G.R. No.

78059 August 31, 1987

ALFREDO M. DE LEON, ANGEL S. SALAMAT, MARIO C. STA. ANA, JOSE C. TOLENTINO, ROGELIO J. DE LA
ROSA and JOSE M. RESURRECCION, petitioners,

vs.

HON. BENJAMIN B. ESGUERRA, in his capacity as OIC Governor of the Province of Rizal, HON. ROMEO C.
DE LEON, in his capacity as OIC Mayor of the Municipality of Taytay, Rizal, FLORENTINO G. MAGNO,
REMIGIO M. TIGAS, RICARDO Z. LACANIENTA, TEODORO V. MEDINA, ROSENDO S. PAZ, and TERESITA L.
TOLENTINO, respondents.

MELENCIO-HERRERA, J.:

An original action for Prohibition instituted by petitioners seeking to enjoin respondents from replacing
them from their respective positions as Barangay Captain and Barangay Councilmen of Barangay
Dolores, Municipality of Taytay, Province of Rizal.

As required by the Court, respondents submitted their Comment on the Petition, and petitioner's their
Reply to respondents' Comment.

In the Barangay elections held on May 17, 1982, petitioner Alfredo M. De Leon was elected Barangay
Captain and the other petitioners Angel S. Salamat, Mario C. Sta. Ana, Jose C. Tolentino, Rogelio J. de la
Rosa and Jose M. Resurreccion, as Barangay Councilmen of Barangay Dolores, Taytay, Rizal under Batas
Pambansa Blg. 222, otherwise known as the Barangay Election Act of 1982.

On February 9, 1987, petitioner Alfredo M, de Leon received a Memorandum antedated December 1,

1986 but signed by respondent OIC Governor Benjamin Esguerra on February 8, 1987 designating
respondent Florentino G. Magno as Barangay Captain of Barangay Dolores, Taytay, Rizal. The
designation made by the OIC Governor was "by authority of the Minister of Local Government."
Also on February 8, 1987, respondent OIC Governor signed a Memorandum, antedated December 1,
1986 designating respondents Remigio M. Tigas, Ricardo Z. Lacanienta Teodoro V. Medina, Roberto S.
Paz and Teresita L. Tolentino as members of the Barangay Council of the same Barangay and
Municipality.

That the Memoranda had been antedated is evidenced by the Affidavit of respondent OIC Governor, the
pertinent portions of which read:

xxx xxx xxx

That I am the OIC Governor of Rizal having been appointed as such on March 20, 1986;

That as being OIC Governor of the Province of Rizal and in the performance of my duties thereof, I
among others, have signed as I did sign the unnumbered memorandum ordering the replacement of all
the barangay officials of all the barangay(s) in the Municipality of Taytay, Rizal;

That the above cited memorandum dated December 1, 1986 was signed by me personally on February
8,1987;

That said memorandum was further deciminated (sic) to all concerned the following day, February 9.
1987.

FURTHER AFFIANT SAYETH NONE.

Pasig, Metro Manila, March 23, 1987.

Before us now, petitioners pray that the subject Memoranda of February 8, 1987 be declared null and
void and that respondents be prohibited from taking over their positions of Barangay Captain and
Barangay Councilmen, respectively. Petitioners maintain that pursuant to Section 3 of the Barangay
Election Act of 1982 (BP Blg. 222), their terms of office "shall be six (6) years which shall commence on
June 7, 1982 and shall continue until their successors shall have elected and shall have qualified," or up
to June 7, 1988. It is also their position that with the ratification of the 1987 Constitution, respondent
OIC Governor no longer has the authority to replace them and to designate their successors.

On the other hand, respondents rely on Section 2, Article III of the Provisional Constitution, promulgated
on March 25, 1986, which provided:

SECTION 2. All elective and appointive officials and employees under the 1973 Constitution shall
continue in office until otherwise provided by proclamation or executive order or upon the designation
or appointment and qualification of their successors, if such appointment is made within a period of one
year from February 25,1986.

By reason of the foregoing provision, respondents contend that the terms of office of elective and
appointive officials were abolished and that petitioners continued in office by virtue of the aforequoted
provision and not because their term of six years had not yet expired; and that the provision in the
Barangay Election Act fixing the term of office of Barangay officials to six (6) years must be deemed to
have been repealed for being inconsistent with the aforequoted provision of the Provisional
Constitution.

Examining the said provision, there should be no question that petitioners, as elective officials under the
1973 Constitution, may continue in office but should vacate their positions upon the occurrence of any
of the events mentioned. 1

Since the promulgation of the Provisional Constitution, there has been no proclamation or executive
order terminating the term of elective Barangay officials. Thus, the issue for resolution is whether or not
the designation of respondents to replace petitioners was validly made during the one-year period
which ended on February 25, 1987.

Considering the candid Affidavit of respondent OIC Governor, we hold that February 8, 1977, should be
considered as the effective date of replacement and not December 1,1986 to which it was ante dated, in
keeping with the dictates of justice.
But while February 8, 1987 is ostensibly still within the one-year deadline, the aforequoted provision in
the Provisional Constitution must be deemed to have been overtaken by Section 27, Article XVIII of the
1987 Constitution reading.

SECTION 27. This Constitution shall take effect immediately upon its ratification by a majority of the
votes cast in a plebiscite held for the purpose and shall supersede all previous Constitutions.

The 1987 Constitution was ratified in a plebiscite on February 2, 1987. By that date, therefore, the
Provisional Constitution must be deemed to have been superseded. Having become inoperative,
respondent OIC Governor could no longer rely on Section 2, Article III, thereof to designate respondents
to the elective positions occupied by petitioners.

Petitioners must now be held to have acquired security of tenure specially considering that the Barangay
Election Act of 1982 declares it "a policy of the State to guarantee and promote the autonomy of the
barangays to ensure their fullest development as self-reliant communities. 2 Similarly, the 1987
Constitution ensures the autonomy of local governments and of political subdivisions of which the
barangays form a part, 3 and limits the President's power to "general supervision" over local
governments. 4 Relevantly, Section 8, Article X of the same 1987 Constitution further provides in part:

Sec. 8. The term of office of elective local officials, except barangay officials, which shall be determined
by law, shall be three years ...

Until the term of office of barangay officials has been determined by law, therefore, the term of office of
six (6) years provided for in the Barangay Election Act of 1982 5 should still govern.

Contrary to the stand of respondents, we find nothing inconsistent between the term of six (6) years for
elective Barangay officials and the 1987 Constitution, and the same should, therefore, be considered as
still operative, pursuant to Section 3, Article XVIII of the 1987 Constitution, reading:

Sec. 3. All existing laws, decrees, executive orders, proclamations letters of instructions, and other
executive issuances not inconsistent, with this Constitution shall remain operative until amended,
repealed or revoked.
WHEREFORE, (1) The Memoranda issued by respondent OIC Governor on February 8, 1987 designating
respondents as the Barangay Captain and Barangay Councilmen, respectively, of Barangay Dolores,
Taytay, Rizal, are both declared to be of no legal force and effect; and (2) the Writ of Prohibition is
granted enjoining respondents perpetually from proceeding with the ouster/take-over of petitioners'
positions subject of this Petition. Without costs.

SO ORDERED.

Yap, Fernan, Narvasa, Gutierrez, Jr., Paras, Feliciano, Gancayco, Padilla, Bidin and Cortes, JJ., concur.
G.R. No. 92299 April 19, 1991

REYNALDO R. SAN JUAN, petitioner,

vs.

CIVIL SERVICE COMMISSION, DEPARTMENT OF BUDGET AND MANAGEMENT and CECILIA ALMAJOSE,
respondents.

Legal Services Division for petitioner.

Sumulong, Sumulong, Paras & Abano Law Offices for private respondent.

GUTIERREZ, JR., J.:p

In this petition for certiorari pursuant to Section 7, Article IX (A) of the present Constitution, the
petitioner Governor of the Province of Rizal, prays for the nullification of Resolution No. 89-868 of the
Civil Service Commission (CSC) dated November 21, 1989 and its Resolution No. 90-150 dated February
9, 1990.

The dispositive portion of the questioned Resolution reads:

WHEREFORE, foregoing premises considered, the Commission resolved to dismiss, as it hereby dismisses
the appeal of Governor Reynaldo San Juan of Rizal. Accordingly, the approved appointment of Ms.
Cecilia Almajose as Provincial Budget Officer of Rizal, is upheld. (Rollo, p. 32)

The subsequent Resolution No. 90-150 reiterates CSC's position upholding the private respondent's
appointment by denying the petitioner's motion for reconsideration for lack of merit.
The antecedent facts of the case are as follows:

On March 22, 1988, the position of Provincial Budget Officer (PBO) for the province of Rizal was left
vacant by its former holder, a certain Henedima del Rosario.

In a letter dated April 18, 1988, the petitioner informed Director Reynaldo Abella of the Department of
Budget and Management (DBM) Region IV that Ms. Dalisay Santos assumed office as Acting PBO since
March 22, 1988 pursuant to a Memorandum issued by the petitioner who further requested Director
Abella to endorse the appointment of the said Ms. Dalisay Santos to the contested position of PBO of
Rizal. Ms. Dalisay Santos was then Municipal Budget Officer of Taytay, Rizal before she discharged the
functions of acting PBO.

In a Memorandum dated July 26, 1988 addressed to the DBM Secretary, then Director Abella of Region
IV recommended the appointment of the private respondent as PBO of Rizal on the basis of a
comparative study of all Municipal Budget Officers of the said province which included three nominees
of the petitioner. According to Abella, the private respondent was the most qualified since she was the
only Certified Public Accountant among the contenders.

On August 1, 1988, DBM Undersecretary Nazario S. Cabuquit, Jr. signed the appointment papers of the
private respondent as PBO of Rizal upon the aforestated recommendation of Abella.

In a letter dated August 3, 1988 addressed to Secretary Carague, the petitioner reiterated his request for
the appointment of Dalisay Santos to the contested position unaware of the earlier appointment made
by Undersecretary Cabuquit.

On August 31, 1988, DBM Regional Director Agripino G. Galvez wrote the petitioner that Dalisay Santos
and his other recommendees did not meet the minimum requirements under Local Budget Circular No.
31 for the position of a local budget officer. Director Galvez whether or not through oversight further
required the petitioner to submit at least three other qualified nominees who are qualified for the
position of PBO of Rizal for evaluation and processing.
On November 2, 1988, the petitioner after having been informed of the private respondent's
appointment wrote Secretary Carague protesting against the said appointment on the grounds that
Cabuquit as DBM Undersecretary is not legally authorized to appoint the PBO; that the private
respondent lacks the required three years work experience as provided in Local Budget Circular No. 31;
and that under Executive Order No. 112, it is the Provincial Governor, not the Regional Director or a
Congressman, who has the power to recommend nominees for the position of PBO.

On January 9, 1989 respondent DBM, through its Director of the Bureau of Legal & Legislative Affairs
(BLLA) Virgilio A. Afurung, issued a Memorandum ruling that the petitioner's letter-protest is not
meritorious considering that public respondent DBM validly exercised its prerogative in filling-up the
contested position since none of the petitioner's nominees met the prescribed requirements.

On January 27, 1989, the petitioner moved for a reconsideration of the BLLA ruling.

On February 28, 1989, the DBM Secretary denied the petitioner's motion for reconsideration.

On March 27, 1989, the petitioner wrote public respondent CSC protesting against the appointment of
the private respondent and reiterating his position regarding the matter.

Subsequently, public respondent CSC issued the questioned resolutions which prompted the petitioner
to submit before us the following assignment of errors:

A. THE CSC ERRED IN UPHOLDING THE APPOINTMENT BY DBM ASSISTANT SECRETARY CABUQUIT
OF CECILIA ALMAJOSE AS PBO OF RIZAL.

B. THE CSC ERRED IN HOLDING THAT CECILIA ALMA JOSE POSSESSES ALL THE REQUIRED
QUALIFICATIONS.

C. THE CSC ERRED IN DECLARING THAT PETITIONER'S NOMINEES ARE NOT QUALIFIED TO THE
SUBJECT POSITION.
D. THE CSC AND THE DBM GRAVELY ABUSED THEIR DISCRETION IN NOT ALLOWING PETITIONER TO
SUBMIT NEW NOMINEES WHO COULD MEET THE REQUIRED QUALIFICATION (Petition, pp. 7-8, Rollo,
pp. 15-16)

All the assigned errors relate to the issue of whether or not the private respondent is lawfully entitled to
discharge the functions of PBO of Rizal pursuant to the appointment made by public respondent DBM's
Undersecretary upon the recommendation of then Director Abella of DBM Region IV.

The petitioner's arguments rest on his contention that he has the sole right and privilege to recommend
the nominees to the position of PBO and that the appointee should come only from his nominees. In
support thereof, he invokes Section 1 of Executive Order No. 112 which provides that:

Sec. 1. All budget officers of provinces, cities and municipalities shall be appointed henceforth by the
Minister of Budget and Management upon recommendation of the local chief executive concerned,
subject to civil service law, rules and regulations, and they shall be placed under the administrative
control and technical supervision of the Ministry of Budget and Management.

The petitioner maintains that the appointment of the private respondent to the contested position was
made in derogation of the provision so that both the public respondents committed grave abuse of
discretion in upholding Almajose's appointment.

There is no question that under Section 1 of Executive Order No. 112 the petitioner's power to
recommend is subject to the qualifications prescribed by existing laws for the position of PBO.
Consequently, in the event that the recommendations made by the petitioner fall short of the required
standards, the appointing authority, the Minister (now Secretary) of public respondent DBM is expected
to reject the same.

In the event that the Governor recommends an unqualified person, is the Department Head free to
appoint anyone he fancies ? This is the issue before us.

Before the promulgation of Executive Order No. 112 on December 24, 1986, Batas Pambansa Blg. 337,
otherwise known as the Local Government Code vested upon the Governor, subject to civil service rules
and regulations, the power to appoint the PBO (Sec. 216, subparagraph (1), BP 337). The Code further
enumerated the qualifications for the position of PBO. Thus, Section 216, subparagraph (2) of the same
code states that:

(2) No person shall be appointed provincial budget officer unless he is a citizen of the Philippines, of
good moral character, a holder of a degree preferably in law, commerce, public administration or any
related course from a recognized college or university, a first grade civil service eligibility or its
equivalent, and has acquired at least five years experience in budgeting or in any related field.

The petitioner contends that since the appointing authority with respect to the Provincial Budget Officer
of Rizal was vested in him before, then, the real intent behind Executive Order No. 112 in empowering
him to recommend nominees to the position of Provincial Budget Officer is to make his
recommendation part and parcel of the appointment process. He states that the phrase "upon
recommendation of the local chief executive concerned" must be given mandatory application in
consonance with the state policy of local autonomy as guaranteed by the 1987 Constitution under Art.
II, Sec. 25 and Art. X, Sec. 2 thereof. He further argues that his power to recommend cannot validly be
defeated by a mere administrative issuance of public respondent DBM reserving to itself the right to fill-
up any existing vacancy in case the petitioner's nominees do not meet the qualification requirements as
embodied in public respondent DBM's Local Budget Circular No. 31 dated February 9, 1988.

The questioned ruling is justified by the public respondent CSC as follows:

As required by said E.O. No. 112, the DBM Secretary may choose from among the recommendees of the
Provincial Governor who are thus qualified and eligible for appointment to the position of the PBO of
Rizal. Notwithstanding, the recommendation of the local chief executive is merely directory and not a
condition sine qua non to the exercise by the Secretary of DBM of his appointing prerogative. To rule
otherwise would in effect give the law or E.O. No. 112 a different interpretation or construction not
intended therein, taking into consideration that said officer has been nationalized and is directly under
the control and supervision of the DBM Secretary or through his duly authorized representative. It
cannot be gainsaid that said national officer has a similar role in the local government unit, only on
another area or concern, to that of a Commission on Audit resident auditor. Hence, to preserve and
maintain the independence of said officer from the local government unit, he must be primarily the
choice of the national appointing official, and the exercise thereof must not be unduly hampered or
interfered with, provided the appointee finally selected meets the requirements for the position in
accordance with prescribed Civil Service Law, Rules and Regulations. In other words, the appointing
official is not restricted or circumscribed to the list submitted or recommended by the local chief
executive in the final selection of an appointee for the position. He may consider other nominees for the
position vis a vis the nominees of the local chief executive. (CSC Resolution No. 89-868, p. 2; Rollo, p. 31)

The issue before the Court is not limited to the validity of the appointment of one Provincial Budget
Officer. The tug of war between the Secretary of Budget and Management and the Governor of the
premier province of Rizal over a seemingly innocuous position involves the application of a most
important constitutional policy and principle, that of local autonomy. We have to obey the clear
mandate on local autonomy. Where a law is capable of two interpretations, one in favor of centralized
power in Malacañang and the other beneficial to local autonomy, the scales must be weighed in favor of
autonomy.

The exercise by local governments of meaningful power has been a national goal since the turn of the
century. And yet, inspite of constitutional provisions and, as in this case, legislation mandating greater
autonomy for local officials, national officers cannot seem to let go of centralized powers. They deny or
water down what little grants of autonomy have so far been given to municipal corporations.

President McKinley's Instructions dated April 7, 1900 to the Second Philippine Commission ordered the
new Government "to devote their attention in the first instance to the establishment of municipal
governments in which natives of the Islands, both in the cities and rural communities, shall be afforded
the opportunity to manage their own local officers to the fullest extent of which they are capable and
subject to the least degree of supervision and control which a careful study of their capacities and
observation of the workings of native control show to be consistent with the maintenance of law, order
and loyalty.

In this initial organic act for the Philippines, the Commission which combined both executive and
legislative powers was directed to give top priority to making local autonomy effective.

The 1935 Constitution had no specific article on local autonomy. However, in distinguishing between
presidential control and supervision as follows:

The President shall have control of all the executive departments, bureaus, or offices, exercise general
supervision over all local governments as may be provided by law, and take care that the laws be
faithfully executed. (Sec. 11, Article VII, 1935 Constitution)
the Constitution clearly limited the executive power over local governments to "general supervision . . .
as may be provided by law." The President controls the executive departments. He has no such power
over local governments. He has only supervision and that supervision is both general and circumscribed
by statute.

In Tecson v. Salas, 34 SCRA 275, 282 (1970), this Court stated:

. . . Hebron v. Reyes, (104 Phil. 175 [1958]) with the then Justice, now Chief Justice, Concepcion as the
ponente, clarified matters. As was pointed out, the presidential competence is not even supervision in
general, but general supervision as may be provided by law. He could not thus go beyond the applicable
statutory provisions, which bind and fetter his discretion on the matter. Moreover, as had been earlier
ruled in an opinion penned by Justice Padilla in Mondano V. Silvosa, (97 Phil. 143 [1955]) referred to by
the present Chief Justice in his opinion in the Hebron case, supervision goes no further than "overseeing
or the power or authority of an officer to see that subordinate officers perform their duties. If the latter
fail or neglect to fulfill them the former may take such action or step as prescribed by law to make them
perform their duties." (Ibid, pp. 147-148) Control, on the other hand, "means the power of an officer to
alter or modify or nullify or set aside what a subordinate had done in the performance of their duties
and to substitute the judgment of the former for that of the latter." It would follow then, according to
the present Chief Justice, to go back to the Hebron opinion, that the President had to abide by the then
provisions of the Revised Administrative Code on suspension and removal of municipal officials, there
being no power of control that he could rightfully exercise, the law clearly specifying the procedure by
which such disciplinary action would be taken.

Pursuant to this principle under the 1935 Constitution, legislation implementing local autonomy was
enacted. In 1959, Republic Act No. 2264, "An Act Amending the Law Governing Local Governments by
Increasing Their Autonomy and Reorganizing Local Governments" was passed. It was followed in 1967
when Republic Act No. 5185, the Decentralization Law was enacted, giving "further autonomous powers
to local governments governments."

The provisions of the 1973 Constitution moved the country further, at least insofar as legal provisions
are concerned, towards greater autonomy. It provided under Article II as a basic principle of
government:
Sec. 10. The State shall guarantee and promote the autonomy of local government units, especially the
barangay to ensure their fullest development as self-reliant communities.

An entire article on Local Government was incorporated into the Constitution. It called for a local
government code defining more responsive and accountable local government structures. Any creation,
merger, abolition, or substantial boundary alteration cannot be done except in accordance with the local
government code and upon approval by a plebiscite. The power to create sources of revenue and to levy
taxes was specifically settled upon local governments.

The exercise of greater local autonomy is even more marked in the present Constitution.

Article II, Section 25 on State Policies provides:

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

The 14 sections in Article X on Local Government not only reiterate earlier doctrines but give in greater
detail the provisions making local autonomy more meaningful. Thus, Sections 2 and 3 of Article X
provide:

Sec. 2. The territorial and political subdivisions shall enjoy local autonomy.

Sec. 3. The Congress shall enact a local government code which shall provide for a more responsive and
accountable local government structure instituted through a system of decentralization with effective
mechanisms of recall, initiative, and referendum, allocate among the different local government units
their powers, responsibilities, and resources, and provide for the qualifications, election, appointment
and removal, term, salaries, powers and functions and duties of local officials, and all other matters
relating to the organization and operation of the local units.

When the Civil Service Commission interpreted the recommending power of the Provincial Governor as
purely directory, it went against the letter and spirit of the constitutional provisions on local autonomy.
If the DBM Secretary jealously hoards the entirety of budgetary powers and ignores the right of local
governments to develop self-reliance and resoluteness in the handling of their own funds, the goal of
meaningful local autonomy is frustrated and set back.

The right given by Local Budget Circular No. 31 which states:

Sec. 6.0 — The DBM reserves the right to fill up any existing vacancy where none of the nominees of the
local chief executive meet the prescribed requirements.

is ultra vires and is, accordingly, set aside. The DBM may appoint only from the list of qualified
recommendees nominated by the Governor. If none is qualified, he must return the list of nominees to
the Governor explaining why no one meets the legal requirements and ask for new recommendees who
have the necessary eligibilities and qualifications.

The PBO is expected to synchronize his work with DBM. More important, however, is the proper
administration of fiscal affairs at the local level. Provincial and municipal budgets are prepared at the
local level and after completion are forwarded to the national officials for review. They are prepared by
the local officials who must work within the constraints of those budgets. They are not formulated in the
inner sanctums of an all-knowing DBM and unilaterally imposed on local governments whether or not
they are relevant to local needs and resources. It is for this reason that there should be a genuine
interplay, a balancing of viewpoints, and a harmonization of proposals from both the local and national
officials. It is for this reason that the nomination and appointment process involves a sharing of power
between the two levels of government.

It may not be amiss to give by way of analogy the procedure followed in the appointments of Justices
and Judges. Under Article VIII of the Constitution, nominations for judicial positions are made by the
Judicial and Bar Council. The President makes the appointments from the list of nominees submitted to
her by the Council. She cannot apply the DBM procedure, reject all the Council nominees, and appoint
another person whom she feels is better qualified. There can be no reservation of the right to fill up a
position with a person of the appointing power's personal choice.

The public respondent's grave abuse of discretion is aggravated by the fact that Director Galvez required
the Provincial Governor to submit at least three other names of nominees better qualified than his
earlier recommendation. It was a meaningless exercise. The appointment of the private respondent was
formalized before the Governor was extended the courtesy of being informed that his nominee had
been rejected. The complete disregard of the local government's prerogative and the smug belief that
the DBM has absolute wisdom, authority, and discretion are manifest.

In his classic work "Philippine Political Law" Dean Vicente G. Sinco stated that the value of local
governments as institutions of democracy is measured by the degree of autonomy that they enjoy.
Citing Tocqueville, he stated that "local assemblies of citizens constitute the strength of free nations. . . .
A people may establish a system of free government but without the spirit of municipal institutions, it
cannot have the spirit of liberty." (Sinco, Philippine Political Law, Eleventh Edition, pp. 705-706).

Our national officials should not only comply with the constitutional provisions on local autonomy but
should also appreciate the spirit of liberty upon which these provisions are based.

WHEREFORE, the petition is hereby GRANTED. The questioned resolutions of the Civil Service
Commission are SET ASIDE. The appointment of respondent Cecilia Almajose is nullified. The
Department of Budget and Management is ordered to appoint the Provincial Budget Officer of Rizal
from among qualified nominees submitted by the Provincial Governor.

SO ORDERED.
G.R. No. 93252 August 5, 1991

RODOLFO T. GANZON, petitioner,

vs.

THE HONORABLE COURT OF APPEALS and LUIS T. SANTOS, respondents.

G.R. No. 93746 August 5,1991

MARY ANN RIVERA ARTIEDA, petitioner,

vs.

HON. LUIS SANTOS, in his capacity as Secretary of the Department of Local Government, NICANOR M.
PATRICIO, in his capacity as Chief, Legal Service of the Department of Local Government and SALVADOR
CABALUNA JR., respondents.

G.R. No. 95245 August 5,1991

RODOLFO T. GANZON, petitioner,

vs.

THE HONORABLE COURT OF APPEALS and LUIS T. SANTOS, in his capacity as the Secretary of the
Department of Local Government, respondents.

Nicolas P. Sonalan for petitioner in 93252.

Romeo A. Gerochi for petitioner in 93746.

Eugenio Original for petitioner in 95245.

SARMIENTO, J.:p

The petitioners take common issue on the power of the President (acting through the Secretary of Local
Government), to suspend and/or remove local officials.

The petitioners are the Mayor of Iloilo City (G.R. Nos. 93252 and 95245) and a member of the
Sangguniang Panglunsod thereof (G.R. No. 93746), respectively.

The petitions of Mayor Ganzon originated from a series of administrative complaints, ten in number,
filed against him by various city officials sometime in 1988, on various charges, among them, abuse of
authority, oppression, grave misconduct, disgraceful and immoral conduct, intimidation, culpable
violation of the Constitution, and arbitrary detention. 1 The personalities involved are Joceleehn
Cabaluna, a clerk at the city health office; Salvador Cabaluna, her husband; Dr. Felicidad Ortigoza,
Assistant City Health Officer; Mansueto Malabor, Vice-Mayor; Rolando Dabao, Dan Dalido, German
Gonzales, Larry Ong, and Eduardo Pefia Redondo members of the Sangguniang Panglunsod; and Pancho
Erbite, a barangay tanod. The complaints against the Mayor are set forth in the opinion of the
respondent Court of Appeals. 2 We quote:

xxx xxx xxx

In her verified complaint (Annex A), Mrs. Cabaluna, a clerk assigned to the City Health, Office of Iloilo
City charged that due to political reasons, having supported the rival candidate, Mrs. Rosa 0. Caram, the
petitioner City Mayor, using as an excuse the exigency of the service and the interest of the public,
pulled her out from rightful office where her qualifications are best suited and assigned her to a work
that should be the function of a non-career service employee. To make matters worse, a utility worker
in the office of the Public Services, whose duties are alien to the complainant's duties and functions, has
been detailed to take her place. The petitioner's act are pure harassments aimed at luring her away
from her permanent position or force her to resign.

In the case of Dra. Felicidad Ortigoza, she claims that the petitioner handpicked her to perform task not
befitting her position as Assistant City Health Officer of Iloilo City; that her office was padlocked without
any explanation or justification; that her salary was withheld without cause since April 1, 1988; that
when she filed her vacation leave, she was given the run-around treatment in the approval of her leave
in connivance with Dr. Rodolfo Villegas and that she was the object of a well-engineered trumped-up
charge in an administrative complaint filed by Dr. Rodolfo Villegas (Annex B).

On the other hand, Mansuelo Malabor is the duly elected Vice-Mayor of Iloilo City and complainants
Rolando Dabao, Dan Dalido, German Gonzales, Larry Ong and Eduardo Pefia Pedondo are members of
the Sangguniang Panglunsod of the City of Iloilo. Their complaint arose out from the case where
Councilor Larry Ong, whose key to his office was unceremoniously and without previous notice, taken by
petitioner. Without an office, Councilor Ong had to hold office at Plaza Libertad, The Vice-Mayor and the
other complainants sympathized with him and decided to do the same. However, the petitioner,
together with its fully-armed security men, forcefully drove them away from Plaza Libertad. Councilor
Ong denounced the petitioner's actuations the following day in the radio station and decided to hold
office at the Freedom Grandstand at Iloilo City and there were so many people who gathered to witness
the incident. However, before the group could reach the area, the petitioner, together with his security
men, led the firemen using a firetruck in dozing water to the people and the bystanders.

Another administrative case was filed by Pancho Erbite, a barangay tanod, appointed by former mayor
Rosa O. Caram. On March 13, 1988, without the benefit of charges filed against him and no warrant of
arrest was issued, Erbite was arrested and detained at the City Jail of Iloilo City upon orders of
petitioner. In jail, he was allegedly mauled by other detainees thereby causing injuries He was released
only the following day. 3

The Mayor thereafter answered 4 and the cases were shortly set for hearing. The opinion of the Court of
Appeals also set forth the succeeding events:

xxx xxx xxx

The initial hearing in the Cabaluna and Ortigoza cases were set for hearing on June 20-21, 1988 at the
Regional Office of the Department of Local Government in Iloilo City. Notices, through telegrams, were
sent to the parties (Annex L) and the parties received them, including the petitioner. The petitioner
asked for a postponement before the scheduled date of hearing and was represented by counsel, Atty.
Samuel Castro. The hearing officers, Atty. Salvador Quebral and Atty. Marino Bermudez had to come all
the way from Manila for the two-day hearings but was actually held only on June 20,1988 in view of the
inability and unpreparedness of petitioner's counsel.
The next hearings were re-set to July 25, 26, 27,1988 in the same venue-Iloilo City. Again, the petitioner
attempted to delay the proceedings and moved for a postponement under the excuse that he had just
hired his counsel. Nonetheless, the hearing officers denied the motion to postpone, in view of the fact
that the parties were notified by telegrams of the scheduled hearings (Annex M).

In the said hearings, petitioner's counsel cross-examined the complainants and their witnesses.

Finding probable grounds and reasons, the respondent issued a preventive suspension order on August
11, 1988 to last until October 11,1988 for a period of sixty (60) days.

Then the next investigation was set on September 21, 1988 and the petitioner again asked for a
postponement to September 26,1988. On September 26, 1988, the complainants and petitioner were
present, together with their respective counsel. The petitioner sought for a postponement which was
denied. In these hearings which were held in Mala the petitioner testified in Adm. Case No. C-10298 and
10299.

The investigation was continued regarding the Malabor case and the complainants testified including
their witnesses.

On October 10, 1988, petitioner's counsel, Atty. Original moved for a postponement of the October 24,
1988 hearing to November 7 to 11, 1988 which was granted. However, the motion for change of venue
as denied due to lack of funds. At the hearing on November 7, 1988, the parties and counsel were
present. Petitioner reiterated his motion to change venue and moved for postponement anew. The
counsel discussed a proposal to take the deposition of witnesses in Iloilo City so the hearing was
indefinitely postponed. However, the parties failed to come to terms and after the parties were notified
of the hearing, the investigation was set to December 13 to 15, 1988.

The petitioner sought for another postponement on the ground that his witnesses were sick or cannot
attend the investigation due to lack of transportation. The motion was denied and the petitioner was
given up to December 14, 1988 to present his evidence.
On December 14,1988, petitioner's counsel insisted on his motion for postponement and the hearing
officers gave petitioner up to December 15, 1988 to present his evidence. On December 15, 1988, the
petitioner failed to present evidence and the cases were considered submitted for resolution.

In the meantime, a prima facie evidence was found to exist in the arbitrary detention case filed by
Pancho Erbite so the respondent ordered the petitioner's second preventive suspension dated October
11, 1988 for another sixty (60) days. The petitioner was able to obtain a restraining order and a writ of
preliminary injunction in the Regional Trial Court, Branch 33 of Iloilo City. The second preventive
suspension was not enforced. 5

Amidst the two successive suspensions, Mayor Ganzon instituted an action for prohibition against the
respondent Secretary of Local Government (now, Interior) in the Regional Trial Court, Iloilo City, where
he succeeded in obtaining a writ of preliminary injunction. Presently, he instituted CA-G.R. SP No. 16417,
an action for prohibition, in the respondent Court of Appeals.

Meanwhile, on May 3, 1990, the respondent Secretary issued another order, preventively suspending
Mayor Ganzon for another sixty days, the third time in twenty months, and designating meantime Vice-
Mayor Mansueto Malabor as acting mayor. Undaunted, Mayor Ganzon commenced CA-G.R. SP No.
20736 of the Court of Appeals, a petition for prohibition, 6 (Malabor it is to be noted, is one of the
complainants, and hence, he is interested in seeing Mayor Ganzon ousted.)

On September 7, 1989, the Court of Appeals rendered judgment, dismissing CA-G.R. SP No. 16417. On
July 5, 1990, it likewise promulgated a decision, dismissing CA-G.R. SP No. 20736. In a Resolution dated
January 24, 1990, it issued a Resolution certifying the petition of Mary Ann Artieda, who had been
similary charged by the respondent Secretary, to this Court.

On June 26,1990, we issued a Temporary Restraining Order, barring the respondent Secretary from
implementing the suspension orders, and restraining the enforcement of the Court of Appeals' two
decisions.

In our Resolution of November 29, 1990, we consolidated all three cases. In our Resolutions of January
15, 1991, we gave due course thereto.
Mayor Ganzon claims as a preliminary (GR No. 93252), that the Department of Local Government in
hearing the ten cases against him, had denied him due process of law and that the respondent Secretary
had been "biased, prejudicial and hostile" towards him 7 arising from his (Mayor Ganzon's) alleged
refusal to join the Laban ng Demokratikong Pilipino party 8 and the running political rivalry they
maintained in the last congressional and local elections; 9 and his alleged refusal to operate a lottery in
Iloilo City. 10 He also alleges that he requested the Secretary to lift his suspension since it had come
ninety days prior to an election (the barangay elections of November 14, 1988), 11 notwithstanding
which, the latter proceeded with the hearing and meted out two more suspension orders of the
aforementioned cases. 12 He likewise contends that he sought to bring the cases to Iloilo City (they
were held in Manila) in order to reduce the costs of proceeding, but the Secretary rejected his request.
13 He states that he asked for postponement on "valid and justifiable" 14 grounds, among them, that he
was suffering from a heart ailment which required confinement; that his "vital" 15 witness was also
hospitalized 16 but that the latter unduly denied his request. 17

Mayor Ganzon's primary argument (G.R. Nos. 93252 and 95245) is that the Secretary of Local
Government is devoid, in any event, of any authority to suspend and remove local officials, an argument
reiterated by the petitioner Mary Ann Rivera Artieda (G.R. No. 93746).

As to Mayor Ganzon's charges of denial of due process, the records do not show very clearly in what
manner the Mayor might have been deprived of his rights by the respondent Secretary. His claims that
he and Secretary Luis-Santos were (are) political rivals and that his "persecution" was politically
motivated are pure speculation and although the latter does not appear to have denied these
contentions (as he, Mayor Ganzon, claims), we can not take his word for it the way we would have
under less political circumstances, considering furthermore that "political feud" has often been a good
excuse in contesting complaints.

The Mayor has failed furthermore to substantiate his say-so's that Secretary Santos had attempted to
seduce him to join the administration party and to operate a lottery in Iloilo City. Again, although the
Secretary failed to rebut his allegations, we can not accept them, at face value, much more, as judicial
admissions as he would have us accept them 18 for the same reasons above-stated and furthermore,
because his say so's were never corroborated by independent testimonies. As a responsible public
official, Secretary Santos, in pursuing an official function, is presumed to be performing his duties
regularly and in the absence of contrary evidence, no ill motive can be ascribed to him.

As to Mayor Ganzon's contention that he had requested the respondent Secretary to defer the hearing
on account of the ninety-day ban prescribed by Section 62 of Batas Blg. 337, the Court finds the
question to be moot and academic since we have in fact restrained the Secretary from further hearing
the complaints against the petitioners. 19

As to his request, finally, for postponements, the Court is afraid that he has not given any compelling
reason why we should overturn the Court of Appeals, which found no convincing reason to overrule
Secretary Santos in denying his requests. Besides, postponements are a matter of discretion on the part
of the hearing officer, and based on Mayor Ganzon's above story, we are not convinced that the
Secretary has been guilty of a grave abuse of discretion.

The Court can not say, under these circumstances, that Secretary Santos' actuations deprived Mayor
Ganzon of due process of law.

We come to the core question: Whether or not the Secretary of Local Government, as the President's
alter ego, can suspend and/or remove local officials.

It is the petitioners' argument that the 1987 Constitution 20 no longer allows the President, as the 1935
and 1973 Constitutions did, to exercise the power of suspension and/or removal over local officials.
According to both petitioners, the Constitution is meant, first, to strengthen self-rule by local
government units and second, by deleting the phrase 21 as may be provided by law to strip the
President of the power of control over local governments. It is a view, so they contend, that finds
support in the debates of the Constitutional Commission. The provision in question reads as follows:

Sec. 4. The President of the Philippines shall exercise general supervision over local governments.
Provinces with respect to component cities and municipalities, and cities and municipalities with respect
to component barangays shall ensure that the acts of their component units are within the scope of
their prescribed powers and functions. 22

It modifies a counterpart provision appearing in the 1935 Constitution, which we quote:

Sec. 10. The President shall have control of all the executive departments, bureaus, or offices, exercise
general supervision over all Local governments as may be provided by law, and take care that the laws
be faithfully executed. 23
The petitioners submit that the deletion (of "as may be provided by law") is significant, as their
argument goes, since: (1) the power of the President is "provided by law" and (2) hence, no law may
provide for it any longer.

It is to be noted that in meting out the suspensions under question, the Secretary of Local Government
acted in consonance with the specific legal provisions of Batas Blg. 337, the Local Government Code, we
quote:

Sec. 62. Notice of Hearing. — Within seven days after the complaint is filed, the Minister of local
Government, or the sanggunian concerned, as the case may be, shall require the respondent to submit
his verified answer within seven days from receipt of said complaint, and commence the hearing and
investigation of the case within ten days after receipt of such answer of the respondent. No
investigation shall be held within ninety days immediately prior to an election, and no preventive
suspension shall be imposed with the said period. If preventive suspension has been imposed prior to
the aforesaid period, the preventive suspension shall be lifted. 24

Sec. 63. Preventive Suspension. — (1) Preventive suspension may be imposed by the Minister of Local
Government if the respondent is a provincial or city official, by the provincial governor if the respondent
is an elective municipal official, or by the city or municipal mayor if the respondent is an elective
barangay official.

(2) Preventive suspension may be imposed at any time after the issues are joined, when there is
reasonable ground to believe that the respondent has committed the act or acts complained of, when
the evidence of culpability is strong, when the gravity of the offense so warrants, or when the
continuance in office of the respondent could influence the witnesses or pose a threat to the safety and
integrity of the records and other evidence. In all cases, preventive suspension shall not extend beyond
sixty days after the start of said suspension.

(3) At the expiration of sixty days, the suspended official shall be deemed reinstated in office
without prejudice to the continuation of the proceedings against him until its termination. However ' if
the delay in the proceedings of the case is due to his fault, neglect or request, the time of the delay shall
not be counted in computing the time of suspension. 25
The issue, as the Court understands it, consists of three questions: (1) Did the 1987 Constitution, in
deleting the phrase "as may be provided by law" intend to divest the President of the power to
investigate, suspend, discipline, and/or remove local officials? (2) Has the Constitution repealed Sections
62 and 63 of the Local Government Code? (3) What is the significance of the change in the constitutional
language?

It is the considered opinion of the Court that notwithstanding the change in the constitutional language,
the charter did not intend to divest the legislature of its right or the President of her prerogative as
conferred by existing legislation to provide administrative sanctions against local officials. It is our
opinion that the omission (of "as may be provided by law") signifies nothing more than to underscore
local governments' autonomy from congress and to break Congress' "control" over local government
affairs. The Constitution did not, however, intend, for the sake of local autonomy, to deprive the
legislature of all authority over municipal corporations, in particular, concerning discipline.

Autonomy does not, after all, contemplate making mini-states out of local government units, as in the
federal governments of the United States of America (or Brazil or Germany), although Jefferson is said to
have compared municipal corporations euphemistically to "small republics." 26 Autonomy, in the
constitutional sense, is subject to the guiding star, though not control, of the legislature, albeit the
legislative responsibility under the Constitution and as the "supervision clause" itself suggest-is to wean
local government units from over-dependence on the central government.

It is noteworthy that under the Charter, "local autonomy" is not instantly self-executing, but subject to,
among other things, the passage of a local government code, 27 a local tax law, 28 income distribution
legislation, 29 and a national representation law, 30 and measures 31 designed to realize autonomy at
the local level. It is also noteworthy that in spite of autonomy, the Constitution places the local
government under the general supervision of the Executive. It is noteworthy finally, that the Charter
allows Congress to include in the local government code provisions for removal of local officials, which
suggest that Congress may exercise removal powers, and as the existing Local Government Code has
done, delegate its exercise to the President. Thus:

Sec. 3. The Congress shall enact a local government code which shall provide for a more responsive and
accountable local government structure instituted through a system of decentralization with effective
mechanisms of recall, initiative, and referendum, allocate among the different local government units
their powers, responsibilities and resources, and provide for the qualifications, election, appointment
and removal, term, salaries, powers and functions and duties of local officials, and all other matters
relating to the organization and operation of the local units. 32
As hereinabove indicated, the deletion of "as may be provided by law" was meant to stress, sub silencio,
the objective of the framers to strengthen local autonomy by severing congressional control of its
affairs, as observed by the Court of Appeals, like the power of local legislation. 33 The Constitution did
nothing more, however, and insofar as existing legislation authorizes the President (through the
Secretary of Local Government) to proceed against local officials administratively, the Constitution
contains no prohibition.

The petitioners are under the impression that the Constitution has left the President mere supervisory
powers, which supposedly excludes the power of investigation, and denied her control, which allegedly
embraces disciplinary authority. It is a mistaken impression because legally, "supervision" is not
incompatible with disciplinary authority as this Court has held, 34 thus:

xxx xxx xxx

It is true that in the case of Mondano vs. Silvosa, 51 Off. Gaz., No. 6 p. 2884, this Court had occasion to
discuss the scope and extent of the power of supervision by the President over local government
officials in contrast to the power of control given to him over executive officials of our government
wherein it was emphasized that the two terms, control and supervision, are two different things which
differ one from the other in meaning and extent. Thus in that case the Court has made the following
digression: "In administration law supervision means overseeing or the power or authority of an officer
to see that subordinate officers perform their duties. If the latter fail or neglect to fulfill them the former
may take such action or step as prescribed by law to make them perform their duties. Control, on the
other hand, means the power of an officer to alter or modify or nullify of set aside what a subordinate
officer had done in the performance of his duties and to substitute the judgment of the former for that
of the latter." But from this pronouncement it cannot be reasonably inferred that the power of
supervision of the President over local government officials does not include the power of investigation
when in his opinion the good of the public service so requires, as postulated in Section 64(c) of the
Revised Administrative Code. ... 35

xxx xxx xxx

"Control" has been defined as "the power of an officer to alter or modify or nullify or set aside what a
subordinate officer had done in the performance of his duties and to substitute the judgment of the
former for test of the latter." 36 "Supervision" on the other hand means "overseeing or the power or
authority of an officer to see that subordinate officers perform their duties. 37 As we held, 38 however,
"investigating" is not inconsistent with "overseeing", although it is a lesser power than "altering". The
impression is apparently exacerbated by the Court's pronouncements in at least three cases, Lacson v.
Roque, 39 Hebron v. Reyes, 40 and Mondano v. Silvosa, 41 and possibly, a fourth one, Pelaez v. Auditor
General. 42 In Lacson, this Court said that the President enjoyed no control powers but only supervision
"as may be provided by law," 43 a rule we reiterated in Hebron, and Mondano. In Pelaez, we stated that
the President "may not . . . suspend an elective official of a regular municipality or take any disciplinary
action against him, except on appeal from a decision of the corresponding provincial board." 44
However, neither Lacson nor Hebron nor Mondano categorically banned the Chief Executive from
exercising acts of disciplinary authority because she did not exercise control powers, but because no law
allowed her to exercise disciplinary authority. Thus, according to Lacson:

The contention that the President has inherent power to remove or suspend municipal officers is
without doubt not well taken. Removal and suspension of public officers are always controlled by the
particular law applicable and its proper construction subject to constitutional limitations. 45

In Hebron we stated:

Accordingly, when the procedure for the suspension of an officer is specified by law, the same must be
deemed mandatory and adhered to strictly, in the absence of express or clear provision to the contrary-
which does not et with respect to municipal officers ... 46

In Mondano, the Court held:

... The Congress has expressly and specifically lodged the provincial supervision over municipal officials
in the provincial governor who is authorized to "receive and investigate complaints made under oath
against municipal officers for neglect of duty, oppression, corruption or other form of maladministration
of office, and conviction by final judgment of any crime involving moral turpitude." And if the charges
are serious, "he shall submit written charges touching the matter to the provincial board, furnishing a
copy of such charges to the accused either personally or by registered mail, and he may in such case
suspend the officer (not being the municipal treasurer) pending action by the board, if in his opinion the
charge by one affecting the official integrity of the officer in question." Section 86 of the Revised
Administration Code adds nothing to the power of supervision to be exercised by the Department Head
over the administration of ... municipalities ... . If it be construed that it does and such additional power
is the same authority as that vested in the Department Head by section 79(c) of the Revised
Administrative Code, then such additional power must be deemed to have been abrogated by Section
110(l), Article VII of the Constitution. 47

xxx xxx xxx

In Pelaez, we stated that the President can not impose disciplinary measures on local officials except on
appeal from the provincial board pursuant to the Administrative Code. 48

Thus, in those case that this Court denied the President the power (to suspend/remove) it was not
because we did not think that the President can not exercise it on account of his limited power, but
because the law lodged the power elsewhere. But in those cases ii which the law gave him the power,
the Court, as in Ganzon v. Kayanan, found little difficulty in sustaining him. 49

The Court does not believe that the petitioners can rightfully point to the debates of the Constitutional
Commission to defeat the President's powers. The Court believes that the deliberations are by
themselves inconclusive, because although Commissioner Jose Nolledo would exclude the power of
removal from the President, 50 Commissioner Blas Ople would not. 51

The Court is consequently reluctant to say that the new Constitution has repealed the Local Government
Code, Batas Blg. 37. As we said, "supervision" and "removal" are not incompatible terms and one may
stand with the other notwithstanding the stronger expression of local autonomy under the new Charter.
We have indeed held that in spite of the approval of the Charter, Batas Blg. 337 is still in force and
effect. 52

As the Constitution itself declares, local autonomy means "a more responsive and accountable local
government structure instituted through a system of decentralization." 53 The Constitution as we
observed, does nothing more than to break up the monopoly of the national government over the
affairs of local governments and as put by political adherents, to "liberate the local governments from
the imperialism of Manila." Autonomy, however, is not meant to end the relation of partnership and
inter-dependence between the central administration and local government units, or otherwise, to user
in a regime of federalism. The Charter has not taken such a radical step. Local governments, under the
Constitution, are subject to regulation, however limited, and for no other purpose than precisely, albeit
paradoxically, to enhance self- government.
As we observed in one case, 54 decentralization means devolution of national administration but not
power to the local levels. Thus:

Now, autonomy is either decentralization of administration or decentralization of power. There is

decentralization of administration when the central government delegates administrative powers to
political subdivisions in order to broaden the base of government power and in the process to make
local governments "more responsive and accountable," and "ensure their fullest development as self-
reliant communities and make them more effective partners in the pursuit of national development and
social progress." At the same time, it relieves the central government of the burden of managing local
affairs and enables it to concentrate on national concerns. The President exercises "general supervision"
over them, but only to "ensure that local affairs are administered according to law." He has no control
over their acts in the sense that he can substitute their judgments with his own.

Decentralization of power, on the other hand, involves an abdication of political power in the favor of
local governments units declared to be autonomous, In that case, the autonomous government is free
to chart its own destiny and shape its future with minimum intervention from central authorities.
According to a constitutional author, decentralization of power amounts to "self-immolation," since in
that event, the autonomous government becomes accountable not to the central authorities but to its
constituency. 55

The successive sixty-day suspensions imposed on Mayor Rodolfo Ganzon is albeit another matter. What
bothers the Court, and what indeed looms very large, is the fact that since the Mayor is facing ten
administrative charges, the Mayor is in fact facing the possibility of 600 days of suspension, in the event
that all ten cases yield prima facie findings. The Court is not of course tolerating misfeasance in public
office (assuming that Mayor Ganzon is guilty of misfeasance) but it is certainly another question to make
him serve 600 days of suspension, which is effectively, to suspend him out of office. As we held: 56

2. Petitioner is a duly elected municipal mayor of Lianga, Surigao del Sur. His term of office does
not expire until 1986. Were it not for this information and the suspension decreed by the
Sandiganbayan according to the Anti-Graft and Corrupt Practices Act, he would have been all this while
in the full discharge of his functions as such municipal mayor. He was elected precisely to do so. As of
October 26, 1983, he has been unable to. it is a basic assumption of the electoral process implicit in the
right of suffrage that the people are entitled to the services of elective officials of their choice. For
misfeasance or malfeasance, any of them could, of course, be proceeded against administratively or, as
in this instance, criminally. In either case, Ms culpability must be established. Moreover, if there be a
criminal action, he is entitled to the constitutional presumption of innocence. A preventive suspension
may be justified. Its continuance, however, for an unreasonable length of time raises a due process
question. For even if thereafter he were acquitted, in the meanwhile his right to hold office had been
nullified. Clearly, there would be in such a case an injustice suffered by him. Nor is he the only victim.
There is injustice inflicted likewise on the people of Lianga They were deprived of the services of the
man they had elected to serve as mayor. In that sense, to paraphrase Justice Cardozo, the protracted
continuance of this preventive suspension had outrun the bounds of reason and resulted in sheer
oppression. A denial of due process is thus quite manifest. It is to avoid such an unconstitutional
application that the order of suspension should be lifted. 57

The plain truth is that this Court has been ill at ease with suspensions, for the above reasons, 58 and so
also, because it is out of the ordinary to have a vacancy in local government. The sole objective of a
suspension, as we have held, 59 is simply "to prevent the accused from hampering the normal cause of
the investigation with his influence and authority over possible witnesses" 60 or to keep him off "the
records and other evidence. 61

It is a means, and no more, to assist prosecutors in firming up a case, if any, against an erring local
official. Under the Local Government Code, it can not exceed sixty days, 62 which is to say that it need
not be exactly sixty days long if a shorter period is otherwise sufficient, and which is also to say that it
ought to be lifted if prosecutors have achieved their purpose in a shorter span.

Suspension is not a penalty and is not unlike preventive imprisonment in which the accused is held to
insure his presence at the trial. In both cases, the accused (the respondent) enjoys a presumption of
innocence unless and until found guilty.

Suspension finally is temporary and as the Local Government Code provides, it may be imposed for no
more than sixty days. As we held, 63 a longer suspension is unjust and unreasonable, and we might add,
nothing less than tyranny.

As we observed earlier, imposing 600 days of suspension which is not a remote possibility Mayor
Ganzon is to all intents and purposes, to make him spend the rest of his term in inactivity. It is also to
make, to all intents and purposes, his suspension permanent.
It is also, in fact, to mete out punishment in spite of the fact that the Mayor's guilt has not been proven.
Worse, any absolution will be for naught because needless to say, the length of his suspension would
have, by the time he is reinstated, wiped out his tenure considerably.

The Court is not to be mistaken for obstructing the efforts of the respondent Secretary to see that
justice is done in Iloilo City, yet it is hardly any argument to inflict on Mayor Ganzon successive
suspensions when apparently, the respondent Secretary has had sufficient time to gather the necessary
evidence to build a case against the Mayor without suspending him a day longer. What is intriguing is
that the respondent Secretary has been cracking down, so to speak, on the Mayor piecemeal
apparently, to pin him down ten times the pain, when he, the respondent Secretary, could have pursued
a consolidated effort.

We reiterate that we are not precluding the President, through the Secretary of Interior from exercising
a legal power, yet we are of the opinion that the Secretary of Interior is exercising that power
oppressively, and needless to say, with a grave abuse of discretion.

The Court is aware that only the third suspension is under questions, and that any talk of future
suspensions is in fact premature. The fact remains, however, that Mayor Ganzon has been made to
serve a total of 120 days of suspension and the possibility of sixty days more is arguably around the
corner (which amounts to a violation of the Local Government Code which brings to light a pattern of
suspensions intended to suspend the Mayor the rest of his natural tenure. The Court is simply
foreclosing what appears to us as a concerted effort of the State to perpetuate an arbitrary act.

As we said, we can not tolerate such a state of affairs.

We are therefore allowing Mayor Rodolfo Ganzon to suffer the duration of his third suspension and
lifting, for the purpose, the Temporary Restraining Order earlier issued. Insofar as the seven remaining
charges are concerned, we are urging the Department of Local Government, upon the finality of this
Decision, to undertake steps to expedite the same, subject to Mayor Ganzon's usual remedies of appeal,
judicial or administrative, or certiorari, if warranted, and meanwhile, we are precluding the Secretary
from meting out further suspensions based on those remaining complaints, notwithstanding findings of
prima facie evidence.

In resume the Court is laying down the following rules:

1. Local autonomy, under the Constitution, involves a mere decentralization of administration, not
of power, in which local officials remain accountable to the central government in the manner the law
may provide;

2. The new Constitution does not prescribe federalism;

3. The change in constitutional language (with respect to the supervision clause) was meant but to
deny legislative control over local governments; it did not exempt the latter from legislative regulations
provided regulation is consistent with the fundamental premise of autonomy;

4. Since local governments remain accountable to the national authority, the latter may, by law,
and in the manner set forth therein, impose disciplinary action against local officials;

5. "Supervision" and "investigation" are not inconsistent terms; "investigation" does not signify
"control" (which the President does not have);

6. The petitioner, Mayor Rodolfo Ganzon. may serve the suspension so far ordered, but may no
longer be suspended for the offenses he was charged originally; provided:

a) that delays in the investigation of those charges "due to his fault, neglect or request, (the time
of the delay) shall not be counted in computing the time of suspension. [Supra, sec. 63(3)]

b) that if during, or after the expiration of, his preventive suspension, the petitioner commits
another or other crimes and abuses for which proper charges are filed against him by the aggrieved
party or parties, his previous suspension shall not be a bar to his being preventively suspended again, if
warranted under subpar. (2), Section 63 of the Local Government Code.

WHEREFORE, premises considered, the petitions are DISMISSED. The Temporary Restraining Order
issued is LIFTED. The suspensions of the petitioners are AFFIRMED, provided that the petitioner, Mayor
Rodolfo Ganzon, may not be made to serve future suspensions on account of any of the remaining
administrative charges pending against him for acts committed prior to August 11, 1988. The Secretary
of Interior is ORDERED to consolidate all such administrative cases pending against Mayor Ganzon.

The sixty-day suspension against the petitioner, Mary Ann Rivera Artieda, is AFFIRMED. No costs.

SO ORDERED.
G.R. No. 91649 May 14, 1991

ATTORNEYS HUMBERTO BASCO, EDILBERTO BALCE, SOCRATES MARANAN AND LORENZO SANCHEZ,
petitioners,

vs.

PHILIPPINE AMUSEMENTS AND GAMING CORPORATION (PAGCOR), respondent.

H.B. Basco & Associates for petitioners.

Valmonte Law Offices collaborating counsel for petitioners.

Aguirre, Laborte and Capule for respondent PAGCOR.

PARAS, J.:p

A TV ad proudly announces:

"The new PAGCOR — responding through responsible gaming."

But the petitioners think otherwise, that is why, they filed the instant petition seeking to annul the
Philippine Amusement and Gaming Corporation (PAGCOR) Charter — PD 1869, because it is allegedly
contrary to morals, public policy and order, and because —

A. It constitutes a waiver of a right prejudicial to a third person with a right recognized by law. It
waived the Manila City government's right to impose taxes and license fees, which is recognized by law;
B. For the same reason stated in the immediately preceding paragraph, the law has intruded into
the local government's right to impose local taxes and license fees. This, in contravention of the
constitutionally enshrined principle of local autonomy;

C. It violates the equal protection clause of the constitution in that it legalizes PAGCOR —
conducted gambling, while most other forms of gambling are outlawed, together with prostitution, drug
trafficking and other vices;

D. It violates the avowed trend of the Cory government away from monopolistic and crony
economy, and toward free enterprise and privatization. (p. 2, Amended Petition; p. 7, Rollo)

In their Second Amended Petition, petitioners also claim that PD 1869 is contrary to the declared
national policy of the "new restored democracy" and the people's will as expressed in the 1987
Constitution. The decree is said to have a "gambling objective" and therefore is contrary to Sections 11,
12 and 13 of Article II, Sec. 1 of Article VIII and Section 3 (2) of Article XIV, of the present Constitution (p.
3, Second Amended Petition; p. 21, Rollo).

The procedural issue is whether petitioners, as taxpayers and practicing lawyers (petitioner Basco being
also the Chairman of the Committee on Laws of the City Council of Manila), can question and seek the
annulment of PD 1869 on the alleged grounds mentioned above.

The Philippine Amusements and Gaming Corporation (PAGCOR) was created by virtue of P.D. 1067-A
dated January 1, 1977 and was granted a franchise under P.D. 1067-B also dated January 1, 1977 "to
establish, operate and maintain gambling casinos on land or water within the territorial jurisdiction of
the Philippines." Its operation was originally conducted in the well known floating casino "Philippine
Tourist." The operation was considered a success for it proved to be a potential source of revenue to
fund infrastructure and socio-economic projects, thus, P.D. 1399 was passed on June 2, 1978 for
PAGCOR to fully attain this objective.

Subsequently, on July 11, 1983, PAGCOR was created under P.D. 1869 to enable the Government to
regulate and centralize all games of chance authorized by existing franchise or permitted by law, under
the following declared policy —
Sec. 1. Declaration of Policy. — It is hereby declared to be the policy of the State to centralize and
integrate all games of chance not heretofore authorized by existing franchises or permitted by law in
order to attain the following objectives:

(a) To centralize and integrate the right and authority to operate and conduct games of chance into
one corporate entity to be controlled, administered and supervised by the Government.

(b) To establish and operate clubs and casinos, for amusement and recreation, including sports
gaming pools, (basketball, football, lotteries, etc.) and such other forms of amusement and recreation
including games of chance, which may be allowed by law within the territorial jurisdiction of the
Philippines and which will: (1) generate sources of additional revenue to fund infrastructure and socio-
civic projects, such as flood control programs, beautification, sewerage and sewage projects, Tulungan
ng Bayan Centers, Nutritional Programs, Population Control and such other essential public services; (2)
create recreation and integrated facilities which will expand and improve the country's existing tourist
attractions; and (3) minimize, if not totally eradicate, all the evils, malpractices and corruptions that are
normally prevalent on the conduct and operation of gambling clubs and casinos without direct
government involvement. (Section 1, P.D. 1869)

To attain these objectives PAGCOR is given territorial jurisdiction all over the Philippines. Under its
Charter's repealing clause, all laws, decrees, executive orders, rules and regulations, inconsistent
therewith, are accordingly repealed, amended or modified.

It is reported that PAGCOR is the third largest source of government revenue, next to the Bureau of
Internal Revenue and the Bureau of Customs. In 1989 alone, PAGCOR earned P3.43 Billion, and directly
remitted to the National Government a total of P2.5 Billion in form of franchise tax, government's
income share, the President's Social Fund and Host Cities' share. In addition, PAGCOR sponsored other
socio-cultural and charitable projects on its own or in cooperation with various governmental agencies,
and other private associations and organizations. In its 3 1/2 years of operation under the present
administration, PAGCOR remitted to the government a total of P6.2 Billion. As of December 31, 1989,
PAGCOR was employing 4,494 employees in its nine (9) casinos nationwide, directly supporting the
livelihood of Four Thousand Four Hundred Ninety-Four (4,494) families.
But the petitioners, are questioning the validity of P.D. No. 1869. They allege that the same is "null and
void" for being "contrary to morals, public policy and public order," monopolistic and tends toward
"crony economy", and is violative of the equal protection clause and local autonomy as well as for
running counter to the state policies enunciated in Sections 11 (Personal Dignity and Human Rights), 12
(Family) and 13 (Role of Youth) of Article II, Section 1 (Social Justice) of Article XIII and Section 2
(Educational Values) of Article XIV of the 1987 Constitution.

This challenge to P.D. No. 1869 deserves a searching and thorough scrutiny and the most deliberate
consideration by the Court, involving as it does the exercise of what has been described as "the highest
and most delicate function which belongs to the judicial department of the government." (State v.
Manuel, 20 N.C. 144; Lozano v. Martinez, 146 SCRA 323).

As We enter upon the task of passing on the validity of an act of a co-equal and coordinate branch of the
government We need not be reminded of the time-honored principle, deeply ingrained in our
jurisprudence, that a statute is presumed to be valid. Every presumption must be indulged in favor of its
constitutionality. This is not to say that We approach Our task with diffidence or timidity. Where it is
clear that the legislature or the executive for that matter, has over-stepped the limits of its authority
under the constitution, We should not hesitate to wield the axe and let it fall heavily, as fall it must, on
the offending statute (Lozano v. Martinez, supra).

In Victoriano v. Elizalde Rope Workers' Union, et al, 59 SCRA 54, the Court thru Mr. Justice Zaldivar
underscored the —

. . . thoroughly established principle which must be followed in all cases where questions of
constitutionality as obtain in the instant cases are involved. All presumptions are indulged in favor of
constitutionality; one who attacks a statute alleging unconstitutionality must prove its invalidity beyond
a reasonable doubt; that a law may work hardship does not render it unconstitutional; that if any
reasonable basis may be conceived which supports the statute, it will be upheld and the challenger must
negate all possible basis; that the courts are not concerned with the wisdom, justice, policy or
expediency of a statute and that a liberal interpretation of the constitution in favor of the
constitutionality of legislation should be adopted. (Danner v. Hass, 194 N.W. 2nd 534, 539; Spurbeck v.
Statton, 106 N.W. 2nd 660, 663; 59 SCRA 66; see also e.g. Salas v. Jarencio, 46 SCRA 734, 739 [1970];
Peralta v. Commission on Elections, 82 SCRA 30, 55 [1978]; and Heirs of Ordona v. Reyes, 125 SCRA 220,
241-242 [1983] cited in Citizens Alliance for Consumer Protection v. Energy Regulatory Board, 162 SCRA
521, 540)
Of course, there is first, the procedural issue. The respondents are questioning the legal personality of
petitioners to file the instant petition.

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 government have
kept themselves within the limits of the Constitution and the laws and that they have not abused the
discretion given to them, the Court has brushed aside technicalities of procedure and has taken
cognizance of this petition. (Kapatiran ng mga Naglilingkod sa Pamahalaan ng Pilipinas Inc. v. Tan, 163
SCRA 371)

With particular regard to the requirement of proper party as applied in the cases before us, We hold
that the same is satisfied by the petitioners and intervenors because each of them has sustained or is in
danger of sustaining an immediate injury as a result of the acts or measures complained of. And even if,
strictly speaking they are not covered by the definition, it is still within the wide discretion of the Court
to waive the requirement and so remove the impediment to its addressing and resolving the serious
constitutional questions raised.

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

Having disposed of the procedural issue, We will now discuss the substantive issues raised.

Gambling in all its forms, unless allowed by law, is generally prohibited. But the prohibition of gambling
does not mean that the Government cannot regulate it in the exercise of its police power.

The concept of police power is well-established in this jurisdiction. It has been defined as the "state
authority to enact legislation that may interfere with personal liberty or property in order to promote
the general welfare." (Edu v. Ericta, 35 SCRA 481, 487) As defined, it consists of (1) an imposition or
restraint upon liberty or property, (2) in order to foster the common good. It is not capable of an exact
definition but has been, purposely, veiled in general terms to underscore its all-comprehensive
embrace. (Philippine Association of Service Exporters, Inc. v. Drilon, 163 SCRA 386).

Its scope, ever-expanding to meet the exigencies of the times, even to anticipate the future where it
could be done, provides enough room for an efficient and flexible response to conditions and
circumstances thus assuming the greatest benefits. (Edu v. Ericta, supra)

It finds no specific Constitutional grant for the plain reason that it does not owe its origin to the charter.
Along with the taxing power and eminent domain, it is inborn in the very fact of statehood and
sovereignty. It is a fundamental attribute of government that has enabled it to perform the most vital
functions of governance. Marshall, to whom the expression has been credited, refers to it succinctly as
the plenary power of the state "to govern its citizens". (Tribe, American Constitutional Law, 323, 1978).
The police power of the State is a power co-extensive with self-protection and is most aptly termed the
"law of overwhelming necessity." (Rubi v. Provincial Board of Mindoro, 39 Phil. 660, 708) It is "the most
essential, insistent, and illimitable of powers." (Smith Bell & Co. v. National, 40 Phil. 136) It is a dynamic
force that enables the state to meet the agencies of the winds of change.

What was the reason behind the enactment of P.D. 1869?

P.D. 1869 was enacted pursuant to the policy of the government to "regulate and centralize thru an
appropriate institution all games of chance authorized by existing franchise or permitted by law" (1st
whereas clause, PD 1869). As was subsequently proved, regulating and centralizing gambling operations
in one corporate entity — the PAGCOR, was beneficial not just to the Government but to society in
general. It is a reliable source of much needed revenue for the cash strapped Government. It provided
funds for social impact projects and subjected gambling to "close scrutiny, regulation, supervision and
control of the Government" (4th Whereas Clause, PD 1869). With the creation of PAGCOR and the direct
intervention of the Government, the evil practices and corruptions that go with gambling will be
minimized if not totally eradicated. Public welfare, then, lies at the bottom of the enactment of PD 1896.

Petitioners contend that P.D. 1869 constitutes a waiver of the right of the City of Manila to impose taxes
and legal fees; that the exemption clause in P.D. 1869 is violative of the principle of local autonomy.
They must be referring to Section 13 par. (2) of P.D. 1869 which exempts PAGCOR, as the franchise
holder from paying any "tax of any kind or form, income or otherwise, as well as fees, charges or levies
of whatever nature, whether National or Local."
(2) Income and other taxes. — a) Franchise Holder: No tax of any kind or form, income or otherwise
as well as fees, charges or levies of whatever nature, whether National or Local, shall be assessed and
collected under this franchise from the Corporation; nor shall any form or tax or charge attach in any
way to the earnings of the Corporation, except a franchise tax of five (5%) percent of the gross revenues
or earnings derived by the Corporation from its operations under this franchise. Such tax shall be due
and payable quarterly to the National Government and shall be in lieu of all kinds of taxes, levies, fees or
assessments of any kind, nature or description, levied, established or collected by any municipal,
provincial or national government authority (Section 13 [2]).

Their contention stated hereinabove is without merit for the following reasons:

(a) The City of Manila, being a mere Municipal corporation has no inherent right to impose taxes
(Icard v. City of Baguio, 83 Phil. 870; City of Iloilo v. Villanueva, 105 Phil. 337; Santos v. Municipality of
Caloocan, 7 SCRA 643). Thus, "the Charter or statute must plainly show an intent to confer that power or
the municipality cannot assume it" (Medina v. City of Baguio, 12 SCRA 62). Its "power to tax" therefore
must always yield to a legislative act which is superior having been passed upon by the state itself which
has the "inherent power to tax" (Bernas, the Revised [1973] Philippine Constitution, Vol. 1, 1983 ed. p.
445).

(b) The Charter of the City of Manila is subject to control by Congress. It should be stressed that
"municipal corporations are mere creatures of Congress" (Unson v. Lacson, G.R. No. 7909, January 18,
1957) which has the power to "create and abolish municipal corporations" due to its "general legislative
powers" (Asuncion v. Yriantes, 28 Phil. 67; Merdanillo v. Orandia, 5 SCRA 541). Congress, therefore, has
the power of control over Local governments (Hebron v. Reyes, G.R. No. 9124, July 2, 1950). And if
Congress can grant the City of Manila the power to tax certain matters, it can also provide for
exemptions or even take back the power.

(c) The City of Manila's power to impose license fees on gambling, has long been revoked. As early
as 1975, the power of local governments to regulate gambling thru the grant of "franchise, licenses or
permits" was withdrawn by P.D. No. 771 and was vested exclusively on the National Government, thus:
Sec. 1. Any provision of law to the contrary notwithstanding, the authority of chartered cities and other
local governments to issue license, permit or other form of franchise to operate, maintain and establish
horse and dog race tracks, jai-alai and other forms of gambling is hereby revoked.

Sec. 2. Hereafter, all permits or franchises to operate, maintain and establish, horse and dog race
tracks, jai-alai and other forms of gambling shall be issued by the national government upon proper
application and verification of the qualification of the applicant . . .

Therefore, only the National Government has the power to issue "licenses or permits" for the operation
of gambling. Necessarily, the power to demand or collect license fees which is a consequence of the
issuance of "licenses or permits" is no longer vested in the City of Manila.

(d) Local governments have no power to tax instrumentalities of the National Government.
PAGCOR is a government owned or controlled corporation with an original charter, PD 1869. All of its
shares of stocks are owned by the National Government. In addition to its corporate powers (Sec. 3,
Title II, PD 1869) it also exercises regulatory powers thus:

Sec. 9. Regulatory Power. — The Corporation shall maintain a Registry of the affiliated entities, and
shall exercise all the powers, authority and the responsibilities vested in the Securities and Exchange
Commission over such affiliating entities mentioned under the preceding section, including, but not
limited to amendments of Articles of Incorporation and By-Laws, changes in corporate term, structure,
capitalization and other matters concerning the operation of the affiliated entities, the provisions of the
Corporation Code of the Philippines to the contrary notwithstanding, except only with respect to original
incorporation.

PAGCOR has a dual role, to operate and to regulate gambling casinos. The latter role is governmental,
which places it in the category of an agency or instrumentality of the Government. Being an
instrumentality of the Government, PAGCOR should be and actually is exempt from local taxes.
Otherwise, its operation might be burdened, impeded or subjected to control by a mere Local
government.

The states have no power by taxation or otherwise, to retard, impede, burden or in any manner control
the operation of constitutional laws enacted by Congress to carry into execution the powers vested in
the federal government. (MC Culloch v. Marland, 4 Wheat 316, 4 L Ed. 579)
This doctrine emanates from the "supremacy" of the National Government over local governments.

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

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

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

(e) Petitioners also argue that the Local Autonomy Clause of the Constitution will be violated by
P.D. 1869. This is a pointless argument. Article X of the 1987 Constitution (on Local Autonomy) provides:

Sec. 5. Each local government unit shall have the power to create its own source of revenue and to levy
taxes, fees, and other charges subject to such guidelines and limitation as the congress may provide,
consistent with the basic policy on local autonomy. Such taxes, fees and charges shall accrue exclusively
to the local government. (emphasis supplied)

The power of local government to "impose taxes and fees" is always subject to "limitations" which
Congress may provide by law. Since PD 1869 remains an "operative" law until "amended, repealed or
revoked" (Sec. 3, Art. XVIII, 1987 Constitution), its "exemption clause" remains as an exception to the
exercise of the power of local governments to impose taxes and fees. It cannot therefore be violative
but rather is consistent with the principle of local autonomy.
Besides, the principle of local autonomy under the 1987 Constitution simply means "decentralization"
(III Records of the 1987 Constitutional Commission, pp. 435-436, as cited in Bernas, The Constitution of
the Republic of the Philippines, Vol. II, First Ed., 1988, p. 374). It does not make local governments
sovereign within the state or an "imperium in imperio."

Local Government has been described as a political subdivision of a nation or state which is constituted
by law and has substantial control of local affairs. In a unitary system of government, such as the
government under the Philippine Constitution, local governments can only be an intra sovereign
subdivision of one sovereign nation, it cannot be an imperium in imperio. Local government in such a
system can only mean a measure of decentralization of the function of government. (emphasis supplied)

As to what state powers should be "decentralized" and what may be delegated to local government
units remains a matter of policy, which concerns wisdom. It is therefore a political question. (Citizens
Alliance for Consumer Protection v. Energy Regulatory Board, 162 SCRA 539).

What is settled is that the matter of regulating, taxing or otherwise dealing with gambling is a State
concern and hence, it is the sole prerogative of the State to retain it or delegate it to local governments.

As gambling is usually an offense against the State, legislative grant or express charter power is generally
necessary to empower the local corporation to deal with the subject. . . . In the absence of express grant
of power to enact, ordinance provisions on this subject which are inconsistent with the state laws are
void. (Ligan v. Gadsden, Ala App. 107 So. 733 Ex-Parte Solomon, 9, Cals. 440, 27 PAC 757 following in re
Ah You, 88 Cal. 99, 25 PAC 974, 22 Am St. Rep. 280, 11 LRA 480, as cited in Mc Quinllan Vol. 3 Ibid, p.
548, emphasis supplied)

Petitioners next contend that P.D. 1869 violates the equal protection clause of the Constitution, because
"it legalized PAGCOR — conducted gambling, while most gambling are outlawed together with
prostitution, drug trafficking and other vices" (p. 82, Rollo).

We, likewise, find no valid ground to sustain this contention. The petitioners' posture ignores the well-
accepted meaning of the clause "equal protection of the laws." The clause does not preclude
classification of individuals who may be accorded different treatment under the law as long as the
classification is not unreasonable or arbitrary (Itchong v. Hernandez, 101 Phil. 1155). A law does not
have to operate in equal force on all persons or things to be conformable to Article III, Section 1 of the
Constitution (DECS v. San Diego, G.R. No. 89572, December 21, 1989).

The "equal protection clause" does not prohibit the Legislature from establishing classes of individuals
or objects upon which different rules shall operate (Laurel v. Misa, 43 O.G. 2847). The Constitution does
not require situations which are different in fact or opinion to be treated in law as though they were the
same (Gomez v. Palomar, 25 SCRA 827).

Just how P.D. 1869 in legalizing gambling conducted by PAGCOR is violative of the equal protection is
not clearly explained in the petition. The mere fact that some gambling activities like cockfighting (P.D
449) horse racing (R.A. 306 as amended by RA 983), sweepstakes, lotteries and races (RA 1169 as
amended by B.P. 42) are legalized under certain conditions, while others are prohibited, does not render
the applicable laws, P.D. 1869 for one, unconstitutional.

If the law presumably hits the evil where it is most felt, it is not to be overthrown because there are
other instances to which it might have been applied. (Gomez v. Palomar, 25 SCRA 827)

The equal protection clause of the 14th Amendment does not mean that all occupations called by the
same name must be treated the same way; the state may do what it can to prevent which is deemed as
evil and stop short of those cases in which harm to the few concerned is not less than the harm to the
public that would insure if the rule laid down were made mathematically exact. (Dominican Hotel v.
Arizona, 249 US 2651).

Anent petitioners' claim that PD 1869 is contrary to the "avowed trend of the Cory Government away
from monopolies and crony economy and toward free enterprise and privatization" suffice it to state
that this is not a ground for this Court to nullify P.D. 1869. If, indeed, PD 1869 runs counter to the
government's policies then it is for the Executive Department to recommend to Congress its repeal or
amendment.

The judiciary does not settle policy issues. The Court can only declare what the law is and not what the
law should be. Under our system of government, policy issues are within the domain of the political
branches of government and of the people themselves as the repository of all state power. (Valmonte v.
Belmonte, Jr., 170 SCRA 256).
On the issue of "monopoly," however, the Constitution provides that:

Sec. 19. The State shall regulate or prohibit monopolies when public interest so requires. No
combinations in restraint of trade or unfair competition shall be allowed. (Art. XII, National Economy
and Patrimony)

It should be noted that, as the provision is worded, monopolies are not necessarily prohibited by the
Constitution. The state must still decide whether public interest demands that monopolies be regulated
or prohibited. Again, this is a matter of policy for the Legislature to decide.

On petitioners' allegation that P.D. 1869 violates Sections 11 (Personality Dignity) 12 (Family) and 13
(Role of Youth) of Article II; Section 13 (Social Justice) of Article XIII and Section 2 (Educational Values) of
Article XIV of the 1987 Constitution, suffice it to state also that these are merely statements of principles
and, policies. As such, they are basically not self-executing, meaning a law should be passed by Congress
to clearly define and effectuate such principles.

In general, therefore, the 1935 provisions were not intended to be self-executing principles ready for
enforcement through the courts. They were rather directives addressed to the executive and the
legislature. If the executive and the legislature failed to heed the directives of the articles the available
remedy was not judicial or political. The electorate could express their displeasure with the failure of the
executive and the legislature through the language of the ballot. (Bernas, Vol. II, p. 2)

Every law has in its favor the presumption of constitutionality (Yu Cong Eng v. Trinidad, 47 Phil. 387;
Salas v. Jarencio, 48 SCRA 734; Peralta v. Comelec, 82 SCRA 30; Abbas v. Comelec, 179 SCRA 287).
Therefore, for PD 1869 to be nullified, it must be shown that there is a clear and unequivocal breach of
the Constitution, not merely a doubtful and equivocal one. In other words, the grounds for nullity must
be clear and beyond reasonable doubt. (Peralta v. Comelec, supra) Those who petition this Court to
declare a law, or parts thereof, unconstitutional must clearly establish the basis for such a declaration.
Otherwise, their petition must fail. Based on the grounds raised by petitioners to challenge the
constitutionality of P.D. 1869, the Court finds that petitioners have failed to overcome the presumption.
The dismissal of this petition is therefore, inevitable. But as to whether P.D. 1869 remains a wise
legislation considering the issues of "morality, monopoly, trend to free enterprise, privatization as well
as the state principles on social justice, role of youth and educational values" being raised, is up for
Congress to determine.

As this Court held in Citizens' Alliance for Consumer Protection v. Energy Regulatory Board, 162 SCRA
521 —

Presidential Decree No. 1956, as amended by Executive Order No. 137 has, in any case, in its favor the
presumption of validity and constitutionality which petitioners Valmonte and the KMU have not
overturned. Petitioners have not undertaken to identify the provisions in the Constitution which they
claim to have been violated by that statute. This Court, however, is not compelled to speculate and to
imagine how the assailed legislation may possibly offend some provision of the Constitution. The Court
notes, further, in this respect that petitioners have in the main put in question the wisdom, justice and
expediency of the establishment of the OPSF, issues which are not properly addressed to this Court and
which this Court may not constitutionally pass upon. Those issues should be addressed rather to the
political departments of government: the President and the Congress.

Parenthetically, We wish to state that gambling is generally immoral, and this is precisely so when the
gambling resorted to is excessive. This excessiveness necessarily depends not only on the financial
resources of the gambler and his family but also on his mental, social, and spiritual outlook on life.
However, the mere fact that some persons may have lost their material fortunes, mental control,
physical health, or even their lives does not necessarily mean that the same are directly attributable to
gambling. Gambling may have been the antecedent, but certainly not necessarily the cause. For the
same consequences could have been preceded by an overdose of food, drink, exercise, work, and even
sex.

WHEREFORE, the petition is DISMISSED for lack of merit.

SO ORDERED.

Fernan, C.J., Narvasa, Gutierrez, Jr., Cruz, Feliciano, Gancayco, Bidin, Sarmiento, Griño-Aquino,
Medialdea, Regalado and Davide, Jr., JJ., concur.
G.R. No. 111097 July 20, 1994

MAYOR PABLO P. MAGTAJAS & THE CITY OF CAGAYAN DE ORO, petitioners,

vs.

PRYCE PROPERTIES CORPORATION, INC. & PHILIPPINE AMUSEMENT AND GAMING CORPORATION,
respondents.

Aquilino G. Pimentel, Jr. and Associates for petitioners.

R.R. Torralba & Associates for private respondent.

CRUZ, J.:

There was instant opposition when PAGCOR announced the opening of a casino in Cagayan de Oro City.
Civic organizations angrily denounced the project. The religious elements echoed the objection and so
did the women's groups and the youth. Demonstrations were led by the mayor and the city legislators.
The media trumpeted the protest, describing the casino as an affront to the welfare of the city.

The trouble arose when in 1992, flush with its tremendous success in several cities, PAGCOR decided to
expand its operations to Cagayan de Oro City. To this end, it leased a portion of a building belonging to
Pryce Properties Corporation, Inc., one of the herein private respondents, renovated and equipped the
same, and prepared to inaugurate its casino there during the Christmas season.

The reaction of the Sangguniang Panlungsod of Cagayan de Oro City was swift and hostile. On December
7, 1992, it enacted Ordinance No. 3353 reading as follows:

ORDINANCE NO. 3353

AN ORDINANCE PROHIBITING THE ISSUANCE OF BUSINESS PERMIT AND CANCELLING EXISTING
BUSINESS PERMIT TO ANY ESTABLISHMENT FOR THE USING AND ALLOWING TO BE USED ITS PREMISES
OR PORTION THEREOF FOR THE OPERATION OF CASINO.

BE IT ORDAINED by the Sangguniang Panlungsod of the City of Cagayan de Oro, in session assembled
that:

Sec. 1. — That pursuant to the policy of the city banning the operation of casino within its territorial
jurisdiction, no business permit shall be issued to any person, partnership or corporation for the
operation of casino within the city limits.

Sec. 2. — That it shall be a violation of existing business permit by any persons, partnership or
corporation to use its business establishment or portion thereof, or allow the use thereof by others for
casino operation and other gambling activities.

Sec. 3. — PENALTIES. — Any violation of such existing business permit as defined in the preceding
section shall suffer the following penalties, to wit:

a) Suspension of the business permit for sixty (60) days for the first offense and a fine of
P1,000.00/day

b) Suspension of the business permit for Six (6) months for the second offense, and a fine of
P3,000.00/day

c) Permanent revocation of the business permit and imprisonment of One (1) year, for the third
and subsequent offenses.

Sec. 4. — This Ordinance shall take effect ten (10) days from publication thereof.
Nor was this all. On January 4, 1993, it adopted a sterner Ordinance No. 3375-93 reading as follows:

ORDINANCE NO. 3375-93

AN ORDINANCE PROHIBITING THE OPERATION OF CASINO AND PROVIDING PENALTY FOR VIOLATION
THEREFOR.

WHEREAS, the City Council established a policy as early as 1990 against CASINO under its Resolution No.
2295;

WHEREAS, on October 14, 1992, the City Council passed another Resolution No. 2673, reiterating its
policy against the establishment of CASINO;

WHEREAS, subsequently, thereafter, it likewise passed Ordinance No. 3353, prohibiting the issuance of
Business Permit and to cancel existing Business Permit to any establishment for the using and allowing
to be used its premises or portion thereof for the operation of CASINO;

WHEREAS, under Art. 3, section 458, No. (4), sub paragraph VI of the Local Government Code of 1991
(Rep. Act 7160) and under Art. 99, No. (4), Paragraph VI of the implementing rules of the Local
Government Code, the City Council as the Legislative Body shall enact measure to suppress any activity
inimical to public morals and general welfare of the people and/or regulate or prohibit such activity
pertaining to amusement or entertainment in order to protect social and moral welfare of the
community;

NOW THEREFORE,

BE IT ORDAINED by the City Council in session duly assembled that:

Sec. 1. — The operation of gambling CASINO in the City of Cagayan de Oro is hereby prohibited.
Sec. 2. — Any violation of this Ordinance shall be subject to the following penalties:

a) Administrative fine of P5,000.00 shall be imposed against the proprietor, partnership or

corporation undertaking the operation, conduct, maintenance of gambling CASINO in the City and
closure thereof;

b) Imprisonment of not less than six (6) months nor more than one (1) year or a fine in the amount
of P5,000.00 or both at the discretion of the court against the manager, supervisor, and/or any person
responsible in the establishment, conduct and maintenance of gambling CASINO.

Sec. 3. — This Ordinance shall take effect ten (10) days after its publication in a local newspaper of
general circulation.

Pryce assailed the ordinances before the Court of Appeals, where it was joined by PAGCOR as intervenor
and supplemental petitioner. Their challenge succeeded. On March 31, 1993, the Court of Appeals
declared the ordinances invalid and issued the writ prayed for to prohibit their enforcement. 1
Reconsideration of this decision was denied on July 13, 1993. 2

Cagayan de Oro City and its mayor are now before us in this petition for review under Rule 45 of the
Rules of Court. 3 They aver that the respondent Court of Appeals erred in holding that:

1. Under existing laws, the Sangguniang Panlungsod of the City of Cagayan de Oro does not have
the power and authority to prohibit the establishment and operation of a PAGCOR gambling casino
within the City's territorial limits.

2. The phrase "gambling and other prohibited games of chance" found in Sec. 458, par. (a), sub-
par. (1) — (v) of R.A. 7160 could only mean "illegal gambling."

3. The questioned Ordinances in effect annul P.D. 1869 and are therefore invalid on that point.
4. The questioned Ordinances are discriminatory to casino and partial to cockfighting and are
therefore invalid on that point.

5. The questioned Ordinances are not reasonable, not consonant with the general powers and
purposes of the instrumentality concerned and inconsistent with the laws or policy of the State.

6. It had no option but to follow the ruling in the case of Basco, et al. v. PAGCOR, G.R. No. 91649,
May 14, 1991, 197 SCRA 53 in disposing of the issues presented in this present case.

PAGCOR is a corporation created directly by P.D. 1869 to help centralize and regulate all games of
chance, including casinos on land and sea within the territorial jurisdiction of the Philippines. In Basco v.
Philippine Amusements and Gaming Corporation, 4 this Court sustained the constitutionality of the
decree and even cited the benefits of the entity to the national economy as the third highest revenue-
earner in the government, next only to the BIR and the Bureau of Customs.

Cagayan de Oro City, like other local political subdivisions, is empowered to enact ordinances for the
purposes indicated in the Local Government Code. It is expressly vested with the police power under
what is known as the General Welfare Clause now embodied in Section 16 as follows:

Sec. 16. — General Welfare. — Every local government unit shall exercise the powers expressly granted,
those necessarily implied therefrom, as well as powers necessary, appropriate, or incidental for its
efficient and effective governance, and those which are essential to the promotion of the general
welfare. Within their respective territorial jurisdictions, local government units shall ensure and support,
among other things, the preservation and enrichment of culture, promote health and safety, enhance
the right of the people to a balanced ecology, encourage and support the development of appropriate
and self-reliant scientific and technological capabilities, improve public morals, enhance economic
prosperity and social justice, promote full employment among their residents, maintain peace and
order, and preserve the comfort and convenience of their inhabitants.

In addition, Section 458 of the said Code specifically declares that:

Sec. 458. — Powers, Duties, Functions and Compensation. — (a) The Sangguniang Panlungsod, as
the legislative body of the city, shall enact ordinances, approve resolutions and appropriate funds for
the general welfare of the city and its inhabitants pursuant to Section 16 of this Code and in the proper
exercise of the corporate powers of the city as provided for under Section 22 of this Code, and shall:

(1) Approve ordinances and pass resolutions necessary for an efficient and effective city
government, and in this connection, shall:

xxx xxx xxx

(v) Enact ordinances intended to prevent, suppress and impose appropriate penalties for habitual
drunkenness in public places, vagrancy, mendicancy, prostitution, establishment and maintenance of
houses of ill repute, gambling and other prohibited games of chance, fraudulent devices and ways to
obtain money or property, drug addiction, maintenance of drug dens, drug pushing, juvenile
delinquency, the printing, distribution or exhibition of obscene or pornographic materials or
publications, and such other activities inimical to the welfare and morals of the inhabitants of the city;

This section also authorizes the local government units to regulate properties and businesses within
their territorial limits in the interest of the general welfare. 5

The petitioners argue that by virtue of these provisions, the Sangguniang Panlungsod may prohibit the
operation of casinos because they involve games of chance, which are detrimental to the people.
Gambling is not allowed by general law and even by the Constitution itself. The legislative power
conferred upon local government units may be exercised over all kinds of gambling and not only over
"illegal gambling" as the respondents erroneously argue. Even if the operation of casinos may have been
permitted under P.D. 1869, the government of Cagayan de Oro City has the authority to prohibit them
within its territory pursuant to the authority entrusted to it by the Local Government Code.

It is submitted that this interpretation is consonant with the policy of local autonomy as mandated in
Article II, Section 25, and Article X of the Constitution, as well as various other provisions therein seeking
to strengthen the character of the nation. In giving the local government units the power to prevent or
suppress gambling and other social problems, the Local Government Code has recognized the
competence of such communities to determine and adopt the measures best expected to promote the
general welfare of their inhabitants in line with the policies of the State.
The petitioners also stress that when the Code expressly authorized the local government units to
prevent and suppress gambling and other prohibited games of chance, like craps, baccarat, blackjack
and roulette, it meant all forms of gambling without distinction. Ubi lex non distinguit, nec nos
distinguere debemos. 6 Otherwise, it would have expressly excluded from the scope of their power
casinos and other forms of gambling authorized by special law, as it could have easily done. The fact that
it did not do so simply means that the local government units are permitted to prohibit all kinds of
gambling within their territories, including the operation of casinos.

The adoption of the Local Government Code, it is pointed out, had the effect of modifying the charter of
the PAGCOR. The Code is not only a later enactment than P.D. 1869 and so is deemed to prevail in case
of inconsistencies between them. More than this, the powers of the PAGCOR under the decree are
expressly discontinued by the Code insofar as they do not conform to its philosophy and provisions,
pursuant to Par. (f) of its repealing clause reading as follows:

(f) All general and special laws, acts, city charters, decrees, executive orders, proclamations and
administrative regulations, or part or parts thereof which are inconsistent with any of the provisions of
this Code are hereby repealed or modified accordingly.

It is also maintained that assuming there is doubt regarding the effect of the Local Government Code on
P.D. 1869, the doubt must be resolved in favor of the petitioners, in accordance with the direction in the
Code calling for its liberal interpretation in favor of the local government units. Section 5 of the Code
specifically provides:

Sec. 5. Rules of Interpretation. — In the interpretation of the provisions of this Code, the following
rules shall apply:

(a) Any provision on a power of a local government unit shall be liberally interpreted in its favor,
and in case of doubt, any question thereon shall be resolved in favor of devolution of powers and of the
lower local government unit. Any fair and reasonable doubt as to the existence of the power shall be
interpreted in favor of the local government unit concerned;

xxx xxx xxx

(c) The general welfare provisions in this Code shall be liberally interpreted to give more powers to
local government units in accelerating economic development and upgrading the quality of life for the
people in the community; . . . (Emphasis supplied.)

Finally, the petitioners also attack gambling as intrinsically harmful and cite various provisions of the
Constitution and several decisions of this Court expressive of the general and official disapprobation of
the vice. They invoke the State policies on the family and the proper upbringing of the youth and, as
might be expected, call attention to the old case of U.S. v. Salaveria, 7 which sustained a municipal
ordinance prohibiting the playing of panguingue. The petitioners decry the immorality of gambling. They
also impugn the wisdom of P.D. 1869 (which they describe as "a martial law instrument") in creating
PAGCOR and authorizing it to operate casinos "on land and sea within the territorial jurisdiction of the
Philippines."

This is the opportune time to stress an important point.

The morality of gambling is not a justiciable issue. Gambling is not illegal per se. While it is generally
considered inimical to the interests of the people, there is nothing in the Constitution categorically
proscribing or penalizing gambling or, for that matter, even mentioning it at all. It is left to Congress to
deal with the activity as it sees fit. In the exercise of its own discretion, the legislature may prohibit
gambling altogether or allow it without limitation or it may prohibit some forms of gambling and allow
others for whatever reasons it may consider sufficient. Thus, it has prohibited jueteng and monte but
permits lotteries, cockfighting and horse-racing. In making such choices, Congress has consulted its own
wisdom, which this Court has no authority to review, much less reverse. Well has it been said that courts
do not sit to resolve the merits of conflicting theories. 8 That is the prerogative of the political
departments. It is settled that questions regarding the wisdom, morality, or practicibility of statutes are
not addressed to the judiciary but may be resolved only by the legislative and executive departments, to
which the function belongs in our scheme of government. That function is exclusive. Whichever way
these branches decide, they are answerable only to their own conscience and the constituents who will
ultimately judge their acts, and not to the courts of justice.

The only question we can and shall resolve in this petition is the validity of Ordinance No. 3355 and
Ordinance No. 3375-93 as enacted by the Sangguniang Panlungsod of Cagayan de Oro City. And we shall
do so only by the criteria laid down by law and not by our own convictions on the propriety of gambling.
The tests of a valid ordinance are well established. A long line of decisions 9 has held that to be valid, an
ordinance must conform to the following substantive requirements:

1) It must not contravene the constitution or any statute.

2) It must not be unfair or oppressive.

3) It must not be partial or discriminatory.

4) It must not prohibit but may regulate trade.

5) It must be general and consistent with public policy.

6) It must not be unreasonable.

We begin by observing that under Sec. 458 of the Local Government Code, local government units are
authorized to prevent or suppress, among others, "gambling and other prohibited games of chance."
Obviously, this provision excludes games of chance which are not prohibited but are in fact permitted by
law. The petitioners are less than accurate in claiming that the Code could have excluded such games of
chance but did not. In fact it does. The language of the section is clear and unmistakable. Under the rule
of noscitur a sociis, a word or phrase should be interpreted in relation to, or given the same meaning of,
words with which it is associated. Accordingly, we conclude that since the word "gambling" is associated
with "and other prohibited games of chance," the word should be read as referring to only illegal
gambling which, like the other prohibited games of chance, must be prevented or suppressed.

We could stop here as this interpretation should settle the problem quite conclusively. But we will not.
The vigorous efforts of the petitioners on behalf of the inhabitants of Cagayan de Oro City, and the
earnestness of their advocacy, deserve more than short shrift from this Court.
The apparent flaw in the ordinances in question is that they contravene P.D. 1869 and the public policy
embodied therein insofar as they prevent PAGCOR from exercising the power conferred on it to operate
a casino in Cagayan de Oro City. The petitioners have an ingenious answer to this misgiving. They deny
that it is the ordinances that have changed P.D. 1869 for an ordinance admittedly cannot prevail against
a statute. Their theory is that the change has been made by the Local Government Code itself, which
was also enacted by the national lawmaking authority. In their view, the decree has been, not really
repealed by the Code, but merely "modified pro tanto" in the sense that PAGCOR cannot now operate a
casino over the objection of the local government unit concerned. This modification of P.D. 1869 by the
Local Government Code is permissible because one law can change or repeal another law.

It seems to us that the petitioners are playing with words. While insisting that the decree has only been
"modified pro tanto," they are actually arguing that it is already dead, repealed and useless for all
intents and purposes because the Code has shorn PAGCOR of all power to centralize and regulate
casinos. Strictly speaking, its operations may now be not only prohibited by the local government unit;
in fact, the prohibition is not only discretionary but mandated by Section 458 of the Code if the word
"shall" as used therein is to be given its accepted meaning. Local government units have now no choice
but to prevent and suppress gambling, which in the petitioners' view includes both legal and illegal
gambling. Under this construction, PAGCOR will have no more games of chance to regulate or centralize
as they must all be prohibited by the local government units pursuant to the mandatory duty imposed
upon them by the Code. In this situation, PAGCOR cannot continue to exist except only as a toothless
tiger or a white elephant and will no longer be able to exercise its powers as a prime source of
government revenue through the operation of casinos.

It is noteworthy that the petitioners have cited only Par. (f) of the repealing clause, conveniently
discarding the rest of the provision which painstakingly mentions the specific laws or the parts thereof
which are repealed (or modified) by the Code. Significantly, P.D. 1869 is not one of them. A reading of
the entire repealing clause, which is reproduced below, will disclose the omission:

Sec. 534. Repealing Clause. — (a) Batas Pambansa Blg. 337, otherwise known as the "Local
Government Code," Executive Order No. 112 (1987), and Executive Order No. 319 (1988) are hereby
repealed.

(b) Presidential Decree Nos. 684, 1191, 1508 and such other decrees, orders, instructions,
memoranda and issuances related to or concerning the barangay are hereby repealed.
(c) The provisions of Sections 2, 3, and 4 of Republic Act No. 1939 regarding hospital fund; Section
3, a (3) and b (2) of Republic Act. No. 5447 regarding the Special Education Fund; Presidential Decree No.
144 as amended by Presidential Decree Nos. 559 and 1741; Presidential Decree No. 231 as amended;
Presidential Decree No. 436 as amended by Presidential Decree No. 558; and Presidential Decree Nos.
381, 436, 464, 477, 526, 632, 752, and 1136 are hereby repealed and rendered of no force and effect.

(d) Presidential Decree No. 1594 is hereby repealed insofar as it governs locally-funded projects.

(e) The following provisions are hereby repealed or amended insofar as they are inconsistent with
the provisions of this Code: Sections 2, 16, and 29 of Presidential Decree No. 704; Sections 12 of
Presidential Decree No. 87, as amended; Sections 52, 53, 66, 67, 68, 69, 70, 71, 72, 73, and 74 of
Presidential Decree No. 463, as amended; and Section 16 of Presidential Decree No. 972, as amended,
and

(f) All general and special laws, acts, city charters, decrees, executive orders, proclamations and
administrative regulations, or part or parts thereof which are inconsistent with any of the provisions of
this Code are hereby repealed or modified accordingly.

Furthermore, it is a familiar rule that implied repeals are not lightly presumed in the absence of a clear
and unmistakable showing of such intention. In Lichauco & Co. v. Apostol, 10 this Court explained:

The cases relating to the subject of repeal by implication all proceed on the assumption that if the act of
later date clearly reveals an intention on the part of the lawmaking power to abrogate the prior law, this
intention must be given effect; but there must always be a sufficient revelation of this intention, and it
has become an unbending rule of statutory construction that the intention to repeal a former law will
not be imputed to the Legislature when it appears that the two statutes, or provisions, with reference to
which the question arises bear to each other the relation of general to special.

There is no sufficient indication of an implied repeal of P.D. 1869. On the contrary, as the private
respondent points out, PAGCOR is mentioned as the source of funding in two later enactments of
Congress, to wit, R.A. 7309, creating a Board of Claims under the Department of Justice for the benefit
of victims of unjust punishment or detention or of violent crimes, and R.A. 7648, providing for measures
for the solution of the power crisis. PAGCOR revenues are tapped by these two statutes. This would
show that the PAGCOR charter has not been repealed by the Local Government Code but has in fact
been improved as it were to make the entity more responsive to the fiscal problems of the government.

It is a canon of legal hermeneutics that instead of pitting one statute against another in an inevitably
destructive confrontation, courts must exert every effort to reconcile them, remembering that both
laws deserve a becoming respect as the handiwork of a coordinate branch of the government. On the
assumption of a conflict between P.D. 1869 and the Code, the proper action is not to uphold one and
annul the other but to give effect to both by harmonizing them if possible. This is possible in the case
before us. The proper resolution of the problem at hand is to hold that under the Local Government
Code, local government units may (and indeed must) prevent and suppress all kinds of gambling within
their territories except only those allowed by statutes like P.D. 1869. The exception reserved in such
laws must be read into the Code, to make both the Code and such laws equally effective and mutually
complementary.

This approach would also affirm that there are indeed two kinds of gambling, to wit, the illegal and
those authorized by law. Legalized gambling is not a modern concept; it is probably as old as illegal
gambling, if not indeed more so. The petitioners' suggestion that the Code authorizes them to prohibit
all kinds of gambling would erase the distinction between these two forms of gambling without a clear
indication that this is the will of the legislature. Plausibly, following this theory, the City of Manila could,
by mere ordinance, prohibit the Philippine Charity Sweepstakes Office from conducting a lottery as
authorized by R.A. 1169 and B.P. 42 or stop the races at the San Lazaro Hippodrome as authorized by
R.A. 309 and R.A. 983.

In light of all the above considerations, we see no way of arriving at the conclusion urged on us by the
petitioners that the ordinances in question are valid. On the contrary, we find that the ordinances
violate P.D. 1869, which has the character and force of a statute, as well as the public policy expressed
in the decree allowing the playing of certain games of chance despite the prohibition of gambling in
general.

The rationale of the requirement that the ordinances should not contravene a statute is obvious.
Municipal governments are only agents of the national government. Local councils exercise only
delegated legislative powers conferred on them by Congress as the national lawmaking body. The
delegate cannot be superior to the principal or exercise powers higher than those of the latter. It is a
heresy to suggest that the local government units can undo the acts of Congress, from which they have
derived their power in the first place, and negate by mere ordinance the mandate of the statute.
Municipal corporations owe their origin to, and derive their powers and rights wholly from the
legislature. It breathes into them the breath of life, without which they cannot exist. As it creates, so it
may destroy. As it may destroy, it may abridge and control. Unless there is some constitutional
limitation on the right, the legislature might, by a single act, and if we can suppose it capable of so great
a folly and so great a wrong, sweep from existence all of the municipal corporations in the State, and the
corporation could not prevent it. We know of no limitation on the right so far as to the corporation
themselves are concerned. They are, so to phrase it, the mere tenants at will of the legislature. 11

This basic relationship between the national legislature and the local government units has not been
enfeebled by the new provisions in the Constitution strengthening the policy of local autonomy.
Without meaning to detract from that policy, we here confirm that Congress retains control of the local
government units although in significantly reduced degree now than under our previous Constitutions.
The power to create still includes the power to destroy. The power to grant still includes the power to
withhold or recall. True, there are certain notable innovations in the Constitution, like the direct
conferment on the local government units of the power to tax, 12 which cannot now be withdrawn by
mere statute. By and large, however, the national legislature is still the principal of the local government
units, which cannot defy its will or modify or violate it.

The Court understands and admires the concern of the petitioners for the welfare of their constituents
and their apprehensions that the welfare of Cagayan de Oro City will be endangered by the opening of
the casino. We share the view that "the hope of large or easy gain, obtained without special effort, turns
the head of the workman" 13 and that "habitual gambling is a cause of laziness and ruin." 14 In People v.
Gorostiza, 15 we declared: "The social scourge of gambling must be stamped out. The laws against
gambling must be enforced to the limit." George Washington called gambling "the child of avarice, the
brother of iniquity and the father of mischief." Nevertheless, we must recognize the power of the
legislature to decide, in its own wisdom, to legalize certain forms of gambling, as was done in P.D. 1869
and impliedly affirmed in the Local Government Code. That decision can be revoked by this Court only if
it contravenes the Constitution as the touchstone of all official acts. We do not find such contravention
here.

We hold that the power of PAGCOR to centralize and regulate all games of chance, including casinos on
land and sea within the territorial jurisdiction of the Philippines, remains unimpaired. P.D. 1869 has not
been modified by the Local Government Code, which empowers the local government units to prevent
or suppress only those forms of gambling prohibited by law.
Casino gambling is authorized by P.D. 1869. This decree has the status of a statute that cannot be
amended or nullified by a mere ordinance. Hence, it was not competent for the Sangguniang
Panlungsod of Cagayan de Oro City to enact Ordinance No. 3353 prohibiting the use of buildings for the
operation of a casino and Ordinance No. 3375-93 prohibiting the operation of casinos. For all their
praiseworthy motives, these ordinances are contrary to P.D. 1869 and the public policy announced
therein and are therefore ultra vires and void.

WHEREFORE, the petition is DENIED and the challenged decision of the respondent Court of Appeals is
AFFIRMED, with costs against the petitioners. It is so ordered.

Narvasa, C.J., Feliciano, Bidin, Regalado, Romero, Bellosillo, Melo, Quiason, Puno, Vitug, Kapunan and
Mendoza, JJ., concur.
G.R. No. 89651 November 10, 1989

DATU FIRDAUSI I.Y. ABBAS, DATU BLO UMPAR ADIONG, DATU MACALIMPOWAC DELANGALEN, CELSO
PALMA, ALI MONTANA BABAO, JULMUNIR JANNARAL, RASHID SABER, and DATU JAMAL ASHLEY ABBAS,
representing the other taxpayers of Mindanao, petitioners,

vs.

COMMISSION ON ELECTIONS, and HONORABLE GUILLERMO C. CARAGUE, DEPARTMENT SECRETARY OF

BUDGET AND MANAGEMENT, respondents.

G.R. No. 89965 November 10, 1989

ATTY. ABDULLAH D. MAMA-O, petitioner,

vs.

HON. GUILLERMO CARAGUE, in his capacity as the Secretary of the Budget, and the COMMISSION ON
ELECTIONS, respondents.

Abbas, Abbas, Amora, Alejandro-Abbas & Associates for petitioners in G.R. Nos. 89651 and 89965.

Abdullah D. Mama-o for and in his own behalf in 89965.

CORTES, J.:

The present controversy relates to the plebiscite in thirteen (13) provinces and nine (9) cities in
Mindanao and Palawan, 1 scheduled for November 19, 1989, in implementation of Republic Act No.
6734, entitled "An Act Providing for an Organic Act for the Autonomous Region in Muslim Mindanao."
These consolidated petitions pray that the Court: (1) enjoin the Commission on Elections (COMELEC)
from conducting the plebiscite and the Secretary of Budget and Management from releasing funds to
the COMELEC for that purpose; and (2) declare R.A. No. 6734, or parts thereof, unconstitutional .

After a consolidated comment was filed by Solicitor General for the respondents, which the Court
considered as the answer, the case was deemed submitted for decision, the issues having been joined.
Subsequently, petitioner Mama-o filed a "Manifestation with Motion for Leave to File Reply on
Respondents' Comment and to Open Oral Arguments," which the Court noted.

The arguments against R.A. 6734 raised by petitioners may generally be categorized into either of the
following:

(a) that R.A. 6734, or parts thereof, violates the Constitution, and

(b) that certain provisions of R.A. No. 6734 conflict with the Tripoli Agreement.

The Tripoli Agreement, more specifically, the Agreement Between the government of the Republic of
the Philippines of the Philippines and Moro National Liberation Front with the Participation of the
Quadripartie Ministerial Commission Members of the Islamic Conference and the Secretary General of
the Organization of Islamic Conference" took effect on December 23, 1976. It provided for "[t]he
establishment of Autonomy in the southern Philippines within the realm of the sovereignty and
territorial integrity of the Republic of the Philippines" and enumerated the thirteen (13) provinces
comprising the "areas of autonomy." 2

In 1987, a new Constitution was ratified, which the for the first time provided for regional autonomy,
Article X, section 15 of the charter provides that "[t]here 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."

To effectuate this mandate, the Constitution further provides:

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

Sec. 17. All powers, functions, and responsibilities not granted by this Constitution or by law to the
autonomous regions shall be vested in the National Government.

Sec. 18. The Congress shall enact an organic act for each autonomous region with the assistance and
participation of the regional consultative commission composed of representatives appointed by the
President from a list of nominees from multisectoral bodies. The organic act shall define the basic
structure of government for the region consisting of the executive and representative of the constituent
political units. The organic acts shall likewise provide for special courts with personal, family, and
property law jurisdiction consistent with the provisions of this Constitution and national laws.

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

Sec. 19 The first Congress elected under this Constitution shall, within eighteen months from the time
of organization of both Houses, pass the organic acts for the autonomous regions in Muslim Mindanao
and the Cordilleras.

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.

Sec. 21. The preservation of peace and order within the regions shall be the responsibility of the local
police agencies which shall be organized, maintained, supervised, and utilized in accordance with
applicable laws. The defense and security of the region shall be the responsibility of the National
Government.

Pursuant to the constitutional mandate, R.A. No. 6734 was enacted and signed into law on August 1,
1989.

1. The Court shall dispose first of the second category of arguments raised by petitioners, i.e. that
certain provisions of R.A. No. 6734 conflict with the provisions of the Tripoli Agreement.

Petitioners premise their arguments on the assumption that the Tripoli Agreement is part of the law of
the land, being a binding international agreement . The Solicitor General asserts that the Tripoli
Agreement is neither a binding treaty, not having been entered into by the Republic of the Philippines
with a sovereign state and ratified according to the provisions of the 1973 or 1987 Constitutions, nor a
binding international agreement.

We find it neither necessary nor determinative of the case to rule on the nature of the Tripoli
Agreement and its binding effect on the Philippine Government whether under public international or
internal Philippine law. In the first place, it is now the Constitution itself that provides for the creation of
an autonomous region in Muslim Mindanao. The standard for any inquiry into the validity of R.A. No.
6734 would therefore be what is so provided in the Constitution. Thus, any conflict between the
provisions of R.A. No. 6734 and the provisions of the Tripoli Agreement will not have the effect of
enjoining the implementation of the Organic Act. Assuming for the sake of argument that the Tripoli
Agreement is a binding treaty or international agreement, it would then constitute part of the law of the
land. But as internal law it would not be superior to R.A. No. 6734, an enactment of the Congress of the
Philippines, rather it would be in the same class as the latter [SALONGA, PUBLIC INTERNATIONAL LAW
320 (4th ed., 1974), citing Head Money Cases, 112 U.S. 580 (1884) and Foster v. Nelson, 2 Pet. 253
(1829)]. Thus, if at all, R.A. No. 6734 would be amendatory of the Tripoli Agreement, being a subsequent
law. Only a determination by this Court that R.A. No. 6734 contravened the Constitution would result in
the granting of the reliefs sought. 3

2. The Court shall therefore only pass upon the constitutional questions which have been raised by
petitioners.

Petitioner Abbas argues that R.A. No. 6734 unconditionally creates an autonomous region in Mindanao,
contrary to the aforequoted provisions of the Constitution on the autonomous region which make the
creation of such region dependent upon the outcome of the plebiscite.

In support of his argument, petitioner cites Article II, section 1(1) of R.A. No. 6734 which declares that
"[t]here is hereby created the Autonomous Region in Muslim Mindanao, to be composed of provinces
and cities voting favorably in the plebiscite called for the purpose, in accordance with Section 18, Article
X of the Constitution." Petitioner contends that the tenor of the above provision makes the creation of
an autonomous region absolute, such that even if only two provinces vote in favor of autonomy, an
autonomous region would still be created composed of the two provinces where the favorable votes
were obtained.

The matter of the creation of the autonomous region and its composition needs to be clarified.
Firs, the questioned provision itself in R.A. No. 6734 refers to Section 18, Article X of the Constitution
which sets forth the conditions necessary for the creation of the autonomous region. The reference to
the constitutional provision cannot be glossed over for it clearly indicates that the creation of the
autonomous region shall take place only in accord with the constitutional requirements. Second, there is
a specific provision in the Transitory Provisions (Article XIX) of the Organic Act, which incorporates
substantially the same requirements embodied in the Constitution and fills in the details, thus:

SEC. 13. The creation of the Autonomous Region in Muslim Mindanao shall take effect when approved
by a majority of the votes cast by the constituent units provided in paragraph (2) of Sec. 1 of Article II of
this Act in a plebiscite which shall be held not earlier than ninety (90) days or later than one hundred
twenty (120) days after the approval of this Act: Provided, That only the provinces and cities voting
favorably in such plebiscite shall be included in the Autonomous Region in Muslim Mindanao. The
provinces and cities which in the plebiscite do not vote for inclusion in the Autonomous Region shall
remain the existing administrative determination, merge the existing regions.

Thus, under the Constitution and R.A. No 6734, the creation of the autonomous region shall take effect
only when approved by a majority of the votes cast by the constituent units in a plebiscite, and only
those provinces and cities where a majority vote in favor of the Organic Act shall be included in the
autonomous region. The provinces and cities wherein such a majority is not attained shall not be
included in the autonomous region. It may be that even if an autonomous region is created, not all of
the thirteen (13) provinces and nine (9) cities mentioned in Article II, section 1 (2) of R.A. No. 6734 shall
be included therein. The single plebiscite contemplated by the Constitution and R.A. No. 6734 will
therefore be determinative of (1) whether there shall be an autonomous region in Muslim Mindanao
and (2) which provinces and cities, among those enumerated in R.A. No. 6734, shall compromise it. [See
III RECORD OF THE CONSTITUTIONAL COMMISSION 482-492 (1986)].

As provided in the Constitution, the creation of the Autonomous region in Muslim Mindanao is made
effective upon the approval "by majority of the votes cast by the constituent units in a plebiscite called
for the purpose" [Art. X, sec. 18]. The question has been raised as to what this majority means. Does it
refer to a majority of the total votes cast in the plebiscite in all the constituent units, or a majority in
each of the constituent units, or both?

We need not go beyond the Constitution to resolve this question.

If the framers of the Constitution intended to require approval by a majority of all the votes cast in the
plebiscite they would have so indicated. Thus, in Article XVIII, section 27, it is provided that "[t]his
Constitution shall take effect immediately upon its ratification by a majority of the votes cast in a
plebiscite held for the purpose ... Comparing this with the provision on the creation of the autonomous
region, which reads:

The creation of the autonomous region shall be effective when approved by 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. [Art. X,
sec, 18, para, 2].

it will readily be seen that the creation of the autonomous region is made to depend, not on the total
majority vote in the plebiscite, but on the will of the majority in each of the constituent units and the
proviso underscores this. for if the intention of the framers of the Constitution was to get the majority of
the totality of the votes cast, they could have simply adopted the same phraseology as that used for the
ratification of the Constitution, i.e. "the creation of the autonomous region shall be effective when
approved by a majority of the votes cast in a plebiscite called for the purpose."

It is thus clear that what is required by the Constitution is a simple majority of votes approving the
organic Act in individual constituent units and not a double majority of the votes in all constituent units
put together, as well as in the individual constituent units.

More importantly, because of its categorical language, this is also the sense in which the vote
requirement in the plebiscite provided under Article X, section 18 must have been understood by the
people when they ratified the Constitution.

Invoking the earlier cited constitutional provisions, petitioner Mama-o, on the other hand, maintains
that only those areas which, to his view, share common and distinctive historical and cultural heritage,
economic and social structures, and other relevant characteristics should be properly included within
the coverage of the autonomous region. He insists that R.A. No. 6734 is unconstitutional because only
the provinces of Basilan, Sulu, Tawi-Tawi, Lanao del Sur, Lanao del Norte and Maguindanao and the
cities of Marawi and Cotabato, and not all of the thirteen (13) provinces and nine (9) cities included in
the Organic Act, possess such concurrence in historical and cultural heritage and other relevant
characteristics. By including areas which do not strictly share the same characteristics. By including areas
which do not strictly share the same characteristic as the others, petitioner claims that Congress has
expanded the scope of the autonomous region which the constitution itself has prescribed to be limited.

Petitioner's argument is not tenable. The Constitution lays down the standards by which Congress shall
determine which areas should constitute the autonomous region. Guided by these constitutional
criteria, the ascertainment by Congress of the areas that share common attributes is within the exclusive
realm of the legislature's discretion. Any review of this ascertainment would have to go into the wisdom
of the law. This the Court cannot do without doing violence to the separation of governmental powers.
[Angara v. Electoral Commission, 63 Phil 139 (1936); Morfe v. Mutuc, G.R. No. L-20387, January 31,
1968, 22 SCRA 424].

After assailing the inclusion of non-Muslim areas in the Organic Act for lack of basis, petitioner Mama-o
would then adopt the extreme view that other non-Muslim areas in Mindanao should likewise be
covered. He argues that since the Organic Act covers several non-Muslim areas, its scope should be
further broadened to include the rest of the non-Muslim areas in Mindanao in order for the other non-
Muslim areas denies said areas equal protection of the law, and therefore is violative of the
Constitution.

Petitioner's contention runs counter to the very same constitutional provision he had earlier invoked.
Any determination by Congress of what areas in Mindanao should compromise the autonomous region,
taking into account shared historical and cultural heritage, economic and social structures, and other
relevant characteristics, would necessarily carry with it the exclusion of other areas. As earlier stated,
such determination by Congress of which areas should be covered by the organic act for the
autonomous region constitutes a recognized legislative prerogative, whose wisdom may not be inquired
into by this Court.

Moreover, equal protection permits of reasonable classification [People v. Vera, 65 Phil. 56 (1963);
Laurel v. Misa, 76 Phil. 372 (1946); J.M. Tuason and Co. v. Land tenure Administration, G.R. No. L-21064,
February 18, 1970, 31 SCRA 413]. In Dumlao v. Commission on Elections G.R. No. 52245, January 22,
1980, 95 SCRA 392], the Court ruled that once class may be treated differently from another where the
groupings are based on reasonable and real distinctions. The guarantee of equal protection is thus not
infringed in this case, the classification having been made by Congress on the basis of substantial
distinctions as set forth by the Constitution itself.
Both petitions also question the validity of R.A. No. 6734 on the ground that it violates the constitutional
guarantee on free exercise of religion [Art. III, sec. 5]. The objection centers on a provision in the Organic
Act which mandates that should there be any conflict between the Muslim Code [P.D. No. 1083] and the
Tribal Code (still be enacted) on the one had, and the national law on the other hand, the Shari'ah courts
created under the same Act should apply national law. Petitioners maintain that the islamic law
(Shari'ah) is derived from the Koran, which makes it part of divine law. Thus it may not be subjected to
any "man-made" national law. Petitioner Abbas supports this objection by enumerating possible
instances of conflict between provisions of the Muslim Code and national law, wherein an application of
national law might be offensive to a Muslim's religious convictions.

As enshrined in the Constitution, judicial power includes the duty to settle actual controversies involving
rights which are legally demandable and enforceable. [Art. VIII, Sec. 11. As a condition precedent for the
power to be exercised, an actual controversy between litigants must first exist [Angara v. Electoral
Commission, supra; Tan v. Macapagal, G.R. No. L-34161, February 29, 1972, 43 SCRA 677]. In the present
case, no actual controversy between real litigants exists. There are no conflicting claims involving the
application of national law resulting in an alleged violation of religious freedom. This being so, the Court
in this case may not be called upon to resolve what is merely a perceived potential conflict between the
provisions the Muslim Code and national law.

Petitioners also impugn the constitutionality of Article XIX, section 13 of R.A. No. 6734 which, among
others, states:

. . . Provided, That only the provinces and cities voting favorably in such plebiscite shall be included in
the Autonomous Region in Muslim Mindanao. The provinces and cities which in the plebiscite do not
vote for inclusion in the Autonomous Region shall remain in the existing administrative regions:
Provided, however, that the President may, by administrative determination, merge the existing regions.

According to petitioners, said provision grants the President the power to merge regions, a power which
is not conferred by the Constitution upon the President. That the President may choose to merge
existing regions pursuant to the Organic Act is challenged as being in conflict with Article X, Section 10 of
the Constitution which provides:

No province, city, municipality, or barangay may be created, divided, merged, abolished, or its boundary
substantially altered, except in accordance with the criteria established in the local government code
and subject to approval by a majority of the votes cast in a plebiscite in the political units directly
affected.

It must be pointed out that what is referred to in R.A. No. 6734 is the merger of administrative regions,
i.e. Regions I to XII and the National Capital Region, which are mere groupings of contiguous provinces
for administrative purposes [Integrated Reorganization Plan (1972), which was made as part of the law
of the land by Pres. dec. No. 1, Pres. Dec. No. 742]. Administrative regions are not territorial and political
subdivisions like provinces, cities, municipalities and barangays [see Art. X, sec. 1 of the Constitution].
While the power to merge administrative regions is not expressly provided for in the Constitution, it is a
power which has traditionally been lodged with the President to facilitate the exercise of the power of
general supervision over local governments [see Art. X, sec. 4 of the Constitution]. There is no conflict
between the power of the President to merge administrative regions with the constitutional provision
requiring a plebiscite in the merger of local government units because the requirement of a plebiscite in
a merger expressly applies only to provinces, cities, municipalities or barangays, not to administrative
regions.

Petitioners likewise question the validity of provisions in the Organic Act which create an Oversight
Committee to supervise the transfer to the autonomous region of the powers, appropriations, and
properties vested upon the regional government by the organic Act [Art. XIX, Secs. 3 and 4]. Said
provisions mandate that the transfer of certain national government offices and their properties to the
regional government shall be made pursuant to a schedule prescribed by the Oversight Committee, and
that such transfer should be accomplished within six (6) years from the organization of the regional
government.

It is asserted by petitioners that such provisions are unconstitutional because while the Constitution
states that the creation of the autonomous region shall take effect upon approval in a plebiscite, the
requirement of organizing an Oversight committee tasked with supervising the transfer of powers and
properties to the regional government would in effect delay the creation of the autonomous region.

Under the Constitution, the creation of the autonomous region hinges only on the result of the
plebiscite. if the Organic Act is approved by majority of the votes cast by constituent units in the
scheduled plebiscite, the creation of the autonomous region immediately takes effect delay the creation
of the autonomous region.
Under the constitution, the creation of the autonomous region hinges only on the result of the
plebiscite. if the Organic Act is approved by majority of the votes cast by constituent units in the
scheduled plebiscite, the creation of the autonomous region immediately takes effect. The questioned
provisions in R.A. No. 6734 requiring an oversight Committee to supervise the transfer do not provide
for a different date of effectivity. Much less would the organization of the Oversight Committee cause
an impediment to the operation of the Organic Act, for such is evidently aimed at effecting a smooth
transition period for the regional government. The constitutional objection on this point thus cannot be
sustained as there is no bases therefor.

Every law has in its favor the presumption of constitutionality [Yu Cong Eng v. Trinidad, 47 Phil. 387
(1925); Salas v. Jarencio, G.R. No. L-29788, August 30, 1979, 46 SCRA 734; Morfe v. Mutuc, supra;
Peralta v. COMELEC, G.R. No. L-47771, March 11, 1978, 82 SCRA 30]. Those who petition this Court to
declare a law, or parts thereof, unconstitutional must clearly establish the basis for such a declaration.
otherwise, their petition must fail. Based on the grounds raised by petitioners to challenge the
constitutionality of R.A. No. 6734, the Court finds that petitioners have failed to overcome the
presumption. The dismissal of these two petitions is, therefore, inevitable.

WHEREFORE, the petitions are DISMISSED for lack of merit.

SO ORDERED.

Fernan, C.J., Narvasa, Gutierrez, Jr., Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin, Sarmiento, Griño-
Aquino, Medialdea and Regalado, JJ., concur.

Melencio-Herrera, J., is on leave.

G.R. No. 96754 June 22, 1995

CONGRESSMAN JAMES L. CHIONGBIAN (Third District, South Cotobato) ADELBERT W. ANTONINO (First
District, South Cotobato), WILFREDO G. CAINGLET (Third District, Zamboanga del Norte), HILARION
RAMIRO, JR. (Second Division, Misamis Occidental), ERNESTO S. AMATONG (Second District, Zamboanga
del Norte), ALVIN G. DANS (Lone District, Basilan), ABDULLAH M. DIMAPORO (Second District, Lanao del
Norte), and CONGRESSWOMAN MARIA CLARA A. LOBREGAT (Lone District, Zamboanga City) petitioners,

vs.

HON. OSCAR M. ORBOS, Executive Secretary; COMMITTEE CHAIRMAN SEC. FIDEL V. RAMOS, CABINET
OFFICERS FOR REGIONAL DEVELOPMENT FOR REGIONS X AND XII, CHAIRMAN OF THE REGIONAL
DEVELOPMENT COUNCIL FOR REGION X, CHAIRMAN JESUS V. AYALA, CABINET OFFICERS FOR REGIONAL
DEVELOPMENT FOR REGIONS XI and XII, DEPARTMENT OF LOCAL GOVERNMENT, NATIONAL ECONOMIC
AND DEVELOPMENT AUTHORITY SECRETARIAT, PRESIDENTIAL MANAGEMENT STAFF, HON. GUILLERMO
CARAGUE, Secretary of the DEPARTMENT OF BUDGET and MANAGEMENT; and HON. ROSALINA S.
CAJUCUM, OIC National Treasurer, respondents.

IMMANUEL JALDON, petitioner,

vs.

HON. EXECUTIVE SECRETARY OSCAR M. ORBOS, HON. FIDEL RAMOS, HON. SECRETARY LUIS SANTOS,
AND HON. NATIONAL TREASURER ROSALINA CAJUCOM, respondents.

MENDOZA, J.:

These suits challenge the validity of a provision of the Organic Act for the Autonomous Region in Muslim
Mindanao (R.A. No. 6734), authorizing the President of the Philippines to "merge" by administrative
determination the regions remaining after the establishment of the Autonomous Region, and the
Executive Order issued by the President pursuant to such authority, "Providing for the Reorganization of
Administrative Regions in Mindanao." A temporary restraining order prayed for by the petitioners was
issued by this Court on January 29, 1991, enjoining the respondents from enforcing the Executive Order
and statute in question.
The facts are as follows:

Pursuant to Art. X, §18 of the 1987 Constitution, Congress passed R.A. No. 6734, the Organic Act for the
Autonomous Region in Muslim Mindanao, calling for a plebiscite to be held in the provinces of Basilan,
Cotobato, Davao del Sur, Lanao del Norte, Lanao del Sur, Maguindanao, Palawan, South Cotabato,
Sultan Kudarat, Sulu, Tawi-Tawi, Zamboanga del Norte, and Zamboanga del Sur, and the cities of
Cotabato, Dapitan, Dipolog, General Santos, Iligan, Marawi, Pagadian, Puerto Princesa and Zamboanga.
In the ensuing plebiscite held on November 16, 1989, four provinces voted in favor of creating an
autonomous region. These are the provinces of Lanao del Sur, Maguindanao, Sulu and Tawi-Tawi. In
accordance with the constitutional provision, these provinces became the Autonomous Region in
Muslim Mindanao.

On the other hand, with respect to provinces and cities not voting in favor of the Autonomous Region,
Art. XIX, § 13 of R.A. No. 6734 provides,

That only the provinces and cities voting favorably in such plebiscites shall be included in the
Autonomous Region in Muslim Mindanao. The provinces and cities which in the plebiscite do not vote
for inclusion in the Autonomous Region shall remain in the existing administrative regions. Provided,
however, that the President may, by administrative determination, merge the existing regions.

Pursuant to the authority granted by this provision, then President Corazon C. Aquino issued on October
12, 1990 Executive Order No. 429, "providing for the Reorganization of the Administrative Regions in
Mindanao." Under this Order, as amended by E.O. No. 439 —

(1) Misamis Occidental, at present part of Region X, will become part of Region IX.

(2) Oroquieta City, Tangub City and Ozamiz City, at present parts of Region X will become parts of
Region IX.

(3) South Cotobato, at present a part of Region XI, will become part of Region XII.
(4) General Santos City, at present part of Region XI, will become part of Region XII.

(5) Lanao del Norte, at present part of Region XII, will become part of Region IX.

(6) Iligan City and Marawi City, at present part of Region XII, will become part of Region IX.

Petitioners in G.R. No. 96754 are, or at least at the time of the filing of their petition, members of
Congress representing various legislative districts in South Cotobato, Zamboanga del Norte, Basilan,
Lanao del Norte and Zamboanga City. On November 12, 1990, they wrote then President Aquino
protesting E.O. No. 429. They contended that

There is no law which authorizes the President to pick certain provinces and cities within the existing
regions — some of which did not even take part in the plebiscite as in the case of the province of
Misamis Occidental and the cities of Oroquieta, Tangub and Ozamiz — and restructure them to new
administrative regions. On the other hand, the law (Sec. 13, Art. XIX, R.A. 6734) is specific to the point,
that is, that "the provinces and cities which in the plebiscite do not vote for inclusion in the Autonomous
Region shall remain in the existing administrative regions."

The transfer of the provinces of Misamis Occidental from Region X to Region IX; Lanao del Norte from
Region XII to Region IX, and South Cotobato from Region XI to Region XII are alterations of the existing
structures of governmental units, in other words, reorganization. This can be gleaned from Executive
Order No. 429, thus

Whereas, there is an urgent need to reorganize the administrative regions in Mindanao to guarantee the
effective delivery of field services of government agencies taking into consideration the formation of the
Autonomous Region in Muslim Mindanao.

With due respect to Her Excellency, we submit that while the authority necessarily includes the
authority to merge, the authority to merge does not include the authority to reorganize. Therefore, the
President's authority under RA 6734 to "merge existing regions" cannot be construed to include the
authority to reorganize them. To do so will violate the rules of statutory construction.
The transfer of regional centers under Executive Order 429 is actually a restructuring (reorganization) of
administrative regions. While this reorganization, as in Executive Order 429, does not affect the
apportionment of congressional representatives, the same is not valid under the penultimate paragraph
of Sec. 13, Art. XIX of R.A. 6734 and Ordinance appended to the 1986 Constitution apportioning the
seats of the House of Representatives of Congress of the Philippines to the different legislative districts
in provinces and cities. 1

As their protest went unheeded, while Inauguration Ceremonies of the New Administrative Region IX
were scheduled on January 26, 1991, petitioners brought this suit for certiorari and prohibition.

On the other hand, the petitioner in G.R. No. 96673, Immanuel Jaldon, is a resident of Zamboanga City,
who is suing in the capacity of taxpayer and citizen of the Republic of the Philippines.

Petitioners in both cases contend that Art. XIX, §13 of R.A. No. 6734 is unconstitutional because (1) it
unduly delegates legislative power to the President by authorizing him to "merge [by administrative
determination] the existing regions" or at any rate provides no standard for the exercise of the power
delegated and (2) the power granted is not expressed in the title of the law.

In addition, petitioner in G.R. No. 96673 challenges the validity of E.O. No. 429 on the ground that the
power granted by Art. XIX, §13 to the President is only to "merge regions IX and XII" but not to
reorganize the entire administrative regions in Mindanao and certainly not to transfer the regional
center of Region IX from Zamboanga City to Pagadian City.

The Solicitor General defends the reorganization of regions in Mindanao by E.O. No. 429 as merely the
exercise of a power "traditionally lodged in the President," as held in Abbas v. Comelec, 2 and as a mere
incident of his power of general supervision over local governments and control of executive
departments, bureaus and offices under Art. X, §16 and Art. VII, §17, respectively, of the Constitution.

He contends that there is no undue delegation of legislative power but only a grant of the power to "fill
up" or provide the details of legislation because Congress did not have the facility to provide for them.
He cites by analogy the case of Municipality of Cardona v. Municipality of Binangonan, 3 in which the
power of the Governor-General to fix municipal boundaries was sustained on the ground that —
[such power] is simply a transference of certain details with respect to provinces, municipalities, and
townships, many of them newly created, and all of them subject to a more or less rapid change both in
development and centers of population, the proper regulation of which might require not only prompt
action but action of such a detailed character as not to permit the legislative body, as such, to take it
efficiently.

The Solicitor General justifies the grant to the President of the power "to merge the existing regions" as
something fairly embraced in the title of R.A. No. 6734, to wit, "An Act Providing for an Organic Act for
the Autonomous Region in Muslim Mindanao," because it is germane to it.

He argues that the power is not limited to the merger of those regions in which the provinces and cities
which took part in the plebiscite are located but that it extends to all regions in Mindanao as
necessitated by the establishment of the autonomous region.

Finally, he invokes P.D. No. 1416, as amended by P.D. No. 1772 which provides:

1. The President of the Philippines shall have the continuing authority to reorganize the National
Government. In exercising this authority, the President shall be guided by generally acceptable
principles of good government and responsive national government, including but not limited to the
following guidelines for a more efficient, effective, economical and development-oriented governmental
framework:

(a) More effective planning implementation, and review functions;

(b) Greater decentralization and responsiveness in decision-making process;

(c) Further minimization, if not, elimination, of duplication or overlapping of purposes, functions,

activities, and programs;
(d) Further development of as standardized as possible ministerial, sub-ministerial and corporate
organizational structures;

(e) Further development of the regionalization process; and

(f) Further rationalization of the functions of and administrative relationships among government
entities.

For purposes of this Decree, the coverage of the continuing authority of the President to reorganize shall
be interpreted to encompass all agencies, entities, instrumentalities, and units of the National
Government, including all government owned or controlled corporations as well as the entire range of
the powers, functions, authorities, administrative relationships, acid related aspects pertaining to these
agencies, entities, instrumentalities, and units.

2. [T]he President may, at his discretion, take the following actions:

xxx xxx xxx

f. Create, abolish, group, consolidate, merge, or integrate entities, agencies, instrumentalities, and
units of the National Government, as well as expand, amend, change, or otherwise modify their powers,
functions and authorities, including, with respect to government-owned or controlled corporations,
their corporate life, capitalization, and other relevant aspects of their charters.

g. Take such other related actions as may be necessary to carry out the purposes and objectives of
this Decree.

Considering the arguments of the parties, the issues are:

(1) whether the power to "merge" administrative regions is legislative in character, as petitioners
contend, or whether it is executive in character, as respondents claim it is, and, in any event, whether
Art. XIX, §13 is invalid because it contains no standard to guide the President's discretion;

(2) whether the power given is fairly expressed in the title of the statute; and

(3) whether the power granted authorizes the reorganization even of regions the provinces and
cities in which either did not take part in the plebiscite on the creation of the Autonomous Region or did
not vote in favor of it; and

(4) whether the power granted to the President includes the power to transfer the regional center
of Region IX from Zamboanga City to Pagadian City.

It will be useful to recall first the nature of administrative regions and the basis and purpose for their
creation. On September 9, 1968, R.A. No. 5435 was passed "authorizing the President of the Philippines,
with the help of a Commission on Reorganization, to reorganize the different executive departments,
bureaus, offices, agencies and instrumentalities of the government, including banking or financial
institutions and corporations owned or controlled by it." The purpose was to promote "simplicity,
economy and efficiency in the government." 4 The Commission on Reorganization created under the law
was required to submit an integrated reorganization plan not later than December 31, 1969 to the
President who was in turn required to submit the plan to Congress within forty days after the opening of
its next regular session. The law provided that any reorganization plan submitted would become
effective only upon the approval of Congress. 5

Accordingly, the Reorganization Commission prepared an Integrated Reorganization Plan which divided
the country into eleven administrative regions. 6 By P.D. No. 1, the Plan was approved and made part of
the law of the land on September 24, 1972. P.D. No. 1 was twice amended in 1975, first by P.D. No. 742
which "restructur[ed] the regional organization of Mindanao, Basilan, Sulu and Tawi-Tawi" and later by
P.D. No. 773 which further "restructur[ed] the regional organization of Mindanao and divid[ed] Region
IX into two sub-regions." In 1978, P.D. No. 1555 transferred the regional center of Region IX from Jolo to
Zamboanga City.

Thus the creation and subsequent reorganization of administrative regions have been by the President
pursuant to authority granted to him by law. In conferring on the President the power "to merge [by
administrative determination] the existing regions" following the establishment of the Autonomous
Region in Muslim Mindanao, Congress merely followed the pattern set in previous legislation dating
back to the initial organization of administrative regions in 1972. The choice of the President as delegate
is logical because the division of the country into regions is intended to facilitate not only the
administration of local governments but also the direction of executive departments which the law
requires should have regional offices. As this Court observed in Abbas, "while the power to merge
administrative regions is not expressly provided for in the Constitution, it is a power which has
traditionally been lodged with the President to facilitate the exercise of the power of general
supervision over local governments [see Art. X, §4 of the Constitution]." The regions themselves are not
territorial and political divisions like provinces, cities, municipalities and barangays but are "mere
groupings of contiguous provinces for administrative purposes." 7 The power conferred on the President
is similar to the power to adjust municipal boundaries 8 which has been described in Pelaez v. Auditor
General 9 or as "administrative in nature."

There is, therefore, no abdication by Congress of its legislative power in conferring on the President the
power to merge administrative regions. The question is whether Congress has provided a sufficient
standard by which the President is to be guided in the exercise of the power granted and whether in any
event the grant of power to him is included in the subject expressed in the title of the law.

First, the question of standard. A legislative standard need not be expressed. It may simply be gathered
or implied. 10 Nor need it be found in the law challenged because it may be embodied in other statutes
on the same subject as that of the challenged legislation. 11

With respect to the power to merge existing administrative regions, the standard is to be found in the
same policy underlying the grant to the President in R.A. No. 5435 of the power to reorganize the
Executive Department, to wit: "to promote simplicity, economy and efficiency in the government to
enable it to pursue programs consistent with national goals for accelerated social and economic
development and to improve the service in the transaction of the public business." 12 Indeed, as the
original eleven administrative regions were established in accordance with this policy, it is logical to
suppose that in authorizing the President to "merge [by administrative determination] the existing
regions" in view of the withdrawal from some of those regions of the provinces now constituting the
Autonomous Region, the purpose of Congress was to reconstitute the original basis for the organization
of administrative regions.

Nor is Art. XIX, §13 susceptible to charge that its subject is not embraced in the title of R.A. No. 6734.
The constitutional requirement that "every bill passed by the Congress shall embrace only one subject
which shall be expressed in the title thereof" 13 has always been given a practical rather than a technical
construction. The title is not required to be an index of the content of the bill. It is a sufficient
compliance with the constitutional requirement if the title expresses the general subject and all
provisions of the statute are germane to that subject. 14 Certainly the reorganization of the remaining
administrative regions is germane to the general subject of R.A. No. 6734, which is the establishment of
the Autonomous Region in Muslim Mindanao.

Finally, it is contended that the power granted to the President is limited to the reorganization of
administrative regions in which some of the provinces and cities which voted in favor of regional
autonomy are found, because Art. XIX, §13 provides that those which did not vote for autonomy "shall
remain in the existing administrative regions." More specifically, petitioner in G.R. No. 96673 claims:

The questioned Executive Order No. 429 distorted and, in fact, contravened the clear intent of this
provision by moving out or transferring certain political subdivisions (provinces/cities) out of their legally
designated regions. Aggravating this unacceptable or untenable situation is EO No. 429's effecting
certain movements on areas which did not even participate in the November 19, 1989 plebiscite. The
unauthorized action of the President, as effected by and under the questioned EO No. 429, is shown by
the following dispositions: (1) Misamis Occidental, formerly of Region X and which did not even
participate in the plebiscite, was moved from said Region X to Region IX; (2) the cities of Ozamis,
Oroquieta, and Tangub, all formerly belonging to Region X, which likewise did not participate in the said
plebiscite, were transferred to Region IX; (3) South Cotobato, from Region XI to Region XII; (4) General
Santos City: from Region XI to Region XII; (5) Lanao del Norte, from Region XII to Region IX; and (6) the
cities of Marawi and Iligan from Region XII to Region IX. All of the said provinces and cities voted "NO",
and thereby rejected their entry into the Autonomous Region in Muslim Mindanao, as provided under
RA No. 6734. 15

The contention has no merit. While Art. XIX, §13 provides that "The provinces and cities which do not
vote for inclusion in the Autonomous Region shall remain in the existing administrative regions," this
provision is subject to the qualification that "the President may by administrative determination merge
the existing regions." This means that while non-assenting provinces and cities are to remain in the
regions as designated upon the creation of the Autonomous Region, they may nevertheless be
regrouped with contiguous provinces forming other regions as the exigency of administration may
require.

The regrouping is done only on paper. It involves no more than are definition or redrawing of the lines
separating administrative regions for the purpose of facilitating the administrative supervision of local
government units by the President and insuring the efficient delivery of essential services. There will be
no "transfer" of local governments from one region to another except as they may thus be regrouped so
that a province like Lanao del Norte, which is at present part of Region XII, will become part of Region IX.

The regrouping of contiguous provinces is not even analogous to a redistricting or to the division or
merger of local governments, which all have political consequences on the right of people residing in
those political units to vote and to be voted for. It cannot be overemphasized that administrative
regions are mere groupings of contiguous provinces for administrative purposes, not for political
representation.

Petitioners nonetheless insist that only those regions, in which the provinces and cities which voted for
inclusion in the Autonomous Region are located, can be "merged" by the President.

To be fundamental reason Art. XIX, §13 is not so limited. But the more fundamental reason is that the
President's power cannot be so limited without neglecting the necessities of administration. It is
noteworthy that the petitioners do not claim that the reorganization of the regions in E.O. No. 429 is
irrational. The fact is that, as they themselves admit, the reorganization of administrative regions in E.O.
No. 429 is based on relevant criteria, to wit: (1) contiguity and geographical features; (2) transportation
and communication facilities; (3) cultural and language groupings; (4) land area and population; (5)
existing regional centers adopted by several agencies; (6) socio-economic development programs in the
regions and (7) number of provinces and cities.

What has been said above applies to the change of the regional center from Zamboanga City to
Pagadian City. Petitioners contend that the determination of provincial capitals has always been by act
of Congress. But as, this Court said in Abbas, 16 administrative regions are mere "groupings of
contiguous provinces for administrative purposes, . . . [They] are not territorial and political subdivisions
like provinces, cities, municipalities and barangays." There is, therefore, no basis for contending that
only Congress can change or determine regional centers. To the contrary, the examples of P.D. Nos. 1,
742, 773 and 1555 suggest that the power to reorganize administrative regions carries with it the power
to determine the regional center.

It may be that the transfer of the regional center in Region IX from Zamboanga City to Pagadian City may
entail the expenditure of large sums of money for the construction of buildings and other infrastructure
to house regional offices. That contention is addressed to the wisdom of the transfer rather than to its
legality and it is settled that courts are not the arbiters of the wisdom or expediency of legislation. In any
event this is a question that we will consider only if fully briefed and upon a more adequate record than
that presented by petitioners.

WHEREFORE, the petitions for certiorari and prohibition are DISMISSED for lack of merit.

SO ORDERED.

Narvasa, C.J., Feliciano, Padilla, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Quiason, Puno, Vitug,
Kapunan and Francisco, JJ., concur.
G.R. No. 79956 January 29, 1990

CORDILLERA BROAD COALITION, petitioner,

vs.

COMMISSION ON AUDIT, respondent.

G.R. No. 82217 January 29, 1990

LILIA YARANON and BONA BAUTISTA, assisted by their spouses, BRAULIO D. YARANON and DEMETRIO
D. BAUTISTA, JR., respectively; JAMES BRETT and SINAI C. HAMADA, petitioners,

vs.

THE COMMISSION ON AUDIT, HON. CATALINO MACARAIG, Executive Secretary, HON. VICENTE JAYME,
Secretary of Finance, HON. GUILLERMO N. CARAGUE, Secretary of Budget and Management, and HON.
ROSALINA S. CAJUCOM, OIC National Treasurer, respondents.

CORTES, J.:

In these consolidated petitions, the constitutionality of Executive Order No. 220, dated July 15, 1987,
which created the (Cordillera Administrative Region, is assailed on the primary ground that it pre-empts
the enactment of an organic act by the Congress and the creation of' the autonomous region in the
Cordilleras conditional on the approval of the act through a plebiscite.

Relative to the creation of autonomous regions, the constitution, in Article X, provides:

AUTONOMOUS REGIONS
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.

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

Sec. 17. All powers, functions, and responsibilities not granted Constitution or by law to the autonomous
regions shall be vested in the National Government.

Sec. 18. The Congress shall enact an organic act for each autonomous region with the assistance and
participation of the regional consultative commission composed of representatives appointed by the
President from a list of nominees from multi-sectoral bodies. The organic act shall define the basic
structure of government for the region consisting of the executive department and legislative assembly,
both of which shall be elective and representative of the constituent political units. The organic acts
shall likewise provide for special courts with personal, family and property law jurisdiction consistent
with the provisions of this Constitution and national laws.

The creation of the autonomous region shall be effective when approved by 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.

Sec. 19. The first Congress elected under this Constitution shall, within eighteen months from the time
of organization of both Houses, pass the organic acts for the autonomous regions in Muslim Mindanao
and the Cordilleras.

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.

Sec. 21. The preservation of peace and order within the regions shall be the responsibility of the local
police agencies which shall be organized, maintained, supervised, and utilized in accordance with
applicable laws. The defense and security of the regions shall be the responsibility of the National
Government.

A study of E.O. No. 220 would be incomplete Without reference to its historical background.

In April 1986, just after the EDSA Revolution, Fr. Conrado M. Balweg, S.V.D., broke off on ideological
grounds from the Communist Party of the Philippines (CPP) and its military arm the New People's Army.
(NPA).
After President Aquino was installed into office by People Power, she advocated a policy of national
reconciliation. She called on all revolutionary forces to a peace dialogue. The CPLA heeded this call of
the President. After the preliminary negotiations, President Aquino and some members of her Cabinet
flew to Mt. Data in the Mountain Province on September 13, 1986 and signed with Fr. Conrado M.
Balweg (As Commander of the CPLA and Ama Mario Yag-ao (as President of Cordillera Bodong
Administration, the civil government of the CPLA a ceasefire agreement that signified the cessation of
hostilities (WHEREAS No. 7, E.O. 220).

The parties arrived at an agreement in principle: the Cordillera people shall not undertake their
demands through armed and violent struggle but by peaceful means, such as political negotiations. The
negotiations shall be a continuing process until the demands of the Cordillera people shall have been
substantially granted.

On March 27, 1987, Ambassador Pelaez [Acting as Chief Negotiator of the government], in pursuance of
the September 13, 1986 agreement, flew to the Mansion House, Baguio City, and signed with Fr. Balweg
(as Chairman of the Cordillera panel) a joint agreement, paragraphs 2 and 3 of which state:

Par. 2- Work together in drafting an Executive Order to create a preparatory body that could perform
policy-making and administrative functions and undertake consultations and studies leading to a draft
organic act for the Cordilleras.

Par. 3- Have representatives from the Cordillera panel join the study group of the R.P. Panel in drafting
the Executive Order.

Pursuant to the above joint agreement, E.O. 220 was drafted by a panel of the Philippine government
and of the representatives of the Cordillera people.

On July 15, 1987, President Corazon C. Aquino signed the joint draft into law, known now as E.O. 220.
[Rejoinder G.R. No. 82217, pp. 2-3].
Executive Order No. 220, issued by the President in the exercise of her legislative powers under Art.
XVIII, sec. 6 of the 1987 Constitution, created the Cordillera Administrative Region (CAR) , which covers
the provinces of Abra, Benguet, Ifugao, Kalinga-Apayao and Mountain Province and the City of Baguio
[secs. 1 and 2]. It was created to accelerate economic and social growth in the region and to prepare for
the establishment of the autonomous region in the Cordilleras [sec. 3]. Its main function is to coordinate
the planning and implementation of programs and services in the region, particularly, to coordinate with
the local government units as well as with the executive departments of the National Government in the
supervision of field offices and in identifying, planning, monitoring, and accepting projects and activities
in the region [sec. 5]. It shall also monitor the implementation of all ongoing national and local
government projects in the region [sec. 20]. The CAR shall have a Cordillera Regional Assembly as a
policy-formulating body and a Cordillera Executive Board as an implementing arm [secs. 7, 8 and 10].
The CAR and the Assembly and Executive Board shall exist until such time as the autonomous regional
government is established and organized [sec. 17].

Explaining the rationale for the issuance of E.O. No. 220, its last "Whereas" clause provides:

WHEREAS, pending the convening of the first Congress and the enactment of the organic act for a
Cordillera autonomous region, there is an urgent need, in the interest of national security and public
order, for the President to reorganize immediately the existing administrative structure in the
Cordilleras to suit it to the existing political realities therein and the Government's legitimate concerns in
the areas, without attempting to pre-empt the constitutional duty of the first Congress to undertake the
creation of an autonomous region on a permanent basis.

During the pendency of this case, Republic Act No. 6766 entitled "An Act Providing for an Organic Act for
the Cordillera Autonomous Region," was enacted and signed into law. The Act recognizes the CAR and
the offices and agencies created under E.O. No. 220 and its transitory nature is reinforced in Art. XXI of
R.A. No. 6766, to wit:

SEC. 3. The Cordillera Executive Board, the Cordillera Region Assembly as well as all offices and agencies
created under Execute Order No. 220 shall cease to exist immediately upon the ratification of this
Organic Act.

All funds, properties and assets of the Cordillera Executive Board and the Cordillera Regional Assembly
shall automatically be transferred to the Cordillera Autonomous Government.
I

It is well-settled in our jurisprudence that respect for the inherent and stated powers and prerogatives
of the law-making body, as well as faithful adherence to the principle of separation of powers, require
that its enactment be accorded the presumption of constitutionality. Thus, in any challenge to the
constitutionality of a statute, the burden of clearly and unequivocally proving its unconstitutionality
always rests upon the challenger. Conversely, failure to so prove will necessarily defeat the challenge.

We shall be guided by these principles in considering these consolidated petitions.

In these cases, petitioners principally argue that by issuing E.O. No. 220 the President, in the exercise of
her legislative powers prior to the convening of the first Congress under the 1987 Constitution, has
virtually pre-empted Congress from its mandated task of enacting an organic act and created an
autonomous region in the Cordilleras. We have carefully studied the Constitution and E.O. No. 220 and
we have come to the conclusion that petitioners' assertions are unfounded. Events subsequent to the
issuance of E.O. No. 220 also bear out this conclusion.

1. A reading of E.O. No. 220 will easily reveal that what it actually envisions is the consolidation
and coordination of the delivery of services of line departments and agencies of the National
Government in the areas covered by the administrative region as a step preparatory to the grant of
autonomy to the Cordilleras. It does not create the autonomous region contemplated in the
Constitution. It merely provides for transitory measures in anticipation of the enactment of an organic
act and the creation of an autonomous region. In short, it prepares the ground for autonomy. This does
not necessarily conflict with the provisions of the Constitution on autonomous regions, as we shall show
later.

The Constitution outlines a complex procedure for the creation of an autonomous region in the
Cordilleras. A regional consultative commission shall first be created. The President shall then appoint
the members of a regional consultative commission from a list of nominees from multi-sectoral bodies.
The commission shall assist the Congress in preparing the organic act for the autonomous region. The
organic act shall be passed by the first Congress under the 1987 Constitution within eighteen months
from the time of its organization and enacted into law. Thereafter there shall be held a plebiscite for the
approval of the organic act [Art. X, sec. 18]. Only then, after its approval in the plebiscite, shall the
autonomous region be created.

Undoubtedly, all of these will take time. The President, in 1987 still exercising legislative powers, as the
first Congress had not yet convened, saw it fit to provide for some measures to address the urgent
needs of the Cordilleras in the meantime that the organic act had not yet been passed and the
autonomous region created. These measures we find in E.O. No. 220. The steps taken by the President
are obviously perceived by petitioners, particularly petitioner Yaranon who views E.O. No. 220 as
capitulation to the Cordillera People's Liberation Army (CPLA) of Balweg, as unsound, but the Court
cannot inquire into the wisdom of the measures taken by the President, We can only inquire into
whether or not the measures violate the Constitution. But as we have seen earlier, they do not.

2. Moreover, the transitory nature of the CAR does not necessarily mean that it is, as petitioner
Cordillera Broad Coalition asserts, "the interim autonomous region in the Cordilleras" [Petition, G.R. No.
79956, p. 25].

The Constitution provides for a basic structure of government in the autonomous region composed of
an elective executive and legislature and special courts with personal, family and property law
jurisdiction [Art. X, sec. 18]. Using this as a guide, we find that E.O. No. 220 did not establish an
autonomous regional government. It created a region, covering a specified area, for administrative
purposes with the main objective of coordinating the planning and implementation of programs and
services [secs. 2 and 5]. To determine policy, it created a representative assembly, to convene yearly
only for a five-day regular session, tasked with, among others, identifying priority projects and
development programs [sec. 9]. To serve as an implementing body, it created the Cordillera Executive
Board composed of the Mayor of Baguio City, provincial governors and representatives of the Cordillera
Bodong Administration, ethno-linguistic groups and non-governmental organizations as regular
members and all regional directors of the line departments of the National Government as ex-officio
members and headed by an Executive Director [secs. 10 and 11]. The bodies created by E.O. No. 220 do
not supplant the existing local governmental structure, nor are they autonomous government agencies.
They merely constitute the mechanism for an "umbrella" that brings together the existing local
governments, the agencies of the National Government, the ethno-linguistic groups or tribes, and non-
governmental organizations in a concerted effort to spur development in the Cordilleras.

The creation of the CAR for purposes of administrative coordination is underscored by the mandate of
E.O. No. 220 for the President and appropriate national departments and agencies to make available
sources of funds for priority development programs and projects recommended by the CAR [sec. 21]
and the power given to the President to call upon the appropriate executive departments and agencies
of the National Government to assist the CAR [sec. 24].

3. Subsequent to the issuance of E.O. No. 220, the Congress, after it was convened, enacted Republic Act
No. 6658 which created the Cordillera Regional Consultative Commission. The President then appointed
its members. The commission prepared a draft organic act which became the basis for the deliberations
of the Senate and the House of Representatives. The result was Republic Act No. 6766, the organic act
for the Cordillera autonomous region, which was signed into law on October 23, 1989. A plebiscite for
the approval of the organic act, to be conducted shortly, shall complete the process outlined in the
Constitution.

In the meantime, E.O. No. 220 had been in force and effect for more than two years and we find that,
despite E.O. No. 220, the autonomous region in the Cordilleras is still to be created, showing the lack of
basis of petitioners' assertion. Events have shown that petitioners' fear that E.O. No. 220 was a
"shortcut" for the creation of the autonomous region in the Cordilleras was totally unfounded.

Clearly, petitioners' principal challenge has failed.

II

A collateral issue raised by petitioners is the nature of the CAR: whether or not it is a territorial and
political subdivision. The Constitution provides in Article X:

Section 1. The territorial and political subdivisions of the Republic of the Philippines are the provinces,
cities, municipalities, and barangays. There shall be autonomous regions in Muslim Mindanao and the
Cordilleras as hereinafter provided.

xxx xxx xxx

Sec. 10. No province, city, municipality, or barangay may be created, divided, merged, abolished, or its
boundary substantially altered, except in accordance with the criteria established in the local
government code and subject to approval by a majority of the votes cast in a plebiscite in the political
units directly affected.

We have seen earlier that the CAR is not the autonomous region in the Cordilleras contemplated by the
Constitution, Thus, we now address petitioners' assertion that E. 0. No. 220 contravenes the
Constitution by creating a new territorial and political subdivision.

After carefully considering the provisions of E.O. No. 220, we find that it did not create a new territorial
and political subdivision or merge existing ones into a larger subdivision.

1. Firstly, the CAR is not a public corporation or a territorial and political subdivision. It does not
have a separate juridical personality, unlike provinces, cities and municipalities. Neither is it vested with
the powers that are normally granted to public corporations, e.g. the power to sue and be sued, the
power to own and dispose of property, the power to create its own sources of revenue, etc. As stated
earlier, the CAR was created primarily to coordinate the planning and implementation of programs and
services in the covered areas.

The creation of administrative regions for the purpose of expediting the delivery of services is nothing
new. The Integrated Reorganization Plan of 1972, which was made as part of the law of the land by
virtue of Presidential Decree No. 1, established eleven (11) regions, later increased to twelve (12), with
definite regional centers and required departments and agencies of the Executive Branch of the National
Government to set up field offices therein. The functions of the regional offices to be established
pursuant to the Reorganization Plan are: (1) to implement laws, policies, plans, programs, rules and
regulations of the department or agency in the regional areas; (2) to provide economical, efficient and
effective service to the people in the area; (3) to coordinate with regional offices of other departments,
bureaus and agencies in the area; (4) to coordinate with local government units in the area; and (5) to
perform such other functions as may be provided by law. [See Part II, chap. III, art. 1, of the
Reorganization Plan].

We can readily see that the CAR is in the same genre as the administrative regions created under the
Reorganization Plan, albeit under E.O. No. 220 the operation of the CAR requires the participation not
only of the line departments and agencies of the National Government but also the local governments,
ethno-linguistic groups and non-governmental organizations in bringing about the desired objectives
and the appropriation of funds solely for that purpose.
2. Then, considering the control and supervision exercised by the President over the CAR and the offices
created under E.O. No. 220, and considering further the indispensable participation of the line
departments of the National Government, the CAR may be considered more than anything else as a
regional coordinating agency of the National Government, similar to the regional development councils
which the President may create under the Constitution [Art. X, sec. 14]. These councils are "composed of
local government officials, regional heads of departments and other government offices, and
representatives from non-governmental organizations within the region for purposes of administrative
decentralization to strengthen the autonomy of the units therein and to accelerate the economic and
social growth and development of the units in the region." [Ibid.] In this wise, the CAR may be
considered as a more sophisticated version of the regional development council.

III

Finally, petitioners incidentally argue that the creation of the CAR contravened the constitutional
guarantee of the local autonomy for the provinces (Abra, Benguet, Ifugao, Kalinga-Apayao and
Mountain Province) and city (Baguio City) which compose the CAR.

We find first a need to clear up petitioners' apparent misconception of the concept of local autonomy.

It must be clarified that the constitutional guarantee of local autonomy in the Constitution [Art. X, sec.
2] refers to the administrative autonomy of local government units or, cast in more technical language,
the decentralization of government authority [Villegas v. Subido, G.R. No. L-31004, January 8, 1971, 37
SCRA 1]. Local autonomy is not unique to the 1987 Constitution, it being guaranteed also under the
1973 Constitution [Art. II, sec. 10]. And while there was no express guarantee under the 1935
Constitution, the Congress enacted the Local Autonomy Act (R.A. No. 2264) and the Decentralization Act
(R.A. No. 5185), which ushered the irreversible march towards further enlargement of local autonomy in
the country [Villegas v. Subido, supra.]

On the other hand, the creation of autonomous regions in Muslim Mindanao and the Cordilleras, which
is peculiar to the 1987 Constitution contemplates the grant of political autonomy and not just
administrative autonomy these regions. Thus, the provision in the Constitution for an autonomous
regional government with a basic structure consisting of an executive department and a legislative
assembly and special courts with personal, family and property law jurisdiction in each of the
autonomous regions [Art. X, sec. 18].

As we have said earlier, the CAR is a mere transitory coordinating agency that would prepare the stage
for political autonomy for the Cordilleras. It fills in the resulting gap in the process of transforming a
group of adjacent territorial and political subdivisions already enjoying local or administrative autonomy
into an autonomous region vested with political autonomy.

Anent petitioners' objection, we note the obvious failure to show how the creation of the CAR has
actually diminished the local autonomy of the covered provinces and city. It cannot be over-emphasized
that pure speculation and a resort to probabilities are insufficient to cause the invalidation of E.O. No.
220.

WHEREFORE, the petitions are DISMISSED for lack of merit.

SO ORDERED.

Fernan, C.J., Narvasa, Melencio-Herrera, Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin, Sarmiento,
Griño-Aquino, Medialdea and Regalado, JJ., concur.
EN BANC

[G.R. No. 93054 : December 4, 1990.]

192 SCRA 100

Cordillera Regional Assembly Member ALEXANDER P. ORDILLO, (Banaue), Ifugao Provincial Board
Member CORAZON MONTINIG, (Mayoyao), Former Vice-Mayor MARTIN UDAN (Banaue), Municipal
Councilors MARTIN GANO, (Lagawe), and TEODORO HEWE, (Hingyon), Barangay Councilman PEDRO W.
DULAG (Lamut); Aguinaldo residents SANDY B. CHANGIWAN, and DONATO TIMAGO; Lamut resident REY
ANTONIO; Kiangan residents ORLANDO PUGUON, and REYNAND DULDULAO; Lagawe residents TOMAS
KIMAYONG, GREGORIO DANGO, GEORGE B. BAYWONG, and VICENTE LUNAG; Hingyon residents PABLO
M. DULNUAN and CONSTANCIO GANO; Mayoyao residents PEDRO M. BAOANG, LEONARDO IGADNA,
and MAXIMO IGADNA; and Banaue residents PUMA-A CULHI, LATAYON BUTTIG, MIGUEL PUMELBAN,
ANDRES ORDILLO, FEDERICO MARIANO, SANDY BINOMNGA, GABRIEL LIMMANG, ROMEO TONGALI,
RUBEN BAHATAN, MHOMDY GABRIEL, and NADRES GHAMANG, Petitioners, vs. THE COMMISSION ON
ELECTIONS; The Honorable FRANKLIN M. DRILON, Secretary of Justice; Hon. CATALINO MACARAIG,
Executive Secretary; The Cabinet Officer for Regional Development; Hon. GUILLERMO CARAGUE,
Secretary of Budget and Management; and Hon. ROSALINA S. CAJUCOM, OIC, National Treasurer,
Respondents.

DECISION

GUTIERREZ, JR., J.:

The question raised in this petition is whether or not the province of Ifugao, being the only province
which voted favorably for the creation of the Cordillera Autonomous Region can, alone, legally and
validly constitute such Region.

The antecedent facts that gave rise to this petition are as follows:

On January 30, 1990, the people of the provinces of Benguet, Mountain Province, Ifugao, Abra and
Kalinga-Apayao and the city of Baguio cast their votes in a plebiscite held pursuant to Republic Act No.
6766 entitled "An Act Providing for an Organic Act for the Cordillera Autonomous Region."

The official Commission on Elections (COMELEC) results of the plebiscite showed that the creation of the
Region was approved by a majority of 5,889 votes in only the Ifugao Province and was overwhelmingly
rejected by 148,676 votes in the rest of the provinces and city above-mentioned.

Consequently, the COMELEC, on February 14, 1990, issued Resolution No. 2259 stating that the Organic
Act for the Region has been approved and/or ratified by majority of the votes cast only in the province
of Ifugao. On the same date, the Secretary of Justice issued a memorandum for the President reiterating
the COMELEC resolution and provided:

". . . [A]nd considering the proviso in Sec. 13(A) that only the provinces and city voting favorably shall be
included in the CAR, the province of Ifugao being the only province which voted favorably — then,
alone, legally and validly constitutes the CAR." (Rollo, p. 7)

As a result of this, on March 8, 1990, Congress enacted Republic Act No. 6861 setting the elections in the
Cordillera Autonomous Region of Ifugao on the first Monday of March 1991.: nad

Even before the issuance of the COMELEC resolution, the Executive Secretary on February 5, 1990
issued a Memorandum granting authority to wind up the affairs of the Cordillera Executive Board and
the Cordillera Regional Assembly created under Executive Order No. 220.
On March 9, 1990, the petitioner filed a petition with COMELEC to declare the non-ratification of the
Organic Act for the Region. The COMELEC merely noted said petition.

On March 30, 1990, the President issued Administrative Order No. 160 declaring among others that the
Cordillera Executive Board and Cordillera Regional Assembly and all the offices created under Executive
Order No. 220 were abolished in view of the ratification of the Organic Act.- nad

The petitioners maintain that there can be no valid Cordillera Autonomous Region in only one province
as the Constitution and Republic Act No. 6766 require that the said Region be composed of more than
one constituent unit.

The petitioners, then, pray that the Court: (1) declare null and void COMELEC resolution No. 2259, the
memorandum of the Secretary of Justice, the memorandum of the Executive Secretary, Administrative
Order No. 160, and Republic Act No. 6861 and prohibit and restrain the respondents from implementing
the same and spending public funds for the purpose and (2) declare Executive Order No. 220
constituting the Cordillera Executive Board and the Cordillera Regional Assembly and other offices to be
still in force and effect until another organic law for the Autonomous Region shall have been enacted by
Congress and the same is duly ratified by the voters in the constituent units. We treat the Comments of
the respondents as an answer and decide the case.

This petition is meritorious.

The sole province of Ifugao cannot validly constitute the Cordillera Autonomous Region.

It is explicit in Article X, Section 15 of the 1987 Constitution that:

"Section 15. There shall be created autonomous regions in Muslim Mindanao and in the Cordillera
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." (Emphasis Supplied)
The keywords — provinces, cities, municipalities and geographical areas connote that "region" is to be
made up of more than one constituent unit. The term "region" used in its ordinary sense means two or
more provinces. This is supported by the fact that the thirteen (13) regions into which the Philippines is
divided for administrative purposes are groupings of contiguous provinces. (Integrated Reorganization
Plan (1972), which was made as part of the law of the land by P.D. No. 1; P.D. No. 742) Ifugao is a
province by itself. To become part of a region, it must join other provinces, cities, municipalities, and
geographical areas. It joins other units because of their common and distinctive historical and cultural
heritage, economic and social structures and other relevant characteristics. The Constitutional
requirements are not present in this case.- nad

The well-established rule in statutory construction that the language of the Constitution, as much as
possible should be understood in the sense it has in common use and that the words used in
constitutional provisions are to be given their ordinary meaning except where technical terms are
employed, must then, be applied in this case. (See Baranda v. Gustilo, 165 SCRA 757, 770, [1988]; J.M.
Tuason & Co., Inc. v. Land Tenure Administration, 31 SCRA 413, 422-423 [1970]).

Aside from the 1987 Constitution, a reading of the provisions of Republic Act No. 6766 strengthens the
petitioner's position that the Region cannot be constituted from only one province.

Article III, Sections 1 and 2 of the Statute provide that the Cordillera Autonomous Region is to be
administered by the Cordillera government consisting of the Regional Government and local
government units. It further provides that:

"SECTION 2. The Regional Government shall exercise powers and functions necessary for the proper
governance and development of all provinces, cities, municipalities, and barangay or ili within the
Autonomous Region . . ."

From these sections, it can be gleaned that Congress never intended that a single province may
constitute the autonomous region. Otherwise, we would be faced with the absurd situation of having
two sets of officials, a set of provincial officials and another set of regional officials exercising their
executive and legislative powers over exactly the same small area.
Article V, Sections 1 and 4 of Republic Act 6766 vest the legislative power in the Cordillera Assembly
whose members shall be elected from regional assembly districts apportioned among provinces and the
cities composing the Autonomous Region. chanrobles virtual law library

If we follow the respondent's position, the members of such Cordillera Assembly shall then be elected
only from the province of Ifugao creating an awkward predicament of having two legislative bodies —
the Cordillera Assembly and the Sangguniang Panlalawigan — exercising their legislative powers over
the province of Ifugao. And since Ifugao is one of the smallest provinces in the Philippines, population-
wise, it would have too many government officials for so few people.:-cralaw

Article XII, Section 10 of the law creates a Regional Planning and Development Board composed of the
Cordillera Governor, all the provincial governors and city mayors or their representatives, two members
of the Cordillera Assembly, and members representing the private sector. The Board has a counterpart
in the provincial level called the Provincial Planning and Development Coordinator. The Board's
functions (Article XII, Section 10, par. 2, Republic Act No. 6766) are almost similar to those of the
Provincial Coordinator's (Title Four, Chapter 3, Article 10, Section 220 (4), Batas Pambansa Blg. 337 —
Local Government Code). If it takes only one person in the provincial level to perform such functions
while on the other hand it takes an entire Board to perform almost the same tasks in the regional level,
it could only mean that a larger area must be covered at the regional level. The respondent's theory of
the Autonomous Region being made up of a single province must, therefore, fail.

Article XXI, Section 13 (B) (c) alloting the huge amount of Ten Million Pesos (P10,000,000.00) to the
Regional Government for its initial organizational requirements cannot be construed as funding only a
lone and small province.

These sections of Republic Act No. 6766 show that a one province Cordillera Autonomous Region was
never contemplated by the law creating it.

The province of Ifugao makes up only 11% of the total population of the areas enumerated in Article I,
Section 2 (b) of Republic Act No. 6766 which include Benguet, Mountain Province, Abra, Kalinga-Apayao
and Baguio City. It has the second smallest number of inhabitants from among the provinces and city
above mentioned. The Cordillera population is distributed in round figures as follows: Abra, 185,000;
Benguet, 486,000; Ifugao, 149,000; Kalinga-Apayao, 214,000; Mountain Province, 116,000; and Baguio
City, 183,000; Total population of these five provinces and one city; 1,332,000 according to the 1990
Census (Manila Standard, September 30, 1990, p. 14).
There are other provisions of Republic Act No. 6766 which are either violated or which cannot be
complied with. Section 16 of Article V calls for a Regional Commission on Appointments with the
Speaker as Chairman and are (6) members coming from different provinces and cities in the Region.
Under the respondents' view, the Commission would have a Chairman and only one member. It would
never have a quorum. Section 3 of Article VI calls for cabinet members, as far as practicable, to come
from various provinces and cities of the Region. Section 1 of Article VII creates a system of tribal courts
for the various indigenous cultural communities of the Region. Section 9 of Article XV requires the
development of a common regional language based upon the various languages and dialects in the
region which regional language in turn is expected to enrich the national language.

The entirety of Republic Act No. 6766 creating the Cordillera Autonomous Region is infused with
provisions which rule against the sole province of Ifugao constituting the Region.:-cralaw

To contemplate the situation envisioned by the respondent would not only violate the letter and intent
of the Constitution and Republic Act No. 6766 but would also be impractical and illogical.

Our decision in Abbas, et al. v. COMELEC, (G.R. No. 89651, November 10, 1969), is not applicable in the
case at bar contrary to the view of the Secretary of Justice.

The Abbas case laid down the rate on the meaning of majority in the phrase "by majority of the votes
cast by the constituent units called for the purpose" found in the Constitution, Article X, Section 18. It
stated:

x x x

". . . [I]t is thus clear that what is required by the Constitution is simple majority of votes approving the
Organic Act in individual constituent units and not a double majority of the votes in all constituent units
put together, as well as in the individual constituent units."

This was the pronouncement applied by the Secretary of Justice in arriving at his conclusion stated in his
Memorandum for the President that:
x x x

". . . [i]t is believed that the creation of the Cordillera Autonomous Region (CAR) as mandated by R.A.
No. 6766 became effective upon its approval by the majority of the votes cast in the province of Ifugao.
And considering the proviso in Section 13 (a) that only the provinces and city voting favorably shall be
included in the CAR, the province of Ifugao being the only province which voted favorably — can, alone,
legally and validly constitute the CAR." (Rollo. p. 40).

The plebiscites mandated by the Constitution and Republic Act No. 6766 for the Cordillera and Republic
Act No. 6734 for the Autonomous Region in Muslim Mindanao determine — (1) whether there shall be
an autonomous region in the Cordillera and in Muslim Mindanao and (2) which provinces and cities,
among those enumerated in the two Republic Acts, shall comprise said Autonomous Regions. (See III,
Record of the Constitutional Commission, 487-492 [1986]).

The Abbas case established the rule to follow on which provinces and cities shall comprise the
autonomous region in Muslim Mindanao which is, consequently, the same rule to follow with regard to
the autonomous region in the Cordillera. However, there is nothing in the Abbas decision which deals
with the issue on whether an autonomous region, in either Muslim Mindanao or Cordillera could exist
despite the fact that only one province or one city is to constitute it.chanrobles virtual law library

Stated in another way, the issue in this case is whether the sole province of Ifugao can validly and legally
constitute the Cordillera Autonomous Region. The issue is not whether the province of Ifugao is to be
included in the Cordillera Autonomous Region. It is the first issue which the Court answers in the instant
case.

WHEREFORE, the petition is hereby GRANTED. Resolution No. 2259 of the Commission on Elections,
insofar as it upholds the creation of an autonomous region, the February 14, 1990 memorandum of the
Secretary of Justice, the February 5, 1990 memorandum of the Executive Secretary, Administrative
Order No. 160, and Republic Act No. 6861 are declared null and void while Executive Order No. 220 is
declared to be still in force and effect until properly repealed or amended.

SO ORDERED.
G.R. No. 176970 December 8, 2008

ROGELIO Z. BAGABUYO, petitioner,

vs.

COMMISSION ON ELECTIONS, respondent.

DECISION

BRION, J.:

Before us is the petition for certiorari, prohibition, and mandamus,1 with a prayer for the issuance of a
temporary restraining order and a writ of preliminary injunction, filed by Rogelio Bagabuyo (petitioner)
to prevent the Commission on Elections (COMELEC) from implementing Resolution No. 7837 on the
ground that Republic Act No. 93712 - the law that Resolution No. 7837 implements - is unconstitutional.

BACKGROUND FACTS

On October 10, 2006, Cagayan de Oro's then Congressman Constantino G. Jaraula filed and sponsored
House Bill No. 5859: "An Act Providing for the Apportionment of the Lone Legislative District of the City
of Cagayan De Oro."3 This law eventually became Republic Act (R.A.) No. 9371.4 It increased Cagayan de
Oro's legislative district from one to two. For the election of May 2007, Cagayan de Oro's voters would
be classified as belonging to either the first or the second district, depending on their place of residence.
The constituents of each district would elect their own representative to Congress as well as eight
members of the Sangguniang Panglungsod.

Section 1 of R.A. No. 9371 apportioned the City's barangays as follows:

Legislative Districts - The lone legislative district of the City of Cagayan De Oro is hereby apportioned to
commence in the next national elections after the effectivity of this Act. Henceforth, barangays Bonbon,
Bayabas, Kauswagan, Carmen, Patag, Bulua, Iponan, Baikingon, San Simon, Pagatpat, Canitoan, Balulang,
Lumbia, Pagalungan, Tagpangi, Taglimao, Tuburan, Pigsag-an, Tumpagon, Bayanga, Mambuaya,
Dansulihon, Tignapoloan and Bisigan shall comprise the first district while barangays Macabalan,
Puntod, Consolacion, Camaman-an, Nazareth, Macasandig, Indahag, Lapasan, Gusa, Cugman, FS
Catanico, Tablon, Agusan, Puerto, Bugo, and Balubal and all urban barangays from Barangay 1 to
Barangay 40 shall comprise the second district.5

On March 13, 2007, the COMELEC en Banc promulgated Resolution No. 78376 implementing R.A. No.
9371.

Petitioner Rogelio Bagabuyo filed the present petition against the COMELEC on March 27, 2007.7 On 10
April 2008, the petitioner amended the petition to include the following as respondents: Executive
Secretary Eduardo Ermita; the Secretary of the Department of Budget and Management; the Chairman
of the Commission on Audit; the Mayor and the members of the Sangguniang Panglungsod of Cagayan
de Oro City; and its Board of Canvassers.8

In asking for the nullification of R.A. No. 9371 and Resolution No. 7837 on constitutional grounds, the
petitioner argued that the COMELEC cannot implement R.A. No. 9371 without providing for the rules,
regulations and guidelines for the conduct of a plebiscite which is indispensable for the division or
conversion of a local government unit. He prayed for the issuance of an order directing the respondents
to cease and desist from implementing R.A. No. 9371 and COMELEC Resolution No. 7837, and to revert
instead to COMELEC Resolution No. 7801 which provided for a single legislative district for Cagayan de
Oro.

Since the Court did not grant the petitioner's prayer for a temporary restraining order or writ of
preliminary injunction, the May 14 National and Local Elections proceeded according to R.A. No. 9371
and Resolution No. 7837.

The respondent's Comment on the petition, filed through the Office of the Solicitor General, argued
that: 1) the petitioner did not respect the hierarchy of courts, as the Regional Trial Court (RTC) is vested
with concurrent jurisdiction over cases assailing the constitutionality of a statute; 2) R.A. No. 9371
merely increased the representation of Cagayan de Oro City in the House of Representatives and
Sangguniang Panglungsod pursuant to Section 5, Article VI of the 1987 Constitution; 3) the criteria
established under Section 10, Article X of the 1987 Constitution only apply when there is a creation,
division, merger, abolition or substantial alteration of boundaries of a province, city, municipality, or
barangay; in this case, no such creation, division, merger, abolition or alteration of boundaries of a local
government unit took place; and 4) R.A. No. 9371 did not bring about any change in Cagayan de Oro's
territory, population and income classification; hence, no plebiscite is required.

The petitioner argued in his reply that: 1) pursuant to the Court's ruling in Del Mar v. PAGCOR,9 the
Court may take cognizance of this petition if compelling reasons, or the nature and importance of the
issues raised, warrant the immediate exercise of its jurisdiction; 2) Cagayan de Oro City's
reapportionment under R.A. No. 9371 falls within the meaning of creation, division, merger, abolition or
substantial alteration of boundaries of cities under Section 10, Article X of the Constitution; 3) the
creation, division, merger, abolition or substantial alteration of boundaries of local government units
involve a common denominator - the material change in the political and economic rights of the local
government units directly affected, as well as of the people therein; 4) a voter's sovereign power to
decide on who should be elected as the entire city's Congressman was arbitrarily reduced by at least one
half because the questioned law and resolution only allowed him to vote and be voted for in the district
designated by the COMELEC; 5) a voter was also arbitrarily denied his right to elect the Congressman
and the members of the city council for the other legislative district, and 6) government funds were
illegally disbursed without prior approval by the sovereign electorate of Cagayan De Oro City.10

THE ISSUES

The core issues, based on the petition and the parties' memoranda, can be limited to the following
contentious points:

1) Did the petitioner violate the hierarchy of courts rule; if so, should the instant petition be dismissed
on this ground?

2) Does R.A. No. 9371 merely provide for the legislative reapportionment of Cagayan de Oro City, or
does it involve the division and conversion of a local government unit?

3) Does R.A. No. 9371 violate the equality of representation doctrine?

OUR RULING
Except for the issue of the hierarchy of courts rule, we find the petition totally without merit.

The hierarchy of courts principle.

The Supreme Court has original jurisdiction over petitions for certiorari, prohibition, mandamus, quo
warranto, and habeas corpus.11 It was pursuant to this original jurisdiction that the petitioner filed the
present petition.

While this jurisdiction is shared with the Court of Appeals12 and the RTCs,13 a direct invocation of the
Supreme Court's jurisdiction is allowed only when there are special and important reasons therefor,
clearly and especially set out in the petition. Reasons of practicality, dictated by an increasingly
overcrowded docket and the need to prioritize in favor of matters within our exclusive jurisdiction,
justify the existence of this rule otherwise known as the "principle of hierarchy of courts." More
generally stated, the principle requires that recourse must first be made to the lower-ranked court
exercising concurrent jurisdiction with a higher court.14

Among the cases we have considered sufficiently special and important to be exceptions to the rule, are
petitions for certiorari, prohibition, mandamus and quo warranto against our nation's lawmakers when
the validity of their enactments is assailed.15 The present petition is of this nature; its subject matter
and the nature of the issues raised - among them, whether legislative reapportionment involves a
division of Cagayan de Oro City as a local government unit - are reasons enough for considering it an
exception to the principle of hierarchy of courts. Additionally, the petition assails as well a resolution of
the COMELEC en banc issued to implement the legislative apportionment that R.A. No. 9371 decrees. As
an action against a COMELEC en banc resolution, the case falls under Rule 64 of the Rules of Court that
in turn requires a review by this Court via a Rule 65 petition for certiorari.16 For these reasons, we do
not see the principle of hierarchy of courts to be a stumbling block in our consideration of the present
case.

The Plebiscite Requirement.

The petitioner insists that R.A. No. 9371 converts and divides the City of Cagayan de Oro as a local
government unit, and does not merely provide for the City's legislative apportionment. This argument
essentially proceeds from a misunderstanding of the constitutional concepts of apportionment of
legislative districts and division of local government units.
Legislative apportionment is defined by Black's Law Dictionary as the determination of the number of
representatives which a State, county or other subdivision may send to a legislative body.17It is the
allocation of seats in a legislative body in proportion to the population; the drawing of voting district
lines so as to equalize population and voting power among the districts.18 Reapportionment, on the
other hand, is the realignment or change in legislative districts brought about by changes in population
and mandated by the constitutional requirement of equality of representation.19

Article VI (entitled Legislative Department) of the 1987 Constitution lays down the rules on legislative
apportionment under its Section 5 which provides:

Sec. 5(1). (1) The House of Representatives shall be composed of not more than two hundred fifty
members unless otherwise fixed by law, who shall be elected from legislative districts apportioned
among the provinces, cities, and the Metropolitan Manila area in accordance with the number of their
respective inhabitants, and on the basis of a uniform and progressive ratio, and those who, as provided
by law, shall be elected through a party-list system of registered national, regional and sectoral parties
or organizations.

xxx

(3) Each legislative district shall comprise, as far as practicable, continuous, compact, and adjacent
territory. Each city with a population of at least two hundred fifty thousand, or each province, shall have
at least one representative.

(4) Within three years following the return of every census, the Congress shall make a reapportionment
of legislative districts based on the standards provided in this section.

Separately from the legislative districts that legal apportionment or reapportionment speaks of, are the
local government units (historically and generically referred to as "municipal corporations") that the
Constitution itself classified into provinces, cities, municipalities and barangays.20 In its strict and proper
sense, a municipality has been defined as "a body politic and corporate constituted by the incorporation
of the inhabitants of a city or town for the purpose of local government thereof."21 The creation,
division, merger, abolition or alteration of boundary of local government units, i.e., of provinces, cities,
municipalities, and barangays, are covered by the Article on Local Government (Article X). Section 10 of
this Article provides:

No province, city, municipality, or barangay may be created, divided, merged, abolished, or its boundary
substantially altered, except in accordance with the criteria established in the local government code
and subject to approval by a majority of the votes cast in a plebiscite in the political unit directly
affected.

Under both Article VI, Section 5, and Article X, Section 10 of the Constitution, the authority to act has
been vested in the Legislature. The Legislature undertakes the apportionment and reapportionment of
legislative districts,22 and likewise acts on local government units by setting the standards for their
creation, division, merger, abolition and alteration of boundaries and by actually creating, dividing,
merging, abolishing local government units and altering their boundaries through legislation. Other than
this, not much commonality exists between the two provisions since they are inherently different
although they interface and relate with one another.

The concern that leaps from the text of Article VI, Section 5 is political representation and the means to
make a legislative district sufficiently represented so that the people can be effectively heard. As above
stated, the aim of legislative apportionment is "to equalize population and voting power among
districts."23 Hence, emphasis is given to the number of people represented; the uniform and
progressive ratio to be observed among the representative districts; and accessibility and commonality
of interests in terms of each district being, as far as practicable, continuous, compact and adjacent
territory. In terms of the people represented, every city with at least 250,000 people and every province
(irrespective of population) is entitled to one representative. In this sense, legislative districts, on the
one hand, and provinces and cities, on the other, relate and interface with each other. To ensure
continued adherence to the required standards of apportionment, Section 5(4) specifically mandates
reapportionment as soon as the given standards are met.

In contrast with the equal representation objective of Article VI, Section 5, Article X, Section 10 expressly
speaks of how local government units may be "created, divided, merged, abolished, or its boundary
substantially altered." Its concern is the commencement, the termination, and the modification of local
government units' corporate existence and territorial coverage; and it speaks of two specific standards
that must be observed in implementing this concern, namely, the criteria established in the local
government code and the approval by a majority of the votes cast in a plebiscite in the political units
directly affected. Under the Local Government Code (R.A. No. 7160) passed in 1991, the criteria of
income, population and land area are specified as verifiable indicators of viability and capacity to
provide services.24 The division or merger of existing units must comply with the same requirements
(since a new local government unit will come into being), provided that a division shall not reduce the
income, population, or land area of the unit affected to less than the minimum requirement prescribed
in the Code.25

A pronounced distinction between Article VI, Section 5 and, Article X, Section 10 is on the requirement
of a plebiscite. The Constitution and the Local Government Code expressly require a plebiscite to carry
out any creation, division, merger, abolition or alteration of boundary of a local government unit.26 In
contrast, no plebiscite requirement exists under the apportionment or reapportionment provision. In
Tobias v. Abalos,27 a case that arose from the division of the congressional district formerly covering
San Juan and Mandaluyong into separate districts, we confirmed this distinction and the fact that no
plebiscite is needed in a legislative reapportionment. The plebiscite issue came up because one was
ordered and held for Mandaluyong in the course of its conversion into a highly urbanized city, while
none was held for San Juan. In explaining why this happened, the Court ruled that no plebiscite was
necessary for San Juan because the objective of the plebiscite was the conversion of Mandaluyong into a
highly urbanized city as required by Article X, Section 10 the Local Government Code; the creation of a
new legislative district only followed as a consequence. In other words, the apportionment alone and by
itself did not call for a plebiscite, so that none was needed for San Juan where only a reapportionment
took place.

The need for a plebiscite under Article X, Section 10 and the lack of requirement for one under Article VI,
Section 5 can best be appreciated by a consideration of the historical roots of these two provisions, the
nature of the concepts they embody as heretofore discussed, and their areas of application.

A Bit of History.

In Macias v. COMELEC,28 we first jurisprudentially acknowledged the American roots of our

apportionment provision, noting its roots from the Fourteenth Amendment29 of the U.S. Constitution
and from the constitutions of some American states. The Philippine Organic Act of 1902 created the
Philippine Assembly,30 the body that acted as the lower house of the bicameral legislature under the
Americans, with the Philippine Commission acting as the upper house. While the members of the
Philippine Commission were appointed by the U.S. President with the conformity of the U.S. Senate, the
members of the Philippine Assembly were elected by representative districts previously delineated
under the Philippine Organic Act of 1902 pursuant to the mandate to apportion the seats of the
Philippine Assembly among the provinces as nearly as practicable according to population. Thus,
legislative apportionment first started in our country.
The Jones Law or the Philippine Autonomy Act of 1916 maintained the apportionment provision,
dividing the country into 12 senate districts and 90 representative districts electing one delegate each to
the House of Representatives. Section 16 of the Act specifically vested the Philippine Legislature with
the authority to redistrict the Philippine Islands.

Under the 1935 Constitution, Article VI, Section 5 retained the concept of legislative apportionment
together with "district" as the basic unit of apportionment; the concern was "equality of representation
. . . as an essential feature of republican institutions" as expressed in the leading case of Macias v.
COMELEC.31 The case ruled that inequality of representation is a justiciable, not a political issue, which
ruling was reiterated in Montejo v. COMELEC.32 Notably, no issue regarding the holding of a plebiscite
ever came up in these cases and the others that followed, as no plebiscite was required.

Article VIII, Section 2 of the 1973 Constitution retained the concept of equal representation "in
accordance with the number of their respective inhabitants and on the basis of a uniform and
progressive ratio" with each district being, as far as practicable, contiguous, compact and adjacent
territory. This formulation was essentially carried over to the 1987 Constitution, distinguished only from
the previous one by the presence of party-list representatives. In neither Constitution was a plebiscite
required.

The need for a plebiscite in the creation, division, merger, or abolition of local government units was not
constitutionally enshrined until the 1973 Constitution. However, as early as 1959, R.A. No. 226433
required, in the creation of barrios by Provincial Boards, that the creation and definition of boundaries
be "upon petition of a majority of the voters in the areas affected." In 1961, the Charter of the City of
Caloocan (R.A. No. 3278) carried this further by requiring that the "Act shall take effect after a majority
of voters of the Municipality of Caloocan vote in favor of the conversion of their municipality into a city
in a plebiscite." This was followed up to 1972 by other legislative enactments requiring a plebiscite as a
condition for the creation and conversion of local government units as well as the transfer of sitios from
one legislative unit to another.34 In 1973, the plebiscite requirement was accorded constitutional
status.

Under these separate historical tracks, it can be seen that the holding of a plebiscite was never a
requirement in legislative apportionment or reapportionment. After it became constitutionally
entrenched, a plebiscite was also always identified with the creation, division, merger, abolition and
alteration of boundaries of local government units, never with the concept of legislative apportionment.
Nature and Areas of Application.

The legislative district that Article VI, Section 5 speaks of may, in a sense, be called a political unit
because it is the basis for the election of a member of the House of Representatives and members of the
local legislative body. It is not, however, a political subdivision through which functions of government
are carried out. It can more appropriately be described as a representative unit that may or may not
encompass the whole of a city or a province, but unlike the latter, it is not a corporate unit. Not being a
corporate unit, a district does not act for and in behalf of the people comprising the district; it merely
delineates the areas occupied by the people who will choose a representative in their national affairs.
Unlike a province, which has a governor; a city or a municipality, which has a mayor; and a barangay,
which has a punong barangay, a district does not have its own chief executive. The role of the
congressman that it elects is to ensure that the voice of the people of the district is heard in Congress,
not to oversee the affairs of the legislative district. Not being a corporate unit also signifies that it has no
legal personality that must be created or dissolved and has no capacity to act. Hence, there is no need
for any plebiscite in the creation, dissolution or any other similar action on a legislative district.

The local government units, on the other hand, are political and corporate units. They are the territorial
and political subdivisions of the state.35 They possess legal personality on the authority of the
Constitution and by action of the Legislature. The Constitution defines them as entities that Congress
can, by law, create, divide, abolish, merge; or whose boundaries can be altered based on standards
again established by both the Constitution and the Legislature.36 A local government unit's corporate
existence begins upon the election and qualification of its chief executive and a majority of the members
of its Sanggunian.37

As a political subdivision, a local government unit is an "instrumentality of the state in carrying out the
functions of government."38 As a corporate entity with a distinct and separate juridical personality from
the State, it exercises special functions for the sole benefit of its constituents. It acts as "an agency of
the community in the administration of local affairs"39 and the mediums through which the people act
in their corporate capacity on local concerns.40 In light of these roles, the Constitution saw it fit to
expressly secure the consent of the people affected by the creation, division, merger, abolition or
alteration of boundaries of local government units through a plebiscite.

These considerations clearly show the distinctions between a legislative apportionment or

reapportionment and the division of a local government unit. Historically and by its intrinsic nature, a
legislative apportionment does not mean, and does not even imply, a division of a local government unit
where the apportionment takes place. Thus, the plebiscite requirement that applies to the division of a
province, city, municipality or barangay under the Local Government Code should not apply to and be a
requisite for the validity of a legislative apportionment or reapportionment.

R.A. No. 9371 and COMELEC Res. No. 7837

R.A. No. 9371 is, on its face, purely and simply a reapportionment legislation passed in accordance with
the authority granted to Congress under Article VI, Section 5(4) of the Constitution. Its core provision -
Section 1 - provides:

SECTION 1. Legislative Districts. - The lone legislative district of the City of Cagayan de Oro is hereby
apportioned to commence in the next national elections after the effectivity of this Act. Henceforth,
barangays Bonbon, Bayabas, Kauswagan, Carmen, Patag, Bulua, Iponan, Baikingon, San Simon, Pagatpat,
Canitoan, Balulang, Lumbia, Pagalungan, Tagpangi, Taglimao, Tuburan, Pigsag-an, Tumpagon, Bayanga,
Mambuaya, Dansulihon, Tignapoloan and Bisigan shall comprise the first district while barangays
Macabalan, Puntod, Consolacion, Camaman-an, Nazareth, Macansandig, Indahag, Lapasan, Gusa,
Cugman, FS Catanico, Tablon, Agusan, Puerto, Bugo and Balubal and all urban barangays from Barangay
1 to Barangay 40 shall comprise the second district.

Under these wordings, no division of Cagayan de Oro City as a political and corporate entity takes place
or is mandated. Cagayan de Oro City politically remains a single unit and its administration is not divided
along territorial lines. Its territory remains completely whole and intact; there is only the addition of
another legislative district and the delineation of the city into two districts for purposes of
representation in the House of Representatives. Thus, Article X, Section 10 of the Constitution does not
come into play and no plebiscite is necessary to validly apportion Cagayan de Oro City into two districts.

Admittedly, the legislative reapportionment carries effects beyond the creation of another
congressional district in the city by providing, as reflected in COMELEC Resolution No. 7837, for
additional Sangguniang Panglunsod seats to be voted for along the lines of the congressional
apportionment made. The effect on the Sangguniang Panglunsod, however, is not directly traceable to
R.A. No. 9371 but to another law - R.A. No. 663641 - whose Section 3 provides:

SECTION 3. Other Cities. - The provision of any law to the contrary notwithstanding the City of Cebu, City
of Davao, and any other city with more than one representative district shall have eight (8) councilors
for each district who shall be residents thereof to be elected by the qualified voters therein, provided
that the cities of Cagayan de Oro, Zamboanga, Bacolod, Iloilo and other cities comprising a
representative district shall have twelve (12) councilors each and all other cities shall have ten (10)
councilors each to be elected at large by the qualified voters of the said cities: Provided, That in no case
shall the present number of councilors according to their charters be reduced.

However, neither does this law have the effect of dividing the City of Cagayan de Oro into two political
and corporate units and territories. Rather than divide the city either territorially or as a corporate
entity, the effect is merely to enhance voter representation by giving each city voter more and greater
say, both in Congress and in the Sangguniang Panglunsod.

To illustrate this effect, before the reapportionment, Cagayan de Oro had only one congressman and 12
city council members citywide for its population of approximately 500,000.42 By having two legislative
districts, each of them with one congressman, Cagayan de Oro now effectively has two congressmen,
each one representing 250,000 of the city's population. In terms of services for city residents, this easily
means better access to their congressman since each one now services only 250,000 constituents as
against the 500,000 he used to represent. The same goes true for the Sangguniang Panglungsod with its
ranks increased from 12 to 16 since each legislative district now has 8 councilors. In representation
terms, the fewer constituents represented translate to a greater voice for each individual city resident in
Congress and in the Sanggunian; each congressman and each councilor represents both a smaller area
and fewer constituents whose fewer numbers are now concentrated in each representative. The City,
for its part, now has twice the number of congressmen speaking for it and voting in the halls of
Congress. Since the total number of congressmen in the country has not increased to the point of
doubling its numbers, the presence of two congressman (instead of one) from the same city cannot but
be a quantitative and proportional improvement in the representation of Cagayan de Oro City in
Congress.

Equality of representation.

The petitioner argues that the distribution of the legislative districts is unequal. District 1 has only
93,719 registered voters while District 2 has 127,071. District 1 is composed mostly of rural barangays
while District 2 is composed mostly of urban barangays.43 Thus, R.A. No. 9371 violates the principle of
equality of representation.
A clarification must be made. The law clearly provides that the basis for districting shall be the number
of the inhabitants of a city or a province, not the number of registered voters therein. We settled this
very same question in Herrera v. COMELEC44 when we interpreted a provision in R.A. No. 7166 and
COMELEC Resolution No. 2313 that applied to the Province of Guimaras. We categorically ruled that the
basis for districting is the number of inhabitants of the Province of Guimaras by municipality based on
the official 1995 Census of Population as certified to by Tomas P. Africa, Administrator of the National
Statistics Office.

The petitioner, unfortunately, did not provide information about the actual population of Cagayan de
Oro City. However, we take judicial notice of the August 2007 census of the National Statistics Office
which shows that barangays comprising Cagayan de Oro's first district have a total population of
254,644, while the second district has 299,322 residents. Undeniably, these figures show a disparity in
the population sizes of the districts.45 The Constitution, however, does not require mathematical
exactitude or rigid equality as a standard in gauging equality of representation.46 In fact, for cities, all it
asks is that "each city with a population of at least two hundred fifty thousand shall have one
representative," while ensuring representation for every province regardless of the size of its
population. To ensure quality representation through commonality of interests and ease of access by
the representative to the constituents, all that the Constitution requires is that every legislative district
should comprise, as far as practicable, contiguous, compact, and adjacent territory. Thus, the
Constitution leaves the local government units as they are found and does not require their division,
merger or transfer to satisfy the numerical standard it imposes. Its requirements are satisfied despite
some numerical disparity if the units are contiguous, compact and adjacent as far as practicable.

The petitioner's contention that there is a resulting inequality in the division of Cagayan de Oro City into
two districts because the barangays in the first district are mostly rural barangays while the second
district is mostly urban, is largely unsubstantiated. But even if backed up by proper proof, we cannot
question the division on the basis of the difference in the barangays' levels of development or
developmental focus as these are not part of the constitutional standards for legislative apportionment
or reapportionment. What the components of the two districts of Cagayan de Oro would be is a matter
for the lawmakers to determine as a matter of policy. In the absence of any grave abuse of discretion or
violation of the established legal parameters, this Court cannot intrude into the wisdom of these
policies.47

WHEREFORE, we hereby DISMISS the petition for lack of merit. Costs against the petitioner.

SO ORDERED.
EN BANC

THE PROVINCE OF NORTH COTABATO, duly represented by GOVERNOR JESUS SACDALAN and/or VICE-
GOVERNOR EMMANUEL PIÑOL, for and in his own behalf,

Petitioners,

- versus -

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

Respondents.

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

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

Zamboanga, and in his personal capacity as resident of the City of Zamboanga, Rep. MA. ISABELLE G.
CLIMACO, District 1, and Rep. ERICO BASILIO A. FABIAN, District 2, City of Zamboanga,
 Petitioners,

- versus -

THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE NEGOTIATING PANEL (GRP), as
represented by RODOLFO C. GARCIA, LEAH ARMAMENTO, SEDFREY CANDELARIA, MARK RYAN SULLIVAN
and HERMOGENES ESPERON, in his capacity as the Presidential Adviser on Peace Process,

Respondents.

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

THE CITY OF ILIGAN, duly represented by CITY MAYOR LAWRENCE LLUCH CRUZ,

Petitioner,

- versus –

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

Respondents.

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

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

YEBES, in his capacity as Provincial Governor, HON. FRANCIS H. OLVIS, in his capacity as Vice-Governor
and Presiding Officer of the Sangguniang Panlalawigan, HON. CECILIA JALOSJOS CARREON,
Congresswoman, 1st Congressional District, HON. CESAR G. JALOSJOS, Congressman, 3rd Congressional
District, and Members of the Sangguniang Panlalawigan of the Province of Zamboanga del Norte,
namely, HON. SETH FREDERICK P. JALOSJOS, HON. FERNANDO R. CABIGON, JR., HON. ULDARICO M.
MEJORADA II, HON. EDIONAR M. ZAMORAS, HON. EDGAR J. BAGUIO, HON. CEDRIC L. ADRIATICO, HON.
FELIXBERTO C. BOLANDO, HON. JOSEPH BRENDO C. AJERO, HON. NORBIDEIRI B. EDDING, HON. ANECITO
S. DARUNDAY, HON. ANGELICA J. CARREON and HON. LUZVIMINDA E. TORRINO,

Petitioners,

- versus -

THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE NEGOTIATING PANEL [GRP], as
represented by HON. RODOLFO C. GARCIA and HON. HERMOGENES ESPERON, in his capacity as the
Presidential Adviser of Peace Process,

Respondents.

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

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

Petitioners,

- versus -

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

Respondents.

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

FRANKLIN M. DRILON and ADEL ABBAS TAMANO,

 Petitioners-in-Intervention.

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

SEN. MANUEL A. ROXAS,

Petitioners-in-Intervention.

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

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

Petitioners-in-Intervention,

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

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

Petitioners-in-Intervention.

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

THE PROVINCE OF SULTAN KUDARAT, rep. by HON. SUHARTO T. MANGUDADATU, in his capacity as
Provincial Governor and a resident of the Province of Sultan Kudarat,

Petitioner-in-Intervention.

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

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

Petitioner-in-Intervention.

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

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

Petitioners-in-Intervention.

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

MARINO RIDAO and KISIN BUXANI,

Petitioners-in-Intervention.

x--------------------------------------------x
MUSLIM LEGAL ASSISTANCE FOUNDATION, INC (MUSLAF),

Respondent-in-Intervention.

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

MUSLIM MULTI-SECTORAL MOVEMENT FOR PEACE & DEVELOPMENT (MMMPD),

Respondent-in-Intervention.

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

G.R. No. 183591

Present:

PUNO, C.J.,

QUISUMBING,

YNARES-SANTIAGO,

CARPIO,

AUSTRIA-MARTINEZ,

CORONA,

CARPIO MORALES,

AZCUNA,

TINGA,

CHICO-NAZARIO,

VELASCO, JR.,

NACHURA,

REYES,

LEONARDO-DE CASTRO, &

BRION, JJ.

Promulgated:

October 14, 2008

G.R. No. 183752

G.R. No. 183893
G.R. No. 183951
 G.R. No. 183962

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

DECISION

CARPIO MORALES, J.:

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

I. FACTUAL ANTECEDENTS OF THE PETITIONS

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

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

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

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

The Solicitor General, who represents respondents, summarizes the MOA-AD by stating that the
same contained, among others, the commitment of the parties to pursue peace negotiations, protect
and respect human rights, negotiate with sincerity in the resolution and pacific settlement of the
conflict, and refrain from the use of threat or force to attain undue advantage while the peace
negotiations on the substantive agenda are on-going.[2]
 Early on, however, it was evident that there was not going to be any smooth sailing in the GRP-
MILF peace process. Towards the end of 1999 up to early 2000, the MILF attacked a number of
municipalities in Central Mindanao and, in March 2000, it took control of the town hall of Kauswagan,
Lanao del Norte.[3] In response, then President Joseph Estrada declared and carried out an “all-out-
war” against the MILF.

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

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

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

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

Meanwhile, then MILF Chairman Salamat Hashim passed away on July 13, 2003 and he was
replaced by Al Haj Murad, who was then the chief peace negotiator of the MILF. Murad’s position as
chief peace negotiator was taken over by Mohagher Iqbal.[6]
 In 2005, several exploratory talks were held between the parties in Kuala Lumpur, eventually
leading to the crafting of the draft MOA-AD in its final form, which, as mentioned, was set to be signed
last August 5, 2008.

II. STATEMENT OF THE PROCEEDINGS

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

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

On July 23, 2008, the Province of North Cotabato[8] and Vice-Governor Emmanuel Piñol filed a petition,
docketed as G.R. No. 183591, for Mandamus and Prohibition with Prayer for the Issuance of Writ of
Preliminary Injunction and Temporary Restraining Order.[9] Invoking the right to information on
matters of public concern, petitioners seek to compel respondents to disclose and furnish them the
complete and official copies of the MOA-AD including its attachments, and to prohibit the slated signing
of the MOA-AD, pending the disclosure of the contents of the MOA-AD and the holding of a public
consultation thereon. Supplementarily, petitioners pray that the MOA-AD be declared
unconstitutional.[10]

This initial petition was followed by another one, docketed as G.R. No. 183752, also for Mandamus
and Prohibition[11] filed by the City of Zamboanga,[12] Mayor Celso Lobregat, Rep. Ma. Isabelle Climaco
and Rep. Erico Basilio Fabian who likewise pray for similar injunctive reliefs. Petitioners herein
moreover pray that the City of Zamboanga be excluded from the Bangsamoro Homeland and/or
Bangsamoro Juridical Entity and, in the alternative, that the MOA-AD be declared null and void.

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

Meanwhile, the City of Iligan[16] filed a petition for Injunction and/or Declaratory Relief, docketed as
G.R. No. 183893, praying that respondents be enjoined from signing the MOA-AD or, if the same had
already been signed, from implementing the same, and that the MOA-AD be declared unconstitutional.
Petitioners herein additionally implead Executive Secretary Eduardo Ermita as respondent.

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

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

Various parties moved to intervene and were granted leave of court to file their petitions-/comments-in-
intervention. Petitioners-in-Intervention include Senator Manuel A. Roxas, former Senate President
Franklin Drilon and Atty. Adel Tamano, the City of Isabela[21] and Mayor Cherrylyn Santos-Akbar, the
Province of Sultan Kudarat[22] and Gov. Suharto Mangudadatu, the Municipality of Linamon in Lanao
del Norte,[23] Ruy Elias Lopez of Davao City and of the Bagobo tribe, Sangguniang Panlungsod member
Marino Ridao and businessman Kisin Buxani, both of Cotabato City; and lawyers Carlo Gomez, Gerardo
Dilig, Nesario Awat, Joselito Alisuag, Richalex Jagmis, all of Palawan City. The Muslim Legal Assistance
Foundation, Inc. (Muslaf) and the Muslim Multi-Sectoral Movement for Peace and Development
(MMMPD) filed their respective Comments-in-Intervention.

By subsequent Resolutions, the Court ordered the consolidation of the petitions. Respondents filed
Comments on the petitions, while some of petitioners submitted their respective Replies.
Respondents, by Manifestation and Motion of August 19, 2008, stated that the Executive Department
shall thoroughly review the MOA-AD and pursue further negotiations to address the issues hurled
against it, and thus moved to dismiss the cases. In the succeeding exchange of pleadings, respondents’
motion was met with vigorous opposition from petitioners.

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

1. Whether the petitions have become moot and academic

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

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

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

3. Whether respondent Government of the Republic of the Philippines Peace Panel committed grave
abuse of discretion amounting to lack or excess of jurisdiction when it negotiated and initiated the MOA
vis-à-vis ISSUES Nos. 4 and 5;

4. Whether there is a violation of the people’s right to information on matters of public concern (1987
Constitution, Article III, Sec. 7) under a state policy of full disclosure of all its transactions involving
public interest (1987 Constitution, Article II, Sec. 28) including public consultation under Republic Act
No. 7160 (LOCAL GOVERNMENT CODE OF 1991)[;]

If it is in the affirmative, whether prohibition under Rule 65 of the 1997 Rules of Civil Procedure is an
appropriate remedy;
5. Whether by signing the MOA, the Government of the Republic of the Philippines would be BINDING
itself

a) to create and recognize the Bangsamoro Juridical Entity (BJE) as a separate state, or a juridical,
territorial or political subdivision not recognized by law;

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

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

If in the affirmative, whether the Executive Branch has the authority to so bind the Government of the
Republic of the Philippines;

6. Whether the inclusion/exclusion of the Province of North Cotabato, Cities of Zamboanga, Iligan and
Isabela, and the Municipality of Linamon, Lanao del Norte in/from the areas covered by the projected
Bangsamoro Homeland is a justiciable question; and

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

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

III. OVERVIEW OF THE MOA-AD

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

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

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

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

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

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

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

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

A. CONCEPTS AND PRINCIPLES

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

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

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

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

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

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

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

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

B. TERRITORY

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

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

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

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

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

C. RESOURCES

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

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

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

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

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

D. GOVERNANCE

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

between the Central Government

and the BJE

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

The MOA-AD provides that its provisions requiring “amendments to the existing legal framework”
shall take effect upon signing of the Comprehensive Compact and upon effecting the aforesaid
amendments, with due regard to the non-derogation of prior agreements and within the stipulated
timeframe to be contained in the Comprehensive Compact. As will be discussed later, much of the
present controversy hangs on the legality of this provision.

The BJE is granted the power to build, develop and maintain its own institutions inclusive of civil service,
electoral, financial and banking, education, legislation, legal, economic, police and internal security
force, judicial system and correctional institutions, the details of which shall be discussed in the
negotiation of the comprehensive compact.

As stated early on, the MOA-AD was set to be signed on August 5, 2008 by Rodolfo Garcia and
Mohagher Iqbal, Chairpersons of the Peace Negotiating Panels of the GRP and the MILF, respectively.
Notably, the penultimate paragraph of the MOA-AD identifies the signatories as “the representatives of
the Parties,” meaning the GRP and MILF themselves, and not merely of the negotiating panels.[53] In
addition, the signature page of the MOA-AD states that it is “WITNESSED BY” Datuk Othman Bin Abd
Razak, Special Adviser to the Prime Minister of Malaysia, “ENDORSED BY” Ambassador Sayed Elmasry,
Adviser to Organization of the Islamic Conference (OIC) Secretary General and Special Envoy for Peace
Process in Southern Philippines, and SIGNED “IN THE PRESENCE OF” Dr. Albert G. Romulo, Secretary of
Foreign Affairs of RP and Dato’ Seri Utama Dr. Rais Bin Yatim, Minister of Foreign Affairs, Malaysia, all of
whom were scheduled to sign the Agreement last August 5, 2008.
Annexed to the MOA-AD are two documents containing the respective lists cum maps of the provinces,
municipalities, and barangays under Categories A and B earlier mentioned in the discussion on the
strand on TERRITORY.

IV. PROCEDURAL ISSUES

A. RIPENESS

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

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

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

The Solicitor General argues that there is no justiciable controversy that is ripe for judicial review in the
present petitions, reasoning that
The unsigned MOA-AD is simply a list of consensus points subject to further negotiations and legislative
enactments as well as constitutional processes aimed at attaining a final peaceful agreement. Simply
put, the MOA-AD remains to be a proposal that does not automatically create legally demandable rights
and obligations until the list of operative acts required have been duly complied with. x x x

xxxx

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

The Solicitor General cites[63] the following provisions of the MOA-AD:

TERRITORY

xxxx

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

xxxx

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

xxxx

GOVERNANCE

xxxx

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

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

The Solicitor General’s arguments fail to persuade.

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

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

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

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

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

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

The authority of the GRP Negotiating Panel is defined by Executive Order No. 3 (E.O. No. 3), issued on
February 28, 2001.[75] The said executive order requires that “[t]he government's policy framework for
peace, including the systematic approach and the administrative structure for carrying out the
comprehensive peace process x x x be governed by this Executive Order.”[76]

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

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

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

B. LOCUS STANDI

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

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

When suing as a citizen, the person complaining must allege that he has been or is about to be
denied some right or privilege to which he is lawfully entitled or that he is about to be subjected to
some burdens or penalties by reason of the statute or act complained of.[80] When the issue concerns a
public right, it is sufficient that the petitioner is a citizen and has an interest in the execution of the
laws.[81]
 For a taxpayer, one is allowed to sue where there is an assertion that public funds are illegally
disbursed or deflected to an illegal purpose, or that there is a wastage of public funds through the
enforcement of an invalid or unconstitutional law.[82] The Court retains discretion whether or not to
allow a taxpayer’s suit.[83]

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

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

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

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

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

In not a few cases, the Court, in keeping with its duty under the Constitution to determine whether
the other branches of government have kept themselves within the limits of the Constitution and the
laws and have not abused the discretion given them, has brushed aside technical rules of procedure.[91]
 In the petitions at bar, petitioners Province of North Cotabato (G.R. No. 183591) Province of
Zamboanga del Norte (G.R. No. 183951), City of Iligan (G.R. No. 183893) and City of Zamboanga (G.R.
No. 183752) and petitioners-in-intervention Province of Sultan Kudarat, City of Isabela and Municipality
of Linamon have locus standi in view of the direct and substantial injury that they, as LGUs, would suffer
as their territories, whether in whole or in part, are to be included in the intended domain of the BJE.
These petitioners allege that they did not vote for their inclusion in the ARMM which would be
expanded to form the BJE territory. Petitioners’ legal standing is thus beyond doubt.

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

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

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

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

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

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

B. MOOTNESS

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

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

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

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

The present petitions fall squarely into these exceptions to thus thrust them into the domain of
judicial review. The grounds cited above in David are just as applicable in the present cases as they
were, not only in David, but also in Province of Batangas v. Romulo[100] and Manalo v. Calderon[101]
where the Court similarly decided them on the merits, supervening events that would ordinarily have
rendered the same moot notwithstanding.
Petitions not mooted

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

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

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

Petitions are imbued with paramount public interest

There is no gainsaying that the petitions are imbued with paramount public interest, involving a
significant part of the country’s territory and the wide-ranging political modifications of affected LGUs.
The assertion that the MOA-AD is subject to further legal enactments including possible Constitutional
amendments more than ever provides impetus for the Court to formulate controlling principles to guide
the bench, the bar, the public and, in this case, the government and its negotiating entity.
 Respondents cite Suplico v. NEDA, et al.[103] where the Court did not “pontificat[e] on issues
which no longer legitimately constitute an actual case or controversy [as this] will do more harm than
good to the nation as a whole.”

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

The MOA-AD is part of a series of agreements

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

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

Need to formulate principles-guidelines

Surely, the present MOA-AD can be renegotiated or another one will be drawn up to carry out the
Ancestral Domain Aspect of the Tripoli Agreement 2001, in another or in any form, which could contain
similar or significantly drastic provisions. While the Court notes the word of the Executive Secretary that
the government “is committed to securing an agreement that is both constitutional and equitable
because that is the only way that long-lasting peace can be assured,” it is minded to render a decision on
the merits in the present petitions to formulate controlling principles to guide the bench, the bar, the
public and, most especially, the government in negotiating with the MILF regarding Ancestral Domain.
 Respondents invite the Court’s attention to the separate opinion of then Chief Justice Artemio
Panganiban in Sanlakas v. Reyes[104] in which he stated that the doctrine of “capable of repetition yet
evading review” can override mootness, “provided the party raising it in a proper case has been and/or
continue to be prejudiced or damaged as a direct result of their issuance.” They contend that the Court
must have jurisdiction over the subject matter for the doctrine to be invoked.

The present petitions all contain prayers for Prohibition over which this Court exercises original
jurisdiction. While G.R. No. 183893 (City of Iligan v. GRP) is a petition for Injunction and Declaratory
Relief, the Court will treat it as one for Prohibition as it has far reaching implications and raises questions
that need to be resolved.[105] At all events, the Court has jurisdiction over most if not the rest of the
petitions.

Indeed, the present petitions afford a proper venue for the Court to again apply the doctrine
immediately referred to as what it had done in a number of landmark cases.[106] There is a reasonable
expectation that petitioners, particularly the Provinces of North Cotabato, Zamboanga del Norte and
Sultan Kudarat, the Cities of Zamboanga, Iligan and Isabela, and the Municipality of Linamon, will again
be subjected to the same problem in the future as respondents’ actions are capable of repetition, in
another or any form.

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

V. SUBSTANTIVE ISSUES

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

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

ON THE FIRST SUBSTANTIVE ISSUE

Petitioners invoke their constitutional right to information on matters of public concern, as provided in
Section 7, Article III on the Bill of Rights:

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

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

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

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

x x x The incorporation of this right in the Constitution is a recognition of the fundamental role of
free exchange of information in a democracy. There can be no realistic perception by the public of the
nation’s problems, nor a meaningful democratic decision-making if they are denied access to
information of general interest. Information is needed to enable the members of society to cope with
the exigencies of the times. As has been aptly observed: “Maintaining the flow of such information
depends on protection for both its acquisition and its dissemination since, if either process is
interrupted, the flow inevitably ceases.” x x x[111]
 In the same way that free discussion enables members of society to cope with the exigencies of
their time, access to information of general interest aids the people in democratic decision-making by
giving them a better perspective of the vital issues confronting the nation[112] so that they may be able
to criticize and participate in the affairs of the government in a responsible, reasonable and effective
manner. It is by ensuring an unfettered and uninhibited exchange of ideas among a well-informed
public that a government remains responsive to the changes desired by the people.[113]

The MOA-AD is a matter of public concern

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

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

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

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

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

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

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

The policy of full public disclosure enunciated in above-quoted Section 28 complements the right
of access to information on matters of public concern found in the Bill of Rights. The right to
information guarantees the right of the people to demand information, while Section 28 recognizes the
duty of officialdom to give information even if nobody demands.[125]

The policy of public disclosure establishes a concrete ethical principle for the conduct of public
affairs in a genuinely open democracy, with the people’s right to know as the centerpiece. It is a
mandate of the State to be accountable by following such policy.[126] These provisions are vital to the
exercise of the freedom of expression and essential to hold public officials at all times accountable to
the people.[127]

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

Commission so disclose:

MR. SUAREZ. And since this is not self-executory, this policy will not be enunciated or will not be in
force and effect until after Congress shall have provided it.
 MR. OPLE. I expect it to influence the climate of public ethics immediately but, of course, the
implementing law will have to be enacted by Congress, Mr. Presiding Officer.[128]

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

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

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

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

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

Indubitably, the effectivity of the policy of public disclosure need not await the passing of a
statute. As Congress cannot revoke this principle, it is merely directed to provide for “reasonable
safeguards.” The complete and effective exercise of the right to information necessitates that its
complementary provision on public disclosure derive the same self-executory nature. Since both
provisions go hand-in-hand, it is absurd to say that the broader[130] right to information on matters of
public concern is already enforceable while the correlative duty of the State to disclose its transactions
involving public interest is not enforceable until there is an enabling law. Respondents cannot thus
point to the absence of an implementing legislation as an excuse in not effecting such policy.
 An essential element of these freedoms is to keep open a continuing dialogue or process of
communication between the government and the people. It is in the interest of the State that the
channels for free political discussion be maintained to the end that the government may perceive and
be responsive to the people’s will.[131] Envisioned to be corollary to the twin rights to information and
disclosure is the design for feedback mechanisms.

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

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

xxxx

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

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

The imperative of a public consultation, as a species of the right to information, is evident in the
“marching orders” to respondents. The mechanics for the duty to disclose information and to conduct
public consultation regarding the peace agenda and process is manifestly provided by E.O. No. 3.[133]
The preambulatory clause of E.O. No. 3 declares that there is a need to further enhance the contribution
of civil society to the comprehensive peace process by institutionalizing the people’s participation.
One of the three underlying principles of the comprehensive peace process is that it “should be
community-based, reflecting the sentiments, values and principles important to all Filipinos” and “shall
be defined not by the government alone, nor by the different contending groups only, but by all Filipinos
as one community.”[134] Included as a component of the comprehensive peace process is consensus-
building and empowerment for peace, which includes “continuing consultations on both national and
local levels to build consensus for a peace agenda and process, and the mobilization and facilitation of
people’s participation in the peace process.”[135]

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

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

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

PAPP Esperon committed grave abuse of discretion

The PAPP committed grave abuse of discretion when he failed to carry out the pertinent
consultation. The furtive process by which the MOA-AD was designed and crafted runs contrary to and
in excess of the legal authority, and amounts to a whimsical, capricious, oppressive, arbitrary and
despotic exercise thereof.
 The Court may not, of course, require the PAPP to conduct the consultation in a particular way or
manner. It may, however, require him to comply with the law and discharge the functions within the
authority granted by the President.[139]

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

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

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

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

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

authorities unless the consultations mentioned in Sections 2 (c) and 26 hereof are complied with, and
prior approval of the sanggunian concerned is obtained: Provided, That occupants in areas where such
projects are to be implemented shall not be evicted unless appropriate relocation sites have been
provided, in accordance with the provisions of the Constitution.[143] (Italics and underscoring supplied)
 In Lina, Jr. v. Hon. Paño,[144] the Court held that the above-stated policy and above-quoted
provision of the LGU apply only to national programs or projects which are to be implemented in a
particular local community. Among the programs and projects covered are those that are critical to the
environment and human ecology including those that may call for the eviction of a particular group of
people residing in the locality where these will be implemented.[145] The MOA-AD is one peculiar
program that unequivocally and unilaterally vests ownership of a vast territory to the Bangsamoro
people,[146] which could pervasively and drastically result to the diaspora or displacement of a great
number of inhabitants from their total environment.

With respect to the indigenous cultural communities/indigenous peoples (ICCs/IPs), whose

interests are represented herein by petitioner Lopez and are adversely affected by the MOA-AD, the
ICCs/IPs have, under the IPRA, the right to participate fully at all levels of decision-making in matters
which may affect their rights, lives and destinies.[147] The MOA-AD, an instrument recognizing
ancestral domain, failed to justify its non-compliance with the clear-cut mechanisms ordained in said
Act,[148] which entails, among other things, the observance of the free and prior informed consent of
the ICCs/IPs.

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

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

ON THE SECOND SUBSTANTIVE ISSUE

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

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

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

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

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

4. The relationship between the Central Government and the Bangsamoro juridical entity shall be
associative characterized by shared authority and responsibility with a structure of governance based on
executive, legislative, judicial and administrative institutions with defined powers and functions in the
comprehensive compact. A period of transition shall be established in a comprehensive peace compact
specifying the relationship between the Central Government and the BJE. (Emphasis and underscoring
supplied)
The nature of the “associative” relationship may have been intended to be defined more precisely in the
still to be forged Comprehensive Compact. Nonetheless, given that there is a concept of “association” in
international law, and the MOA-AD – by its inclusion of international law instruments in its TOR– placed
itself in an international legal context, that concept of association may be brought to bear in
understanding the use of the term “associative” in the MOA-AD.

Keitner and Reisman state that

[a]n association is formed when two states of unequal power voluntarily establish durable links. In the
basic model, one state, the associate, delegates certain responsibilities to the other, the principal, while
maintaining its international status as a state. Free associations represent a middle ground between
integration and independence. x x x[150] (Emphasis and underscoring supplied)

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

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

In the event of attacks or threats against the Marshall Islands or the FSM, the U.S. government has
the authority and obligation to defend them as if they were part of U.S. territory. The U.S. government,
moreover, has the option of establishing and using military areas and facilities within these associated
states and has the right to bar the military personnel of any third country from having access to these
territories for military purposes.
 It bears noting that in U.S. constitutional and international practice, free association is understood
as an international association between sovereigns. The Compact of Free Association is a treaty which is
subordinate to the associated nation’s national constitution, and each party may terminate the
association consistent with the right of independence. It has been said that, with the admission of the
U.S.-associated states to the UN in 1990, the UN recognized that the American model of free association
is actually based on an underlying status of independence.[152]

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

Back to the MOA-AD, it contains many provisions which are consistent with the international legal
concept of association, specifically the following: the BJE’s capacity to enter into economic and trade
relations with foreign countries, the commitment of the Central Government to ensure the BJE’s
participation in meetings and events in the ASEAN and the specialized UN agencies, and the continuing
responsibility of the Central Government over external defense. Moreover, the BJE’s right to participate
in Philippine official missions bearing on negotiation of border agreements, environmental protection,
and sharing of revenues pertaining to the bodies of water adjacent to or between the islands forming
part of the ancestral domain, resembles the right of the governments of FSM and the Marshall Islands to
be consulted by the U.S. government on any foreign affairs matter affecting them.

These provisions of the MOA indicate, among other things, that the Parties aimed to vest in the
BJE the status of an associated state or, at any rate, a status closely approximating it.

The concept of association is not recognized under the present Constitution

No province, city, or municipality, not even the ARMM, is recognized under our laws as having an
“associative” relationship with the national government. Indeed, the concept implies powers that go
beyond anything ever granted by the Constitution to any local or regional government. It also implies
the recognition of the associated entity as a state. The Constitution, however, does not contemplate
any state in this jurisdiction other than the Philippine State, much less does it provide for a transitory
status that aims to prepare any part of Philippine territory for independence.
 Even the mere concept animating many of the MOA-AD’s provisions, therefore, already requires
for its validity the amendment of constitutional provisions, specifically the following provisions of Article
X:

SECTION 1. The territorial and political subdivisions of the Republic of the Philippines are the provinces,
cities, municipalities, and barangays. There shall be autonomous regions in Muslim Mindanao and the
Cordilleras as hereinafter provided.

SECTION 15. There shall be created autonomous regions in Muslim Mindanao and in the Cordilleras
consisting of provinces, cities, municipalities, and geographical areas sharing common and distinctive
historical and cultural heritage, economic and social structures, and other relevant characteristics within
the framework of this Constitution and the national sovereignty as well as territorial integrity of the
Republic of the Philippines.

The BJE is a far more powerful

entity than the autonomous region

recognized in the Constitution

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

Even assuming arguendo that the MOA-AD would not necessarily sever any portion of Philippine
territory, the spirit animating it – which has betrayed itself by its use of the concept of association – runs
counter to the national sovereignty and territorial integrity of the Republic.
The defining concept underlying the relationship between the national government and the BJE being
itself contrary to the present Constitution, it is not surprising that many of the specific provisions of the
MOA-AD on the formation and powers of the BJE are in conflict with the Constitution and the laws.

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

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

The MOA-AD, moreover, would not

comply with Article X, Section 20 of

the Constitution

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

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

(1) Administrative organization;

(2) Creation of sources of revenues;

(3) Ancestral domain and natural resources;

(4) Personal, family, and property relations;

(5) Regional urban and rural planning development;

(6) Economic, social, and tourism development;

(7) Educational policies;

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

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

Again on the premise that the BJE may be regarded as an autonomous region, the MOA-AD would
require an amendment that would expand the above-quoted provision. The mere passage of new
legislation pursuant to sub-paragraph No. 9 of said constitutional provision would not suffice, since any
new law that might vest in the BJE the powers found in the MOA-AD must, itself, comply with other
provisions of the Constitution. It would not do, for instance, to merely pass legislation vesting the BJE
with treaty-making power in order to accommodate paragraph 4 of the strand on RESOURCES which
states: “The BJE is free to enter into any economic cooperation and trade relations with foreign
countries: provided, however, that such relationships and understandings do not include aggression
against the Government of the Republic of the Philippines x x x.” Under our constitutional system, it is
only the President who has that power. Pimentel v. Executive Secretary[155] instructs:

In our system of government, the President, being the head of state, is regarded as the sole organ
and authority in external relations and is the country's sole representative with foreign nations. As the
chief architect of foreign policy, the President acts as the country's mouthpiece with respect to
international affairs. Hence, the President is vested with the authority to deal with foreign states and
governments, extend or withhold recognition, maintain diplomatic relations, enter into treaties, and
otherwise transact the business of foreign relations. In the realm of treaty-making, the President has
the sole authority to negotiate with other states. (Emphasis and underscoring supplied)
 Article II, Section 22 of the Constitution must also be amended if the scheme envisioned in the
MOA-AD is to be effected. That constitutional provision states: “The State recognizes and promotes the
rights of indigenous cultural communities within the framework of national unity and development.”
(Underscoring supplied) An associative arrangement does not uphold national unity. While there may
be a semblance of unity because of the associative ties between the BJE and the national government,
the act of placing a portion of Philippine territory in a status which, in international practice, has
generally been a preparation for independence, is certainly not conducive to national unity.

Besides being irreconcilable with the Constitution, the MOA-AD is also inconsistent with prevailing
statutory law, among which are R.A. No. 9054[156] or the Organic Act of the ARMM, and the IPRA.[157]

Article X, Section 3 of the Organic Act of the ARMM is a bar to the adoption of the definition of
“Bangsamoro people” used in the MOA-AD. Paragraph 1 on CONCEPTS AND PRINCIPLES states:

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

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

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

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

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

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

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

xxxx

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

c) Delineation Proper. — The official delineation of ancestral domain boundaries including census of
all community members therein, shall be immediately undertaken by the Ancestral Domains Office upon
filing of the application by the ICCs/IPs concerned. Delineation will be done in coordination with the
community concerned and shall at all times include genuine involvement and participation by the
members of the communities concerned;

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

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

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

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

4) Historical accounts, including pacts and agreements concerning boundaries entered into by the
ICCs/IPs concerned with other ICCs/IPs;

5) Survey plans and sketch maps;

6) Anthropological data;

7) Genealogical surveys;

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

9) Pictures and descriptive histories of traditional landmarks such as mountains, rivers, creeks, ridges,
hills, terraces and the like; and

10) Write-ups of names and places derived from the native dialect of the community.
e) Preparation of Maps. — On the basis of such investigation and the findings of fact based thereon,
the Ancestral Domains Office of the NCIP shall prepare a perimeter map, complete with technical
descriptions, and a description of the natural features and landmarks embraced therein;

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

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

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

xxxx

To remove all doubts about the irreconcilability of the MOA-AD with the present legal system, a
discussion of not only the Constitution and domestic statutes, but also of international law is in order,
for
Article II, Section 2 of the Constitution states that the Philippines “adopts the generally accepted
principles of international law as part of the law of the land.”

Applying this provision of the Constitution, the Court, in Mejoff v. Director of Prisons,[158] held that the
Universal Declaration of Human Rights is part of the law of the land on account of which it ordered the
release on bail of a detained alien of Russian descent whose deportation order had not been executed
even after two years. Similarly, the Court in Agustin v. Edu[159] applied the aforesaid constitutional
provision to the 1968 Vienna Convention on Road Signs and Signals.

International law has long recognized the right to self-determination of “peoples,” understood not
merely as the entire population of a State but also a portion thereof. In considering the question of
whether the people of Quebec had a right to unilaterally secede from Canada, the Canadian Supreme
Court in REFERENCE RE SECESSION OF QUEBEC[160] had occasion to acknowledge that “the right of a
people to self-determination is now so widely recognized in international conventions that the principle
has acquired a status beyond ‘convention’ and is considered a general principle of international law.”

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

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

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

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

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

External self-determination can be defined as in the following statement from the Declaration on
Friendly Relations, supra, as

The establishment of a sovereign and independent State, the free association or integration with an
independent State or the emergence into any other political status freely determined by a people
constitute modes of implementing the right of self-determination by that people. (Emphasis added)

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

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

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

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

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

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

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

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

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

Article 3

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

Article 4

Indigenous peoples, in exercising their right to self-determination, have the right to autonomy or self-
government in matters relating to their internal and local affairs, as well as ways and means for
financing their autonomous functions.

Article 5
Indigenous peoples have the right to maintain and strengthen their distinct political, legal, economic,
social and cultural institutions, while retaining their right to participate fully, if they so choose, in the
political, economic, social and cultural life of the State.

Self-government, as used in international legal discourse pertaining to indigenous peoples, has

been understood as equivalent to “internal self-determination.”[166] The extent of self-determination
provided for in the UN DRIP is more particularly defined in its subsequent articles, some of which are
quoted hereunder:

Article 8

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

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

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

(b) Any action which has the aim or effect of dispossessing them of their lands, territories or
resources;

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

(d) Any form of forced assimilation or integration;

(e) Any form of propaganda designed to promote or incite racial or ethnic discrimination directed
against them.

Article 21

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

2. States shall take effective measures and, where appropriate, special measures to ensure continuing
improvement of their economic and social conditions. Particular attention shall be paid to the rights and
special needs of indigenous elders, women, youth, children and persons with disabilities.
Article 26

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

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

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

Article 30

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

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

Article 32

1. Indigenous peoples have the right to determine and develop priorities and strategies for the
development or use of their lands or territories and other resources.

2. States shall consult and cooperate in good faith with the indigenous peoples concerned through
their own representative institutions in order to obtain their free and informed consent prior to the
approval of any project affecting their lands or territories and other resources, particularly in connection
with the development, utilization or exploitation of mineral, water or other resources.
3. States shall provide effective mechanisms for just and fair redress for any such activities, and
appropriate measures shall be taken to mitigate adverse environmental, economic, social, cultural or
spiritual impact.

Article 37

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

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

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

Article 38

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

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

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

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

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

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

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

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

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

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

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

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

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

It bears noting that the GRP Peace Panel, in exploring lasting solutions to the Moro Problem through its
negotiations with the MILF, was not restricted by E.O. No. 3 only to those options available under the
laws as they presently stand. One of the components of a comprehensive peace process, which E.O. No.
3 collectively refers to as the “Paths to Peace,” is the pursuit of social, economic, and political reforms
which may require new legislation or even constitutional amendments. Sec. 4(a) of E.O. No. 3, which
reiterates Section 3(a), of E.O. No. 125,[167] states:
SECTION 4. The Six Paths to Peace. – The components of the comprehensive peace process comprise the
processes known as the “Paths to Peace”. These component processes are interrelated and not
mutually exclusive, and must therefore be pursued simultaneously in a coordinated and integrated
fashion. They shall include, but may not be limited to, the following:

a. PURSUIT OF SOCIAL, ECONOMIC AND POLITICAL REFORMS. This component involves the vigorous
implementation of various policies, reforms, programs and projects aimed at addressing the root causes
of internal armed conflicts and social unrest. This may require administrative action, new legislation or
even constitutional amendments.

x x x x (Emphasis supplied)

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

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

The inquiry on the legality of the “suspensive clause,” however, cannot stop here, because it must
be asked

whether the President herself may exercise the power delegated to the GRP Peace Panel under E.O. No.
3, Sec. 4(a).

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

the extent of the President’s power to conduct peace negotiations.

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

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

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

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

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

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

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

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

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

In the Philippine experience, the link between peace agreements and constitution-making has been
recognized by no less than the framers of the Constitution. Behind the provisions of the Constitution on
autonomous regions[172] is the framers’ intention to implement a particular peace agreement, namely,
the Tripoli Agreement of 1976 between the GRP and the MNLF, signed by then Undersecretary of
National Defense Carmelo Z. Barbero and then MNLF Chairman Nur Misuari.

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

I heard one of the Commissioners say that local autonomy already exists in the Muslim region; it is
working very well; it has, in fact, diminished a great deal of the problems. So, my question is: since that
already exists, why do we have to go into something new?

MR. OPLE. May I answer that on behalf of Chairman Nolledo. Commissioner Yusup Abubakar is right
that certain definite steps have been taken to implement the provisions of the Tripoli Agreement with
respect to an autonomous region in Mindanao. This is a good first step, but there is no question that
this is merely a partial response to the Tripoli Agreement itself and to the fuller standard of regional
autonomy contemplated in that agreement, and now by state policy.[173] (Emphasis supplied)
 The constitutional provisions on autonomy and the statutes enacted pursuant to them have, to the
credit of their drafters, been partly successful. Nonetheless, the Filipino people are still faced with the
reality of an on-going conflict between the Government and the MILF. If the President is to be expected
to find means for bringing this conflict to an end and to achieve lasting peace in Mindanao, then she
must be given the leeway to explore, in the course of peace negotiations, solutions that may require
changes to the Constitution for their implementation. Being uniquely vested with the power to conduct
peace negotiations with rebel groups, the President is in a singular position to know the precise nature
of their grievances which, if resolved, may bring an end to hostilities.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The stipulations on Phase II consisted of specific agreements on the structure of the expanded
autonomous region envisioned by the parties. To that extent, they are similar to the provisions of the
MOA-AD. There is, however, a crucial difference between the two agreements. While the MOA-AD
virtually guarantees that the “necessary changes to the legal framework” will be put in place, the GRP-
MNLF final peace agreement states thus: “Accordingly, these provisions [on Phase II] shall be
recommended by the GRP to Congress for incorporation in the amendatory or repealing law.”
 Concerns have been raised that the MOA-AD would have given rise to a binding international law
obligation on the part of the Philippines to change its Constitution in conformity thereto, on the ground
that it may be considered either as a binding agreement under international law, or a unilateral
declaration of the Philippine government to the international community that it would grant to the
Bangsamoro people all the concessions therein stated. Neither ground finds sufficient support in
international law, however.

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

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

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

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

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

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

xxxx

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

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

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

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

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

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

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

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

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

xxxx

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

As gathered from the above-quoted ruling of the ICJ, public statements of a state representative
may be construed as a unilateral declaration only when the following conditions are present: the
statements were clearly addressed to the international community, the state intended to be bound to
that community by its statements, and that not to give legal effect to those statements would be
detrimental to the security of international intercourse. Plainly, unilateral declarations arise only in
peculiar circumstances.
 The limited applicability of the Nuclear Tests Case ruling was recognized in a later case decided by
the ICJ entitled Burkina Faso v. Mali,[183] also known as the Case Concerning the Frontier Dispute. The
public declaration subject of that case was a statement made by the President of Mali, in an interview
by a foreign press agency, that Mali would abide by the decision to be issued by a commission of the
Organization of African Unity on a frontier dispute then pending between Mali and Burkina Faso.

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

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

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

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

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

The sovereign people may, if it so desired, go to the extent of giving up a portion of its own territory to
the Moros for the sake of peace, for it can change the Constitution in any it wants, so long as the change
is not inconsistent with what, in international law, is known as Jus Cogens.[184] Respondents, however,
may not preempt it in that decision.

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

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

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

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

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

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

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

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

communication between the government and the people. Corollary to these twin rights is the design for
feedback mechanisms. The right to public consultation was envisioned to be a species of these public
rights.

At least three pertinent laws animate these constitutional imperatives and justify the exercise of
the people’s right to be consulted on relevant matters relating to the peace agenda.

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

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

Three, Republic Act No. 8371 or the Indigenous Peoples Rights Act of 1997 provides for clear-cut
procedure for the recognition and delineation of ancestral domain, which entails, among other things,
the observance of the free and prior informed consent of the Indigenous Cultural
Communities/Indigenous Peoples. Notably, the statute does not grant the Executive Department or any
government agency the power to delineate and recognize an ancestral domain claim by mere
agreement or compromise.
 The invocation of the doctrine of executive privilege as a defense to the general right to
information or the specific right to consultation is untenable. The various explicit legal provisions fly in
the face of executive secrecy. In any event, respondents effectively waived such defense after it
unconditionally disclosed the official copies of the final draft of the MOA-AD, for judicial compliance and
public scrutiny.

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

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

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

While the MOA-AD would not amount to an international agreement or unilateral declaration binding
on the Philippines under international law, respondents’ act of guaranteeing amendments is, by itself,
already a constitutional violation that renders the MOA-AD fatally defective.
WHEREFORE, respondents’ motion to dismiss is DENIED. The main and intervening petitions are GIVEN
DUE COURSE and hereby GRANTED.

The Memorandum of Agreement on the Ancestral Domain Aspect of the GRP-MILF Tripoli Agreement on
Peace of 2001 is declared CONTRARY TO LAW AND THE CONSTITUTION.

SO ORDERED.

CONCHITA CARPIO MORALES

Associate Justice

WE CONCUR:

REYNATO S. PUNO

Chief Justice
LEONARDO A. QUISUMBING

Associate Justice

ANTONIO T. CARPIO

Associate Justice

CONSUELO YNARES- SANTIAGO

Associate Justice

MA. ALICIA AUSTRIA-MARTINEZ

Associate Justice

RENATO C. CORONA

Associate Justice
ADOLFO S. AZCUNA

Associate Justice

DANTE O. TINGA

Associate Justice

PRESBITERO J. VELASCO, JR.

Associate Justice
MINITA V. CHICO-NAZARIO

Associate Justice

ANTONIO EDUARDO B. NACHURA

Associate Justice

RUBEN T. REYES

Associate Justice
TERESITA J. LEONARDO-DE CASTRO

Associate Justice

ARTURO D. BRION

Associate Justice

CERTIFICATION

Pursuant to Article VIII, Section 13 of the Constitution, I certify that the conclusions in the above
Decision had been reached in consultation before the case was assigned to the writer of the opinion of
the Court.

REYNATO S. PUNO

Chief Justice
[1] Eric Gutierrez and Abdulwahab Guialal, THE UNFINISHED JIHAD: THE MORO ISLAMIC LIBERATION
FRONT AND PEACE IN MINDANAO IN REBELS, WARLORDS AND ULAMA: A READER ON MUSLIM
SEPARATISM AND THE WAR IN SOUTHERN PHILIPPINES 275 (1999).

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

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

[4] Vide Salah Jubair, THE LONG ROAD TO PEACE: INSIDE THE GRP-MILF PEACE PROCESS 35-36
(2007).

[5] Memorandum of Respondents dated September 24, 2008, p. 12.

[6] Vide Salah Jubair, THE LONG ROAD TO PEACE: INSIDE THE GRP-MILF PEACE PROCESS 40-41
(2007).

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

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

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

[10] Supplement to Petition (with motion for leave) of August 11, 2008, rollo (G.R. No. 183591), pp.
143-162.

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

[12] Represented by Mayor Celso L. Lobregat.

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

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

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

[16] Represented by Mayor Lawrence Lluch Cruz.

[17] Represented by Governor Rolando Yebes.

[18] Namely, Seth Frederick Jaloslos, Fernando Cabigon, Jr., Uldarico Mejorada II, Edionar Zamoras,
Edgar Baguio, Cedric Adriatico, Felixberto Bolando, Joseph Brendo Ajero, Norbideiri Edding, Anecito
Darunday, Angelica Carreon, and Luzviminda Torrino.

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

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

[21] Represented by Mayor Cherrylyn Santos-Akbar.

[22] Represented by Gov. Suharto Mangudadatu.

[23] Represented by Mayor Noel Deano.

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

[25] R.A. No. 6734, as amended by R.A. 9054 entitled AN ACT TO STRENGTHEN AND EXPAND THE
ORGANIC ACT FOR THE AUTONOMOUS REGION IN MUSLIM MINDANAO, AMENDING FOR THE PURPOSE
REPUBLIC ACT NO. 6734, ENTITLED AN ACT OF PROVIDING FOR THE AUTONOMOUS REGION IN MUSLIM
MINDANAO, AS AMENDED.

[26] R.A. No. 8371, AN ACT TO RECOGNIZE, PROTECT AND PROMOTE THE RIGHTS OF INDIGENOUS
CULTURAL COMMUNITIES/INDIGENOUS PEOPLES, CREATING A NATIONAL COMMISSION ON
INDIGENOUS PEOPLES, ESTABLISHING IMPLEMENTING MECHANISMS, APPROPRIATING FUNDS
THEREFOR, AND FOR OTHER PURPOSES, October 29, 1997.

[27] Cesar Adib Majul, THE GENERAL NATURE OF ISLAMIC LAW AND ITS APPLICATION IN THE
PHILIPPINES, lecture delivered as part of the Ricardo Paras Lectures, a series jointly sponsored by the
Commission on Bar Integration of the Supreme Court, the Integrated Bar of the Philippines and the U.P.
Law Center, September 24, 1977.

[28] Ibid., vide M.A. Muqtedar Khan Ph.D., IMMIGRANT AMERICAN MUSLIMS AND THE MORAL
DILEMMAS OF CITIZENSHIP, http://www.islamfortoday.com/khan04.htm, visited on September 18,
2008, and Syed Shahabuddin, MUSLIM WORLD AND THE CONTEMPORARY IJMA' ON RULES OF
GOVERNANCE - II, http://www.milligazette.com/Archives/2004/01-15May04-Print-
Edition/0105200471.htm, visited on September 18, 2008.

[29] MOA-AD Terms of Reference.

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

[31] A traditional Muslim historical account of the acts of Shariff Kabungsuwan is quoted by historian
Cesar Adib Majul in his book, MUSLIMS IN THE PHILIPPINES (1973):

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

Kabungsuwan with a portion of his warriors went from Malabang to Cotabato and found that the word
sent to him by Mamamlu was true. Then he assembled together all the people. Those of them, who
had done evilly and disregarded the teachings of the Koran thenceforth, he drove out of the town into
the hills, with their wives and children.
Those wicked one who were thus cast out were the beginnings of the tribes of the Tirurais and
Manobos, who live to the east of Cotabato in the country into which their evil forefathers were driven.
And even to this day they worship not God; neither do they obey the teachings of the Koran . . . But the
people of Kabungsuwan, who regarded the teachings of the Koran and lived in fear of God, prospered
and increased, and we Moros of today are their descendants. (Citation omitted, emphasis supplied).

[32] Id., par. 2.

[33] Id., par. 3.

[34] Id., par. 4.

[35] Francisco L. Gonzales, SULTANS OF A VIOLENT LAND, in Rebels, Warlords and Ulama: A Reader on
Muslim Separatism and the War in Southern Philippines 99, 103 (1999).

[36] The Charter of the Assembly of First Nations, the leading advocacy group for the indigenous
peoples of Canada, adopted in 1985, begins thus:

“WE THE CHIEFS OF THE INDIAN FIRST NATIONS IN CANADA HAVING DECLARED:

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

[37] Id., par. 6.

[38] MOA-AD, Territory, par. 1.

[39] Id., par. 2(c).

[40] Id., par. 2(d).

[41] Id., par. 2(e).

[42] Id., par. 2(f).

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

[44] Id., par. 2(h).

[45] Id., par. 2(i).

[46] MOA-AD, Resources, par. 4.

[47] Ibid.

[48] Id., par. 5.

[49] Id., par. 6.

[50] Id., par. 7.

[51] Id., par. 9.

[52] MOA-AD, Governance, par. 3.

[53] “IN WITNESS WHEREOF, the undersigned, being the representatives of the Parties[,] hereby affix
their signatures.”

[54] Vide 1987 CONSTITUTION, Article VIII, Section 1.

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

[56] Flast v. Cohen, 88 S.Ct. 1942, 1950 (1968).

[57] Didipio Earth Savers’ Multi-Purpose Association, Incorporated (DESAMA) v. Gozun, G.R. No.
157882, March 30, 2006, 485 SCRA 286.

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

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

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

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

[62] Vide id. at 526.

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

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

[65] 391 Phil. 43 (2000).

[66] Id. at 107-108.

[67] 530 US 290 (2000).

[68] Id. at 292.

[69] 505 U.S. 144 (1992).

[70] Id. at 175.

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

[72] Vide RULES OF COURT, Rule 65, Secs. 1 and 2.

[73] Vide RULES OF COURT, Rule 65, Sec. 3.

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

[75] Entitled DEFINING POLICY AND ADMINISTRATIVE STRUCTURE FOR GOVERNMENT’S PEACE
EFFORTS which reaffirms and reiterates Executive Order No. 125 of September 15, 1993.

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

[77] Vide Tañada v. Angara, supra note 74.

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

[79] Vicente V. Mendoza , JUDICIAL REVIEW OF CONSTITUTIONAL QUESTIONS 137 (2004).

[80] Francisco, Jr. v. The House of Representatives, 460 Phil. 830, 896 (2003).

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

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

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

[84] Del Mar v. Phil. Amusement and Gaming Corp., 400 Phil. 307, 328-329 (2000) citing Phil.
Constitution Ass’n., Inc. v. Mathay, et al., 124 Phil. 890 (1966).

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

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

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

[88] Firestone Ceramics, Inc. v. Court of Appeals, 372 Phil. 401 (1999) citing Gibson v. Judge Revilla,
180 Phil. 645 (1979).

[89] Supra note 81.

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

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

[92] Vide Compliance of September 1, 2008 of respondents.

[93] Vide Manifestation of September 4, 2008 of respondents.

[94] Supra note 81.

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

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

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

[98] Id. citing Albaña v. Comelec, 478 Phil. 941 (2004); Chief Supt. Acop v. Guingona Jr., 433 Phil. 62
(2002); SANLAKAS v. Executive Secretary Reyes, 466 Phil. 482 (2004).

[99] US v. W.T. Grant Co., 345 U.S. 629 (1953); US v. Trans-Missouri Freight Assn, 166 U.S. 290, 308-
310 (1897); Walling v. Helmerich & Payne, Inc., 323 U.S. 37, 43 (1944); Gray v. Sanders, 372 U.S. 368,
376 (1963); Defunis v. Odegaard, 416 U.S. 312 (1974).

[100] Supra note 87.

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

[102] Chavez v. PCGG, 366 Phil. 863, 871 (1999).

[103] G.R. No. 178830, July 14, 2008.

[104] Supra note 98.

[105] Ortega v. Quezon City Government, G.R. No. 161400, September 2, 2005, 469 SCRA 388.

[106] Alunan III v. Mirasol, 342 Phil. 476 (1997); Viola v. Alunan III, 343 Phil. 184 (1997); Chief
Superintendent Acop v. Guingona, Jr., supra note 98; Roble Arrastre, Inc. v. Villaflor, G.R. No. 128509,
August 22, 2006, 499 SCRA 434, 447.

[107] CONSTITUTION, Article III, Sec. 7.

[108] 80 Phil. 383 (1948).

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

[110] 162 Phil. 868 (1976).

[111] Baldoza v. Dimaano, supra at 876.

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

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

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

In determining whether or not a particular information is of public concern there is no rigid test which
can be applied. `Public concern' like `public interest' is a term that eludes exact definition. Both terms
embrace a broad spectrum of subjects which the public may want to know, either because these directly
affect their lives, or simply because such matters naturally arouse the interest of an ordinary citizen. In
the final analysis, it is for the courts to determine on a case by case basis whether the matter at issue is
of interest or importance, as it relates to or affects the public.

[115] Respondents’ Comment of August 4, 2008, p. 9.

[116] Subido v. Ozaeta, supra note 108.

[117] Tañada, et al. v. Hon. Tuvera, et al., 220 Phil. 422 (1985); Tañada, v. Hon. Tuvera, 230 Phil. 528
(1986).

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

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

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

[121] Bantay Republic Act or BA-RA 7941 v. Commission on Elections, G.R. 177271, May 4, 2007, 523
SCRA 1.

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

[123] Vide V RECORD, CONSTITUTIONAL COMMISSION 26-28 (September 24, 1986) which is replete
with such descriptive phrase used by Commissioner Blas Ople.

[124] CONSTITUTION, Article II, Sec. 28.

[125] Bernas, Joaquin, THE 1987 CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES: A
COMMENTARY 100 (2003).

[126] Vide Bernas, Joaquin, THE INTENT OF THE 1986 CONSTITUTION WRITERS 155 (1995).

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

[128] V RECORD, CONSTITUTIONAL COMMISSION 25 (September 24, 1986).

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

[130] In Chavez v. National Housing Authority, G.R. No. 164527, August 15, 2007, 530 SCRA 235, 331,
the Court stated:

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

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

[132] V RECORD, CONSTITUTIONAL COMMISSION 28, 30 (September 24, 1986).

[133] Supra note 55.

[134] EXECUTIVE ORDER No. 3 (2001), Sec. 3 (a).

[135] EXECUTIVE ORDER No. 3 (2001), Sec. 4 (b).

[136] Respondents’ Memorandum of September 24, 2008, p. 44.

[137] EXECUTIVE ORDER No. 3 (2001), Sec. 5 (b), par. 6.

[138] EXECUTIVE ORDER No. 3 (2001), Sec. 8, see also Sec. 10.

[139] Cf. Garcia v. Board of Investments, G.R. No. 88637, September 7, 1989, 177 SCRA 374, 382-384
where it was held that the Omnibus Investment Code of 1987 mandates the holding of consultations
with affected communities, whenever necessary, on the acceptability of locating the registered
enterprise within the community.

[140] In their Memorandum, respondents made allegations purporting to show that consultations
were conducted on August 30, 2001 in Marawi City and Iligan City, on September 20, 2001 in Midsayap,
Cotabato, and on January 18-19, 2002 in Metro Manila. (Memorandum of September 24, 2008, p. 13)

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

[142] REPUBLIC ACT No. 7160, Sec. 2(c).

[143] REPUBLIC ACT No. 7160, Sec. 27.

[144] 416 Phil. 438 (2001).

[145] Id.; vide Alvarez v. PICOP Resources, Inc., G.R. No. 162243, November 29, 2006, 508 SCRA 498;
Cf. Bangus Fry Fisherfolk v. Lanzanas, 453 Phil. 479 (2002).

[146] Vide MOA-AD “Concepts and Principles,” pars. 2 & 7 in relation to “Resources,” par. 9 where
vested property rights are made subject to the cancellation, modification and review by the Bangsamoro
Juridical Entity.

[147] REPUBLIC ACT No. 8371 or “THE INDIGENOUS PEOPLES RIGHTS ACT OF 1997,” Sec. 16.

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

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

[150] C.I. Keitner and W.M. Reisman, FREE ASSOCIATION: THE UNITED STATES EXPERIENCE, 39 Tex.
Int'l L.J. 1 (2003).

[151] “The former Trust Territory of the Pacific Islands is made up of the Caroline Islands, the Marshall
Islands, and the Northern Mariana Islands, which extend east of the Philippines and northeast of
Indonesia in the North Pacific Ocean.” (Ibid.)
[152] H. Hills, FREE ASSOCIATION FOR MICRONESIA AND THE MARSHALL ISLANDS: A POLITICAL
STATUS MODEL, 27 U. Haw. L. Rev. 1 (2004).

[153] Henkin, et al., INTERNATIONAL LAW: CASES AND MATERIALS, 2nd ed., 274 (1987).

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

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

[156] AN ACT TO STRENGTHEN AND EXPAND THE ORGANIC ACT FOR THE AUTONOMOUS REGION IN
MUSLIM MINDANAO, AMENDING FOR THE PURPOSE REPUBLIC ACT NO. 6734, ENTITLED ‘AN ACT
PROVIDING FOR THE AUTONOMOUS REGION IN MUSLIM MINDANAO,’ AS AMENDED, March 31, 2001.

[157] AN ACT TO RECOGNIZE, PROTECT AND PROMOTE THE RIGHTS OF INDIGENOUS CULTURAL
COMMUNITIES/INDIGENOUS PEOPLES, CREATING A NATIONAL COMMISSION ON INDIGENOUS PEOPLES,
ESTABLISHING IMPLEMENTING MECHANISMS, APPROPRIATING FUNDS THEREFOR, AND FOR OTHER
PURPOSES, October 29, 1997.

[158] 90 Phil. 70, 73-74 (1951).

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

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

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

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

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

[164] Lorie M. Graham, RESOLVING INDIGENOUS CLAIMS TO SELF-DETERMINATION, 10 ILSA J. Int'l &
Comp. L. 385 (2004). Vide S. James Anaya, SUPERPOWER ATTITUDES TOWARD INDIGENOUS PEOPLES
AND GROUP RIGHTS, 93 Am. Soc'y Int'l L. Proc. 251 (1999): “In general, the term indigenous is used in
association with groups that maintain a continuity of cultural identity with historical communities that
suffered some form of colonial invasion, and that by virtue of that continuity of cultural identity
continue to distinguish themselves from others.”

[165] Catherine J. Iorns, INDIGENOUS PEOPLES AND SELF DETERMINATION: CHALLENGING STATE
SOVEREIGNTY, 24 Case W. Res. J. Int'l L. 199 (1992).

[166] Federico Lenzerini, “SOVEREIGNTY REVISITED: INTERNATIONAL LAW AND PARALLEL

SOVEREIGNTY OF INDIGENOUS PEOPLES,” 42 Tex. Int'l L.J. 155 (2006). Vide Christopher J. Fromherz,
INDIGENOUS PEOPLES' COURTS: EGALITARIAN JURIDICAL PLURALISM, SELF-DETERMINATION, AND THE
UNITED NATIONS DECLARATION ON THE RIGHTS OF INDIGENOUS PEOPLES, 156 U. Pa. L. Rev. 1341
(2008): “While Australia and the United States made much of the distinction between ‘self-government’
and ‘self-determination’ on September 13, 2007, the U.S. statement to the UN on May 17, 2004, seems
to use these two concepts interchangeably. And, indeed, under the DRIP [Declaration on the Rights of
Indigenous Peoples], all three terms should be considered virtually synonymous. Self-determination
under the DRIP means ‘internal self-determination’ when read in conjunction with Article 46, and ‘self-
government,’ articulated in Article 4, is the core of the ‘self-determination.’”

[167] DEFINING THE APPROACH AND ADMINISTRATIVE STRUCTURE FOR GOVERNMENT’S

COMPREHENSIVE PEACE EFFORTS, September 15, 1993.

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

[169] CONSTITUTION, Article VII, Sec. 18.

[170] Kirsti Samuels, POST-CONFLICT PEACE-BUILDING AND CONSTITUTION-MAKING, 6 Chi. J. Int'l L.

663 (2006).

[171] Christine Bell, PEACE AGREEMENTS: THEIR NATURE AND LEGAL STATUS, 100 Am. J. Int'l L. 373
(2006).

[172] CONSTITUTION, Article X, Sections 15-21.

[173] III Record, Constitutional Commission, 180 (August 11, 1986).

[174] 165 Phil. 303 (1976).

[175] Id. at 412.

[176] Id. at 413.

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

[178] CONSTITUTION, Art. VII, Sec. 5.

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

[180] Prosecutor v. Kallon and Kamara [Case No. SCSL-2004-15-AR72(E), SCSL-2004-16-AR72(E), March
13, 2004].

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

[182] M. Janis and J. Noyes, INTERNATIONAL LAW, CASES AND COMMENTARY, 3rd ed. 280 (2006).

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

[184] Planas v. COMELEC, 151 Phil. 217, 249 (1973).

G.R. No. 94010 December 2, 1991

FELIPE EVARDONE, petitioner,

vs.

COMMISSION ON ELECTIONS, ALEXANDER APELADO, VICTORINO E. ACLAN and NOEL A. NIVAL,

respondents.

G.R. No. 95063 December 2, 1991

ALEXANDER R. APELADO, VICTORINO E. ACLAN and NOEL A. NIVAL, petitioners,

vs.

COMMISSION ON ELECTIONS and MAYOR FELIPE EVARDONE, respondents.

Zosimo G. Alegre for Felipe Evardone.

Elmer C. Solidon for petitioners in G.R. No. 95063.

PADILLA, J.:p

These two (2) consolidated petitions have their origin in en banc Resolution No. 90-0557 issued by the
respondent Commission on Elections (COMELEC) dated 20 June 1990 which approved the
recommendation of the Election Registrar of Sulat, Eastern Samar to hold and conduct the signing of the
petition for recall of the incumbent Mayor of Sulat, Eastern Samar, on 14 July 1990.
G.R. No. 94010 is a petition for prohibition with an urgent prayer for immediate issuance of a restraining
order and/or writ of preliminary injunction to restrain the holding of the signing of the petition for recall
on 14 July 1990.

G.R. No. 95063 is a petition for review on certiorari which seeks to set aside en banc Resolution No. 90-
0660 of the respondent COMELEC nullifying the signing process held on 14 July 1990 in Sulat, Eastern
Samar for the recall of Mayor Evardone of said municipality and en banc Resolution No. 90-0777 denying
petitioners' motion for reconsideration, on the basis of the temporary restraining order issued by this
Court on 12 July 1990 in G.R. No. 94010.

Felipe Evardone (hereinafter referred to as Evardone) is the mayor of the Municipality of Sulat, Eastern
Samar, having been elected to the position during the 1988 local elections. He assumed office
immediately after proclamation.

On 14 February 1990, Alexander R. Apelado, Victozino E. Aclan and Noel A. Nival (hereinafter referred to
as Apelado, et al.) filed a petition for the recall of Evardone with the Office of the Local Election
Registrar, Municipality of Sulat.

In a meeting held on 20 June 1990, the respondent COMELEC issued Resolution No. 90-0557, approving
the recommendation of Mr. Vedasto B. Sumbilla, Election Registrar of Sulat, Eastern Samar, to hold on
14 July 1990 the signing of the petition for recall against incumbent Mayor Evardone of the said
Municipality.

On 10 July 1990, Evardone filed before this Court a petition for prohibition with urgent prayer for
immediate issuance of restraining order and/or writ of preliminary injunction, which was docketed as
G.R. No. 94010.

On 12 July 1990, this Court resolved to issue a temporary restraining order (TRO), effective immediately
and continuing until further orders from the Court, ordering the respondents to cease and desist from
holding the signing of the petition for recall on 14 July 1990, pursuant to respondent COMELEC's
Resolution No. 2272 dated 23 May 1990.
On the same day (12 July 1990), the notice of TRO was received by the Central Office of the respondent
COMELEC. But it was only on 15 July 1990 that the field agent of the respondent COMELEC received the
telegraphic notice of the TRO—a day after the completion of the signing process sought to be
temporarily stopped by the TRO.

In an en banc resolution (No. 90-0660) dated 26 July 1990, the respondent COMELEC nullified the
signing process held in Sulat, Eastern Samar for being violative of the order (the TRO) of this Court in
G.R. No. 94010. Apelado, et al., filed a motion for reconsideration and on 29 August 1990, the
respondent COMELEC denied said motion holding that:

. . . The critical date to consider is the service or notice of the Restraining Order on 12 July 1990 upon
the principal i.e. the Commission on Election, and not upon its agent in the field. 1

Hence, the present petition for review on certiorari in G.R. No. 95063 which seeks to set aside en banc
Resolution No. 90-0660 of respondent COMELEC.

In G.R. No. 94010, Evardone contends that:

I. The COMELEC committed grave abuse of discretion in approving the recommendation of the
Election Registrar of Sulat, Eastern Samar to hold the signing of the petition for recall without giving
petitioner his day in court.

II. The COMELEC likewise committed grave abuse of discretion amounting to lack or excess of
jurisdiction in promulgating Resolution No. 2272 on May 22, 1990 which is null and void for being
unconstitutional. 2

In G.R. No. 95063, Apelado, et al., raises the issue of whether or not the signing process of the petition
for recall held on 14 July 1990 has been rendered nugatory by the TRO issued by this court in G.R. No.
94010 dated 12 July 1990 but received by the COMELEC field agent only on 15 July 1990.
The principal issue for resolution by the Court is the constitutionality of Resolution No. 2272
promulgated by respondent COMELEC on 23 May 1990 by virtue of its powers under the Constitution
and Batas Pambansa Blg. 337 (Local Government Code). The resolution embodies the general rules and
regulations on the recall of elective provincial, city and municipal officials.

Evardone maintains that Article X, Section 3 of the 1987 Constitution repealed Batas Pambansa Blg. 337
in favor of one to be enacted by Congress. Said Section 3 provides:

Sec. 3. The Congress shall enact a local government code shall provide for a more responsive and
accountable local government structure instituted through a system of decentralization with effective
mechanisms of recall, initiative, and referendum, allocate among the different local government units
their powers, responsibilities and resources, and provide for the qualifications, election, appointment
and removal, term, salaries, powers and functions and duties local officials, and all other matters
relating to the organization operation of the local units.

Since there was, during the period material to this case, no local government code enacted by Congress
after the effectivity of the 1987 Constitution nor any law for that matter on the subject of recall of
elected government officials, Evardone contends that there is no basis for COMELEC Resolution No.
2272 and that the recall proceedings in the case at bar is premature.

The respondent COMELEC, in its Comment (G.R. No. 94010) avers that:

The constitutional provision does not refer only to a local government code which is in futurum but also
in esse. It merely sets forth the guidelines which Congress will consider in amending the provisions of
the present Local Government Code. Pending the enactment of the amendatory law, the existing Local
Government Code remains operative. The adoption of the 1987 Constitution did not abrogate the
provisions of BP No. 337, unless a certain provision thereof is clearly irreconciliable with the provisions
of the 1987 Constitution. In this case, Sections 54 to 59 of Batas Pambansa No. 337 are not inconsistent
with the provisions of the Constitution. Hence, they are operative. 3

We find the contention of the respondent COMELEC meritorious.

Article XVIII, Section 3 of the 1987 Constitution express provides that all existing laws not inconsistent
with the 1987 Constitution shall remain operative, until amended, repealed or revoked. Republic Act No.
7160 providing for the Local Government Code of 1991, approved by the President on 10 October 1991,
specifically repeals B.P. Blg. 337 as provided in Sec. 534, Title Four of said Act. But the Local Government
Code of 1991 will take effect only on 1 January 1992 and therefore the old Local Government Code (B.P.
Blg. 337) is still the law applicable to the present case. Prior to the enactment of the new Local
Government Code, the effectiveness of B.P. Blg. 337 was expressly recognized in the proceedings of the
1986 Constitutional Commission. Thus—

MR. NOLLEDO. Besides, pending the enactment of a new Local Government Code under the report of
the Committee on Amendments and Transitory Provisions, the former Local Government Code, which is
Batas Pambansa Blg. 337 shall continue to be effective until repealed by the Congress of the Philippines.
4

Chapter 3 (Sections 54 to 59) of B.P. Blg. 337 provides for the mechanism for recall of local elective
officials. Section 59 expressly authorizes the respondent COMELEC to conduct and supervise the process
of and election on recall and in the exercise of such powers, promulgate the necessary rules and
regulations.

The Election Code contains no special provisions on the manner of conducting elections for the recall of
a local official. Any such election shall be conducted in the manner and under the rules on special
elections, unless otherwise provided by law or rule of the COMELEC. 5 Thus, pursuant to the rule-making
power vested in respondent COMELEC, it promulgated Resolution No. 2272 on 23 May 1990.

We therefore rule that Resolution No. 2272 promulgated by respondent COMELEC is valid and
constitutional. Consequently, the respondent COMELEC had the authority to approve the petition for
recall and set the date for the signing of said petition.

The next issue for resolution is whether or not the TRO issued by this Court rendered nugatory the
signing process of the petition for recall held pursuant to Resolution No. 2272.

In Governor Zosimo J. Paredes, et al. vs. Executive Secretary to the President of the Philippines, et al., 6
this Court held:
. . . What is sought in this suit is to enjoin respondents particularly respondent Commission from
implementing Batas Pambansa Blg. 86, specifically "from conducting, holding and undertaking the
plebiscite provided for in said act." The petition was filed on December 5, 1980. There was a plea for a
restraining order, but Proclamation No. 2034 fixing the date for such plebiscite on December 6, 1980
had been issued as far as back as November 11, 1980. Due this delay in to this suit, attributable solely to
petitioners, there was no time even to consider such a plea. The plebiscite was duly held. The certificate
of canvass and proclamation of the result disclosed that out of 2,409 total votes cast in such plebiscite,
2,368 votes were cast in favor of the creation of the new municipality, which, according to the statute,
will be named municipality of Aguinaldo. There were only 40 votes cast against. As a result, such
municipality was created. There is no turning back the clock. The moot and academic character of this
petition is thus apparent.

In the present case, the records show that Evardone knew of the Notice of Recall filed by Apelado, et al.
on or about 21 February 1990 as evidenced by the Registry Return Receipt; yet, he was not vigilant in
following up and determining the outcome of such notice. Evardone alleges that it was only on or about
3 July 1990 that he came to know about the Resolution of respondent COMELEC setting the signing of
the petition for recall on 14 July 1990. But despite his urgent prayer for the issuance of a TRO, Evardone
filed the petition for prohibition only on 10 July 1990.

Indeed, this Court issued a TRO on 12 July 1990 but the signing of the petition for recall took place just
the same on the scheduled date through no fault of the respondent COMELEC and Apelado, et al. The
signing process was undertaken by the constituents of the Municipality of Sulat and its Election Registrar
in good faith and without knowledge of the TRO earlier issued by this Court. As attested by Election
Registrar Sumbilla, about 2,050 of the 6,090 registered voters of Sulat, Eastern Samar or about 34%
signed the petition for recall. As held in Parades vs. Executive Secretary 7 there is no turning back the
clock.

The right to recall is complementary to the right to elect or appoint. It is included in the right of suffrage.
It is based on the theory that the electorate must maintain a direct and elastic control over public
functionaries. It is also predicated upon the idea that a public office is "burdened" with public interests
and that the representatives of the people holding public offices are simply agents or servants of the
people with definite powers and specific duties to perform and to follow if they wish to remain in their
respective offices. 8
Whether or not the electorate of the Municipality of Sulat has lost confidence in the incumbent mayor is
a political question. It belongs to the realm of politics where only the people are the judge. 9 "Loss of
confidence is the formal withdrawal by an electorate of their trust in a person's ability to discharge his
office previously bestowed on him by the same electorate. 10 The constituents have made a judgment
and their will to recall the incumbent mayor (Evardone) has already been ascertained and must be
afforded the highest respect. Thus, the signing process held last 14 July 1990 in Sulat, Eastern Samar, for
the recall of Mayor Felipe P. Evardone of said municipality is valid and has legal effect.

However, recall at this time is no longer possible because of the limitation provided in Sec. 55 (2) of B.P.
Blg, 337, which states:

Sec. 55. Who May Be Recalled; Ground for Recall; When Recall May not be Held.— . . .

(2) No recall shall take place within two years from the date of the official's assumption of office or
one year immediately preceding a regular local election.

The Constitution has mandated a synchronized national and local election prior to 30 June 1992, or
more specifically, as provided for in Article XVIII, Sec. 5 — on the second Monday of May, 1992. 11 Thus,
to hold an election on recall approximately seven (7) months before the regular local election will be
violative of the above provisions of the applicable Local Government Code (B.P. Blg. 337)

ACCORDINGLY, both petitions are DISMISSED for having become moot and academic.

SO ORDERED.