TO LAW Comprehensive Reviewer SY 2012 - 2013

INTRODUCTION TO LAW
COMPREHENSIVE REVIEWER
SY 2012 - 2013
THE WOMEN OF ALEITHEIA
TRUTH. HONOR. EXCELLENCE.
TABLE OF CONTENTS
Tips – p. 3
Outline – p. 4
Readings –
Dworkin’s Interpretive Theory – p. 5
(Legal Positivism) Austin’s Theory of Law – p. 8
(Legal Positivism) Hart’s Primary and Secondary Rules – p. 10
Hart’s International Law – p. 13
Cases –
(Colonial Setting) Rubi vs Provincial Board of Mindanao (39 Phil 660) – p. 16
(War Period) Co Kim Cham vs. Valdez Tan Keh (75 Phil 113) – p. 20
(People Power Revolution) Republic vs Sandiganbayan, Josephus (GR 104768 July 21, 2003) – p. 22
Cruz vs. Sec. of DENR (GR 135385, December 6, 2000) – p. 26
Provincial North Cotabato v. GRP Peace Panel, (564 SCRA 402) – p. 28
INTRODUCTION TO LAW SY 2012 – 20123 Dean Candelaria | 2

TIPS FOR INTRO TO LAW
GENERAL TIPS
• DO NOT BE LATE AND DO NOT BE ABSENT. Come at least 30 minutes before the start of your class so
that you could get good seats. Professors do not like it when students are late.
• DRESS TO IMPRESS. The Law School has a strict dress code. Students are supposed to wear decent
office attire. EAT A TON BEFORE GOING TO CLASS. It will be a very long class each day so it is
advisable to eat dinner before going to the auditorium.
TIPS FOR EASIER REVIEWING

• On your syllabus, write certain keywords that are familiar and shall be very easy for you to remember
and associate with a case or a reading. Write one or more keywords on each case name so that when a
case or a reading is mentioned, it shall be less difficult to remember it, knowing that your mind has
stored this information. This has been proven very effective through the years.
• Write also notes on your original readings so that when you go through them, it would be easier for you
to remember what the reading is about.
RECITATIONS
• Nothing beats preparation. So make sure you read all the cases and can provide a summary of the
readings from the top of your head.
• When actually called, observe good posture and be confident. Make an impression on the professor,
and build on the fact that you have prepared beforehand.
• It is best to frame your answers this way: be responsive first, meaning answer yes or no, or true or
false, etc., when it is called for. Then provide the source for your answer—whether it’s a law or a case.
Discuss the case or the law briefly, then apply to the situation at hand.
• Be polite, and hold your ground. Remember, each recit is a test not only of your knowledge, but of your
composure and how well you keep your cool despite the stress.
READINGS
• Find a good reading place where you could read at peace. This makes a whole lot of difference. It
would be better not to read in bed.
• Prepare your materials beforehand. If you need highlighters/pens/pencils, prepare them, to lessen your
distractions while reading.
• How you understand the reading depends on your style. Some prefer reading the whole thing in one go
(without stopping) then reading it again to highlight essential points. Others prefer reading slowly,
digesting the information as they come. No matter what your style, you should spot the following when
reading:
a. The thesis statement. What is this reading trying to prove or disprove? Or what is the purpose of
the author in writing the piece?
b. Supporting statements to the thesis statements.
c. Essential distinctions between concepts.
d. Sources of the statements.
e. Resolution of the thesis statement, if any.
• Finally, summarizing the reading on your own will help you to remember what you’ve read. Notes on
the margins help.

INTRODUCTION TO LAW, LEGAL PROCESS AND THE PHILIPPINE LEGAL SYSTEM

Sessions: May 21-24, 2012 (6:00-9:00 pm; B1 Auditorium)
Examination: May 28, 2012 (7:00 pm- 8:00 pm classrooms)
Professor: Dean Sedfrey M. Candelaria
May 21 (Monday, 6:00pm- 9:00 pm)

1. Overview of the Course (powerpoint presentation)
2. The Concept of Law (Divine Law, Natural Law, Positive Law. Etc..)
3. Legal Process (Domestic Law and International Law)
Readings: Dworkin’s Interpretive Theory,” pp. 58-66

“(Legal Positivism) Austin’s Theory of Law, “pp. 66-70
“Legal Positivism) Hart’s Primary and Secondary Rules, “pp .70-76
“Hart’s International Law, “pp. 208-231
May 22 (Tuesday, 6:00pm- 9:00 pm)

4. Philippine Legal History- Relevant Jurisprudence
Cases :(Colonial Setting) Rubi vs Provincial Board of Mindanao (39 Phil 660)
:(War Period) Co Kim Cham vs. Valdez Tan Keh (75 Phil 113)
:(People Power Revolution) Republic vs Sandiganbayan, Josephus (GR 104768 July 21,
2003)
May 23 (Wednesday , 6:00pm- 9:00 pm)

5. Law in Context
a. Self-Determination: Challenges to Existing Legal Regimes
(i) Indigenous Peoples, Ancestral Domain and the Environment
Case: Cruz vs. Sec. of DENR (GR 135385, December 6, 2000)
(ii) Bangsamoro People
Case: Provincial North Cotabato v. GRP Peace Panel, (564 SCRA 402)
b. The Judicial Mind: Social Context, Vulnerable Sectors and Judiciary
c. Alternative Dispute Resolution (barangay justice conciliation, mediation and arbitration
May 24 (Thursday, 6:00pm- 9:00 pm)

6. The Legal Profession and Jesuit Legal Education: A Reflection Exercise
(Fr. Lito Mangulabnan, SJ and Atty. Tanya Lat)
May 28 (Monday, 7:00-8:00pm)- FINAL EXAMINATIONS

As we start
(Day 1)
1. Powerpoint Presentation
2. The Concept of Law (Divine Law, Natural Law, Positive Law. Etc..)-
3. Legal Process (Domestic Law and International Law)
DWORKIN’S INTERPRETIVE THEORY
Rules and Principles: The Idea of Fit

Ronald Dworkin believes that proper legal interpretation requires making of moral judgments.
• It contemplates that morality will exercise significant influence and will thereby be intertwined with
positive law.
• The law includes more than those rules that are authoritative (statutory codes, judicial decisions, official
documents
• Authoritative rules should be considered not as some miscellaneous collection of norms or products of
power politics but as an expression of underlying philosophy of government
• Philosophy consists of moral principles specifying the fundamental purposes of government and the
proper relation between government and individual
• Law consists of rules and best moral principles (moral rights of individual, rights to be respected and
protected by the government) which serve as guides for legal decisions and interpretation of legal rules
How does one determine which are the best moral principles that can be seen as lying behind the rules
explicitly adopted by the political community? Dworkin’s answer: “One must judge the degree of “fit.”
Two aspects of Fit

1. Fit as a matter of logical consistency
• any viable candidate for an underlying principle must be logically consistent with most of the rules
• total consistency is not required
• unless there is a high degree of consistency, it will not be plausible to think that the rules of a certain
legal system are an expression of philosophy of government in question
2. Fit as the power to help provide a rationale
• an underlying principle must help to justify or provide a rationale the rules
Fitting the Fourth Amendment: Privacy

The Fourth Amendment guarantees the right of the people to be secure in their persons, houses, papers and
effects against unreasonable searches and seizures by government.
• As a general rule, government investigators could not search your home for evidence of a crime without
a search a warrant and that a warrant could be obtained only after persuading a judge that there was
probable cause that the home contained evidence of a crime
• Unless there’s a probable cause to convince the court, the agency would not be permitted to enter the
home in search of evidence without the owner’s consent

Dworkin’s method of interpretation wants us to determine which moral principle fits this constitutional rule
against unreasonable searches and seizures
• Look for a principle that is logically consistent with the rule
• A principle stating that the government should do whatever it regards as useful in detecting and
punishing a criminal activity does not fit the rule
• A rule must restrict what the government may do
A principle that mandates the protection of privacy fits the bill

• People have a moral right to privacy in their homes and this right helps provide the rationale for the
Fourth Amendment rule
• The Fourth amendment allows crimes to be effectively prosecuted while at the same time protecting to
a significant degree the right to privacy.
• Privacy includes control over information concerning one’s life including information that can be used to
harm others
• The informational aspect of the right to privacy helps provide a further rationale for the Fourth
amendment rule
• It allows effective law investigators to proceed whole at the same time protecting to a significant
degree this second aspect of privacy
Olmstead and Beyond

Olmstead vs. United States illustrates Dworkin’s approach.
• This case involved wiretapping of a suspected criminal’s telephone by the government
• Since wiretapping is unknown, the government back then collected evidence from a person’s home by
physically entering the property and taking what it found there
• Thus, the Amendment speaks of searches and seizures, acts of physical intrusion and confiscation. The
Supreme Court held in Olmstead that wiretapping was not an act of physical intrusion and confiscation
and so no search warrant is needed
• Dworkin would look to a moral principle that fits the Fourth Amendment and we cannot simply say that
wiretapping is excluded
• The analysis of privacy maintains two aspects:
o Physical space aspect
o Informational aspect
• Olmsted ignores the informational aspect. Wiretaps are informational invasion.
• Dworkin;’s method promotes the two aspect of privacy. Wiretapping without probable cause is a
violation of the Fourth Amendment
• The concept of privacy may differ from one interpretation to another. This reflects the different moral
and political viewpoints people have including differences in their philosophy of government and society
The Role of Morality

The privacy principle on which legal decisions should be made is the one from among those that fit the explicit
legal rules, that is morally best.
• For Dworkin, the law consists of the rules explicitly adopted by the political community plus the best
principles that fit those rules.
• Best means “morally best”
• By looking to the best principles that fit the explicit rules we come up with an answer that the
explicit rules themselves fail to provide

• The Constitution protects liberty. But does that include the liberty to practice contraception? Ask
which is morally best.
• Each person must decide what is morally best
• A judge which follows Dworkin’s method of legal interpretation will make a good faith effort to
determine what is morally best. For Dworkin, that judge is fully authorized to make her legal
decision on the basis of what she regards as the correct moral judgment
• Law has integrity- the law consists of the rules the community has authoritatively decided to adopt
plus the best moral principles that fit those rules
• Plus helps raise law into the moral domain
• For Dworkin, “might does not make right, but neither does it make law”
The Challenge of Skepticism

Dworkin is well aware that his method on interpretation invites significant disagreement over the best
interpretation of the law; this might invite a deep scepticism about the law.
• One might ask that Dworkin’s appeal to morality defeats his own purpose: instead of producing
right answers to legal cases, the appeal to morality ensures that there are not such answers
because there are no right answers to moral questions.
• Dwokin argues that disagreement does not by itself entail the absence of a right answer
Two Distinct types of Skepticism

1. External Skepticism
§ Holds there is nothing objective in the world that can make a statement about our
moral obligations true or false
§ The statement “Michael Jordan is more than 6 feet tall” is something objective and
perceivable to which the statement corresponds that makes it true. But consider, “there
is a basic moral obligation to respect a women’s choice to have an abortion.” There
seems to be no similarly objective and perceivable to which the statement corresponds.
§ Moral obligations cannot be perceived by ordinary senses
§ External scepticism can be understood as arguing that questions about moral
obligations have no right answer because nothing in the empirical world makes them
true or false. From such a perspective, it would be seem a serious mistake to make
legal questions depend on the answers to moral questions for the implication would be
that legal questions have no right answers either.
§ Dworkin counters by claiming that it rests on the false premise that moral judgments
must correspond to perceivable facts to assert that some judgments are right or wrong.
And it is equally wrong to think that disagreement over moral obligations require some
empirical method for resolving them.
§ Making moral judgments is a practice with its own standards of good reasoning and
should not be confused with the practice of making empirical judgments.
Criticisms:
v Dworkin fails to come to grips with the fact that there are many
different ways of conducting moral arguments
v External scepticism need not rest its “no right answer” thesis on the
failure of moral judgments to correspond to any empirical facts.
Rather, it can rest its case on the conflicting modes of oral argument
and that there is no way to establish which mode is correct
2. Internal Skepticism

The best moral principles may be insufficient to give the law an integrity that raises it
out of the domain of mere politics.
• Our legal system is fundamentally unjust and oppressive: the system promotes
the interests of the wealthy and privileged at the expense of the rest of society
• The law has no integrity: it is strictly “a matter of might and not of right.”
Assessing Dworkin
ü Dworkin’s interpretive version of natural law theory seems to be the strongest of those considered.
ü His theory does not hold that unjust rules are invalid as laws.
ü It does not hold that the principles of legality are by themselves sufficient to create a prima facie moral
obligation to obey the rules of any system of positive law.
ü Dworkin locates the source of moral force in the integrity of law. The inner morality of law is more
extensive; it consists not only of the principles of legality but of the best moral principles that underlie
the settled law
ü Decisions in hard cases require moral judgments. It does not follow that judges are authorized to
decide a case on the basis of their own moral judgments or that the correct moral judgments determine
the correct legal answers.
ü Alternative: judges must defer to judgments that are widely accepted in society. It is society’s moral
judgment that determines the right legal answer in a hard case.
ü Integrity does not guarantee the justice of law but it does guarantee that morality determines to some
degree what the law is.
(LEGAL POSITIVISM) AUSTIN’S THEORY OF LAW
AUSTIN’S THEORY OF LAW
(John Austin was one of the first thinkers to formulate legal positivism in a systematic way. His general
supposition is that laws are orders backed by threats. )
Law as command: Laws are general commands laid down by superiors to guide the actions of those
under them.
- Laws are “rules” laid down by superiors to guide the actions of those under them.
▫ Rules are a species of command.
§ Rules impose obligations on those to whom they are addressed
§ Being under an obligation means a person is liable to have undesirable consequences
when acting contrary to a command.
▫ Commands may either require general or specific action.
§ General – Drink milk everyday.
§ Specific – Drink milk now.
- Law is a general command.
▫ General commands impose continuing obligations to act in certain ways.
§ When laid down by God: Such rules constitute divine law, impose moral obligations,
and acts contrary thereto make one liable to punishment in the hands of God.
§ When laid down by political rulers: Constitute positive law, impose legal obligations,
and acts contrary thereto make one liable to punishment in the hands of political rulers.
▫ Positive law consists of general commands laid down and enforced by political rulers, or more
specifically, sovereigns of an independent political society.

§ Sovereign :
• Is supreme power whose commands are generally obeyed/ Does not obey any
earthly power
• Must be defined solely in terms of power and not in terms of justice. - Might
does NOT make right, but Might makes sovereignty. Since sovereignty makes
positive law, might also makes positive law.
• Does not have any moral qualification necessarily attached to it.
- There are laws not imposed by political rulers. Austin places them under the category of “positive
morality,” that is, those informal standards of behavior that society expect individuals to abide by (i.e.
“Give help to those in need.”)
- The following are the consequences of Austin’s theory”
1. There arises a DISTINCTION as between whether a rule is part of positive law (What is the
law?) and whether such rule is good or just (What ought the law be?).
2. There is NO NECESSARY CONNECTION between legal and moral obligation. These are purely
power concepts, and are not in any respect moral ones.
§ Whether a general command imposes a legal obligation depends on who issues and
threatens to enforce it (sovereign). The fact that a command is issued by a sovereign
does not necessarily impose a moral obligation to obey.
§ The source of legal obligations is only the earthly sovereign, and having such obligation
to the sovereign simply means one is liable to the sovereign for acting contrary to the
sovereign’s commands.
- Traditional law view is an abuse of language and mischievous.
▫ Abuse of language
§ The idea that human laws are not being obeyed because they conflict with Divine law is
nonsense, and such will only result to the judicial system demonstrating the
inconclusiveness of such thinking by inflicting punishment.
▫ Mischievous
§ Advocating the nullity of unjust laws is to preach anarchy.
§ However, Austin does not claim the complete disconnect between positive law and
morality. He is simply saying that moral obligations must not be confused with legal
obligations.
- In the international law scene, Austin rejects the idea that international law is properly understood as
law because the absence of a global sovereign to issue and enforce commands amount merely to a
positive morality without any legal obligation.
▫ Nuremberg defendants used the Austinian theory to assert their legal innocence - the obligation
of the individual is to obey the dictates of the sovereign, notwithstanding international or
natural law.
Assessing Austin
Clear and systematic approach but generally unpersuasive.
- Pros
▫ Austin’s approach is clear and systematic in explaining and distinguishing the phenomenon of
law.
- Cons
▫ The conclusion that laws enforced by courts are valid and genuine avoids the question of
natural law theorists: Are those rules enforced by courts valid? Are they contrary to natural
law? If the answer is yes, Austin provides no reasoned argument.

▫ The judicial system, by punishing a person as per dictates of enforcement of a rule, will not
disabuse someone of the notion that an unjust law is not a genuine law.
▫ The idea that traditional natural law invites anarchy is to judge the nature of the law by the
practical consequences of having it adopted in society.
§ IN fact, the social progress that could be achieved by the rejection of unjust laws may
outweigh the possible social disorder.
- Consider however the difference in the times by which the two theories are formulated. Natural law
theory was developed in a medieval society, where there was but one dominating church and a single
value system. The positive law theory of Austin was developed in a modern society where there is a
fragmentation into competing creeds and conflicting ideas of morality.
- Also, Austin’s theory still presumes that human actions are covered by Divine Law. In the context of
differences in religious beliefs, there will be conflicts as to when divine law requires disobedience to the
general commands of the sovereign.
(LEGAL POSITIVISM) HART’S PRIMARY AND SECONDARY RULES
Types of legal rules: Hart posits the idea of power-conferring rules that empower individuals rather
than prohibit or require them to do something.
- Power conferring rules: Certain types of rules cannot be understood as commands. The idea of law as a
system of commands fits well into rules of criminal law where the end is to penalize the violators, but
there are rules different in nature in that they neither prohibit nor require, but empower individuals to
do things that would otherwise be impossible for them to do (i.e. enter into leally bind agreements, as
in contract law).
▫ Power-conferring rules not only empower public and private individuals, but also give judges
the power to interpret and apply the law, legislators to make and alter it, and executive officials
the power to enforce it.
▫ Although such rules cannot be properly understood as commands, such rules are like
commands in that the point of each other is to alter the world in some way, rather than simply
describe it.
§ Command – alters world by requiring someone to do something
§ Power-conferring rule – alters world by empowering someone to do things they would
not otherwise be able to do.
▫ Furthermore, both commands and power conferring rules issue from sovereign, although the
latter are more of declarations, rather than commands. The distinction between the two does
not detract from the idea that both can be explained in terms of the power of a political
sovereign.
Legal obligation (Government and Gunman): The mere fact that there are consequences in non-
compliance does not make for a legal obligation.
- Because Austin’s theory proposes that having a legal obligation means standing under some general
command and risking sanctions upon failure in compliance (your money, your life situation), such
conception of law makes a government no different forma gunman.
▫ A gunman creates a situation where one suffers consequences for non-compliance with an
order, although no legal obligation is created. The victim may be forced to hand over money,
but is no way obligated to do it. As such, Hart distinguished between being obliged to do
something and being obligated to do something.
- Hart explains the idea of obligation in terms of the idea of a rule. A rule exists when people generally:

▫ Act in a certain way (external condition)

▫ Regard deviations from acting in a certain way as something to be criticized. (internal condition
because it involves the attitude people take. This internal perspective is essential to the
existence of rules because without it, the actions of people may follow patterns but there is no
rule that they are following).
▫ There is an obligation upon a person when a rule applies to him or her. There must be pressure
to conform, and the rule must help maintain an aspect of society that is regarded as important
and valuable, and may even require persons to act contrary to their individual interests.
- All societies have rules that impose obligation, but not all societies that impose legal obligations have
legal systems.
Primary and secondary rules: A legal system is one that brings together both primary and secondary
rules.
- Primary rules – Rules imposing obligations
- Secondary rules – Rules which could not exist unless there are other kinds of rules, namely that which
impose obligations or primary rules. The three special kinds are as follows:
1. Rule of recognition: Rules that singles out the rules that actually impose obligation in a society,
and such helps people recognize the rules under which they will be officially held accountable.
These rules singled out by the rule of recognition are the legally valid rules of that society.
- Significance: Diminish uncertainty over what the obligations of people in the society
are.
2. Rules that specify how the legally valid rules can be changed.
- Significance: Help society adapt to changing condition by changing old rules and enact
new ones.
3. Rules that empower specific individuals to enforce and apply society’s legally valid rules.
- Significance: Ensure more effectively the meeting of obligations.
- In any functioning legal system, people must generally comply with legally valid primary rules and
public officials must accept the secondary rules and the primary rules identified by the rule of
recognition. Public officials must have an internal perspective of rules, although the rest of the people
need only to comply.
▫ People then will generally view primary rules as commands backed by threat of force, but they
will not regard violations as something to be criticized. Only in an extreme situation would
primary rules be complied with solely out of fear of consequences and even then, it can still
count as a genuine legal system.
- In the international law scene, Hart’s concept of a legally system makes it questionable where the
international law at the time the Nuremberg defendants committed their atrocities constituted a
genuine legal system.
- The existence of a legal system is a matter of degree (as opposed to an all-or-nothing affair), although
the absence of secondary rules still seems to be a large gap. In the Nuremberg trials, Hart would argue
that the trials of said defendants are the best possible way to promote the establishment of an
international rule of law.
Assessing Hart
Although there are marked differences between Hart’s and Austin’s theories, Hart never answered
as to why the line has to be drawn in terms of legal obligation.
- Hart’s account is not essentially different from that of Austin’s. While the former criticizes the latter for
the absence of a clear distinction between the laws of a government from that of the coercive demands

of a gunman, Hart fails in the same aspect when he painted his extreme case scenario in which the
people comply with the legally valid primary rules solely out of fear
- Natural law theorists would say that Hart’s criticism is sound, and the only way out of the dilemma is for
Hart to admit the inadequacy of his own theory. Furthermore, Hart’s distinction between a government
and a gunman can only be maintained if Hart gives up on the positivist separation of positive law and
morality.
▫ However, Hart can escape such dilemma without having to give up on the positivist separation
between positive law and morality. The key is to distinguish between a government under the
rule of law from an arbitrary government that uses law to control society as it please.
- Both Hart and Austin posit that positive law stems from the exercise of power by some human agency
in society and moral considerations do not regulate and control that agency in its exercise of power.
▫ Hart and Austin differ in their response over the question of whether legal considerations
regulate and control the source of positive law:
§ Hart’s is positive – rules of positive law empower specific individuals make, enforce and
apply law, and direct individuals as to how tasks are to be carried out.
§ Austin’s is negative – source of law is a sovereign standing above all rules of positive
law.
- On Hart’s argument that his system of primary and secondary rules can impose legal obligations as
compared to an Austinian sovereign who cannot impose any obligations at all:
▫ Hart uses the idea of legal obligation to differentiate between governments operating under
secondary rules and gunmen/arbitrary governments. However, the question is whether Hart has
drawn the line of distinction in the right place.
▫ Positivist critics claim that it does not matter if the sovereign exercises the power justly or
unjustly – the only question is whether the sovereign has the power to rule society.
- Hart never really explains why the existence of a legal obligation depends not simply on whose power is
imposing it but on how that power is being exercised.
▫ Hart does not accept Fuller’s answer that genuine legal obligations have prima facie moral
force.
▫ Fuller further contends that a government abiding by his inner morality creates a prima facie
moral obligation to obey its laws, while Hart resists the conclusion that a government ruling
through a system of primary and secondary rules necessarily creates such obligation.
- Hart’s rejection of Fuller’s argument by taking the positivist view of separating between law and
morality gives rise to the question as to why an Austinian sovereign cannot impose legal obligations
with commands and declarations.
- Hart might insist on the good reasons to distinguish between Austinian sovereigns and governments
that operate through secondary and primary rules. But the question remains as to why the distinction
must be drawn in terms of the idea of legal obligation. It is possible to agree on the differences without
claiming that the Austinian sovereign cannot impose obligations.
Summary: Natural Law Versus Positivism

- The dividing line between positivism and natural law theory runs right through the concept of legal
obligation, and the underlying moral force or dimension to any genuine legal obligation.
- Positivists will insist on separating between law and morality, arguing that the idea of law and legal
obligation can be explained in terms of power, coercion, control and rules.
- Natural law thinkers will argue on the necessary connection, because the ideas of power, coercion,
control and rules cannot adequately explain the nature of a legal obligation – moral right and wrong are
essential ingredients as well.

HART’S INTERNATIONAL LAW
In this article, Hart discuss the dilemma of identifying international law as “law,” in the sense of a system where
primary and secondary rules are joined.
• Preliminarily, Hart first discusses how law has been conceptualized (as distinguished from defined) as a
system of primary (i.e., consisting of static obligations) and secondary (consisting of change and
adjudication) rules. Municipal law, specifically, lives up to this concept.
- He states that international law—that system of rules governing States and non-State entities and
their relationships with each other—does not fit into this concept of law. International law,
according to Hart, seems to consist only of the primary rules of obligations, due to the absence of
a) courts with compulsory jurisdiction and b) centrally organized sanctions, both of which are
present in municipal systems.
• He states, second, that international law lacks a unifying rule of recognition (that is, a basic norm)
specifying the ‘sources’ of law and providing criteria for the identification of its rules. This rule of
recognition, he will state later, is also important in determining how international law can give rise to
obligations by which States (and non-States) bind themselves.
In short, his question is, “Is international law, law, based on what we know about municipal law (and the union
of primary and secondary rules)?” Hart tries to answer by outlining four “doubts” discussed by jurists with
regard to the status of international law.
Hart’s four doubts re: status of international law:
1. Is international law, law, even though there is an absence of sanctions to enforce

obligations?
a. First: a clarification on the term “binding.”

- For Hart, a rule is binding when it is a valid rule, and under it a person in question has
some obligation or duty.
- Any question on what makes a rule binding, however, only covers its scope or applicability
to given circumstances, to particular persons or transactions. In short, asking the “is
international law binding?” question is a limited, narrow way of looking at the problem.
Therefore, for Hart, the right question to be asked, in order to rightly refer to the overall
nature or principles of a rule (as distinguished from its mere scope) is: “Can such [binding]
rules as these be meaningfully and truthfully give rise to obligations?” This leads us to point
(b) below.
b. Hart says there have been doubts about the capacity of international law to give rise to
obligations because of the absence of centrally organized sanctions. Hart has a problem with
this because:
- An acceptance of this argument essentially means an acceptance, as well, of the view that
law is essentially a matter of orders backed by threats.
- This view distorts or negates the role played of obligation and duty in all legal thought.
c. He discusses another argument related to argument (b): that in municipal law, there are
provisions deemed necessary (i.e., primary rules, akin to the prohibition against the use of
violence, etc.) in order to enforce organized sanctions, and these provisions are absent in
international law. Hart answers by saying that the premise of this argument is flawed, because

municipal and international law are different by way of their factual backgrounds, settings, and
contexts.
- Municipal law is set against the background of human beings and their environment. In a
society of individuals, naturally, physical sanctions are necessary, and possible, because
human beings are approximately equal in physical strength and vulnerability. The use of
sanctions are therefore successful as a deterrent for violations.
- However, aggression between States, as opposed to individuals, is very different.
Aggressions between States are public. These aggressions involve huge risks because of
the inequality of States (reflect re: existence of “superpowers” in the community of nations
today). Moreover, the presence of sanctions in an international law context, arguably, may
do little as deterrents (reflect re: effectivity of the UN and its Security Council as an
international body).
For Hart, because of the reasons above, international law has developed differently from municipal law. Thus it
is unreasonable to deduce that the arguments above are enough to strip international law the title of “law.”
2. Is international law, law, despite the principle of sovereignty of States (that is, their
capacity to be independent and be bound by their own rules)?
a. First: a clarification on the idea that States are absolutely sovereign. For Hart, a State may be
sovereign but may also be bound by obligations in international law.
- The word sovereign means no more than ‘independent,’ and is negative in force. It is a
limitation to the control that a State may be subjected to; sovereignty is that area of
conduct where a State is autonomous.
- The question therefore, in municipal law, is: to what extent does it exercise its legislative
authority? In international law, it is: what is the maximum area of autonomy which its rules
allow to States?
b. Second: Most jurists invert the order in which the questions above are asked, says Hart. One
must first determine and know the extent and forms of international law, before the scope of a
State’s sovereignty can be ascertained.
- This argument is related to the ‘voluntarist’ or ‘auto-limitation’ theories of international law,
which State that all international obligations are self-imposed, like an obligation arising from
a promise, similar to the social contract theory in political science. Hart disproves this
theory by saying:
• Nothing supports this theory except for that fact that it has often been repeated.
• To say that States can be bound only by obligations they impose upon themselves is
incoherent, for this presupposes that there is an underlying rule that States are bound
to do what they bind themselves to do under a written agreement, etc. In short, this
idea presupposes that the obligatory status of a self-imposing rule comes from another
rule that is self-imposed. The idea is absurd (and redundant), if one is to argue that
States are free to from rules, in accordance with its sovereignty.
• To say that international agreements can only arise by tacit consent (e.g., treaties) is
largely debatable. Here, Hart enumerates a few exceptions to disprove this point. One
exception is in the case of a new State, and another is that of a State acquiring territory
or undergoing change. In both cases, the State concerned had previously no
opportunity to exhibit its consent to its obligations, and thus must be “inferred” to have
given its consent.

3. Is international law, law, despite the insistence of some for the classification of its rules as
‘morality’?
Hart addresses the distinctions between international law and morality to clear the notion that international law
is classified as morality.
a. Claims in international law are supported by reference to precedents, treaties, and juristic
writings. It is true that some claims may be accompanied by a moral appeal, but this in no way
means that international law is solely dependent on morality for its substance. It is also true
that there are gray areas between international law and morality (comity, for example), which,
however, are merely analogous to the standards of conduct in daily life (politeness and
courtesy, for example).
b. The rules of international law are morally indifferent. A rule may exist because of necessity, and
not because of a moral importance attached to a rule. This is manifested, for example, in the
arbitrary distinctions found in many rules—these distinctions are hard to justify under any moral
standpoint, for most rules are crafted for purposes of certainty or predictability, and not out of
any moral need.
c. Morality is an ultimate standard by which human actions (legislative or not) are evaluated.
International law is not, and therefore, might be subject to change by legislative action (in the
future, if such an international legislature will come to existence). Morality, by its definition,
cannot be changed by human legislative fiat.
Hart also notes, before concluding this part, that while there is a sense of moral obligation that accompanies
the actions of States in complying with international law, this does not mean that such a moral sense of
obligation must be a condition for the existence of international law. Looking at State practice, he observes that
the sense of moral obligation is not one of the reasons why international law exists, nor is it one of the bases of
how it is justified.
4. Is international law, law, even in the absence of a basic norm governing it?
a. Hart mentions Kelsen’s (and others’) formal analogy between municipal and international law, that for
him, is worth considering:
- Like municipal law, international law must possess a basic norm, or a ‘rule of recognition,’ by which
the validity of other rules are assessed, and in virtue of which the rules constitute a system.
- An opposing view: international law merely consists of a set of primary rules not united in the
manner above.
b. Hart questions the necessity of having a basic norm in international law.
- For him, the mere existence of rules does not involve the existence of a basic rule. Simply, a rule
can stand on its own.
- If rules are accepted as standards of conduct, and are supported with appropriate forms of social
pressure distinctive of obligatory rules, then nothing more is required to show that they are binding.
- The basic norm for international law, if one pushes Kelsen’s analogy relating to the basic norm, is
that “States must behave as they have customarily behaved.” For Hart, this is a strange norm, a
mere reduplication of the fact that a set of rules are accepted by States as binding.
Hart concludes, finally, by emphasizing that as of present, these doubts and discussions on international law
refer merely to analogies of form, and not the content, of both international and municipal law. In matters of
content, he says, no other social rules are so close to municipal law as international law.

Day 2
1. Philippine Legal History- Relevant Jurisprudence
A. (Colonial Setting) Rubi vs Provincial Board of Mindanao (39 Phil 660)
Laws in dispute:
Section 2145 of the Administrative Code of 1917 reads as follows:
SEC. 2145. Establishment of non-Christian upon sites selected by provincial governor. — With the prior
approval of the Department Head, the provincial governor of any province in which non-Christian inhabitants
are found is authorized, when such a course is deemed necessary in the interest of law and order, to direct
such inhabitants to take up their habitation on sites on unoccupied public lands to be selected by him an
approved by the provincial board.
In connection with the above-quoted provisions, there should be noted section 2759 of the same Code, which
read as follows:
SEC. 2759. Refusal of a non-Christian to take up appointed habitation. — Any non-Christian who shall
refuse to comply with the directions lawfully given by a provincial governor, pursuant to section two thousand
one hundred and forty-five of this Code, to take up habitation upon a site designated by said governor shall
upon conviction be imprisonment for a period not exceeding sixty days.
FACTS:
This case involves the Manguianes who were allegedly being deprived of their liberty by the provincial
officials of the Province of Mindoro. Rubi and his companions are said to be held on the reservation established
at Tigbao, Mindoro, against their will, and one Dabalos is said to be held under the custody of the provincial
sheriff in the prison at Calapan for having run away form the reservation.
In 1917, the provincial governor of Mindoro issued Executive Order No. 2 in relation to Resolution 25
wherein the provincial board has selected selected a site in the sitio of Tigbao on Naujan Lake for the
permanent settlement of Mangyanes in Mindoro which is in accordance with section 2077 of the Administrative
Code. The resolution and the executive order according to the Solicitor-General, are necessary measures for the
protection of the Mangyanes of Mindoro as well as the protection of public forests in which they roam, and to

introduce civilized customs among them. Moreover, the Mangyans may only solicit homesteads on this
reservation providing that said homestead applications are previously recommended by the provincial governor.
The Solicitor-General alleges that Rubi and those living in his rancheria have not fixed their dwelling
within the reservation of Tigbao which could held them liable under section 2759 of Act No. 2711. One of the
Manguianes, Dabalos, escaped from the reservation and was taken in hand by the provincial sheriff and placed
in prison at Calapan, solely because he escaped from the reservation. An application for habeas corpus was
made on behalf of Rubi and other Manguianes of the province, alleging that by virtue of the resolution of the
provincial board of Mindoro creating the reservation, they had been illegally deprived of their liberty.
ISSUES:
1. Whether the legislature can delegate this power to the provincial authority
2. Whether Section 2145 of Act No. 2711 is unconstitutional for it discriminates the non-Christians
due to religious beliefs
3. Whether Section 2145 of Act No.2711 is unconstitutional for it violates the 14th Amendment on
liberty, due process of law and equal protection of the laws which provides "That no law shall
be enacted in said Islands which shall deprive any person of life, liberty, or property without
due process of law, or deny to any person therein the equal protection of the laws."
4. Whether Section 2145 of Act No. 2711 is unconstitutional for it violates the 13th Amendment -
slavery and involuntary servitude which provides that "That slavery shall not exist in said
Islands; nor shall involuntary servitude exist except as a punishment for crime whereof the
party shall have been duly convicted."
5. Whether Section 2145 of Act No. 2711 is a valid exercise of police power
HELD:
1. Yes, the legislature can delegate this power to the provincial authority
2. Constitutional, 2145 of Act No. 2711 does not discriminate non-Christians
3. Constitutional, 2145 of Act No. 2711 does not violate any person's right to liberty, due process
and equal protection of the laws.
4. Constitutional, 2145 of Act No. 2711 does not violate any person's right against slavery and
involuntary servitude
5. Yes, 2145 of Act No. 2711 is a valid exercise of police power
RATIO:
First, a brief history:
Different laws were already enacted even prior to the acquisition of the Philippines by the United States.
Spanish government back then exerted efforts to improve the condition of the less advanced inhabitants of the
Islands by concentrating them into reducciones. After the acquisition of the islands by the United States,
Organic laws such as the Philippine Bill and Jones Law, and State laws concerning the government of the
primitive peoples were ratified. Philippine organic law may be said to recognize a dividing line between the
territory not inhabited by Moros or other non-Christian tribes, and the territory which Moros or other non-
Christian tribes, and the territory which is inhabited by Moros or other non-Christian tribes. While Statute law

distinguished if they be of the non-Christian inhabitants of the Philippines and a settled and consistent practice
with reference to the methods to be followed for their advancement.
With regard to the terminology used in these laws, the most commonly accepted usage is termed “non-Christian
tribes.” At a glance, it can give people the impression that it classifies a person based on his religious belief.
However, it has been said that the word has geographical signification which can be plainly seen by the
provisions of many laws. The Philippines Legislature has adopted acts making certain other acts applicable to
that "part" of the Philippine Islands inhabited by Moros or other non-Christian tribes.
The motive of the law relates not to a particular people, because of their religion, or to a particular province
because of its location, but the whole intent of the law is predicated n the civilization or lack of civilization of the
inhabitants. Thus, the idea that the term "non-Christian" is intended to relate to degree of civilization, is
substantiated by reference to legislative, judicial, and executive authority.
Who are the Manguianes?
The Manguianes are very low in culture. They have considerable Negrito blood and have not advanced beyond
the Negritos in civilization. They are a peaceful, timid, primitive, semi-nomadic people. They number
approximately 15,000. The manguianes have shown no desire for community life, and, as indicated in the
preamble to Act No. 547, have not progressed sufficiently in civilization to make it practicable to bring them
under any form of municipal government. (See Census of the Philippine (Islands [1903], vol. I, pp. 22, 23, 460.)
The Rubi case has been compared to that of United States vs. Crook ([1879], Fed. Cas. No. 14891). In the
latter case, a writ of habeas corpus was issued against Brigadier General George Crook at the relation of
Standing Bear and other Indians, formerly belonging to the Ponca Tribe of Indians. The petition alleged that the
Indians, the relators, who formerly belonged to the Ponca tribe of Indians, had been previously withdrawn from
the tribe, and completely severed their tribal relations and had adopted the general habits of the whites and
they were arrested and restrained of their liberty by order of George Crook without being guilty of violating any
of the laws of the United States.
The court upheld that no rightful authority exists for removing by force any of the relators to the Indian
Territory and that the Indians possess the inherent right of expatriation as long as they obey the laws and do
not trespass on forbidden ground. Thus, the relators being restrained of liberty under color of authority of the
United States, and in violation of the laws they must be discharged from custody.
Two points were questioned in the Standing Bear case: first is whether an Indian can test the validity of an
illegal imprisonment by habeas corpus which could be used as authority that Rubi, a Filipino, and a citizen of
the Islands, is a "person" within the meaning of the Habeas Corpus Act; second is whether the Government has
the right to arrest and hold the relators for a time, for the purpose of being returned to the Indian Territory
from which it was alleged the Indian escaped. With regard to the latter point, Standing Bear case and Rubi case
are not exactly identical since Indian reservations already exist in the United States, they have been taken from
different parts of the country and placed on these reservation, without any previous consultation and that they
have been made to remain on the reservation for their own good and for the general good of the country.
Constitutionality:
1. Section 2145 of the Administrative Code of 1917 is not an unlawful delegation of legislative
power by the Philippine Legislature to provincial official and a department head.

Citing an Ohio case, Cincinnati, W. & Z. R. Co. vs. Comm'rs. Clinton County ([1852], 1 Ohio, S.t, 8), it stated
that "The true distinction therefore is between the delegation of power to make the law, which necessarily
involves a discretion as to what it shall be, and conferring an authority or discretion as to its execution, to be
exercised under and in pursuance of the law. The first cannot be done; to the later no valid objection can be
made."
Also, in the case of U.S. vs. Kinkead ([1918], 248 Fed., 141.). the Legislature may make decisions of executive
departments of subordinate official thereof, to whom it has committed the execution of certain acts, final on
questions of fact. The growing tendency in the decision is to give prominence to the "necessity" of the case.
Although it is and unusual exercise of police power, the court cannot say that the legislature has execeeded its
rightful authority. The Legislature merely conferred, upon the provincial governor with the approval of the
provincial board and the department head, discretionary authority as to its
2. Since the term "non-Christian" refers to natives of the Philippines Islands of a low grade of
civilization, section 2145 of the Administrative Code of 1917, does not discriminate between
individuals an account of religious differences.
3. The liberty of the citizen was not unduly interfered without when the degree of civilization of
the Manguianes is considered. They are restrained for their own good and the general good of
the Philippines.
Liberty includes the right of the citizens to be free to use his faculties in all lawful ways; to live an work where
he will; to earn his livelihood by an lawful calling; to pursue any avocations, an for that purpose. to enter into all
contracts which may be proper, necessary, and essential to his carrying out these purposes to a successful
conclusion. It includes the right to contract, the right to choose one's employment, the right to labor, and the
right of locomotion.
"Liberty regulated by law." The right of the individual is necessarily subject to reasonable restraint by general
law for the common good. The Liberty of the citizens may be restrained in the interest of the public health, or
of the public order and safety, or otherwise within the proper scope of the police power. (See Hall vs. Geiger-
Jones [1916], 242 U.S., 539; Hardie-Tynes Manufacturing Co. vs. Cruz [1914], 189 Al., 66.)
Nor can one say that due process of law has not been followed.
In Hurtado vs. California ([1883], 110, U.S., 516.), to constitute "due process of law," a judicial proceeding is
not always necessary. In some instances, even a hearing and notice are not requisite a rule which is especially
true where much must be left to the discretion of the administrative officers in applying a law to particular
cases. (See McGehee, Due Process of Law, p. 371.) Neither is due process a stationary and blind sentinel of
liberty. "Any legal proceeding enforced by public authority, whether sanctioned by age and customs, or newly
devised in the discretion of the legislative power, in furtherance of the public good, which regards and
preserves these principles of liberty and justice, must be held to be due process of law."
In the case of U.S. vs. Ling Su Fan ([1908], 10 Phil., 104) it stated that "Due process of law" means simply
"first, that there shall be a law prescribed in harmony with the general powers of the legislative department of
the Government; second, that this law shall be reasonable in its operation; third, that it shall be enforced

according to the regular methods of procedure prescribed; and fourth, that it shall be applicable alike to all the
citizens of the state or to all of a class."
The pledge that no person shall be denied the equal protection of the laws is not infringed by a statute which is
applicable to all of a class, the law seems to be reasonable and it is enforced according to the regular methods
of procedure prescribed.
4. Confinement in reservations in accordance with the said law does not constitute slavery and
involuntary servitude. Hence, it is constitutional.
5. As discussed in Barbier vs. Connolly ([1884], 113 U.S., 27.) Police power is an inherent power
of the State to prescribe regulations to promote the health, peace, morals, education, and good
order of the people, and to legislate so as to increase the industries of the State, develop its
resources and add to is wealth and prosperity. The judiciary rarely attempts to dam the on
rushing power of legislative discretion, provided the purposes of the law do not go beyond the
great principles that mean security for the public welfare or do not arbitrarily interfere with the
right of the individual.
In Churchill and Tait vs. Rafferty ([1915], 32 Phil., 580); U.S. vs. Pompeya ([1915], 31 Phil., 245.), The
Government of the Philippine Islands has both on reason and authority the right to exercise the sovereign police
power in the promotion of the general welfare and the public interest.
However, before arriving at the decision of whether or not it is constitutional, legislative intent shall be taken
into consideration.
The following are the reasons for the action: (1) The failure of former attempts for the advancement of the
non-Christian people of the province; and (2) the only successfully method for educating the Manguianes was to
oblige them to live in a permanent settlement. The Solicitor-General adds the following; (3) The protection of
the Manguianes; (4) the protection of the public forests in which they roam; (5) the necessity of introducing
civilized customs among the Manguianes.
Thus, Section 2145 of Act 2711 is a valid exercise of police power because its purpose is to provide the
Manguianes education and to improve their health and morals.
To conclude, the action done pursuant to section 2145 of the Administrative Code does not deprive a person of
his liberty without due process of law and does not deny to him the equal protection of the laws, and that
confinement in reservations in accordance with said section does not constitute slavery and involuntary
servitude. Also, section 2145 of the Administrative Code is a legitimate exertion of the police power, somewhat
analogous to the Indian policy of the United States. Section 2145 of the Administrative Code of 1917 is
constitutional.
B. (War Period) Co Kim Cham vs Valdez Tan Keh (G.R. No. L-5 September 17, 1945, 75 Phil
113)
FACTS:
On 23 October 1944, Gen. Douglas MacArthur issued a proclamation invalidating and nullifying all judicial
proceedings and judgments of Philippine courts of the Philippine government under the Japanese occupation.

Arguing that there was no enabling law granting the lower courts to hear and continue judicial proceedings
pending in the courts of the defunct Philippine government, respondent Judge Dizon of the Court of First
Instance (CFI) of Manila refused to hear the case of Co Kim Cham, whose case was pending in the same lower
court filed at the time of the Japanese occupation. Thus, this petition for mandamus.
ISSUES:
1. Whether the judicial acts and proceedings of the Philippine courts made during the Japanese occupation
were good and valid and remained so even after the liberation and reoccupation of the Americans;
2.  Whether the 23 October 1944 proclamation of MacArthur has invalidated all judgments and judicial
acts and proceedings of the courts; and
3. Whether the present courts of Philippines may continue those proceedings pending in said courts if said
judicial acts and proceedings have not been invalidated by the subject proclamation
HELD:
Kinds of de facto governments:

a. A government that gets possession and control of, or usurps, by force or by the voice of the
majority, the rightful legal governments and maintains itself against the will of the latter
b. Established and maintained by military forces who invade and occupy a territory of the enemy in
the course of war, and which is denominated a government of paramount force
c. Established as an independent government by the inhabitants of a country who rise in insurrection
against the parent state
1. Valid, and remained so even after the liberation and reoccupation of the Americans. The Philippine
governments (Philippine Executive Commission and Republic of the Philippines) during the Japanese
military occupation were de facto (2nd kind) governments and therefore, the judicial acts and
proceedings of the courts were good and valid. Under international law, the judicial and also legislative
acts, which are not of a political complexion, remained valid, because even if a country comes again
into the power of its legitimate government after the occupation of enemy forces, it does not
necessarily wipe out the effects done by the invader unless repealed. Further, Mac Arthur's
proclamation declared all laws, regulations and process of the Philippine government under Japanese
occupation null and void, and such proclamation would not have been necessary if they were invalid in
the first place.
2. No. Judicial processes were not invalidated. When MacArthur used the phrase "processes of any other
government", it is only reasonable to construe that it refers to governmental processes, excluding
judicial processes of court proceedings, or else it would violate international law. Moreover, a contrary
construction would create great inconvenience and public hardship, and great interests would be
endangered and sacrificed for disputes or suits already adjudged would have to be again settled
accrued or vested rights nullified, sentences passed on criminals set aside, and criminals might easily
become immune for evidence against them may have already disappeared or be no longer available,
especially now that almost all court records in the Philippines have been destroyed by fire as a
consequence of the war.
3. Yes. The present courts have jurisdiction to continue the proceedings in cases, not of political
complexion, pending therein at the time of the restoration of the Commonwealth Gov't, because they
were not invalidated by MacArthur's proclamation. Military occupation is essentially provisional and does
not serve to transfer the sovereignty over the occupied territory to the occupant. The Philippine
government under the Japanese occupation, respected the laws in force in the country, and permitted
the local courts to function and administer such laws, all in accordance with international law. It also
follows that the same courts, which had become reestablished and conceived of as having in continued
existence upon the reoccupation and liberation of the Philippines may continue the proceedings in cases
then pending in said courts, without necessity of enacting a law conferring jurisdiction upon the courts
to continue said proceedings. They are necessary only in case the former courts are abolished or their
jurisdiction so changed that they can no longer continue taking cognizance of the cases and
proceedings commenced therein.
The Supreme Court held that respondent Judge Dizon of the Court of First Instance of Manila take
cognizance of and continue to final judgment the proceedings of Co Kim Cham's civil case.
Relevant History
When the Spaniards in the Philippines ceased and the Islands came into the possession of the United States,
the “Audiencia” or Supreme Court was continued and proceeded to take cognizance of the actions pending
therein upon the cessation of the Spanish sovereignty until the said “Audiencia” was abolished, and the
Supreme Court an act was substituted in lieu thereof.
And the Courts of First Instance during the Spanish regime continued taking cognizance of cases pending
therein upon the change of sovereignty, until section 65 of the same Act No. 136 abolished them and created
the present Courts of First Instance in substitution of the former. Similarly, no enabling acts were enacted
during the Japanese occupation, but a mere proclamation or order that the courts in the Island were continued.
On the other hand, during the American regime, when section 78 of Act No. 136 was enacted abolishing the
civil jurisdiction of the provost courts created by the military government of occupation in the Philippines during
the Spanish-American War, the same section 78 provided for the transfer of all civil actions then pending in the
provost courts to the proper tribunals (justice of the peace courts, Court of First Instance, or Supreme Court)
having jurisdiction over them according to law. And later on, when the criminal jurisdiction of provost courts in
the City of Manila was abolished by section 3 of Act No. 186, the same section provided that criminal cases
pending therein were transferred to the municipal court, which had the jurisdiction.
Excerpts: A Lecture on Public International Law by Associate Dean Sedfrey M. Candelaria

(8/15/09)
Dean Candelaria: “Now let me remind you of the case of Co Kim Chan v. Valdez Tan Keh, in Philippine
Jurisprudence. That was about the proclamation made by General Douglas MacArthur when he returned
and he said, “all processes rendered by the previous Japanese Imperial Army in government under the
Japanese occupation are hereby declared null and void.” All processes. Did that nullify all the actions,
basically? No, that only pertains to acts of a political complexion. So, for example, during the Japanese
occupation, they had to manage peace and order, they had to run civil transactions, they had to run
administration. If a law was passed during that time, that allowed divorce between parties, that is of a
civilian character. Then you’re lucky, depending on your perspective. If you got a divorce, once divorced
then, that judgment of divorce may be enforced even after that belligerent occupant is no longer in power.
In the case of Co Kim Chan v. Valdez Tan Keh, it was about a civil obligation incurred during the Japanese
occupation, no different from borrowing money or selling land, that agreement is good even after the war
because it is not of a political complexion. What if you were convicted, criminally, for treason against the

Japanese Government during the Japanese occupation, can the judgment be enforced during the
occupation? No, because laws of a political complexion are suspended. But laws of a non-political
complexion during the period of belligerency remain in effect, so distinguish them. So I go back to the
question whether a de facto government may exercise certain actions validly and juridically recognized
ininternational law? Yes, during the period of belligerency, but distinguish between a political and non-
political complexion. Clear?”
C. (People Power Revolution) Republic of the Philippines v. Sandiganbayan, major general

Josephus Q. Ramas and Elizabeth Dimaano
FACTS:
Immediately upon Pres. Corazon Aquino’s assumption to office, she issued Executive Order No. 1 (EO 1)
creating the Presidential Commission on Good Government (PCGG). EO 1 primarily tasked the PCGG to recover
all ill-gotten wealth of former Pres. Marcos, his immediate family, relatives, subordinates and close associates.
EO 1 vested the PCGG with the power “(a) to conduct investigation as may be necessary in order to accomplish
and carry out the purposes of this order” and the power “(h) to promulgate such rules and regulations as may
be necessary to carry out the purpose of this order.” The PCGG, through Chairman Salonga, created an AFP
Anti-Graft Board (AFP Board) tasked to investigate reports of unexplained wealth and corrupt practices by AFP
personnel.
Based on its mandate, the AFP Board investigated various reports of alleged unexplained wealth of respondent
Major General Josephus Q. Ramas. On 27 July 1987, the AFP Board issued a Resolution on its findings and
recommendation on the reported unexplained wealth of Ramas.
In the report, it concluded that the Board finds a prima facie case against Ramas for ill-gotten wealth and
unexplained wealth in the amount of PHP2, 974, 134.00 and USD50,000.00—both of which were confiscated
from a certain Elizabeth Dimaano’s premises. It also recommended that Ramas be prosecuted and tried for
violation of RA 3019 or the Anti-Graft and Corrupt Practices Act and RA 1379 or the Act for the Forfeiture of
Unlawfully Acquired Property.
Hence, the PCGG filed a case against Ramas under RA 1379.
Before Ramas could answer the petition, then Sol. Gen. Chavez filed an Amended Complaint naming the
Republic of the Philippines (petitioner), represented by the PCGG, as plaintiff and Ramas as defendant. The
Amended Complaint also impleaded Elizabeth Dimaano as co-defendant.
The Amended Complaint alleged that Ramas was the Commanding General of the Philippine Army until 1986
while Dimaano was a confidential agent of the Military Security Unit, Philippine Army, assigned as a clerk-typist
at the office of Ramas. It further alleged that Ramas “acquired funds, assets and properties manifestly out of
proportion to his salary as an army officer and his other income from legitimately acquired property by taking
undue advantage of his public office and/or using his power, authority and influence as such officer of the
Armed Forces of the Philippines and as a subordinate and close associate of the deposed President Ferdinand
Marcos.”
Ramas contended that his property consisted only of a residential house at La Vista Subdivision, Quezon City,
valued at P700,000, which was not out of proportion to his salary and other legitimate income and denied

ownership of any mansion in Cebu City and the cash, communications equipment and other items confiscated
from the house of Dimaano.
Dimaano admitted her employment as a clerk-typist in the office of Ramas and claimed ownership of the
monies, communications equipment, jewelry and land titles taken from her house by the Philippine Constabulary
raiding team.
The Sandiganbayan proceeded with petitioner’s presentation of evidence on the ground that the motion for
leave to amend complaint did not state when petitioner would file the amended complaint. Petitioner later on
manifested its inability to proceed to trial because of the absence of other witnesses or lack of further evidence
to present. Instead, petitioner reiterated its motion to amend the complaint to conform to the evidence already
presented or to change the averments to show that Dimaano alone unlawfully acquired the monies or properties
subject of the forfeiture.
The Sandiganbayan noted that petitioner had already delayed the case for over a year and ordered petitioner to
prepare for presentation of its additional evidence, if any.
Petitioner again and again admitted its inability to present further evidence. Private respondents then filed their
motions to dismiss based on Republic v. Migrino which held that PCGG does not have jurisdiction to investigate
and prosecute military officers by reason of mere position held without a showing that they are “subordinates”
of former President Marcos.
As such, the case was dismissed and the confiscated items were ordered to be returned. A Motion for
Reconsideration was filed by the petitioner and the Sandiganbayan denied such.
The Sandiganbayan dismissed the Amended Complaint on the following grounds:

1. The actions taken by the PCGG are not in accordance with the rulings of the Supreme Court in Cruz, Jr. v.
Sandiganbayan and Republic v. Migrino which involve the same issues.
2. No previous inquiry similar to preliminary investigations in criminal cases was conducted against Ramas and
Dimaano.
3. The evidence adduced against Ramas does not constitute a prima facie case against him.
4. There was an illegal search and seizure of the items confiscated.
ISSUES:
1. Whether PCGG has the jurisdiction to investigate and cause the filing of a forfeiture petition
against Ramas and Dimaano for unexplained wealth under RA No. 1379.
2. Whether Sandiganbayan erred in dismissing the case before completion of the presentation of
petitioner’s evidence.
3. Whether the respondent court seriously erred in holding that the articles and things from the
house of respondent Dimaano were illegally seized and therefore excluded as evidence.
HELD:
The petition is dismissed and the ruling of the Sandiganbayan is affirmed.
1. The PCGG has no jurisdiction.

The PCGG can only investigate the unexplained wealth and corrupt practices of AFP personnel who fall under
either of the two categories: (1) AFP personnel who have accumulated ill-gotten wealth during the
administration of former President Marcos by being the latter’s immediate family, relative, subordinate or close
associate, taking undue advantage of their public office or using their powers, influence x x x; or (2) AFP
personnel involved in other cases of graft and corruption provided the President assigns their cases to the
PCGG.
Ramas does not fall under (2); hence, he must fall under (1) as a subordinate. However, his position alone as
Commanding General of the Philippine Army with the rank of Major General does not suffice to make him a
“subordinate” of former President Marcos for purposes of EO 1 and its amendments. The PCGG has to provide
a prima facie showing that Ramas was a close associate of former President Marcos, in the same manner that
business associates, dummies, agents or nominees of former President Marcos were close to him.
The proper government agencies, and not the PCGG, should investigate and prosecute forfeiture petitions not
falling under EO No. 1 and its amendments. The preliminary investigation of unexplained wealth amassed on or
before 25 February 1986 falls under the jurisdiction of the Ombudsman, while the authority to file the
corresponding forfeiture petition rests with the Solicitor General.
Consequently, the petition should be dismissed for lack of jurisdiction by the PCGG to conduct the preliminary
investigation. The Ombudsman may still conduct the proper preliminary investigation for violation of RA No.
1379, and if warranted, the Solicitor General may file the forfeiture petition with the Sandiganbayan. The right
of the State to forfeit unexplained wealth under RA No. 1379 is not subject to prescription, laches or estoppel.
2. The Sandiganbayan did NOT ERR in dismissing the case.
The Petitioner has only itself to blame for non-completion of the presentation of its evidence. It had almost two
years to prepare its evidence. However, it kept on delaying such presentation by filing numerous motions for
postponements and extensions.
The Sandiganbayan overlooked petitioner’s delays and yet petitioner ended the long-string of delays with the
filing of a Re-Amended Complaint, which would only prolong even more the disposition of the case.
Moreover, the pronouncements of the Court in Migrino and Cruz prompted the Sandiganbayan to dismiss the
case since the PCGG has no jurisdiction to investigate and prosecute the case against private respondents. This
alone would have been sufficient legal basis for the Sandiganbayan to dismiss the forfeiture case against private
respondents.
3. The warrant did not include the articles and things seized from the house of
Dimaano; hence, they were illegally seized.
Petitioner argues that a revolutionary government was operative at that time by virtue of Proclamation No. 1.
Petitioner asserts that the revolutionary government effectively withheld the operation of the 1973 Constitution
which guaranteed private respondents’ exclusionary right. Moreover, petitioner argues that the exclusionary
right arising from an illegal search applies only beginning 2 February 1987, the date of ratification of the 1987
Constitution. Petitioner contends that all rights under the Bill of Rights had already reverted to its embryonic
stage at the time of the search. Therefore, the government may confiscate the monies and items taken from
Dimaano and use the same in evidence against her since at the time of their seizure, private respondents did
not enjoy any constitutional right.

The petitioner is partly right in their arguments that the 1973 Constitution was inoperative during the
interregnum. However, the Supreme Court rule that the protection accorded to individuals under the Covenant
and the Declaration remained in effect during the interregnum.
During the interregnum, the government in power was concededly a revolutionary government bound by no
constitution. No one could validly question the sequestration orders as violative of the Bill of Rights because
there was no Bill of Rights during the interregnum. However, upon the adoption of the Freedom Constitution,
the sequestered companies assailed the sequestration orders as contrary to the Bill of Rights of the Freedom
Constitution.
The revolutionary government assumed responsibility for the State’s good faith compliance with the Covenant
to which the Philippines is a signatory. The Declaration, to which the Philippines is also a signatory, provides in
its Article 17(2) that “[n]o one shall be arbitrarily deprived of his property.” Although it is not intended as a
legally binding document, being only a declaration, the Court has interpreted the Declaration as part of the
generally accepted principles of international law and binding on the State. Thus, the revolutionary government
was also obligated under international law to observe the rights of individuals under the Declaration.
Furthermore, the revolutionary government did not repudiate the Covenant or the Declaration during the
interregnum. Suffice it to say that the Court considers the Declaration as part of customary international law,
and that Filipinos as human beings are proper subjects of the rules of international law laid down in the
Covenant. The fact is the revolutionary government did not repudiate the Covenant or the Declaration in the
same way it repudiated the 1973 Constitution. As the de jure government, the revolutionary government could
not escape responsibility for the State’s good faith compliance with its treaty obligations under international law.
Day 3
Law in Context
Self-Determination: Challenges to Existing Legal Regimes
(i) Indigenous Peoples, Ancestral Domain and the Environment
Case: Cruz vs. Sec. of DENR (GR 135385, December 6, 2000)
FACTS:
A petition for prohibition and mandamus was filed assailing the constitutionality of R.A. 8371 or the
Indigenous Peoples Rights Act 1997 specifically Sections 3(a) and 3(b) and its Implementing Rules and
Regulations,
Sec. 3. Definition of Terms.- For purposes of this Act, the following terms shall
mean:
a) Ancestral Domains - Subject to Section 56 hereof, refer to all areas generally
belonging to ICCs/IPs comprising lands, inland waters, coastal areas, and natural
resources therein, held under a claim of ownership, occupied or possessed by ICCs/IPs,
themselves or through their ancestors, communally or individually since time
immemorial, continuously to the present except when interrupted by war, force majeure
or displacement by force, deceit, stealth or as a consequence of government projects or

any other voluntary dealings entered into by government and private individuals,
corporations, and which are necessary to ensure their economic, social and cultural
welfare. It shall include ancestral land, forests, pasture, residential, agricultural, and
other lands individually owned whether alienable and disposable or otherwise, hunting
grounds, burial grounds, worship areas, bodies of water, mineral and other natural
resources, and lands which may no longer be exclusively occupied by ICCs/IPs but from
which their traditionally had access to for their subsistence and traditional activities,
particularly the home ranges of ICCs/IPs who are still nomadic and/or shifting
cultivators;
b) Ancestral Lands - Subject to Section 56 hereof, refers to land occupied,
possessed and utilized by individuals, families and clans who are members of the
ICCs/IPs since time immemorial, by themselves or through their predecessors-in-
interest, under claims of individual or traditional group ownership, continuously, to the
present except when interrupted by war, force majeure or displacement by force,
deceit, stealth, or as a consequence of government projects and other voluntary
dealings entered into by government and private individuals/corporations, including, but
not limited to, residential lots, rice terraces or paddies, private forests, swidden farms
and tree lots; on the grounds that:
• They amount to an unlawful deprivation of the State's ownership over the lands of the public domain as
well as minerals and other natural resources therein, in violation of the Regalian doctrine embodied in
Sec. 2, Art. XII of the Constitution.
• The definition of 'ancestral domains' and 'ancestral lands' were all-encompassing, and which might even
include private lands found within said areas, thereafter violating the rights of private landowners.
• The IPRA defining the powers and jurisdiction of the NCIP and making customary law applicable to the
settlement disputes involving ancestral domains and ancestral lands on the ground that these provisions
violate the due process clause of the Constitution.
• Lastly, that one of the Implementing rules of IPRA provided that the administrative relationship of the
NCIP to the Office of the President is characterized as lateral but autonomous for purposes of policy and
program coordination, and therefore infringes upon the President's power of control over executive
departments under Sec. 17, Art VII of the Constitution.
ISSUE:
Whether or not the IPRA law is constitutionally valid
HELD:
Yes. Initially, the votes were equally divided (7-7) and the necessary majority was not obtained, thus the case
was redeliberated upon. However, after redeliberation, the voting remained the same. Accordingly, pursuant to
the Rules of Civil Procedure, the petition was dismissed. Hence, the constitutionality of the IPRA was sustained.
Excerpts: A Lecture on Public International Law by Associate Dean Sedfrey M. Candelaria

(8/15/09)
Dean Candelaria: “Now when you claim the airspace above your territory, you have exclusive
sovereignty over the airspace. You can regulate the entry of flights, and this is subject to the Paris
Convention; there is an international convention on this. When the IPRA was being questions before the
SC in 1999, mining companies questioned the question of ancestral domain; it covered vast areas. Be
aware of that because it might be asked in the bar. Since 1999 and 2000 when it was declared valid

because it lacked the required number of votes to declare it unconstitutional, no examiner has ever
dared to ask what is the concept of ancestral domain under constitutional law, but you have the case of
Cruz v. DENR. We argued that case on behalf of the National Commission on Indigenous Peoples and
the indigenous communities, and we had to defend the law against, partly the Solicitor General,
because the SolGen was not in agreement with the interpretation of the NCIP and the non-government
groups about the extent of ancestral domain. But there was one naughty question; I think it was from
Justice Panganiban, that time when he asked me about airspace. He asked, “Do we need permits when
you want to go above the ancestral domain?” Because there was one provision in the IPRA that the
airspace above the ancestral domain may be claimed by the indigenous peoples, but that question will
have to be answered in light of the definition of national territory; that when it comes to regulating the
airspace, the Paris convention would give absolute sovereignty over the State, and of course it will be
the State, and not the indigenous community, who will regulate the entry of planes above the ancestral
domain. That is national in character so, it was really easy to answer that, except that it was very
naughty as if the ancestral domain already covered everything and that’s why it was being attacked as
being unconstitutional. “
(ii) Bangsamoro People

Case: Provincial North Cotabato v. GRP Peace Panel, (564 SCRA 402)
FACTS:
The MOA-AD (Memorandum of Agreement on Ancestral Domain) 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.
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. 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.
From June 20-22, 2001, formal peace talks between the parties were held in Tripoli, Libya, 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."
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.

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 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.
I. Statement of the Proceedings:
1. 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
• COA: Invoking the right to information on matters of public concern,
• Relief sought: 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.
2. This initial petition was followed by another one, docketed as G.R. No. 183752, filed by the City
of Zamboanga,] Mayor Celso Lobregat, Rep. Ma. Isabelle Climaco and Rep. Erico Basilio Fabian
who likewise pray for similar injunctive reliefs.
• Action: Petition Mandamus and Prohibition
• Relief sought: 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.
Ø 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
3. Meanwhile, the City of Iligan filed a petition docketed as G.R. No. 183893
• Action: filed a petition for Injunction and/or Declaratory Relief,
• Relief Sought: 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.
4. On August 15, 2008 The Province of Zamboanga del Norte, Governor Rolando Yebes, Vice-
Governor Francis Olvis, Rep. Cecilia Jalosjos-Carreon, Rep. Cesar Jalosjos, and the members of the
Sangguniang Panlalawigan of Zamboanga del Norte filed
• Action: Petition for Certiorari, Mandamus and Prohibition, docketed as G.R. No. 183951.

• RS: 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.
5. On August 19, 2008, Ernesto Maceda, Jejomar Binay, and Aquilino Pimentel III filed
• Action:a petition for Prohibition,[20] docketed as G.R. No. 183962,
• RS: 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.
On August 15, 22 and 29, 2008: The cases were heard on oral argument 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;
4. 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;
5. 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;
6. 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;

7. 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
8. Whether desistance from signing the MOA derogates any prior valid commitments
of the Government of the Republic of the Philippines.[24]
ISSUES:
A. Procedural Issues:
1. Whether or not the Petitions are ripe for adjudication?
HELD: Yes. The petitions are ripe for adjudication.
Ø 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.
Ratio: A question is ripe for adjudication when the act being challenged has had a direct adverse effect on the
individual challenging it. For a case to be considered ripe for adjudication, it is a prerequisite that something
had then been accomplished or performed by either branch before a court may come into the picture, and the
petitioner must allege the existence of an immediate or threatened injury to itself as a result of the challenged
action. He must show that he has sustained or is immediately in danger of sustaining some direct injury as a
result of the act complained of.
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
Concrete acts under the MOA-AD are not necessary to render the present controversy ripe. In
Pimentel, Jr. v. Aguirre, this Court held:
“x x x [B]y the mere enactment of the questioned law or the approval of the challenged action, the dispute is
said to have ripened into a judicial controversy even without any other overt act. Indeed, even a singular
violation of the Constitution and/or the law is enough to awaken judicial duty.”
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.
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.
2. Whether the Petitioners have Locus Standi?
HELD: 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. (see footnote)1
3. Whether the Petitions have become moot and academic?
HELD: No. The MOA-AD is a significant part of a series of agreements necessary to carry out the GRP-MILF
1
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.

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.
Ratio: 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.
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, the manifestation
that it will not be signed as well as the disbanding of the GRP Panel not withstanding.
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.
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 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.
B. Substantive Issues:
1. Whether the respondents violate constitutional and statutory provisions on public

consultation and the right to information when they negotiated and later initialed the MOA-
AD?
HELD: Yes.
Applicable laws:
Article III (Bill of Rights)
Sec. 7. The right of people on matters of public concern shall be recognized, access to official
records and to documents and papers pertaining to official acts, transactions, or decisions, as well
as to government research data used as basis for policy development shall be afforded the citizen,
subject to such limitations as may be provided by law.
Article II
Sec. 28. Subject to reasonable conditions prescribed by law , that state adopts and implements a
policy of full public disclosure of all its transactions involving public interest.
LGC (1991), “require all national agencies and officers to conduct periodic consultations. No
project or program be implemented unless such consultations are complied with and approval mus
be obtained.”
Ratio: 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.
2. Whether or The MOA-AD is inconsistent with the Constitution and laws as presently
worded?
HELD: Yes the contents of the MOA-AD are unconstitutional.
Ratio: 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.
The MOA-AD explicitly alludes to the international law concept of association, indicating that the Parties actually
framed its provision with it in mind. An 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 association represent a middle

ground between integration and independence
The MOA-AD contains many provisions which are consistent with the international legal concept of association
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.
Ø 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.
Article X of the Constitution:

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 .
Ø The BJE is a far more powerful entity than the autonomous region
recognized in the Constitution
It is not merely an expanded version of the ARMM, the status of its relationship with the national government
being fundamentally different from that of the ARMM. Indeed, BJE is a state in all but name as it meets
the criteria of a state laid down in the Montevideo Convention, namely, a permanent population, a
defined territory, a government, and a capacity to enter into relations with other states.
Even assuming arguendo that the MOA-AD would not necessarily sever any portion of Philippine
territory, the spirit animating it – which has betrayed itself by its use of the concept of association – runs
counter to the national sovereignty and territorial integrity of the Republic.

Ø 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.
Article X, Section 20 of the Constitution

Within its territorial jurisdiction and subject to the provisions of this Constitution and national laws,
the organic act of autonomous regions shall provide for legislative powers over:
1. Administrative organization;
2. Creation of sources of revenues;
3. Ancestral domain and natural resources;
4. Personal, family, and property relations;
5. Regional urban and rural planning development;
6. Economic, social, and tourism development;
7. Educational policies;
8. Preservation and development of the cultural heritage; and
9. Such other matters as may be authorized by law for the promotion of the general welfare of the
people of the region.
The President has sole authority in the treaty-making.
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.
Article II, Section 22 of the Constitution must also be amended if the scheme envisioned in the

MOA-AD is to be effected.
Sec. 22 : “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 :
1. R.A. No. 9054[156] or the Organic Act of the ARMM, and t
2. IPRA.
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.”
Assuming that the UN DRIP (Declaration of Rights of Indigenous People), 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.
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.
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
3. 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?
HELD: Yes. the President’s power to conduct peace negotiations is implicitly included in her powers as Chief
Executive and Commander-in-Chief.
Ratio: 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.
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.
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.
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.
4. Whether or not MOA-AD is binding on the Philippines under International Law?
HELD: NO. 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.
Ratio: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.”
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. Respondents, however, may not preempt
it in that decision.
Additional notes:
Overview of the MOA-AD:

The parties in said MOA-AD are the GRP and the MILF. It’s “Terms of Reference” (TOR) includes not only earlier
agreements between the GRP and the MILF, but also agreements between the GRP and the MNLF. It also
identifies as TOR two local statutes – the organic act for the Autonomous Region in Muslim Mindanao (ARMM)
and the Indigenous Peoples Rights Act (IPRA). Furthermore, it 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.
The MOA-AD defines the “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. It further 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. The MOA-AD mentions the “Bangsamoro Juridical Entity” (BJE) to which it
grants the authority and jurisdiction over the Ancestral Domain and Ancestral Lands of the Bangsamoro.
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. 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. There is no similar provision on the
sharing of minerals and allowed activities with respect to the internal waters of the BJE.
Resources:
The MOA-AD provides 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. The external defense of the
BJE is to remain the duty and obligation of the Central Government, which has the further duty to “take
necessary steps to ensure the BJE’s participation in international meetings and events.”
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. The BJE may also enter into
environmental cooperation agreements. 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.
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.”
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.
Government:
The relationship between the Central Government and BJE is described as “associative”, characterized by shared
authority and responsibility, under the MOA-AD. The BJE under the MOA-AD is also 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 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 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 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.
Excerpt: A Lecture on Public International Law by Associate Dean Sedfrey M. Candelaria

(8/15/09)
Dean Candelaria: “Next case, we’ll keep on going back to this next case, is the case of Province of
North Cotabato v. The GRP Panel. October 14, 2008. This was the Memorandum of Agreement on
Ancestral Domain between the GRP and the MILF. I had a chance to be part of this. In fact, I was
impleaded (?) in this case. I was the Chief Legal consultant; I am not ashamed to say that. In fact, it
was one I am pretty much proud of having gone into that process of crafting the MOA-AD with the
panel at that time in the last few stages. I believe in the document, I believe in the principles of self-
determination of the Bangsa Moro here. What was the MOA-AD? It was a really underappreciated
document because it was politicized when people began to see the possibility of charter-change,
because the document is one which would fit, perhaps in a Federal set-up in this country. It was an
attempt to try to achieve peace in this country, recognizing the specific culture, specific idiosyncrasy of
a community part of the Filipino nation. Sayang, because its a document that was in the works for
about six years by the panel. I sit in the negotiating panel for the communists; that’s my main work,
but for one year, I worked with the GRP panel for talks with the MILF, so last year when I was
discussing this, sometime August, it was a time that the MOA-AD was up in the SC for oral argument
and we had to argue this on behalf of the document itself, in the SC. The document was intended to be

one of the steps towards the drafting of a comprehensive compact. There were already two other
documents signed between the government and the MILF panel on security and rehabilitation
development. The MOA-AD was supposed to set the parameters by which a Bangsa Moro Juridical
Entity would be put up. Yes, it covered areas which was supposed to have impact on territory; the
waters, airspace. It talked about national resource developments and the capacity of the Bangsa Moro
with certain countries for economic purposes. It also defined, to a certain extent, governance, which
will be the next round of talk where special courts, as we now have Shari’a , which will be enhanced in
the context of the Bangsa Moro homeland. There will be talks about possible concepts of citizenship in
the context of the Bangsa Moro homeland, but within a framework called a Federal set-up. So it was
really meant to eventually fit into a broader charter change if federalism would have been proper.
Because the ARMM, as it stands now, probably would not be able to accommodate what the MOA-AD
would propose in a comprehensive compact. So it was one in a series of documents before the
comprehensive compact, and when this was supposed to be finally signed... I say signed because
before August five, before the government left for Kuala Lumpur for that signing, there was already an
initialing of that document. So they initialed the document in Kuala Lumpur, more than a week before
the signing and it was going to be a ceremonial signing of the parties in Kuala Lumpur with all the
delegations and international community invited: you have donor groups, you have ambassadors,
present in Kuala Lumpur and Governor Pinol and other local government officials like Lobregat from
Zamboanga and Iligan, started to complain saying “we were never consulted; we did not know of the
MOA-AD,” which was not true, because there were documents showing that they were submitting, in
fact, resolutions from local governments and there were consultations done in Zamboanga and Iligan,
but they denied it publicly to be able to stop the signing, which is not fair because this was almost four
to five years in the making. This was just an attempt to consolidate it and finally to submit it. So that’s
what happened; they went to the SC for a TRO and by the time the GRP panel... I was not there
anymore; I was here, watching what was going to happen to the TRO. The panel left and they were
sent a fax because that morning, a Monday, the TRO was issued by the SC, and the Malaysian host was
left empty-handed. They have prepared more than... it reminds me of certain events. Two hundred fifty
rooms in Kuala Lumpur for this big thing. The entire nation... national network, in ASEAN, in other parts
of the world, was focused on that because it was one of the few agreements that would have paved the
way for peace in the country. And you have the SC issuing a TRO because certain politicians in the
south said they were not consulted. You know, it was sad to say that Pinol, during a February ANC (TV
Channel) forum on Mindanao, if you have seen that, was invited in that forum by ANC together with
other Mindanao peace advocates and the former panel, admitted, when he was asked, “Did you actually
know about the document?” Then now he says, after all the damage has been done, “Yes, I saw it but
the resolutions that we had were not into the document.” But he was already warned, there would be a
plebiscite. You have voted twice, against the ARMM agreement, then you can do so if you want. But
you don’t mislead the SC to say that you were never consulted because there were records to speak of.
And then you have a “Presidentiable” called Mar Roxas, seeing this as an opportunity, the Liberal Party;
most frustrating to see a politician, a Presidentiable, using it as a platform. Kaya nga sabi nila meron
daw M.A.R. ngayon sa Mindandao; Movement Against Roxas. It’s sad because they politicized. You may
not want the President, but you don’t politicize and issue which is genuinely a peace instrument for this
country. And if that is the kind of President you will have later on, using it as a framework, I’m sad for a
Presidentiable like that, just for that flatform. Pero sabi n’ya ipaglalaban ko kayo... except Mindanao.
Let me go to the case itself. It lost on an Eight-Seven vote. Why? Because when this document was
actually submitted to the SC, what happened was that the government said, and as a result of this, as
you know, there were certain rogue commanders from the MILF who went on a rampage, after the TRO
was issued. And you know what’s happening now; the international monitoring team, where you had a
ceasefire before, already left, and it was leaning to displacement in Mindanao. A terrible situation; the

latest, of course, and this is disputed, if you have been reading the papers about what happened, two
days age, the talks have been attempted to be revived. At the time the oral arguments were being
heard here, the SC was given notice by the government; they disbanded the panel and said, “We will
no longer sign the MOAAD.”
The MILF said, “But you have initialled; it is a signed document.” What were the issued before the SC?
And one that relates to treaties. The petitioners against the MOA-AD said, “You have signed the treaty
because you have created a State called the Bangsa Moro State.” Did we create a State as a result of
the MOA-AD? That was the question. Was it a State in accordance with the Montevideo convention such
that an agreement signed between the MILF panel and the GRP panel amounted to a treaty under
international law? That was the discussion. Well let me be straightforward to this because we said that
this is not a treaty pursuant to the VCLT. While we may want to achieve peace, the document that you
have is one between the government and a State on one hand, and a non-State entity, on the other
hand. So, it is outside the context of the VCLT. The SC on that point said, Yes. This is not a treaty.
Clearly. Of course, the Bangsa Moro side would have said, “But we are a State. We are a nation.” But of
course that is a matter that has to be proven later on. But legally, that was the argument made. So, the
other matter was that, if the government said, “we will no longer sign this document”, then the SC
should not have continued tackling the substantive aspect which is the unconstitutional provisions, they
say that if you look at the provisions, they are unconstitutional because they do not fit the Constitution.
Precisely; you would need a possible change in the legal framework of the Constitution. Because what
is being put at the table is higher than what the ARMM actually provides now. But that will wait and
there will be a plebiscite; it is not one that will be self-executing because it must go through a
referendum; it has to go through a Constitutional process. That was clear in the mind. And the
government panel was saying, “if you look at the orders that created the peace panel way back in
Ramos’ time, carried through Estrada and GMA, it’s consistent. The GRP panel may propose or may
recommend to the President possible changes in law, in policy, or even amendments to the
Constitution. But that is not the context that a proposal is viewed in accordance with Article 17 on
amendments because that is one which will go through the process of the legislature; it is clear in the
mind. But what the government oppositors were saying was that this is already a commitment to
change the Constitution; that’s the interpretation made. And many of the justices, at least eight of
them, including the other seven; many of the justices who voted, also on the part of the Solicitor
General, also had that same interpretation. They may have differed in the result, but it was really a
matter of interpretation because it was clear that the document was not going to be a final document, it
has to go through another process. So on the matter of treaty, there was no State to speak of; and this
has a bearing to our talks now with the Communist Party of the Philippines. The CCP also does not
recognize the Philippine Constitution. Talks are going on, for the purpose of having changes in the
economic structure, and the political structure of government. They want a coalition government. And
insofar as the Bangsa Moro is concerned, there’s a specific territorial claim; the ancestral domain
concept, which was similar, but not identical to the IPRA or the indigenous people’s rights concept of
ancestral domain. But the communist has a different concept; they want the entire country. Mahirap
naman yon noh? Wala naman sigurong papayag. But this is the difficulty in peace negotiations, and
that’s why it was very difficult, from the point of view of the panel at that time, to see the role of a
court in the process of negotiations, of treaties, or even agreements at that time. But the SC came up,
nonetheless with a discussion on the unconstitutionality of the MOA-AD in that regard. So those are the
various points raised and as far as the MOA-AD is concerned, it is not a treaty. That’s at least
something you can get from the decision itself: it is not a treaty in accordance with the VCLT.”

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INTRODUCTION TO LAW

INTRODUCTION TO LAW SY 2012 – 20123 Dean Candelaria | 2

TIPS FOR INTRO TO LAW

TIPS FOR EASIER REVIEWING

INTRODUCTION TO LAW SY 2012 – 20123 Dean Candelaria | 3

INTRODUCTION TO LAW, LEGAL PROCESS AND THE PHILIPPINE LEGAL SYSTEM

May 21 (Monday, 6:00pm- 9:00 pm)

Readings: Dworkin’s Interpretive Theory,” pp. 58-66

May 22 (Tuesday, 6:00pm- 9:00 pm)

May 23 (Wednesday , 6:00pm- 9:00 pm)

May 24 (Thursday, 6:00pm- 9:00 pm)

May 28 (Monday, 7:00-8:00pm)- FINAL EXAMINATIONS

INTRODUCTION TO LAW SY 2012 – 20123 Dean Candelaria | 4

DWORKIN’S INTERPRETIVE THEORY

Rules and Principles: The Idea of Fit

Two aspects of Fit

Fitting the Fourth Amendment: Privacy

INTRODUCTION TO LAW SY 2012 – 20123 Dean Candelaria | 5

A principle that mandates the protection of privacy fits the bill

Olmstead and Beyond

The Role of Morality

INTRODUCTION TO LAW SY 2012 – 20123 Dean Candelaria | 6

The Challenge of Skepticism

Two Distinct types of Skepticism

INTRODUCTION TO LAW SY 2012 – 20123 Dean Candelaria | 7

(LEGAL POSITIVISM) AUSTIN’S THEORY OF LAW

AUSTIN’S THEORY OF LAW

INTRODUCTION TO LAW SY 2012 – 20123 Dean Candelaria | 8

INTRODUCTION TO LAW SY 2012 – 20123 Dean Candelaria | 9

(LEGAL POSITIVISM) HART’S PRIMARY AND SECONDARY RULES

INTRODUCTION TO LAW SY 2012 – 20123 Dean Candelaria | 10

▫ Act in a certain way (external condition)

INTRODUCTION TO LAW SY 2012 – 20123 Dean Candelaria | 11

Summary: Natural Law Versus Positivism

INTRODUCTION TO LAW SY 2012 – 20123 Dean Candelaria | 12

HART’S INTERNATIONAL LAW

Hart’s four doubts re: status of international law:

1. Is international law, law, even though there is an absence of sanctions to enforce

a. First: a clarification on the term “binding.”

INTRODUCTION TO LAW SY 2012 – 20123 Dean Candelaria | 13

INTRODUCTION TO LAW SY 2012 – 20123 Dean Candelaria | 14

INTRODUCTION TO LAW SY 2012 – 20123 Dean Candelaria | 15

1. Philippine Legal History- Relevant Jurisprudence

A. (Colonial Setting) Rubi vs Provincial Board of Mindanao (39 Phil 660)

Section 2145 of the Administrative Code of 1917 reads as follows:

INTRODUCTION TO LAW SY 2012 – 20123 Dean Candelaria | 16

First, a brief history:

INTRODUCTION TO LAW SY 2012 – 20123 Dean Candelaria | 17

Who are the Manguianes?

INTRODUCTION TO LAW SY 2012 – 20123 Dean Candelaria | 18

INTRODUCTION TO LAW SY 2012 – 20123 Dean Candelaria | 19

INTRODUCTION TO LAW SY 2012 – 20123 Dean Candelaria | 20

Kinds of de facto governments:

Excerpts: A Lecture on Public International Law by Associate Dean Sedfrey M. Candelaria

INTRODUCTION TO LAW SY 2012 – 20123 Dean Candelaria | 22

C. (People Power Revolution) Republic of the Philippines v. Sandiganbayan, major general

Hence, the PCGG filed a case against Ramas under RA 1379.

INTRODUCTION TO LAW SY 2012 – 20123 Dean Candelaria | 23

The Sandiganbayan dismissed the Amended Complaint on the following grounds:

The petition is dismissed and the ruling of the Sandiganbayan is affirmed.

1. The PCGG has no jurisdiction.

INTRODUCTION TO LAW SY 2012 – 20123 Dean Candelaria | 24

2. The Sandiganbayan did NOT ERR in dismissing the case.