also
prohibited from chartering or leasing vessels to North Korea, or providing crew services to
North Korea or North Korean entities. The resolution prohibits member states from selling or
supplying aviation fuel to North Korea so that it cannot be diverted to its ballistic missile
program.

Relevant Excerpts of Resolution 2270

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A full copy can be found by clicking here.

Recalling its previous relevant resolutions, including resolution 825 (1993), resolution 1540
(2004), resolution 1695 (2006), resolution 1718 (2006), resolution 1874 (2009), resolution
1887 (2009), resolution 2087 (2013) and resolution 2094 (2013), as well as the statements
of its President of 6 October 2006 (S/PRST/2006/41), 13 April 2009 (S/PRST/2009/7) and 16
April 2012 (S/PRST/2012/13),

Expressing gravest concern at the nuclear test conducted by the Democratic Peoples
Republic of Korea (the DPRK) on 6 January 2016 in violation of resolutions 1718 (2006),
1874 (2009), 2087 (2013) and 2094 (2013), and at the challenge such a test constitutes to
the Treaty on Non-Proliferation of Nuclear Weapons (the NPT) and to international efforts
aimed at strengthening the global regime of non-proliferation of nuclear weapons, and the
danger it poses to peace and stability in the region and beyond,

Expressing serious concern that the DPRK has continued to violate relevant Security Council
resolutions through repeated launches of ballistic missiles in 2014 and 2015, as well as the
submarine-launched ballistic missile ejection test in 2015 and noting that all such ballistic
missile activities contribute to the DPRKs development of nuclear weapons delivery systems
and increase tension in the region and beyond,

1. Condemns in the strongest terms the nuclear test conducted by the DPRK on 6 January
2016 in violation and flagrant disregard of the Councils relevant resolutions, and further
condemns the DPRKs launch of 7 February 2016, which used ballistic missile technology and
was in serious violation of resolutions 1718 (2006), 1874 (2009), 2087 (2013), and 2094
(2013);

2. Reaffirms its decisions that the DPRK shall not conduct any further launches that use
ballistic missile technology, nuclear tests, or any other provocation, and shall suspend all
activities related to its ballistic missile program and in this context re-establish its pre-
existing commitments to a moratorium on missile launches, and demands that the DPRK
immediately comply fully with these obligations;

4. Reaffirms its decision that the DPRK shall abandon all other existing weapons of mass
destruction and ballistic missile programs in a complete, verifiable and irreversible manner;

5. Reaffirms that, pursuant to paragraph 8 (c) of resolution 1718 (2006), all Member States
shall prevent any transfers to the DPRK by their nationals or from their territories, or from
the DPRK by its nationals or from its territory, of technical training, advice, services or
assistance related to the provision, manufacture, maintenance or use of nuclear-related,
ballistic missile-related or other weapons of mass destruction-related items, materials,
equipment, goods and technology, and underscores that this provision prohibits the DPRK
from engaging in any form of technical cooperation with other Member States on launches

94
using ballistic missile technology, even if characterized as a satellite launch or space launch
vehicle;

6. Decides that the measures in paragraph 8 (a) of resolution 1718 (2006) shall also apply to
all arms and related materiel, including small arms and light weapons and their related
materiel, as well as to financial transactions, technical training, advice, services or
assistance related to the provision, manufacture, maintenance or use of such arms and
related materiel;

13. Decides that if a Member State determines that a DPRK diplomat, governmental
representative, or other DPRK national acting in a governmental capacity, is working on
behalf or at the direction of a designated individual or entity, or of an individual or entities
assisting in the evasion of sanctions or violating the provisions of resolutions 1718 (2006),
1874 (2009), 2087 (2013), 2094 (2013) or this resolution, then the Member State shall expel
the individual from its territory for the purpose of repatriation to the DPRK

14. Decides that, if a Member State determines that an individual who is not a national of
that State is working on behalf of or at the direction of a designated individual or entity or
assisting the evasion of sanctions or violating the provisions of resolutions 1718 (2006), 1874
(2009), 2087 (2013), 2094 (2013) or this resolution, then Member States shall expel the
individual from their territories for the purpose of repatriation to the individuals state of
nationality

16. Notes that the DPRK frequently uses front companies, shell companies, joint ventures
and complex, opaque ownership structures for the purpose of violating measures imposed in
relevant Security Council resolutions, and, in this regard, directs the Committee, with the
support of the Panel, to identify individuals and entities engaging in such practices and, if
appropriate, designate them to be subject to the measures imposed in resolutions 1718
(2006), 1874 (2009), 2087 (2013), 2094 (2013) and this resolution;

17. Decides that all Member States shall prevent specialized teaching or training of DPRK
nationals within their territories or by their nationals of disciplines which could contribute to
the DPRKs proliferation sensitive nuclear activities or the development of nuclear weapon
delivery systems, including teaching or training in advanced physics, advanced computer
simulation and related computer sciences, geospatial navigation, nuclear engineering,
aerospace engineering, aeronautical engineering and related disciplines;

18. Decides that all States shall inspect the cargo within or transiting through their territory,
including in their airports, seaports and free trade zones, that has originated in the DPRK, or
that is destined for the DPRK, or has been brokered or facilitated by the DPRK or its
nationals, or by individuals or entities acting on their behalf or at their direction, or entities
owned or controlled by them, or by designated individuals or entities, or that is being
transported on DPRK flagged aircraft or maritime vessels, for the purposes of ensuring that

95
no items are transferred in violation of resolutions 1718 (2006), 1874 (2009), 2087 (2013),
2094 (2013) and this resolution, and calls upon States to implement such inspections in a
manner that minimizes the impact on the transfer of cargo that the State determines is for
humanitarian purposes;

19. Decides that Member States shall prohibit their nationals and those in their territories
from leasing or chartering their flagged vessels or aircraft or providing crew services to the
DPRK, and decides that this prohibition shall also apply with respect to any designated
individuals or entities, any other DPRK entities, any other individuals or entities whom the
State determines to have assisted in the evasion of sanctions or in violating the provisions of
resolutions 1718 (2006), 1874 (2009), 2087 (2013), 2094 (2013) or this resolution, any
individuals or entities acting on behalf or at the direction of any of the aforementioned, and
any entities owned or controlled by any of the aforementioned, calls upon Member States to
de-register any vessel that is owned, operated or crewed by the DPRK, further calls upon
Member States not to register any such vessel that is de-registered by another Member State
pursuant to this paragraph, and decides that this provision shall not apply with respect to
such leasing, chartering or provision of crew services notified to the Committee in advance
on a case-by-case basis accompanied by: a) information demonstrating that such activities
are exclusively for livelihood purposes which will not be used by DPRK individuals or entities
to generate revenue, and b) information on measures taken to prevent such activities from
contributing to violations of the aforementioned resolutions;

20. Decides that all States shall prohibit their nationals, persons subject to their jurisdiction
and entities incorporated in their territory or subject to their jurisdiction from registering
vessels in the DPRK, obtaining authorization for a vessel to use the DPRK flag, and from
owning, leasing, operating, providing any vessel classification, certification or associated
service, or insuring any vessel flagged by the DPRK

21. Decides that all States shall deny permission to any aircraft to take off from, land in or
overfly, unless under the condition of landing for inspection, their territory, if they have
information that provides reasonable grounds to believe that the aircraft contains items the
supply, sale, transfer or export of which is prohibited by resolutions 1718 (2006), 1874
(2009), 2087 (2013), 2094 (2013) or this resolution, except in the case of an emergency
landing, and calls upon all States, when considering whether to grant overflight permission
to flights to assess known risk factors;

22. Decides that all Member States shall prohibit the entry into their ports of any vessel if the
Member State has information that provides reasonable grounds to believe the vessel is
owned or controlled, directly or indirectly, by a designated individual or entity, or contains
cargo the supply, sale, transfer or export of which is prohibited by resolutions 1718 (2006),
1874 (2009), 2087 (2013), 2094 (2013) or this resolution, unless entry is required in the case
of emergency or in the case of return to its port of origination, or for inspection, or unless the
Committee determines in advance that such entry is required for humanitarian purposes or

96
any other purposes consistent with the objectives of this resolution;

31. Decides that all States shall prevent the sale or supply, by their nationals or from their
territories or using their flag vessels or aircraft, of aviation fuel, including aviation gasoline,
naptha-type jet fuel, kerosene-type jet fuel, and kerosene-type rocket fuel, whether or not
originating in their territory, to the territory of the DPRK, or unless the Committee has
approved in advance on an exceptional case-by-case basis the transfer to the DPRK of such
products for verified essential humanitarian needs

32. Decides that the asset freeze imposed by paragraph 8 (d) of resolution 1718 (2006) shall
apply to all the funds, other financial assets and economic resources outside of the DPRK
that are owned or controlled, directly or indirectly, by entities of the Government of the DPRK
or the Workers Party of Korea, or by individuals or entities acting on their behalf or at their
direction, or by entities owned or controlled by them, that the State determines are
associated with the DPRKs nuclear or ballistic missile programs or other activities prohibited
by resolutions 1718 (2006), 1874 (2009), 2087 (2013), 2094 (2013) or this resolution

33. Decides that States shall prohibit in their territories the opening and operation of new
branches, subsidiaries, and representative offices of DPRK banks, decides further that States
shall prohibit financial institutions within their territories or subject to their jurisdiction from
establishing new joint ventures and from taking an ownership interest in or establishing or
maintaining correspondent relationships with DPRK banks, unless such transactions have
been approved by the Committee in advance, and decides that States shall take the
necessary measures to close such existing branches, subsidiaries and representative offices,
and also to terminate such joint ventures, ownership interests and correspondent banking
relationships with DPRK banks within ninety days from the adoption of this resolution;

34. Decides that States shall prohibit financial institutions within their territories or subject to
their jurisdiction from opening new representative offices or subsidiaries, branches or
banking accounts in the DPRK;

35. Decides that States shall take the necessary measures to close existing representative
offices, subsidiaries or banking accounts in the DPRK within ninety days, if the State
concerned has credible information that provides reasonable grounds to believe that such
financial services could contribute to the DPRKs nuclear or ballistic missile programs, or
other activities prohibited by resolutions 1718 (2006), 1874 (2009), 2087 (2013), 2094
(2013) or this resolution

50. Reaffirms its support to the Six Party Talks, calls for their resumption, and reiterates its
support for the commitments set forth in the Joint Statement of 19 September 2005 issued
by China, the DPRK, Japan, the Republic of Korea, the Russian Federation, and the United
States, including that the goal of the Six-Party Talks is the verifiable denuclearization of the
Korean Peninsula in a peaceful manner, that the United States and the DPRK undertook to

97
respect each others sovereignty and exist peacefully together, and that the Six Parties
undertook to promote economic cooperation, and all other relevant commitments;

52. Decides to remain seized of the matter.

(CNN)For a second day, North Korea appeared to be flexing its military muscles in the wake of
a United Nations vote meant to cripple the nation's nuclear program.

North Korean leader Kim Jong Un said the country's "nuclear warheads need to be ready for
use at any time," the North Korean state news agency KCNA reported Friday.

"Under the extreme situation that the U.S. Imperialist is misusing its military influence and is
pressuring other countries and people to start war and catastrophe, the only way for our
people to protect sovereignty and rights to live is to strengthen the quality and quantity of
nuclear power and realize the balance of power," Kim said, according to KCNA.

The news agency also confirmed the test-fire of a new multiple launch rocket system. It's
unclear whether that event is the same launch by North Korea of "short-range projectiles,"
announced one day earlier by the South Korean Joint Chiefs of Staff.

North Korea test fires six missiles 02:21

"We are aware of the reports. We are closely monitoring the situation on the Korean Peninsula
in coordination with our regional allies," the Pentagon said in response to Friday's news. "We
urge North Korea to refrain from provocative actions that aggravate tensions and instead focus
on fulfilling its international obligations and commitments."

Will U.S. deploy THAAD weapons system after North Korean threats?

'A lot of bluster'

North Korea is believed to have an untested capability when it comes to nuclear weapons. As
one U.S. official told CNN's Barbara Starr, the regime has tested nuclear devices that it says
have been miniaturized.

The attitude of U.S. officials is that they consider North Korea's claim true because they can't
risk underestimating it, but the claim is not verified.

98
North Korea has also tested long-range missiles but not completely. It has not tested missile re-
entry, for example. Additionally, North Korea has not married a nuclear device with a long-
range missile, and the United States does not know whether North Korea would do so without
testing first.

"The threat here is, to me right now, it's a lot of bluster," said Philip Yun, executive director of
the Ploughshares Fund, a group that advocates nuclear disarmament. "For them to deliver on a
threat, they have to have intent and they have to have capability. And quite frankly, I don't
think they have both."

Yun told CNN the purpose of the news might be internal.

"Kim Jong Un has got a large party congress that's going to be happening in May. And this is all
about, for him, again, additional consolidation of power. He'll want to get rid and justify getting
rid of any enemies he may have.

"And this is part of a process where he is able to ratchet up the pressure, increase his control
internally, and brandish his credentials to be 'protecting the motherland.' And so all of this sort
of helps him internally even though it may not ring true to many of us here outside," he said.

Yun stressed that he does not think the North Koreans are suicidal: "They know that if they did
a pre-emptive attack or used nuclear weapons, they would cease to exist."

Fresh sanctions

Earlier this week, the U.N. Security Council voted to impose an array of sanctions against North
Korea because of that nation's recent nuclear test and missile launch, both of which defied
international sanctions.

The U.N. resolution that brought about the sanctions aims to cripple the economic factors that
fuel North Korea's nuclear and ballistic missile programs.

The North Korean state news agency blasted the sanctions as "unprecedented and gangster-
like."

The "political and economic pressure and military aggression on the DPRK have gone to a
grave phase that can no longer be overlooked," KCNA said.

China reiterated its opposition on North Korea developing nuclear weapons.

Fu Ying, a spokeswoman for China's Parliament, said it will abide by the Security Council
sanctions, but she highlighted the need for six-party talks to resolve the issue.

99
Hydrogen bomb

Discussions about new sanctions started after North Korea claimed to have successfully tested
a hydrogen bomb in January, its fourth nuclear test.

Then, in February, Pyongyang said it had successfully launched an Earth satellite into orbit via
the long-range Kwangmyongsong carrier rocket.

According to CNN's Paula Hancocks, Friday's developments are not necessarily new, but they
do represent an increase in the tensions that already existed on the Korean Peninsula.

"And, also bear in mind, we're just a couple of days away now from the joint military drills
between the United States and South Korea. These happen every year. Washington and Seoul
say they're defensive in nature, but every year they irritate Pyongyang," she said.

North Korea faces harsh new U.N. sanctions to starve it of money for its nuclear weapons
program following a unanimous Security Council vote on Wednesday on a resolution drafted by
the United States and Pyongyang's ally China.

The resolution, which dramatically expands existing sanctions, follows North Korea's latest
nuclear test on Jan. 6 and a Feb. 7 rocket launch that Washington and its allies said used
banned ballistic missile technology. Pyongyang said it was a peaceful satellite launch.

U.S. Ambassador Samantha Power said the sanctions go further than any U.N. sanctions
regime in two decades and aim to cut off funds for North Korea's nuclear and other banned
weapons programs.

Two council diplomats said on condition of anonymity that the new resolution makes the North
Korean sanctions regime even tougher than the Iran sanctions regime that they say led to a
decision on Tehran's part to agree to an historic nuclear deal last year that led to most
restrictions being lifted in January.

All cargo going to and from North Korea must now be inspected and North Korean trade
representatives in Syria, Iran and Vietnam are among 16 individuals added to a U.N. blacklist,
along with 12 North Korean entities.

Previously states only had to inspect such shipments if they had reasonable grounds to believe
they contained illicit goods.

"Virtually all of the DPRK's (North Korea) resources are channeled into its reckless and
relentless pursuit of weapons of mass destruction," Power told the council after the vote,
adding that the cargo inspection provisions are "hugely significant."

100
She said the point of the resolution was to target the country's leadership, not its impoverished
people, adding that North Korea is "a master of evasion" and would continue to try to evade
the sanctions although the new measures would make that harder.

There was no immediate reaction from the North Korean U.N. mission. The official North Korean
news agency KCNA said on Monday the proposed sanctions were "a wanton infringement on
(North Korea's) sovereignty and grave challenge to it."

Related Coverage

North Korea fires projectiles after new U.N. sanctions

The White House said it was not clear how Pyongyang would react. The European Union foreign
policy chief Federica Mogherini welcomed the U.N. vote, saying the European Union would
update the bloc's sanctions regime to include the new measures. Diplomats said that could be
done as soon as Friday.

U.N. Secretary-General Ban Ki-moon welcomed the 15-nation council's move, saying in a
statement that Pyongyang "must return to full compliance with its international obligations."

North Korea has been under U.N. sanctions since 2006 because of its four nuclear tests and
multiple rocket launches.

After nearly two months of bilateral negotiations that at one point involved U.S. President
Barack Obama and his Chinese counterpart, Xi Jinping, China agreed to support the unusually
tough measures intended to persuade its close ally to abandon its atomic weapons program.

China's Ambassador Liu Jieyi called for a return to dialogue, saying: "Today's adoption should
be a new starting point and a paving stone for political settlement of the nuclear issue on the
Korean Peninsula."

However, he reiterated Beijing's concerns about the possible deployment of an advanced U.S.
missile system in South Korea.

"At this moment all parties concerned should avoid actions that will further aggravate tension
on the ground," he said. "China opposes the deployment of the THAAD anti-missile system ...
because such an action harms the strategic and security interests of China and other countries
of the region."

He was referring to the U.S. Terminal High Altitude Area Defense (THAAD) system.

Shortly after the U.N. move, the U.S. Treasury Department said it was blacklisting two entities
and 10 individuals for ties to North Korea's government and its banned weapons programs, and

101
said the State Department was also blacklisting three entities and two individuals for similar
reasons.

The new U.N. sanctions close a gap in the U.N. arms embargo on Pyongyang by banning all
weapons imports and exports.

The Security Council's list of explicitly banned luxury goods has been expanded to include
luxury watches, aquatic recreational vehicles, snowmobiles worth more than $2,000, lead
crystal items and recreational sports equipment.

There is also an unprecedented ban on the transfer to North Korea of any item that could
directly contribute to the operational capabilities of its armed forces, such as trucks that could
be modified for military purposes.

The new U.N. measures also blacklist 31 ships owned by North Korean shipping firm Ocean
Maritime Management Company (OMM).

Added to the U.N. sanctions list was the National Aerospace Development Agency, or NADA,
the body responsible for February's rocket launch.

Newly blacklisted individuals include a senior official in North Korea's long-range missile
program, senior officials at NADA, officials for Tanchon Commercial Bank in Syria and Vietnam,
and Korea Mining Development Trading Corporation (KOMID) representatives in Iran and Syria.

An earlier draft would have blacklisted 17 individuals but the proposed designation of a KOMID
representative in Russia was dropped from the final version of the resolution.

(Additional reporting by Robin Emmott in Brussels and Susan Heavey in Washington; Editing by
James Dalgleish and Diane Craft)

The Philippines has impounded a North Korean vessel under tough new United Nations
sanctions introduced in response to Pyongyangs recent nuclear and ballistic missile tests.

The 6,830-tonne cargo ship Jin Teng will not be allowed to leave Subic port, north-east of the
capital Manila, where it had been docked for three days and its crew will be deported,
presidential spokesman Manolo Quezon said on state-run radio station Radyo ng Bayan on
Saturday.

North Korean threats against the US: how worried should you be?

Katharine HS Moon
Read more

102
It was the first reported case of the sanctions the toughest to date, which were adopted late
on Wednesday by the UN security council being enforced.

The world is concerned over North Koreas nuclear weapons program and as a member of the
UN, the Philippines has to do its part to enforce the sanctions, Quezon said.

A team from the UN is expected to inspect the ship in the port, located near a former United
States naval base, foreign affairs spokesman Charles Jose said.

The Jin Teng was inspected for the second time on Saturday, this time using electronic
weapons sensors, coastguard spokesman commander Armand Balilo said , adding the 21
crewmen were very cooperative.

North Korea has no embassy in the Philippines. Its embassies in Thailand and Indonesia were
unavailable for comment.

There are no other North Korean ships docked in Subic, according to the coastguard.

The Jin Teng, carrying palm kernels, arrived in Subic from Palembang, Indonesia on Thursday
afternoon, just hours after the latest sanctions were unanimously passed.

In response to the UNs move, Pyongyang fired six short-range missiles into the sea on
Thursday, whileleader Kim Jong-Un ordered its nuclear arsenal to be put on standby for pre-
emptive use at any time.

On Friday, the European Union also tightened sanctions against North Korea by adding 16
individuals and 12 entities to a list of some 60 individuals and groups who were hit with travel
bans and asset freezes.

MANILA The Philippines will become the first country to enforce tough new United Nations
sanctions on North Korea when it begins formal procedures on Monday to impound a cargo
vessel linked to the reclusive nation, a government spokesman said on Sunday.

The Jin Teng, which is suspected of being a North Korean ship, arrived Thursday at Subic Bay, a
commercial port about 50 miles northwest of Manila. It will be impounded, its crew will be
deported, and it will most likely be inspected by a team from the United Nations, said Charles
Jose, a spokesman for the Philippine Department of Foreign Affairs.

The vessel is registered and flagged under multiple countries, but it is one of 31 listed as being
owned by North Korea, Philippine officials said, and therefore subject to seizure under the new
sanctions. The sanctions are a result of a United Nations Security Council resolution that was
passed Wednesday after a North Korean nuclear test on Jan. 6 and a long-range rocket test on
Feb. 7.

103
One component of the new sanctions requires countries to inspect all cargo passing through
their territory en route to or from North Korea. Inspections previously had been required only if
there was reasonable suspicion of contraband aboard.

The world is concerned over North Koreas nuclear weapons program, and as a member of the
U.N., the Philippines has to do its part to enforce the sanctions, Manuel L. Quezon III, a
member of the presidents communications team, said on a government-run radio station on
Saturday.

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The 4,355-ton vessel had a crew of 21 North Korean citizens and was in the Philippines to
unload a shipment of agricultural byproducts often used as livestock feed. The Philippine Coast
Guard searched the vessel on Friday and found no prohibited items. Only minor safety
violations, including missing fire hoses and exposed wiring, were discovered.

The vessels last port of call was in Indonesia, and it was going to proceed to Zhanjiang Port in
China after unloading in Subic Bay, Philippine Coast Guard officials said Saturday. It was not
scheduled to pick up any cargo in the Philippines.

In 2008, the police seized about 1,500 pounds of crystal methamphetamine, with an estimated
value of more than $100 million, in Subic Bay that drug enforcement officials at the time said
had been produced in North Korea.

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The Philippines said on Monday it had impounded a North Korean ship, becoming the first
country to enforce tough new sanctions imposed on the state last week.

Despite flying a Sierra Leone flag, the Jin Teng was seized on Monday on suspicions the vessel
was operated by a North Korean shipping group that had been blacklisted by the UN and faced
an asset freeze.

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104
This is in compliance with the UN Security Council resolution that calls for sanctions, said
Charles Jose, a spokesperson for the Philippine foreign ministry. The most important thing is to
impound the vessel so it cannot engage in economic activity that could benefit North Korea.

The UN Security Council last week voted unanimously to introduce new sanctions on North
Korea, including compulsory inspections of cargo entering and leaving the country, in response
to Pyongyangs fourth nuclear test and a long-range rocket launch earlier this year.

Manilas actions add to tensions in the region. Last week North Korean leader Kim Jong Un
ordered the countrys nuclear weapons to be placed on standby in protest against the UN
sanctions.

South Korea planned to announce its own sanctions against North Korea on Tuesday to follow
up the UN Security Council resolution. Under those sanctions, vessels that had previously
called at a North Korean port would be banned from entering South Korean ports, according to
Seouls state-run Yonhap News, in a blow to North Koreas external trade.

Apart from the UN resolution, Seoul would also impose financial sanctions on dozens of
individuals and institutions linked to North Koreas development of weapons of mass
destruction. A three-way logistics project that transports Russian coal to South Korea through a
North Korean port would also likely be scrapped, Yonhap said.

The impounded vessel, moored north-west of Manila in Subic Bay, was believed by the
Philippines to be operated by Ocean Maritime Management.

OMM has faced an asset freeze since 2014, when it was blacklisted by the UN for operating the
Chong Chon Gang, a ship detained the previous year by Panama when it was en route to Cuba
carrying arms including two jet fighters concealed under thousands of bags of sugar.

OMM has continued to operate through multiple front companies and representative offices to
evade sanctions, according to the US government.

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The Philippines coast guard conducted two investigations of the Jin Teng, which was carrying
palm kernels from Indonesia. Mr Jose added that nothing that could be used for North Koreas
nuclear programme had been found on board.

The crew, which includes 24 North Koreans, will be repatriated once investigations are
complete.

105
Manilas actions have raised questions about whether other Southeast Asian nations will follow
suit and rigorously enforce the new sanctions, which could have economic consequences for
nations with large shipping industries.

The Philippines is a maritime nation but the volume of trade passing through wouldnt be as
great as Singapore or Hong Kong, so there might be less commercial impact, said Euan
Graham, director of the international security program at Australias Lowy Institute. There is
always a tension between security and economic efficiency of a port.

Security analysts also warn that North Korea has historically used loyal diaspora communities
to facilitate illegal activities, particularly in China.

MANILA, Philippines - Responding to the UN Security Council resolution imposing stricter


sanctions against North Korea, the Philippines yesterday seized one of its cargo ships that
docked in Subic Bay on Thursday.

The Philippine government said it would impound the North Korean vessel M/V Jin Teng in
response to tough new UN sanctions.

The 6,830-ton cargo ship will not be allowed to leave Subic, where it had been docked for three
days, and its crew will be deported.

The world is concerned over North Koreas nuclear weapons program and as a member of the
UN, the Philippines has to do its part to enforce the sanctions, Presidential Communications
Development and Strategic Planning Office Undersecretary Manuel Quezon III said.

The UN Security Council unanimously adopted Resolution 2270 imposing new sanctions and
tightened some of its existing measures against the Democratic Peoples Republic of Korea
(DPRK) due to its nuclear weapons program that threaten international peace and security.

The resolution, which imposes the toughest sanctions so far on DPRK, reflects the resolute
stand of the international community against DPRKs provocative nuclear tests and rocket
launches which pose clear threats to international peace and stability, the Department of
Foreign Affairs (DFA) said in a statement.

Headlines ( Article MRec ), pagematch: 1, sectionmatch: 1

The DFA said the Philippines joins the international community in strongly urging the DPRK to
comply with UNSCR 2270 and relevant resolutions and undertake concrete steps towards
denuclearization.

106
The resolution, which dramatically expands existing sanctions, follows North Koreas latest
nuclear test on Jan. 6 and a Feb. 7 rocket launch that Washington and its allies said used
banned ballistic missile technology. Pyongyang said it was a peaceful satellite launch.

The resolution said North Korea was in violation of and in flagrant disregard of the UN Security
Councils prior resolutions banning nuclear weapons programs.

The new resolution expands sanctions against North Korea by imposing a ban on all exports
including coal, iron, iron ore, gold, titanium ore, vanadium ore and rare earth metals, and
banning the supply of all types of aviation fuel, including rocket fuel.

Regarding financial sanctions, the resolution broadens their scope by imposing an asset freeze
on all funds and other economic resources owned or controlled by the North Korean
government or by its Workers Party of Korea, if found to be associated with its nuclear or
ballistic missile program or any other prohibited activities.

The new resolution also requires member states to inspect all cargo to and from North Korea,
not just those suspected of containing prohibited items, as was previously the case.

It also bans leasing or chartering of vessels or airplanes and providing crew services to the
country, and registering vessels, while calling on UN member states to de-register any North
Korean-owned or controlled vessels.

Member states are mandated to ban any flights and deny entry into their ports of any vessel
suspected of carrying prohibited items.

In response to the UNs move, Pyongyang fired six short-range missiles into the sea on
Thursday, while North Korean leader Kim Jong-Un ordered its nuclear arsenal put on standby
for pre-emptive use at anytime.

On Friday, the European Union also tightened sanctions against North Korea by adding 16
individuals and 12 entities to a list of some 60 individuals and groups who were hit with travel
bans and asset freezes.

The Jin Teng

Quezon said the Philippine Permanent Mission to the United Nations in New York relayed the
latest UN sanction to United Nations and other International Organizations (UNIO) Assistant
Secretary Gary Domingo, who in turn informed Malacaang that the North Korean vessel
should not be allowed to leave the port in Subic.

So what happened was the UNIO office of the DFA coordinated with the Philippine Coast
Guard, Quezon said.

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He added a team from the UN might also come to inspect the ship in Subic while the Philippine
government will report to the UN its actions after holding the ship.

Foreign Affairs spokesman Charles Jose added the DFA has yet to receive any official report if
the vessel is involved in transporting illegal cargo.

We have to get official report first and study it before making recommendations, Jose said.

We also need to send a report to the United Nations on Philippine actions taken, he added.

Jose said the DFA is coordinating its efforts with other Philippine government agencies
including the Philippine Coast Guard (PCG) and the Department of Justice.

PCG commandant Rear Adm. William Melad said they would hold the North Korean cargo vessel
and its crew until a formal communication has been made.

The Bureau of Immigration said it has restricted the shore passes of the 21 crewmembers of
the ship.

The Jin Teng was inspected in Subic Bay, a former US-run naval base, after it arrived Thursday
from Balembang, Indonesia, loaded with palm kernel expeller a byproduct of palm oil
production and other agricultural products.

The Jin Teng is among 31 vessels that could be forced to stop trading after being included in an
asset freeze against a North Korean shipping company under the tightened sanctions passed
unanimously by the UN Security Council on Wednesday.

The Jin Teng was inspected for the second time yesterday, this time using electronic weapons
sensors, PCG spokesman Commander Armand Balilo said.

He added the 21 crewmen were very cooperative. Pia Lee-Brago, Bebot Sison, Evelyn
Macairan

The Philippines said on Saturday it had seized a North Korean freighter that was covered by
harsher United Nations' sanctions against Pyongyang over its nuclear program.
Manila will also deport the vessel's 21 North Korean crew and will await a U.N. inspection team
from the United Nations, foreign ministry spokesman Charles Jose said in a text message.
"In compliance with the United Nations resolution, the North Korean ship in Subic will be
impounded and not allowed to leave port," he said.
The 6,830 deadweight tonne (dwt) cargo ship Jin Teng was one of the first sanctioned North
Korean ships to enter a foreign port since the tightened sanctions were passed unanimously by
the U.N. Security Council on Wednesday. Thirty-one North Korean ships are on the list.

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"The world is concerned over North Korea's nuclear weapons program and as a member of the
UN, the Philippines has to do its part to enforce the sanctions," said Manolo Quezon, deputy
presidential spokesman told reporters.
The ship, flying a Sierra Leone flag, arrived on Feb. 27 and was unloading palm kernels.
"We have sent teams to guard the ship until we get the formal order from the government,"
said Commander Armand Balilo, coast guard spokesman.
On Friday, the coast guard barred the ship from leaving port, citing safety deficiencies found
during an inspection.
The inspection was conducted after the U.N. passed the resolution against Pyongyang.
The U.N. resolution said the 31 ships were "economic resources controlled or operated by
Ocean Maritime Management and therefore subject to the asset freeze".
The Jin Teng has called at Palembang, Indonesia, and Kaohsiung, Taiwan, since the beginning of
this year, ship tracking data available on the Reuters Eikon Terminal showed.

(CNN)While North Korea keeps firing literal and figurative salvos, the world has responded with
harsher sanctions -- ones that the Philippines has put into effect by detaining a ship from the
reclusive East Asian nation.

The Philippine government has impounded a North Korean freighter, the Jin Teng, in Subic Bay
and plans to deport its crew, presidential spokesman Manuel Quezon III said in a radio
interview, according to the official Philippines News Agency.

This wouldn't have happened if not for Pyongyang's recent nuclear test and missile launch, and
the global community's reaction to these defiant acts.

The 15-member U.N. Security Council voted this week to impose an array of new sanctions in
response to what it called "violation and flagrant disregard" of previous resolutions. Tellingly,
this vote was unanimous -- with not only from longtime North Korean foes such as the United
States and Japan, but also Russia and China, who have been less adversarial to the regime.

Among other provisions, Resolution 2270 mandates that other countries "should inspect cargo
within or transiting through their territory including airports, sea ports and free trade zones
that was destined for or originating from the Democratic People's Republic of Korea." It also
makes special mention of calling out any "evasion of sanctions" by various parties.

The Jin Teng is one of 31 vessels operated by Ocean Maritime Management, which is named in
the U.N. resolution as being "subject to the asset freeze."

Documents show that all 21 of the Sierra Leone-flagged ship's crew are North Korean nationals.

The freighter arrived Thursday in Subic Bay, on the west of the Philippines' main island of
Luzon, from Indonesia with a load of palm kernels, according to state news. CNN crews saw its
cargo being subsequently unloaded and put onto trucks at the port.

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In addition to the U.N.-related issues, coast guardsmen also found minor safety violations like
faulty emergency light bulbs, a lack of fire hoses, corroded air vents and inadequate
accommodations for crew, according to Philippines Coast Guard spokesman Armand Balilo.

A team from the United Nations may also inspect the Jin Teng, according to Quezon.
Regardless, the Philippine government will report its findings to that world body.

Kim talks of readying 'nuclear warheads'

Such actions -- this ship seizure, specifically, and stronger sanctions, generally -- seemingly
have done little to deter North Korea's muscle flexing, bellicose talk and nuclear ambitions.

Several times this week, in fact, North Korea has continued and, if anything, escalated its
threat to potentially deploy a nuclear weapon.

On Friday, for instance, state news agency KCNA reported that North Korean leader Kim Jong
Un said his country's "nuclear warheads need to be ready for use at any time."

"Under the extreme situation that the U.S. Imperialist is misusing its military influence and is
pressuring other countries and people to start war and catastrophe, the only way for our
people to protect sovereignty and rights to live is to strengthen the quality and quantity of
nuclear power and realize the balance of power," Kim said, according to KCNA.

North Korea test fires six missiles 02:21

This rhetoric came out a day after the news agency reported tests of a new multiple-launch
rocket system. This may or may not be referring to a launch of "short-range projectiles"
chronicled one day earlier by the South Korean Joint Chiefs of Staff.

Pyongyang has long boasted about its nuclear ambitions, about as long as countries like South
Korea and the United States have sought to derail them. The issue has only furthered the
isolation of North Korea, a communist, closed-off state led for decades by the authoritarian
Kim, his late father and his grandfather.

A chief concern is not only that Pyongyang will develop effective nuclear warheads, but that
they'll pair them with missiles that can strike targets around East Asia and perhaps beyond.

North Korea has even repeatedly threatened to attack the United States, including saying last
August that it would do so "with tremendous muscle." A state television report in 2015
mentioned that such strikes could reach the American mainland.

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There are strong doubts North Korea currently has the technology to mate a nuclear warhead
to a missile that could travel 5,000 miles and hit the U.S. West Coast. But much is still
unknown about Pyongyang's military potential, and there's no disputing its bravado.

One anti-nuclear advocate thinks a lot of the talk is intended for internal consumption, to help
Kim consolidate power, and is not proof of his military's abilities.

"To me, right now, it's a lot of bluster," said Philip Yun, executive director of the Ploughshares
Fund, a group that calls for nuclear disarmament.

"For them to deliver on a threat, they have to have intent and they have to have capability.
And quite frankly, I don't think they have both."

Rival countries have wrangled over territory in the South China Sea for centuries, but tension
has steadily increased in recent years.

China has backed its expansive claims with island-building and naval patrols, while the US says
it opposes restrictions on freedom of navigation and unlawful sovereignty claims - by all sides,
but seen by many as aimed at China.

The frictions have sparked concern that the area is becoming a flashpoint with global
consequences.

What is the argument about?

It is a dispute over territory and sovereignty over ocean areas, and the Paracels and the
Spratlys - two island chains claimed in whole or in part by a number of countries.

Alongside the fully fledged islands, there are dozens of rocky outcrops, atolls, sandbanks and
reefs, such as the Scarborough Shoal.

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Why are they worth arguing over?

Although largely uninhabited, the Paracels and the Spratlys may have reserves of natural
resources around them. There has been little detailed exploration of the area, so estimates are
largely extrapolated from the mineral wealth of neighbouring areas.

The sea is also a major shipping route and home to fishing grounds that supply the livelihoods
of people across the region.

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Who claims what?

China claims by far the largest portion of territory - an area defined by the "nine-dash line"
which stretches hundreds of miles south and east from its most southerly province of Hainan.

Beijing says its right to the area goes back centuries to when the Paracel and Spratly island
chains were regarded as integral parts of the Chinese nation, and in 1947 it issued a map
detailing its claims. It showed the two island groups falling entirely within its territory. Those
claims are mirrored by Taiwan.

Vietnam hotly disputes China's historical account, saying China had never claimed sovereignty
over the islands before the 1940s. Vietnam says it has actively ruled over both the Paracels
and the Spratlys since the 17th Century - and has the documents to prove it.

The other major claimant in the area is the Philippines, which invokes its geographical
proximity to the Spratly Islands as the main basis of its claim for part of the grouping.

Both the Philippines and China lay claim to the Scarborough Shoal (known as Huangyan Island
in China) - a little more than 100 miles (160km) from the Philippines and 500 miles from China.

Malaysia and Brunei also lay claim to territory in the South China Sea that they say falls within
their economic exclusion zones, as defined by UNCLOS - the United Nations Convention on the
Law of the Sea.

Brunei does not claim any of the disputed islands, but Malaysia claims a small number of
islands in the Spratlys.

Image copyright AP Image caption The Philippines accuses China of strengthening its military
presence in the South China Sea

Recent flashpoints

The most serious trouble in recent decades has flared between Vietnam and China, and there
have also been stand-offs between the Philippines and China:

In 1974 the Chinese seized the Paracels from Vietnam, killing more than 70
Vietnamese troops.
In 1988 the two sides clashed in the Spratlys, with Vietnam again coming off worse,
losing about 60 sailors.
In early 2012, China and the Philippines engaged in a lengthy maritime stand-off,
accusing each other of intrusions in the Scarborough Shoal.

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In July 2012 China angered Vietnam and the Philippines when it formally created
Sansha city, an administrative body with its headquarters in the Paracels which it
says oversees Chinese territory in the South China Sea.
Unverified claims that the Chinese navy sabotaged two Vietnamese exploration
operations in late 2012 led to large anti-China protests on Vietnam's streets.
In January 2013, Manila said it was taking China to a UN tribunal under the auspices
of the UN Convention on the Laws of the Sea, to challenge its claims.
In May 2014, the introduction by China of a drilling rig into waters near the Paracel
Islands led to multiple collisions between Vietnamese and Chinese ships.
In April 2015, satellite images showed China building an airstrip on reclaimed land in
the Spratlys.
In October 2015, the US sailed a guided-missile destroyer within 12-nautical miles of
the artificial islands - the first in a series of actions planned to assert freedom of
navigation in the region. China warned that the US should "not act blindly or make
trouble out of nothing".
Image copyright AFP Image caption The Philippines has a rusting vessel beached on the
Second Thomas Shoal, which China also claims

What does the rest of the world say?

Although China has tended to favour bilateral negotiations behind closed doors, other
countries want international mediation. But even if the Philippines is successful in its attempts
to pursue China at a UN tribunal, China would not be obliged to abide by the ruling.

Recent attempts by regional grouping Asean to discuss new ideas for resolving the dispute
appear to have left the bloc severely divided.

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The US has warned China not to "elbow aside" the countries it is in conflict with
over the islands.The Philippines' Illegal Claims in the Spratlys (Spratly Islands)--The
Lies and the Groundless Invasion into China's Spratly Islands of South China Sea1.
Area of Present Philippine Claims

The Philippines began to lay its claim over the Spratly Islands in 1970s. The Philippines claims
the western section of the Spratlys, or the "Kalayaan Isaland Group" as called by the
Philippines. That encompasses 53 islands, reefs, shoals cays, rocks and atolls with an area of
64,976 square miles. It is about 450 nautical miles from Manila and 230 nautical miles from
Palawan. The Thitu Island (renamed as Pag-asa/Pagasa by the Philippines) is the biggest island
and the Philippines occupied this island in the 1970s. Along with Thitu Island, other islands in
the Spratlys occupied by the Philippines include Flat Island (Feixin Dao in Chinese, Patag as
the Philippines renamed it), Nansha Island (Mahuan Dao, Lawak), West York Island (Xiyue Dao,
Likas), Lankiam Cay (Shuanghuan Shazhou, Panata), Loita Island (Nanyue Dao, Kota), and
Commodore Reef (Siling Jiao, Rizal Reef). [1]

2. Brief History of the Filipino Interest in the Spratlys and its Development

Out of its economic and strategic motivations, the French government made formal claims to
the Spratlys in the early 1930s. On July 25 1933 the French Foreign Ministry announced the
occupation of the nine islets of the Spratlys and asserted French sovereignty over them for the
first time. The French action brought immediate protests from China.[2] At that time, the
Philippines was a colony of America. Some Filipino congressman said the nine islands should
belong to the Philippines according to the Treaty of Paris. However his suggestion was ignored
by Washington since the Spratly Islands obviously were not within the Philippine boundary as
stated by the Treaty Limits.

During the Second World War, Japan occupied both the Paracels (Paracel Islands) and Spratlys
in 1939 shortly after they controlled Hainan Island. The Japanese used Itu Aba Island (Taiping
Dao) as a submarine base and a springboard for its invasion of the Philippines. At the end of
the Pacific War in 1945, the Japanese forces on the South China Sea surrendered to the
representatives of China. [1,p7-8]. The newly established Philippine government Foreign
Minister Qurino advocated on 23 July 1946 that the new Southern Islands (a term used by the
Japanese for all the islands in the South China Sea) should be given to his country. This was
the first indication of the interests in the Spratly Islands from the Philippines government.

In April 1949 , the Philippines sent its navy to explore the Spratlys. An article published in
Manila Bulletin on May 15 1950 said that the Philippine government should occupy the Spratly
Islands together with the United States because it was closer to Palawan compared with China
and Vietnam. On May 17, the Philippine President Quirino said that if the Chinese Kuomingtang
(Nationalist Party) troops really occupied the Spratlys, then Philippine didn't need to occupy
them. However, if the islands fell into the communist enemy's hand, the Philippine security is
threatened. So he created this theory that the Spratlys should belong to the nearest country
according to international law. and the Philippines is the nearest.

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In 1956 Tomas Cloma together with his brothers and 40 crew explored the Spratlys and
claimed to have "discovered" and occupied 53 islands and reefs of the Spratlys. They
proclaimed "formal ownership" over them and renamed these islands and reefs the Kalayaan
(Freedomland) Island Group.

The Philippine act was immediately met with protests from PRC, Taiwan, Saigon as well as
France. The PRC denounced Tomas Cloma's alleged "discovery" as totally groundless. Manila
responded to Taipei and Saigon that it had no claims on the Spratlys [1, p11]. Since then
Taiwan sent troops to the Islands to patrol the Spratly Islands and stationed on Itu Aba Island
to prevent further such allegations.

In early July 1971, the Philippine government alleged that the Taiwanese troops on the Itu Aba
Island "fired on a boat carrying a Philippine congressman". After this the Philippine
government announced on July 10 1971 that "it had sent a diplomatic note to Taipei asking
that the Chinese garrison be withdrawn from Itua Aba". Manila stated that 53 islands and reefs
once occupied by Tomas Cloma should belong to the Philippines, because the area was terra
nullius at the time of its occupation and was "acquired according to the modes of acquisition
recognized under international law, among which are occupation and effective administration".
[3] Meanwhile the Philippines sent its navy to occupy Thitu Island and Nanshan Island.

In April 1972, the Philippines government incorporated the "Kalayaan" group into Palawan
Province as a municipality.

In February 1974, the Philippines government stated that the Philippines forces had occupied
five islets of the Spratlys. The Philippines government justified its occupation of the Spratly
Islands as "the strategic importance of the Kalayaan area to the Philippine security". [5]

By 1978 the Philippines had occupied two more islands, and later the Philippines further
occupied Siling Jiao (Commodore Reef), in 1980 they occupied Liyue Tan (Reed Bank). On June
11, 1978, Filipino president Marcos signed a Presidential Decree 1596 which claimed the
Kalayaan group. The 1978 decree omitted Spratly Island and include Amboyna Cay which was
not claimed by Cloma. It also said that "some countries claimed some parts of this area but
they had given up and thus the claims are not valid anymore..." [4]

On July 17, 1978, a Presidential Decree 1599 was issued, proclaiming that the Kalayaan Group
was within Philippine EEZ (Exclusive Economic Zone).

3. Was the Spratlys res nullius before any Filipino claims?

The Philippines base their claims of sovereignty over the Spratlys on the issues of res nullius.
The definition of res nullius is "A thing which has no owner or A thing which has been

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abandoned by its owner is as much res nullius as if it had never belonged to any one."

Japan unconditionally surrendered in 1945 after their defeat in the World War II. Towards the
end of 1946, the Chinese government sent a naval task force consisting of four warships to the
Spratlys and Paracels to execute demonstrative possessor acts on the spot. The task force
sailed from Guangdong (Canton) on December 9, 1946. The two war ships Taiping and
Zhongye set course for the Spratlys and after 3 days' sailing, they reached Itu Aba Island, the
principal island of the Spratlys on the morning of December 12, 1946. They immediately sent
telegraphs to Nanjing to report on their arrival and later stationed on the Itu Aba Island. The
Itu Aba Island was surveyed. The task force also reached and surveyed other Spratly Islands
including Nanyue Island, Thitu Island, North Danger Reef etc. The symbols of Japanese
sovereignty were removed and a Sovereignty Stone Marker was placed on the Itu Aba Island.
They also held a take-over ceremony.

In December 1947 Territorial Administration Section of Ministry of Internal Affairs published a


list of South China Sea Islands Names and a Map of South China Sea Islands. The Itu Aba
Island is renamed to Taiping Island, the Thitu Island is renamed to Zhongye Island, the
commanders name of the task force is also used as a name of a Sand Cay (Dunqian
Shazhou).

So has China ever abandoned her ownership over the Spratlys? No. The Chinese government
has never relinquished its claim to these islands. After the "Kingdom of Humantiy and Republic
of Songhrati-Morac-Meads" issue Taiwan has restored the garrison on Taiping Island and the
navy has frequently patrolled the Spratlys.

Just like what is expressed in Taipei's response to the Philippines: The world has been on notice
for years and years that China has a garrison on the Islands. It is childishly naive to entertain
any notion that Cloma and associates' claim to "right of discovery" can serve as the legal basis
for Philippine government's claiming and the actions as announced by President Marcos. The
pursuit of an private and official claim to the Spratly Islands should be held to be a violation of
international law and a provocation to China.[1, p71]

4. Is Geography Proximity a legal Basis for Philippine's claim in the Spratlys?

There is no international law saying geographical proximity can be used here to justify its
claims in the Kalayaan Island Group. If we use the proximity basis, many isolated islands in
Sulu Sea are much closer to Borneo than to the Philippines, should the Philippines give these
islands to Malaysia or Brunei?

5. Is National Security a legal basis for the Filipino Claim?

If Philippines national security can serve as a legal basis for its claim in the Spratly Islands.
Does that mean the Philippines will just invade any other nation's sovereign land if they feel

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that they are not secure?

6. Conclusion

The Philippine's claims in the Spratly Islands, is not legal, although the Philippines try to base
their claims on different bases. The Spratlys was not res nullius, and the Philippines' claims
based on geographic proximity and national security are illegal.

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