Constitutional law G.R. No.

174153 October 25, 2006

Cases: CONCEPT OF THE STATE RAUL L. LAMBINO and ERICO B.

AUMENTADO, TOGETHER WITH 6,327,952
• Lambino vs COMELEC
REGISTERED VOTERS,Petitioners,
• National Territory and the Archipelagic
vs.
Doctrine or THE COMMISSION ON ELECTIONS,
Archipelago Theory. Methods of fixing Respondent.
the baseline.
• Compare 1935, 1973, and 1987
Constitutions
• R.A. No. 9522 CARPIO, J.:
• R.A. No. 5446
The Case
• P.D. No. 1596
• P.D. No. 1599 These are consolidated petitions on the
• North Cotabato v. Government, G.R. Resolution dated 31 August 2006 of the
No. 183591 Commission on Elections ("COMELEC")
• Magallona v. Ermita, G.R. No. 187167 denying due course to an initiative
• Republic of the Philippines v. People's petition to amend the 1987 Constitution.
Republic of China,
Antecedent Facts
PCA Case No. 2013-19
On 15 February 2006, petitioners in G.R.
No. 174153, namely Raul L. Lambino and
Erico B. Aumentado ("Lambino Group"),
with other groups1 and individuals,
commenced gathering signatures for an
initiative petition to change the 1987
Constitution. On 25 August 2006, the
Lambino Group filed a petition with the
COMELEC to hold a plebiscite that will
ratify their initiative petition under Section
5(b) and (c)2 and Section 73 of Republic
Act No. 6735 or the Initiative and
Referendum Act ("RA 6735").

The Lambino Group alleged that their

petition had the support of 6,327,952
individuals constituting at least twelve
per centum (12%) of all registered voters,
with each legislative district represented
by at least three per centum (3%) of its
registered voters. The Lambino Group
also claimed that COMELEC election
registrars had verified the signatures of
the 6.3 million individuals.

Constitutional Law 1 Nina Majica A. Pagaduan University of the Cordilleras College of Law
The Lambino Group's initiative petition certiorari and mandamus to set aside the
changes the 1987 Constitution by COMELEC Resolution of 31 August 2006
modifying Sections 1-7 of Article VI and to compel the COMELEC to give
(Legislative Department)4 and Sections due course to their initiative petition. The
1-4 of Article VII (Executive Department)5 Lambino Group contends that the
and by adding Article XVIII entitled COMELEC committed grave abuse of
"Transitory Provisions."6 These proposed discretion in denying due course to their
changes will shift the present Bicameral- petition since Santiago is not a binding
Presidential system to a Unicameral- precedent. Alternatively, the Lambino
Parliamentary form of government. The Group claims that Santiago binds only
Lambino Group prayed that after due the parties to that case, and their petition
publication of their petition, the deserves cognizance as an expression of
COMELEC should submit the following the "will of the sovereign people."
proposition in a plebiscite for the voters'
ratification: In G.R. No. 174299, petitioners ("Binay
Group") pray that the Court require
DO YOU APPROVE THE AMENDMENT OF respondent COMELEC Commissioners to
ARTICLES VI AND VII OF THE 1987 show cause why they should not be cited
CONSTITUTION, CHANGING THE FORM OF in contempt for the COMELEC's
GOVERNMENT FROM THE PRESENT verification of signatures and for
BICAMERAL-PRESIDENTIAL TO A "entertaining" the Lambino Group's
UNICAMERAL-PARLIAMENTARY SYSTEM, petition despite the permanent
AND PROVIDING ARTICLE XVIII AS injunction in Santiago. The Court treated
TRANSITORY PROVISIONS FOR THE the Binay Group's petition as an
ORDERLY SHIFT FROM ONE SYSTEM TO THE opposition-in-intervention.
OTHER?
In his Comment to the Lambino Group's
On 30 August 2006, the Lambino Group petition, the Solicitor General joined
filed an Amended Petition with the causes with the petitioners, urging the
COMELEC indicating modifications in the Court to grant the petition despite the
proposed Article XVIII (Transitory Santiago ruling. The Solicitor General
Provisions) of their initiative.7 proposed that the Court treat RA 6735
and its implementing rules "as temporary
The Ruling of the COMELEC devises to implement the system of
initiative."
On 31 August 2006, the COMELEC issued
its Resolution denying due course to the Various groups and individuals sought
Lambino Group's petition for lack of an intervention, filing pleadings supporting
enabling law governing initiative or opposing the Lambino Group's
petitions to amend the Constitution. The petition. The supporting intervenors10
COMELEC invoked this Court's ruling in uniformly hold the view that the
Santiago v. Commission on Elections8 COMELEC committed grave abuse of
declaring RA 6735 inadequate to discretion in relying on Santiago. On the
implement the initiative clause on other hand, the opposing intervenors11
proposals to amend the Constitution.9 hold the contrary view and maintain that
Santiago is a binding precedent. The
In G.R. No. 174153, the Lambino Group opposing intervenors also challenged (1)
prays for the issuance of the writs of the Lambino Group's standing to file the

Constitutional Law 1 Nina Majica A. Pagaduan University of the Cordilleras College of Law
petition; (2) the validity of the signature The Lambino Group miserably failed to
gathering and verification process; (3) comply with the basic requirements of
the Lambino Group's compliance with the Constitution for conducting a
the minimum requirement for the people's initiative. Thus, there is even no
percentage of voters supporting an need to revisit Santiago, as the present
initiative petition under Section 2, Article petition warrants dismissal based alone
XVII of the 1987 Constitution;12 (4) the on the Lambino Group's glaring failure to
nature of the proposed changes as comply with the basic requirements of
revisions and not mere amendments as the Constitution. For following the Court's
provided under Section 2, Article XVII of ruling in Santiago, no grave abuse of
the 1987 Constitution; and (5) the discretion is attributable to the
Lambino Group's compliance with the Commision on Elections.
requirement in Section 10(a) of RA 6735
limiting initiative petitions to only one 1. The Initiative Petition Does Not Comply
subject. with Section 2, Article XVII of the
Constitution on Direct Proposal by the
The Court heard the parties and People
intervenors in oral arguments on 26
September 2006. After receiving the Section 2, Article XVII of the Constitution
parties' memoranda, the Court is the governing constitutional provision
considered the case submitted for that allows a people's initiative to
resolution. propose amendments to the
Constitution. This section states:
The Issues
Sec. 2. Amendments to this Constitution
The petitions raise the following issues: may likewise be directly proposed by the
people through initiative upon a petition
1. Whether the Lambino Group's initiative of at least twelve per centum of the total
petition complies with Section 2, Article number of registered voters of which
XVII of the Constitution on amendments every legislative district must be
to the Constitution through a people's represented by at least three per centum
initiative; of the registered voters therein. x x x x
(Emphasis supplied)
2. Whether this Court should revisit its
ruling in Santiago declaring RA 6735 The deliberations of the Constitutional
"incomplete, inadequate or wanting in Commission vividly explain the meaning
essential terms and conditions" to of an amendment "directly proposed by
implement the initiative clause on the people through initiative upon a
proposals to amend the Constitution; petition," thus:
and
MR. RODRIGO: Let us look at the
3. Whether the COMELEC committed mechanics. Let us say some voters want
grave abuse of discretion in denying due to propose a constitutional amendment.
course to the Lambino Group's petition. Is the draft of the proposed constitutional
amendment ready to be shown to the
The Ruling of the Court people when they are asked to sign?

There is no merit to the petition.

Constitutional Law 1 Nina Majica A. Pagaduan University of the Cordilleras College of Law
MR. SUAREZ: That can be reasonably These essential elements are present only
assumed, Madam President. if the full text of the proposed
amendments is first shown to the people
MR. RODRIGO: What does the sponsor who express their assent by signing such
mean? The draft is ready and shown to complete proposal in a petition. Thus, an
them before they sign. Now, who amendment is "directly proposed by the
prepares the draft? people through initiative upon a petition"
only if the people sign on a petition that
MR. SUAREZ: The people themselves, contains the full text of the proposed
Madam President. amendments.

MR. RODRIGO: No, because before they The full text of the proposed
sign there is already a draft shown to amendments may be either written on
them and they are asked whether or not the face of the petition, or attached to it.
they want to propose this constitutional If so attached, the petition must state the
amendment. fact of such attachment. This is an
assurance that every one of the several
MR. SUAREZ: As it is envisioned, any millions of signatories to the petition had
Filipino can prepare that proposal and seen the full text of the proposed
pass it around for signature.13 (Emphasis amendments before signing. Otherwise,
supplied) it is physically impossible, given the time
constraint, to prove that every one of the
Clearly, the framers of the Constitution
millions of signatories had seen the full
intended that the "draft of the proposed
text of the proposed amendments
constitutional amendment" should be
before signing.
"ready and shown" to the people "before"
they sign such proposal. The framers The framers of the Constitution directly
plainly stated that "before they sign there borrowed14 the concept of people's
is already a draft shown to them." The initiative from the United States where
framers also "envisioned" that the people various State constitutions incorporate
should sign on the proposal itself an initiative clause. In almost all States15
because the proponents must "prepare which allow initiative petitions, the
that proposal and pass it around for unbending requirement is that the
signature." people must first see the full text of the
proposed amendments before they sign
The essence of amendments "directly
to signify their assent, and that the
proposed by the people through
people must sign on an initiative petition
initiative upon a petition" is that the entire
that contains the full text of the proposed
proposal on its face is a petition by the
amendments.16
people. This means two essential
elements must be present. First, the The rationale for this requirement has
people must author and thus sign the been repeatedly explained in several
entire proposal. No agent or decisions of various courts. Thus, in
representative can sign on their behalf. Capezzuto v. State Ballot Commission,
Second, as an initiative upon a petition, the Supreme Court of Massachusetts,
the proposal must be embodied in a affirmed by the First Circuit Court of
petition. Appeals, declared:

Constitutional Law 1 Nina Majica A. Pagaduan University of the Cordilleras College of Law
[A] signature requirement would be "deceptive and misleading" which
meaningless if the person supplying the renders the initiative void.19
signature has not first seen what it is that
he or she is signing. Further, and more Section 2, Article XVII of the Constitution
importantly, loose interpretation of the does not expressly state that the petition
subscription requirement can pose a must set forth the full text of the proposed
significant potential for fraud. A person amendments. However, the
permitted to describe orally the contents deliberations of the framers of our
of an initiative petition to a potential Constitution clearly show that the framers
signer, without the signer having actually intended to adopt the relevant
examined the petition, could easily American jurisprudence on people's
mislead the signer by, for example, initiative. In particular, the deliberations
omitting, downplaying, or even flatly of the Constitutional Commission
misrepresenting, portions of the petition explicitly reveal that the framers
that might not be to the signer's liking. intended that the people must first see
This danger seems particularly acute the full text of the proposed amendments
when, in this case, the person giving the before they sign, and that the people
description is the drafter of the petition, must sign on a petition containing such
who obviously has a vested interest in full text. Indeed, Section 5(b) of Republic
seeing that it gets the requisite signatures Act No. 6735, the Initiative and
to qualify for the ballot.17 (Boldfacing and Referendum Act that the Lambino
underscoring supplied) Group invokes as valid, requires that the
people must sign the "petition x x x as
Likewise, in Kerr v. Bradbury,18 the Court signatories."
of Appeals of Oregon explained:
The proponents of the initiative secure
The purposes of "full text" provisions that the signatures from the people. The
apply to amendments by initiative proponents secure the signatures in their
commonly are described in similar terms. private capacity and not as public
x x x (The purpose of the full text officials. The proponents are not
requirement is to provide sufficient disinterested parties who can impartially
information so that registered voters can explain the advantages and
intelligently evaluate whether to sign the disadvantages of the proposed
initiative petition."); x x x (publication of amendments to the people. The
full text of amended constitutional proponents present favorably their
provision required because it is "essential proposal to the people and do not
for the elector to have x x x the section present the arguments against their
which is proposed to be added to or proposal. The proponents, or their
subtracted from. If he is to vote supporters, often pay those who gather
intelligently, he must have this the signatures.
knowledge. Otherwise in many instances
he would be required to vote in the Thus, there is no presumption that the
dark.") (Emphasis supplied) proponents observed the constitutional
requirements in gathering the signatures.
Moreover, "an initiative signer must be The proponents bear the burden of
informed at the time of signing of the proving that they complied with the
nature and effect of that which is constitutional requirements in gathering
proposed" and failure to do so is the signatures - that the petition

Constitutional Law 1 Nina Majica A. Pagaduan University of the Cordilleras College of Law
contained, or incorporated by the Lambino Group circulated, together
attachment, the full text of the proposed with the signature sheets, printed copies
amendments. of the Lambino Group's draft petition
which they later filed on 25 August 2006
The Lambino Group did not attach to with the COMELEC. When asked if his
their present petition with this Court a group also circulated the draft of their
copy of the paper that the people amended petition filed on 30 August
signed as their initiative petition. The 2006 with the COMELEC, Atty. Lambino
Lambino Group submitted to this Court a initially replied that they circulated both.
copy of a signature sheet20 after the oral However, Atty. Lambino changed his
arguments of 26 September 2006 when answer and stated that what his group
they filed their Memorandum on 11 circulated was the draft of the 30 August
October 2006. The signature sheet with 2006 amended petition, not the draft of
this Court during the oral arguments was the 25 August 2006 petition.
the signature sheet attached21 to the
opposition in intervention filed on 7 The Lambino Group would have this
September 2006 by intervenor Atty. Pete Court believe that they prepared the
Quirino-Quadra. draft of the 30 August 2006 amended
petition almost seven months earlier in
February 2006 when they started
gathering signatures. Petitioner Erico B.
There is not a single word, phrase, or Aumentado's "Verification/Certification"
sentence of text of the Lambino Group's of the 25 August 2006 petition, as well as
proposed changes in the signature of the 30 August 2006 amended petition,
sheet. Neither does the signature sheet filed with the COMELEC, states as follows:
state that the text of the proposed
changes is attached to it. Petitioner Atty. I have caused the preparation of the
Raul Lambino admitted this during the foregoing [Amended] Petition in my
oral arguments before this Court on 26 personal capacity as a registered voter,
September 2006. for and on behalf of the Union of Local
Authorities of the Philippines, as shown by
The signature sheet merely asks a ULAP Resolution No. 2006-02 hereto
question whether the people approve a attached, and as representative of the
shift from the Bicameral-Presidential to mass of signatories hereto. (Emphasis
the Unicameral-Parliamentary system of supplied)
government. The signature sheet does
not show to the people the draft of the The Lambino Group failed to attach a
proposed changes before they are copy of ULAP Resolution No. 2006-02 to
asked to sign the signature sheet. the present petition. However, the
Clearly, the signature sheet is not the "Official Website of the Union of Local
"petition" that the framers of the Authorities of the Philippines"22 has
Constitution envisioned when they posted the full text of Resolution No.
formulated the initiative clause in Section 2006-02, which provides:
2, Article XVII of the Constitution.
RESOLUTION NO. 2006-02
Petitioner Atty. Lambino, however,
explained that during the signature- RESOLUTION SUPPORTING THE PROPOSALS
gathering from February to August 2006, OF THE PEOPLE'S CONSULTATIVE

Constitutional Law 1 Nina Majica A. Pagaduan University of the Cordilleras College of Law
COMMISSION ON CHARTER CHANGE LEAGUES OF THE UNION OF LOCAL
THROUGH PEOPLE'S INITIATIVE AND AUTHORITIES OF THE PHILIPPINES (ULAP)
REFERENDUM AS A MODE OF AMENDING SUPPORT THE PORPOSALS (SIC) OF THE
THE 1987 CONSTITUTION PEOPLE'S CONSULATATIVE (SIC)
COMMISSION ON CHARTER CHANGE
WHEREAS, there is a need for the Union of THROUGH PEOPLE'S INITIATIVE AND
Local Authorities of the Philippines (ULAP) REFERENDUM AS A MODE OF AMENDING
to adopt a common stand on the THE 1987 CONSTITUTION;
approach to support the proposals of the
People's Consultative Commission on DONE, during the ULAP National
Charter Change; Executive Board special meeting held on
14 January 2006 at the Century Park
WHEREAS, ULAP maintains its unqualified Hotel, Manila.23 (Underscoring supplied)
support to the agenda of Her Excellency
President Gloria Macapagal-Arroyo for ULAP Resolution No. 2006-02 does not
constitutional reforms as embodied in authorize petitioner Aumentado to
the ULAP Joint Declaration for prepare the 25 August 2006 petition, or
Constitutional Reforms signed by the the 30 August 2006 amended petition,
members of the ULAP and the majority filed with the COMELEC. ULAP Resolution
coalition of the House of Representatives No. 2006-02 "support(s) the porposals
in Manila Hotel sometime in October (sic) of the Consulatative (sic)
2005; Commission on Charter Change through
people's initiative and referendum as a
WHEREAS, the People's Consultative mode of amending the 1987
Commission on Charter Change created Constitution." The proposals of the
by Her Excellency to recommend Consultative Commission24 are vastly
amendments to the 1987 Constitution different from the proposed changes of
has submitted its final report sometime in the Lambino Group in the 25 August 2006
December 2005; petition or 30 August 2006 amended
petition filed with the COMELEC.
WHEREAS, the ULAP is mindful of the
current political developments in For example, the proposed revisions of
Congress which militates against the use the Consultative Commission affect all
of the expeditious form of amending the provisions of the existing Constitution,
1987 Constitution; from the Preamble to the Transitory
Provisions. The proposed revisions have
WHEREAS, subject to the ratification of its profound impact on the Judiciary and
institutional members and the failure of the National Patrimony provisions of the
Congress to amend the Constitution as a existing Constitution, provisions that the
constituent assembly, ULAP has Lambino Group's proposed changes do
unanimously agreed to pursue the not touch. The Lambino Group's
constitutional reform agenda through proposed changes purport to affect only
People's Initiative and Referendum Articles VI and VII of the existing
without prejudice to other pragmatic Constitution, including the introduction
means to pursue the same; of new Transitory Provisions.

WHEREFORE, BE IT RESOLVED AS IT IS The ULAP adopted Resolution No. 2006-

HEREBY RESOLVED, THAT ALL THE MEMBER- 02 on 14 January 2006 or more than six

Constitutional Law 1 Nina Majica A. Pagaduan University of the Cordilleras College of Law
months before the filing of the 25 August Lambino Group did not allege in their
2006 petition or the 30 August 2006 present petition before this Court that
amended petition with the COMELEC. they circulated printed copies of the
However, ULAP Resolution No. 2006-02 draft petition together with the signature
does not establish that ULAP or the sheets. The signature sheets do not also
Lambino Group caused the circulation contain any indication that the draft
of the draft petition, together with the petition is attached to, or circulated with,
signature sheets, six months before the the signature sheets.
filing with the COMELEC. On the
contrary, ULAP Resolution No. 2006-02 It is only in their Consolidated Reply to the
casts grave doubt on the Lambino Opposition-in-Interventions that the
Group's claim that they circulated the Lambino Group first claimed that they
draft petition together with the signature circulated the "petition for initiative filed
sheets. ULAP Resolution No. 2006-02 does with the COMELEC," thus:
not refer at all to the draft petition or to
the Lambino Group's proposed [T]here is persuasive authority to the
changes. effect that "(w)here there is not (sic)
fraud, a signer who did not read the
In their Manifestation explaining their measure attached to a referendum
amended petition before the COMELEC, petition cannot question his signature on
the Lambino Group declared: the ground that he did not understand
the nature of the act." [82 C.J.S. S128h.
After the Petition was filed, Petitioners Mo. State v. Sullivan, 224, S.W. 327, 283
belatedly realized that the proposed Mo. 546.] Thus, the registered voters who
amendments alleged in the Petition, signed the signature sheets circulated
more specifically, paragraph 3 of Section together with the petition for initiative
4 and paragraph 2 of Section 5 of the filed with the COMELEC below, are
Transitory Provisions were inaccurately presumed to have understood the
stated and failed to correctly reflect their proposition contained in the petition.
proposed amendments. (Emphasis supplied)

The Lambino Group did not allege that The Lambino Group's statement that
they were amending the petition they circulated to the people "the
because the amended petition was petition for initiative filed with the
what they had shown to the people COMELEC" appears an afterthought,
during the February to August 2006 made after the intervenors Integrated
signature-gathering. Instead, the Bar of the Philippines (Cebu City Chapter
Lambino Group alleged that the petition and Cebu Province Chapters) and Atty.
of 25 August 2006 "inaccurately stated Quadra had pointed out that the
and failed to correctly reflect their signature sheets did not contain the text
proposed amendments." of the proposed changes. In their
Consolidated Reply, the Lambino Group
The Lambino Group never alleged in the alleged that they circulated "the petition
25 August 2006 petition or the 30 August for initiative" but failed to mention the
2006 amended petition with the amended petition. This contradicts what
COMELEC that they circulated printed Atty. Lambino finally stated during the
copies of the draft petition together with oral arguments that what they circulated
the signature sheets. Likewise, the

Constitutional Law 1 Nina Majica A. Pagaduan University of the Cordilleras College of Law
was the draft of the amended petition of During the oral arguments, Atty. Lambino
30 August 2006. expressly admitted that they printed only
100,000 copies of the draft petition they
The Lambino Group cites as authority filed more than six months later with the
Corpus Juris Secundum, stating that "a COMELEC. Atty. Lambino added that he
signer who did not read the measure also asked other supporters to print
attached to a referendum petition additional copies of the draft petition but
cannot question his signature on the he could not state with certainty how
ground that he did not understand the many additional copies the other
nature of the act." The Lambino Group supporters printed. Atty. Lambino could
quotes an authority that cites a proposed only assure this Court of the printing of
change attached to the petition signed 100,000 copies because he himself
by the people. Even the authority the caused the printing of these 100,000
Lambino Group quotes requires that the copies.
proposed change must be attached to
the petition. The same authority the Likewise, in the Lambino Group's
Lambino Group quotes requires the Memorandum filed on 11 October 2006,
people to sign on the petition itself. the Lambino Group expressly admits that
"petitioner Lambino initiated the printing
Indeed, it is basic in American and reproduction of 100,000 copies of
jurisprudence that the proposed the petition for initiative x x x."25 This
amendment must be incorporated with, admission binds the Lambino Group and
or attached to, the initiative petition establishes beyond any doubt that the
signed by the people. In the present Lambino Group failed to show the full text
initiative, the Lambino Group's proposed of the proposed changes to the great
changes were not incorporated with, or majority of the people who signed the
attached to, the signature sheets. The signature sheets.
Lambino Group's citation of Corpus Juris
Secundumpulls the rug from under their Thus, of the 6.3 million signatories, only
feet. 100,000 signatories could have received
with certainty one copy each of the
It is extremely doubtful that the Lambino petition, assuming a 100 percent
Group prepared, printed, circulated, distribution with no wastage. If Atty.
from February to August 2006 during the Lambino and company attached one
signature-gathering period, the draft of copy of the petition to each signature
the petition or amended petition they sheet, only 100,000 signature sheets
filed later with the COMELEC. The could have circulated with the petition.
Lambino Group are less than candid with Each signature sheet contains space for
this Court in their belated claim that they ten signatures. Assuming ten people
printed and circulated, together with the signed each of these 100,000 signature
signature sheets, the petition or sheets with the attached petition, the
amended petition. Nevertheless, even maximum number of people who saw
assuming the Lambino Group circulated the petition before they signed the
the amended petition during the signature sheets would not exceed
signature-gathering period, the Lambino 1,000,000.
Group admitted circulating only very
limited copies of the petition. With only 100,000 printed copies of the
petition, it would be physically impossible

Constitutional Law 1 Nina Majica A. Pagaduan University of the Cordilleras College of Law
for all or a great majority of the 6.3 million who are almost all the present members
signatories to have seen the petition of Congress, decide to call for new
before they signed the signature sheets. parliamentary elections. Thus, the
The inescapable conclusion is that the members of the interim Parliament will
Lambino Group failed to show to the 6.3 determine the expiration of their own
million signatories the full text of the term of office; 27
proposed changes. If ever, not more
than one million signatories saw the 3. Within 45 days from the ratification of
petition before they signed the signature the proposed changes, the interim
sheets. Parliament shall convene to propose
further amendments or revisions to the
In any event, the Lambino Group's Constitution.28
signature sheets do not contain the full
text of the proposed changes, either on These three specific amendments are
the face of the signature sheets, or as not stated or even indicated in the
attachment with an indication in the Lambino Group's signature sheets. The
signature sheet of such attachment. people who signed the signature sheets
Petitioner Atty. Lambino admitted this had no idea that they were proposing
during the oral arguments, and this these amendments. These three
admission binds the Lambino Group. This proposed changes are highly
fact is also obvious from a mere reading controversial. The people could not have
of the signature sheet. This omission is inferred or divined these proposed
fatal. The failure to so include the text of changes merely from a reading or
the proposed changes in the signature rereading of the contents of the
sheets renders the initiative void for non- signature sheets.
compliance with the constitutional
requirement that the amendment must During the oral arguments, petitioner
be "directly proposed by the people Atty. Lambino stated that he and his
through initiative upon a petition." The group assured the people during the
signature sheet is not the "petition" signature-gathering that the elections for
envisioned in the initiative clause of the the regular Parliament would be held
Constitution. during the 2007 local elections if the
proposed changes were ratified before
For sure, the great majority of the 6.3 the 2007 local elections. However, the
million people who signed the signature text of the proposed changes belies this.
sheets did not see the full text of the
proposed changes before signing. They The proposed Section 5(2), Article XVIII
could not have known the nature and on Transitory Provisions, as found in the
effect of the proposed changes, among amended petition, states:
which are:
Section 5(2). The interim Parliament shall
1. The term limits on members of the provide for the election of the members
legislature will be lifted and thus of Parliament, which shall be
members of Parliament can be re- synchronized and held simultaneously
elected indefinitely;26 with the election of all local government
officials. x x x x (Emphasis supplied)
2. The interim Parliament can continue to
function indefinitely until its members,

Constitutional Law 1 Nina Majica A. Pagaduan University of the Cordilleras College of Law
Section 5(2) does not state that the signature sheets did not contain the full
elections for the regular Parliament will text of the proposed changes. The result
be held simultaneously with the 2007 is a grand deception on the 6.3 million
local elections. This section merely signatories who were led to believe that
requires that the elections for the regular the proposed changes would require the
Parliament shall be held simultaneously holding in 2007 of elections for the
with the local elections without regular Parliament simultaneously with
specifying the year. the local elections.

Petitioner Atty. Lambino, who claims to The Lambino Group's initiative springs
be the principal drafter of the proposed another surprise on the people who
changes, could have easily written the signed the signature sheets. The
word "next" before the phrase "election proposed changes mandate the interim
of all local government officials." This Parliament to make further amendments
would have insured that the elections for or revisions to the Constitution. The
the regular Parliament would be held in proposed Section 4(4), Article XVIII on
the next local elections following the Transitory Provisions, provides:
ratification of the proposed changes.
However, the absence of the word "next" Section 4(4). Within forty-five days from
allows the interim Parliament to schedule ratification of these amendments, the
the elections for the regular Parliament interim Parliament shall convene to
simultaneously with any future local propose amendments to, or revisions of,
elections. this Constitution consistent with the
principles of local autonomy,
Thus, the members of the interim decentralization and a strong
Parliament will decide the expiration of bureaucracy. (Emphasis supplied)
their own term of office. This allows
incumbent members of the House of During the oral arguments, Atty. Lambino
Representatives to hold office beyond stated that this provision is a "surplusage"
their current three-year term of office, and the Court and the people should
and possibly even beyond the five-year simply ignore it. Far from being a
term of office of regular members of the surplusage, this provision invalidates the
Parliament. Certainly, this is contrary to Lambino Group's initiative.
the representations of Atty. Lambino and
his group to the 6.3 million people who Section 4(4) is a subject matter totally
signed the signature sheets. Atty. unrelated to the shift from the Bicameral-
Lambino and his group deceived the 6.3 Presidential to the Unicameral-
million signatories, and even the entire Parliamentary system. American
nation. jurisprudence on initiatives outlaws this as
logrolling - when the initiative petition
This lucidly shows the absolute need for incorporates an unrelated subject
the people to sign an initiative petition matter in the same petition. This puts the
that contains the full text of the proposed people in a dilemma since they can
amendments to avoid fraud or answer only either yes or no to the entire
misrepresentation. In the present proposition, forcing them to sign a
initiative, the 6.3 million signatories had to petition that effectively contains two
rely on the verbal representations of Atty. propositions, one of which they may find
Lambino and his group because the unacceptable.

Constitutional Law 1 Nina Majica A. Pagaduan University of the Cordilleras College of Law
Under American jurisprudence, the provisions, when communicating to the
effect of logrolling is to nullify the entire public. x x x Indeed, initiative promoters
proposition and not only the unrelated typically use simplistic advertising to
subject matter. Thus, in Fine v. Firestone,29 present their initiative to potential
the Supreme Court of Florida declared: petition-signers and eventual voters.
Many voters will never read the full text of
Combining multiple propositions into one the initiative before the election. More
proposal constitutes "logrolling," which, if importantly, there is no process for
our judicial responsibility is to mean amending or splitting the several
anything, we cannot permit. The very provisions in an initiative proposal. These
broadness of the proposed amendment difficulties clearly distinguish the initiative
amounts to logrolling because the from the legislative process. (Emphasis
electorate cannot know what it is voting supplied)
on - the amendment's proponents'
simplistic explanation reveals only the tip Thus, the present initiative appears
of the iceberg. x x x x The ballot must give merely a preliminary step for further
the electorate fair notice of the amendments or revisions to be
proposed amendment being voted on. x undertaken by the interim Parliament as
x x x The ballot language in the instant a constituent assembly. The people who
case fails to do that. The very broadness signed the signature sheets could not
of the proposal makes it impossible to have known that their signatures would
state what it will affect and effect and be used to propose an amendment
violates the requirement that proposed mandating the interim Parliament to
amendments embrace only one subject. propose further amendments or revisions
(Emphasis supplied) to the Constitution.

Logrolling confuses and even deceives Apparently, the Lambino Group inserted
the people. In Yute Air Alaska v. the proposed Section 4(4) to compel the
McAlpine,30 the Supreme Court of Alaska interim Parliament to amend or revise
warned against "inadvertence, stealth again the Constitution within 45 days
and fraud" in logrolling: from ratification of the proposed
changes, or before the May 2007
Whenever a bill becomes law through elections. In the absence of the
the initiative process, all of the problems proposed Section 4(4), the interim
that the single-subject rule was enacted Parliament has the discretion whether to
to prevent are exacerbated. There is a amend or revise again the Constitution.
greater danger of logrolling, or the With the proposed Section 4(4), the
deliberate intermingling of issues to initiative proponents want the interim
increase the likelihood of an initiative's Parliament mandated to immediately
passage, and there is a greater amend or revise again the Constitution.
opportunity for "inadvertence, stealth
and fraud" in the enactment-by-initiative However, the signature sheets do not
process. The drafters of an initiative explain the reason for this rush in
operate independently of any structured amending or revising again so soon the
or supervised process. They often Constitution. The signature sheets do not
emphasize particular provisions of their also explain what specific amendments
proposition, while remaining silent on or revisions the initiative proponents want
other (more complex or less appealing) the interim Parliament to make, and why

Constitutional Law 1 Nina Majica A. Pagaduan University of the Cordilleras College of Law
there is a need for such further 6.3 million people who signed the
amendments or revisions. The people are signature sheets could not have known
again left in the dark to fathom the nature that their signatures would be used to
and effect of the proposed changes. discriminate against the Senators. They
Certainly, such an initiative is not "directly could not have known that their
proposed by the people" because the signatures would be used to limit, after 30
people do not even know the nature June 2010, the interim Parliament's
and effect of the proposed changes. choice of Prime Minister only to members
of the existing House of Representatives.
There is another intriguing provision
inserted in the Lambino Group's An initiative that gathers signatures from
amended petition of 30 August 2006. The the people without first showing to the
proposed Section 4(3) of the Transitory people the full text of the proposed
Provisions states: amendments is most likely a deception,
and can operate as a gigantic fraud on
Section 4(3). Senators whose term of the people. That is why the Constitution
office ends in 2010 shall be members of requires that an initiative must be
Parliament until noon of the thirtieth day "directly proposed by the people x x x in
of June 2010. a petition" - meaning that the people
must sign on a petition that contains the
After 30 June 2010, not one of the present full text of the proposed amendments.
Senators will remain as member of On so vital an issue as amending the
Parliament if the interim Parliament does nation's fundamental law, the writing of
not schedule elections for the regular the text of the proposed amendments
Parliament by 30 June 2010. However, cannot be hidden from the people under
there is no counterpart provision for the a general or special power of attorney to
present members of the House of unnamed, faceless, and unelected
Representatives even if their term of individuals.
office will all end on 30 June 2007, three
years earlier than that of half of the The Constitution entrusts to the people
present Senators. Thus, all the present the power to directly propose
members of the House will remain amendments to the Constitution. This
members of the interim Parliament after Court trusts the wisdom of the people
30 June 2010. even if the members of this Court do not
personally know the people who sign the
The term of the incumbent President petition. However, this trust emanates
ends on 30 June 2010. Thereafter, the from a fundamental assumption: the full
Prime Minister exercises all the powers of text of the proposed amendment is first
the President. If the interim Parliament shown to the people before they sign the
does not schedule elections for the petition, not after they have signed the
regular Parliament by 30 June 2010, the petition.
Prime Minister will come only from the
present members of the House of In short, the Lambino Group's initiative is
Representatives to the exclusion of the void and unconstitutional because it
present Senators. dismally fails to comply with the
requirement of Section 2, Article XVII of
The signature sheets do not explain this the Constitution that the initiative must
discrimination against the Senators. The

Constitutional Law 1 Nina Majica A. Pagaduan University of the Cordilleras College of Law
be "directly proposed by the people deliberations of the Constitutional
through initiative upon a petition." Commission:

2. The Initiative Violates Section 2, Article MR. SUAREZ: Thank you, Madam
XVII of the Constitution Disallowing President.
Revision through Initiatives
May we respectfully call the attention of
A people's initiative to change the the Members of the Commission that
Constitution applies only to an pursuant to the mandate given to us last
amendment of the Constitution and not night, we submitted this afternoon a
to its revision. In contrast, Congress or a complete Committee Report No. 7
constitutional convention can propose which embodies the proposed provision
both amendments and revisions to the governing the matter of initiative. This is
Constitution. Article XVII of the now covered by Section 2 of the
Constitution provides: complete committee report. With the
permission of the Members, may I quote
ARTICLE XVII Section 2:
AMENDMENTS OR REVISIONS
The people may, after five years from the
Sec. 1. Any amendment to, or revision of, date of the last plebiscite held, directly
this Constitution may be proposed by: propose amendments to this Constitution
thru initiative upon petition of at least ten
(1) The Congress, upon a vote of three- percent of the registered voters.
fourths of all its Members, or
This completes the blanks appearing in
(2) A constitutional convention. the original Committee Report No. 7. This
proposal was suggested on the theory
Sec. 2. Amendments to this Constitution that this matter of initiative, which came
may likewise be directly proposed by the about because of the extraordinary
people through initiative x x x. (Emphasis developments this year, has to be
supplied) separated from the traditional modes of
amending the Constitution as embodied
Article XVII of the Constitution speaks of
in Section 1. The committee members felt
three modes of amending the
that this system of initiative should be
Constitution. The first mode is through
limited to amendments to the
Congress upon three-fourths vote of all its
Constitution and should not extend to the
Members. The second mode is through a
revision of the entire Constitution, so we
constitutional convention. The third
removed it from the operation of Section
mode is through a people's initiative.
1 of the proposed Article on Amendment
or Revision. x x x x
Section 1 of Article XVII, referring to the
first and second modes, applies to "[A]ny
xxxx
amendment to, or revision of, this
Constitution." In contrast, Section 2 of MS. AQUINO: [I] am seriously bothered by
Article XVII, referring to the third mode, providing this process of initiative as a
applies only to "[A]mendments to this separate section in the Article on
Constitution." This distinction was Amendment. Would the sponsor be
intentional as shown by the following amenable to accepting an amendment

Constitutional Law 1 Nina Majica A. Pagaduan University of the Cordilleras College of Law
in terms of realigning Section 2 as MR. MAAMBONG: Thank you.31
another subparagraph (c) of Section 1, (Emphasis supplied)
instead of setting it up as another
separate section as if it were a self- There can be no mistake about it. The
executing provision? framers of the Constitution intended, and
wrote, a clear distinction between
MR. SUAREZ: We would be amenable "amendment" and "revision" of the
except that, as we clarified a while ago, Constitution. The framers intended, and
this process of initiative is limited to the wrote, that only Congress or a
matter of amendment and should not constitutional convention may propose
expand into a revision which revisions to the Constitution. The framers
contemplates a total overhaul of the intended, and wrote, that a people's
Constitution. That was the sense that was initiative may propose only amendments
conveyed by the Committee. to the Constitution. Where the intent and
language of the Constitution clearly
MS. AQUINO: In other words, the withhold from the people the power to
Committee was attempting to distinguish propose revisions to the Constitution, the
the coverage of modes (a) and (b) in people cannot propose revisions even as
Section 1 to include the process of they are empowered to propose
revision; whereas, the process of amendments.
initiation to amend, which is given to the
public, would only apply to This has been the consistent ruling of
amendments? state supreme courts in the United States.
Thus, in McFadden v. Jordan,32the
MR. SUAREZ: That is right. Those were the Supreme Court of California ruled:
terms envisioned in the Committee.
The initiative power reserved by the
MS. AQUINO: I thank the sponsor; and people by amendment to the
thank you, Madam President. Constitution x x x applies only to the
proposing and the adopting or rejecting
xxxx of 'laws and amendments to the
Constitution' and does not purport to
MR. MAAMBONG: My first question: extend to a constitutional revision. x x x x
Commissioner Davide's proposed It is thus clear that a revision of the
amendment on line 1 refers to Constitution may be accomplished only
"amendments." Does it not cover the through ratification by the people of a
word "revision" as defined by revised constitution proposed by a
Commissioner Padilla when he made the convention called for that purpose as
distinction between the words outlined hereinabove. Consequently if
"amendments" and "revision"? the scope of the proposed initiative
measure (hereinafter termed 'the
MR. DAVIDE: No, it does not, because
measure') now before us is so broad that
"amendments" and "revision" should be
if such measure became law a
covered by Section 1. So insofar as
substantial revision of our present state
initiative is concerned, it can only relate
Constitution would be effected, then the
to "amendments" not "revision."
measure may not properly be submitted
to the electorate until and unless it is first
agreed upon by a constitutional

Constitutional Law 1 Nina Majica A. Pagaduan University of the Cordilleras College of Law
convention, and the writ sought by manner provided in Article XVII, Section
petitioner should issue. x x x x (Emphasis 1. x x x x
supplied)
Similarly, in this jurisdiction there can be
Likewise, the Supreme Court of Oregon no dispute that a people's initiative can
ruled in Holmes v. Appling:33 only propose amendments to the
Constitution since the Constitution itself
It is well established that when a limits initiatives to amendments. There
constitution specifies the manner in can be no deviation from the
which it may be amended or revised, it constitutionally prescribed modes of
can be altered by those who favor revising the Constitution. A popular
amendments, revision, or other change clamor, even one backed by 6.3 million
only through the use of one of the signatures, cannot justify a deviation
specified means. The constitution itself from the specific modes prescribed in
recognizes that there is a difference the Constitution itself.
between an amendment and a revision;
and it is obvious from an examination of As the Supreme Court of Oklahoma ruled
the measure here in question that it is not in In re Initiative Petition No. 364:34
an amendment as that term is generally
understood and as it is used in Article IV, It is a fundamental principle that a
Section 1. The document appears to be constitution can only be revised or
based in large part on the revision of the amended in the manner prescribed by
constitution drafted by the 'Commission the instrument itself, and that any attempt
for Constitutional Revision' authorized by to revise a constitution in a manner other
the 1961 Legislative Assembly, x x x and than the one provided in the instrument is
submitted to the 1963 Legislative almost invariably treated as extra-
Assembly. It failed to receive in the constitutional and revolutionary. x x x x
Assembly the two-third's majority vote of "While it is universally conceded that the
both houses required by Article XVII, people are sovereign and that they have
Section 2, and hence failed of adoption, power to adopt a constitution and to
x x x. change their own work at will, they must,
in doing so, act in an orderly manner and
While differing from that document in according to the settled principles of
material respects, the measure constitutional law. And where the
sponsored by the plaintiffs is, people, in adopting a constitution, have
nevertheless, a thorough overhauling of prescribed the method by which the
the present constitution x x x. people may alter or amend it, an
attempt to change the fundamental law
To call it an amendment is a misnomer. in violation of the self-imposed
restrictions, is unconstitutional." x x x x
Whether it be a revision or a new (Emphasis supplied)
constitution, it is not such a measure as
can be submitted to the people through This Court, whose members are sworn to
the initiative. If a revision, it is subject to defend and protect the Constitution,
the requirements of Article XVII, Section cannot shirk from its solemn oath and
2(1); if a new constitution, it can only be duty to insure compliance with the clear
proposed at a convention called in the command of the Constitution ― that a

Constitutional Law 1 Nina Majica A. Pagaduan University of the Cordilleras College of Law
people's initiative may only amend, provisions of the constitution, while
never revise, the Constitution. amendment generally affects only the
specific provision being amended.
The question is, does the Lambino
Group's initiative constitute an In California where the initiative clause
amendment or revision of the allows amendments but not revisions to
Constitution? If the Lambino Group's the constitution just like in our
initiative constitutes a revision, then the Constitution, courts have developed a
present petition should be dismissed for two-part test: the quantitative test and
being outside the scope of Section 2, the qualitative test. The quantitative test
Article XVII of the Constitution. asks whether the proposed change is "so
extensive in its provisions as to change
Courts have long recognized the directly the 'substantial entirety' of the
distinction between an amendment and constitution by the deletion or alteration
a revision of a constitution. One of the of numerous existing provisions."36 The
earliest cases that recognized the court examines only the number of
distinction described the fundamental provisions affected and does not
difference in this manner: consider the degree of the change.

[T]he very term "constitution" implies an The qualitative test inquires into the
instrument of a permanent and abiding qualitative effects of the proposed
nature, and the provisions contained change in the constitution. The main
therein for its revision indicate the will of inquiry is whether the change will
the people that the underlying principles "accomplish such far reaching changes
upon which it rests, as well as the in the nature of our basic governmental
substantial entirety of the instrument, shall plan as to amount to a revision."37
be of a like permanent and abiding Whether there is an alteration in the
nature. On the other hand, the structure of government is a proper
significance of the term "amendment" subject of inquiry. Thus, "a change in the
implies such an addition or change nature of [the] basic governmental plan"
within the lines of the original instrument includes "change in its fundamental
as will effect an improvement, or better framework or the fundamental powers of
carry out the purpose for which it was its Branches."38 A change in the nature of
framed.35 (Emphasis supplied) the basic governmental plan also
includes changes that "jeopardize the
Revision broadly implies a change that traditional form of government and the
alters a basic principle in the constitution, system of check and balances."39
like altering the principle of separation of
powers or the system of checks-and- Under both the quantitative and
balances. There is also revision if the qualitative tests, the Lambino Group's
change alters the substantial entirety of initiative is a revision and not merely an
the constitution, as when the change amendment. Quantitatively, the
affects substantial provisions of the Lambino Group's proposed changes
constitution. On the other hand, overhaul two articles - Article VI on the
amendment broadly refers to a change Legislature and Article VII on the
that adds, reduces, or deletes without Executive - affecting a total of 105
altering the basic principle involved. provisions in the entire
Revision generally affects several Constitution. Qualitatively,
40 the

Constitutional Law 1 Nina Majica A. Pagaduan University of the Cordilleras College of Law
proposed changes alter substantially the parts or to add new provisions deemed
basic plan of government, from necessary to meet new conditions or to
presidential to parliamentary, and from a suppress specific portions that may have
bicameral to a unicameral legislature. become obsolete or that are judged to
be dangerous. In revision, however, the
A change in the structure of government guiding original intention and plan
is a revision of the Constitution, as when contemplates a re-examination of the
the three great co-equal branches of entire document, or of provisions of the
government in the present Constitution document which have over-all
are reduced into two. This alters the implications for the entire document, to
separation of powers in the Constitution. determine how and to what extent they
A shift from the present Bicameral- should be altered. Thus, for instance a
Presidential system to a Unicameral- switch from the presidential system to a
Parliamentary system is a revision of the parliamentary system would be a
Constitution. Merging the legislative and revision because of its over-all impact on
executive branches is a radical change the entire constitutional structure. So
in the structure of government. would a switch from a bicameral system
to a unicameral system be because of its
The abolition alone of the Office of the effect on other important provisions of
President as the locus of Executive Power the Constitution.41 (Emphasis supplied)
alters the separation of powers and thus
constitutes a revision of the Constitution. In Adams v. Gunter,42 an initiative petition
Likewise, the abolition alone of one proposed the amendment of the Florida
chamber of Congress alters the system of State constitution to shift from a
checks-and-balances within the bicameral to a unicameral legislature.
legislature and constitutes a revision of The issue turned on whether the initiative
the Constitution. "was defective and unauthorized where
[the] proposed amendment would x x x
By any legal test and under any affect several other provisions of [the]
jurisdiction, a shift from a Bicameral- Constitution." The Supreme Court of
Presidential to a Unicameral- Florida, striking down the initiative as
Parliamentary system, involving the outside the scope of the initiative clause,
abolition of the Office of the President ruled as follows:
and the abolition of one chamber of
Congress, is beyond doubt a revision, not The proposal here to amend Section 1 of
a mere amendment. On the face alone Article III of the 1968 Constitution to
of the Lambino Group's proposed provide for a Unicameral Legislature
changes, it is readily apparent that the affects not only many other provisions of
changes will radically alter the the Constitution but provides for a
framework of government as set forth in change in the form of the legislative
the Constitution. Father Joaquin Bernas, branch of government, which has been
S.J., a leading member of the in existence in the United States Congress
Constitutional Commission, writes: and in all of the states of the nation,
except one, since the earliest days. It
An amendment envisages an alteration would be difficult to visualize a more
of one or a few specific and separable revolutionary change. The concept of a
provisions. The guiding original intention House and a Senate is basic in the
of an amendment is to improve specific American form of government. It would

Constitutional Law 1 Nina Majica A. Pagaduan University of the Cordilleras College of Law
not only radically change the whole departments. The initiative in Adams did
pattern of government in this state and not even touch the executive
tear apart the whole fabric of the department.
Constitution, but would even affect the
physical facilities necessary to carry on In Adams, the Supreme Court of Florida
government. enumerated 18 sections of the Florida
Constitution that would be affected by
xxxx the shift from a bicameral to a
unicameral legislature. In the Lambino
We conclude with the observation that if Group's present initiative, no less than
such proposed amendment were 105 provisions of the Constitution would
adopted by the people at the General be affected based on the count of
Election and if the Legislature at its next Associate Justice Romeo J. Callejo, Sr.44
session should fail to submit further There is no doubt that the Lambino
amendments to revise and clarify the Group's present initiative seeks far more
numerous inconsistencies and conflicts radical changes in the structure of
which would result, or if after submission government than the initiative in Adams.
of appropriate amendments the people
should refuse to adopt them, simple The Lambino Group theorizes that the
chaos would prevail in the government difference between "amendment" and
of this State. The same result would "revision" is only one of procedure, not of
obtain from an amendment, for substance. The Lambino Group posits
instance, of Section 1 of Article V, to that when a deliberative body drafts and
provide for only a Supreme Court and proposes changes to the Constitution,
Circuit Courts-and there could be other substantive changes are called
examples too numerous to detail. These "revisions" because members of the
examples point unerringly to the answer. deliberative body work full-time on the
changes. However, the same substantive
The purpose of the long and arduous changes, when proposed through an
work of the hundreds of men and initiative, are called "amendments"
women and many sessions of the because the changes are made by
Legislature in bringing about the ordinary people who do not make an
Constitution of 1968 was to eliminate "occupation, profession, or vocation" out
inconsistencies and conflicts and to give of such endeavor.
the State a workable, accordant,
homogenous and up-to-date Thus, the Lambino Group makes the
document. All of this could disappear following exposition of their theory in their
very quickly if we were to hold that it Memorandum:
could be amended in the manner
proposed in the initiative petition 99. With this distinction in mind, we note
here.43(Emphasis supplied) that the constitutional provisions
expressly provide for both "amendment"
The rationale of the Adams decision and "revision" when it speaks of legislators
applies with greater force to the present and constitutional delegates, while the
petition. The Lambino Group's initiative same provisions expressly provide only for
not only seeks a shift from a bicameral to "amendment" when it speaks of the
a unicameral legislature, it also seeks to people. It would seem that the apparent
merge the executive and legislative distinction is based on the actual

Constitutional Law 1 Nina Majica A. Pagaduan University of the Cordilleras College of Law
experience of the people, that on one and plainly stated, courts do not deviate
hand the common people in general are from such categorical intent and
not expected to work full-time on the language.45 Any theory espousing a
matter of correcting the constitution construction contrary to such intent and
because that is not their occupation, language deserves scant consideration.
profession or vocation; while on the other More so, if such theory wreaks havoc by
hand, the legislators and constitutional creating inconsistencies in the form of
convention delegates are expected to government established in the
work full-time on the same matter Constitution. Such a theory, devoid of
because that is their occupation, any jurisprudential mooring and inviting
profession or vocation. Thus, the inconsistencies in the Constitution, only
difference between the words "revision" exposes the flimsiness of the Lambino
and "amendment" pertain only to the Group's position. Any theory advocating
process or procedure of coming up with that a proposed change involving a
the corrections, for purposes of radical structural change in government
interpreting the constitutional provisions. does not constitute a revision justly
deserves rejection.
100. Stated otherwise, the difference
between "amendment" and "revision" The Lambino Group simply recycles a
cannot reasonably be in the substance theory that initiative proponents in
or extent of the correction. x x x x American jurisdictions have attempted
(Underlining in the original; boldfacing to advance without any success. In Lowe
supplied) v. Keisling,46 the Supreme Court of
Oregon rejected this theory, thus:
The Lambino Group in effect argues that
if Congress or a constitutional Mabon argues that Article XVII, section 2,
convention had drafted the same does not apply to changes to the
proposed changes that the Lambino constitution proposed by initiative. His
Group wrote in the present initiative, the theory is that Article XVII, section 2
changes would constitute a revision of merely provides a procedure by which
the Constitution. Thus, the Lambino the legislature can propose a revision of
Group concedes that the proposed the constitution, but it does not affect
changes in the present initiative proposed revisions initiated by the
constitute a revision if Congress or a people.
constitutional convention had drafted
the changes. However, since the Plaintiffs argue that the proposed ballot
Lambino Group as private individuals measure constitutes a wholesale change
drafted the proposed changes, the to the constitution that cannot be
changes are merely amendments to the enacted through the initiative process.
Constitution. The Lambino Group They assert that the distinction between
trivializes the serious matter of changing amendment and revision is determined
the fundamental law of the land. by reviewing the scope and subject
matter of the proposed enactment, and
The express intent of the framers and the that revisions are not limited to "a formal
plain language of the Constitution overhauling of the constitution." They
contradict the Lambino Group's theory. argue that this ballot measure proposes
Where the intent of the framers and the far reaching changes outside the lines of
language of the Constitution are clear the original instrument, including

Constitutional Law 1 Nina Majica A. Pagaduan University of the Cordilleras College of Law
profound impacts on existing the express intent of the framers and the
fundamental rights and radical plain language of the Constitution.
restructuring of the government's
relationship with a defined group of We can visualize amendments and
citizens. Plaintiffs assert that, because the revisions as a spectrum, at one end
proposed ballot measure "will refashion green for amendments and at the other
the most basic principles of Oregon end red for revisions. Towards the middle
constitutional law," the trial court of the spectrum, colors fuse and
correctly held that it violated Article XVII, difficulties arise in determining whether
section 2, and cannot appear on the there is an amendment or revision. The
ballot without the prior approval of the present initiative is indisputably located
legislature. at the far end of the red spectrum where
revision begins. The present initiative
We first address Mabon's argument that seeks a radical overhaul of the existing
Article XVII, section 2(1), does not prohibit separation of powers among the three
revisions instituted by initiative. In Holmes co-equal departments of government,
v. Appling, x x x, the Supreme Court requiring far-reaching amendments in
concluded that a revision of the several sections and articles of the
constitution may not be accomplished Constitution.
by initiative, because of the provisions of
Article XVII, section 2. After reviewing Where the proposed change applies
Article XVII, section1, relating to only to a specific provision of the
proposed amendments, the court said: Constitution without affecting any other
section or article, the change may
"From the foregoing it appears that generally be considered an amendment
Article IV, Section 1, authorizes the use of and not a revision. For example, a
the initiative as a means of amending change reducing the voting age from 18
the Oregon Constitution, but it contains years to 15 years47 is an amendment and
no similar sanction for its use as a means not a revision. Similarly, a change
of revising the constitution." x x x x reducing Filipino ownership of mass
media companies from 100 percent to
It then reviewed Article XVII, section 2, 60 percent is an amendment and not a
relating to revisions, and said: "It is the revision.48 Also, a change requiring a
only section of the constitution which college degree as an additional
provides the means for constitutional qualification for election to the
revision and it excludes the idea that an Presidency is an amendment and not a
individual, through the initiative, may revision.49
place such a measure before the
electorate." x x x x The changes in these examples do not
entail any modification of sections or
Accordingly, we reject Mabon's articles of the Constitution other than the
argument that Article XVII, section 2, specific provision being amended. These
does not apply to constitutional revisions changes do not also affect the structure
proposed by initiative. (Emphasis of government or the system of checks-
supplied) and-balances among or within the three
branches. These three examples are
Similarly, this Court must reject the located at the far green end of the
Lambino Group's theory which negates spectrum, opposite the far red end

Constitutional Law 1 Nina Majica A. Pagaduan University of the Cordilleras College of Law
where the revision sought by the present Sections 1, 2, 3, 4, 5, 6 and 7 of Article VI
petition is located. of the 1987 Constitution which shall
hereby be amended and Sections 18
However, there can be no fixed rule on and 24 which shall be deleted, all other
whether a change is an amendment or Sections of Article VI are hereby retained
a revision. A change in a single word of and renumbered sequentially as Section
one sentence of the Constitution may be 2, ad seriatim up to 26, unless they are
a revision and not an amendment. For inconsistent with the Parliamentary
example, the substitution of the word system of government, in which case,
"republican" with "monarchic" or they shall be amended to conform with a
"theocratic" in Section 1, Article II of the
50
unicameral parliamentary form of
Constitution radically overhauls the government; x x x x (Emphasis supplied)
entire structure of government and the
fundamental ideological basis of the The basic rule in statutory construction is
Constitution. Thus, each specific change that if a later law is irreconcilably
will have to be examined case-by-case, inconsistent with a prior law, the later law
depending on how it affects other prevails. This rule also applies to
provisions, as well as how it affects the construction of constitutions. However,
structure of government, the carefully the Lambino Group's draft of Section 2 of
crafted system of checks-and-balances, the Transitory Provisions turns on its head
and the underlying ideological basis of this rule of construction by stating that in
the existing Constitution. case of such irreconcilable
inconsistency, the earlier provision "shall
Since a revision of a constitution affects be amended to conform with a
basic principles, or several provisions of a unicameral parliamentary form of
constitution, a deliberative body with government." The effect is to freeze the
recorded proceedings is best suited to two irreconcilable provisions until the
undertake a revision. A revision requires earlier one "shall be amended," which
harmonizing not only several provisions, requires a future separate constitutional
but also the altered principles with those amendment.
that remain unaltered. Thus, constitutions
normally authorize deliberative bodies Realizing the absurdity of the need for
like constituent assemblies or such an amendment, petitioner Atty.
constitutional conventions to undertake Lambino readily conceded during the
revisions. On the other hand, oral arguments that the requirement of a
constitutions allow people's initiatives, future amendment is a "surplusage." In
which do not have fixed and identifiable short, Atty. Lambino wants to reinstate
deliberative bodies or recorded the rule of statutory construction so that
proceedings, to undertake only the later provision automatically prevails
amendments and not revisions. in case of irreconcilable inconsistency.
However, it is not as simple as that.
In the present initiative, the Lambino
Group's proposed Section 2 of the The irreconcilable inconsistency
Transitory Provisions states: envisioned in the proposed Section 2 of
the Transitory Provisions is not between a
Section 2. Upon the expiration of the provision in Article VI of the 1987
term of the incumbent President and Constitution and a provision in the
Vice President, with the exception of proposed changes. The inconsistency is

Constitutional Law 1 Nina Majica A. Pagaduan University of the Cordilleras College of Law
between a provision in Article VI of the 3. A Revisit of Santiago v. COMELEC is Not
1987 Constitution and the "Parliamentary Necessary
system of government," and the
inconsistency shall be resolved in favor of The present petition warrants dismissal for
a "unicameral parliamentary form of failure to comply with the basic
government." requirements of Section 2, Article XVII of
the Constitution on the conduct and
Now, what "unicameral parliamentary scope of a people's initiative to amend
form of government" do the Lambino the Constitution. There is no need to
Group's proposed changes refer to ― the revisit this Court's ruling in Santiago
Bangladeshi, Singaporean, Israeli, or declaring RA 6735 "incomplete,
New Zealand models, which are among inadequate or wanting in essential terms
the few countries with unicameral and conditions" to cover the system of
parliaments? The proposed changes initiative to amend the Constitution. An
could not possibly refer to the traditional affirmation or reversal of Santiago will not
and well-known parliamentary forms of change the outcome of the present
government ― the British, French, petition. Thus, this Court must decline to
Spanish, German, Italian, Canadian, revisit Santiago which effectively ruled
Australian, or Malaysian models, which that RA 6735 does not comply with the
have all bicameral parliaments. Did the requirements of the Constitution to
people who signed the signature sheets implement the initiative clause on
realize that they were adopting the amendments to the Constitution.
Bangladeshi, Singaporean, Israeli, or
New Zealand parliamentary form of This Court must avoid revisiting a ruling
government? involving the constitutionality of a statute
if the case before the Court can be
This drives home the point that the resolved on some other grounds. Such
people's initiative is not meant for avoidance is a logical consequence of
revisions of the Constitution but only for the well-settled doctrine that courts will
amendments. A shift from the present not pass upon the constitutionality of a
Bicameral-Presidential to a Unicameral- statute if the case can be resolved on
Parliamentary system requires some other grounds.51
harmonizing several provisions in many
articles of the Constitution. Revision of Nevertheless, even assuming that RA
the Constitution through a people's 6735 is valid to implement the
initiative will only result in gross absurdities constitutional provision on initiatives to
in the Constitution. amend the Constitution, this will not
change the result here because the
In sum, there is no doubt whatsoever that present petition violates Section 2, Article
the Lambino Group's initiative is a revision XVII of the Constitution. To be a valid
and not an amendment. Thus, the initiative, the present initiative must first
present initiative is void and comply with Section 2, Article XVII of the
unconstitutional because it violates Constitution even before complying with
Section 2, Article XVII of the Constitution RA 6735.
limiting the scope of a people's initiative
to "[A]mendments to this Constitution." Even then, the present initiative violates
Section 5(b) of RA 6735 which requires
that the "petition for an initiative on the

Constitutional Law 1 Nina Majica A. Pagaduan University of the Cordilleras College of Law
1987 Constitution must have at least merely followed this Court's ruling in
twelve per centum (12%) of the total Santiago and People's Initiative for
number of registered voters as Reform, Modernization and Action
signatories." Section 5(b) of RA 6735 (PIRMA) v. COMELEC.52 For following this
requires that the people must sign the Court's ruling, no grave abuse of
"petition x x x as signatories." discretion is attributable to the
COMELEC. On this ground alone, the
The 6.3 million signatories did not sign the present petition warrants outright
petition of 25 August 2006 or the dismissal. Thus, this Court should reiterate
amended petition of 30 August 2006 filed its unanimous ruling in PIRMA:
with the COMELEC. Only Atty. Lambino,
Atty. Demosthenes B. Donato, and Atty. The Court ruled, first, by a unanimous
Alberto C. Agra signed the petition and vote, that no grave abuse of discretion
amended petition as counsels for "Raul L. could be attributed to the public
Lambino and Erico B. Aumentado, respondent COMELEC in dismissing the
Petitioners." In the COMELEC, the petition filed by PIRMA therein, it
Lambino Group, claiming to act appearing that it only complied with the
"together with" the 6.3 million signatories, dispositions in the Decisions of this Court
merely attached the signature sheets to in G.R. No. 127325, promulgated on
the petition and amended petition. Thus, March 19, 1997, and its Resolution of June
the petition and amended petition filed 10, 1997.
with the COMELEC did not even comply
with the basic requirement of RA 6735 5. Conclusion
that the Lambino Group claims as valid.
The Constitution, as the fundamental law
The Lambino Group's logrolling initiative of the land, deserves the utmost respect
also violates Section 10(a) of RA 6735 and obedience of all the citizens of this
stating, "No petition embracing more nation. No one can trivialize the
than one (1) subject shall be submitted to Constitution by cavalierly amending or
the electorate; x x x." The proposed revising it in blatant violation of the
Section 4(4) of the Transitory Provisions, clearly specified modes of amendment
mandating the interim Parliament to and revision laid down in the Constitution
propose further amendments or revisions itself.
to the Constitution, is a subject matter
totally unrelated to the shift in the form of To allow such change in the
government. Since the present initiative fundamental law is to set adrift the
embraces more than one subject Constitution in unchartered waters, to be
matter, RA 6735 prohibits submission of tossed and turned by every dominant
the initiative petition to the electorate. political group of the day. If this Court
Thus, even if RA 6735 is valid, the Lambino allows today a cavalier change in the
Group's initiative will still fail. Constitution outside the constitutionally
prescribed modes, tomorrow the new
4. The COMELEC Did Not Commit Grave dominant political group that comes will
Abuse of Discretion in Dismissing the demand its own set of changes in the
Lambino Group's Initiative same cavalier and unconstitutional
fashion. A revolving-door constitution
In dismissing the Lambino Group's does not augur well for the rule of law in
initiative petition, the COMELEC en banc this country.

Constitutional Law 1 Nina Majica A. Pagaduan University of the Cordilleras College of Law
An overwhelming majority − 16,622,111 verification of their petition with the
voters comprising 76.3 percent of the COMELEC, that "ULAP maintains its
total votes cast53 − approved our unqualified support to the agenda of Her
Constitution in a national plebiscite held Excellency President Gloria Macapagal-
on 11 February 1987. That approval is the Arroyo for constitutional reforms." The
unmistakable voice of the people, the full Lambino Group thus admits that their
expression of the people's sovereign will. "people's" initiative is an "unqualified
That approval included the prescribed support to the agenda" of the incumbent
modes for amending or revising the President to change the Constitution. This
Constitution. forewarns the Court to be wary of
incantations of "people's voice" or
No amount of signatures, not even the "sovereign will" in the present initiative.
6,327,952 million signatures gathered by
the Lambino Group, can change our This Court cannot betray its primordial
Constitution contrary to the specific duty to defend and protect the
modes that the people, in their sovereign Constitution. The Constitution, which
capacity, prescribed when they ratified embodies the people's sovereign will, is
the Constitution. The alternative is an the bible of this Court. This Court exists to
extra-constitutional change, which defend and protect the Constitution. To
means subverting the people's sovereign allow this constitutionally infirm initiative,
will and discarding the Constitution. This is propelled by deceptively gathered
one act the Court cannot and should signatures, to alter basic principles in the
never do. As the ultimate guardian of the Constitution is to allow a desecration of
Constitution, this Court is sworn to the Constitution. To allow such alteration
perform its solemn duty to defend and and desecration is to lose this Court's
protect the Constitution, which raison d'etre.
embodies the real sovereign will of the
people. WHEREFORE, we DISMISS the petition in
G.R. No. 174153.
Incantations of "people's voice,"
"people's sovereign will," or "let the SO ORDERED.
people decide" cannot override the
specific modes of changing the Panganiban, C.J., Puno, Quisumbing,
Constitution as prescribed in the Ynares-Santiago, Sandoval-Gutierrez,
Constitution itself. Otherwise, the Austria-Martinez, Corona, Carpio
Constitution ― the people's fundamental Morales, Callejo, Sr., Azcuna, Tinga,
covenant that provides enduring stability Chico-Nazario, Garcia, and Velasco, Jr.,
to our society ― becomes easily JJ., concur.
susceptible to manipulative changes by
political groups gathering signatures
through false promises. Then, the
Constitution ceases to be the bedrock of
1935 National Territory
the nation's stability.
ARTICLE I
The Lambino Group claims that their
initiative is the "people's voice." However,
The National Territory
the Lambino Group unabashedly states
in ULAP Resolution No. 2006-02, in the

Constitutional Law 1 Nina Majica A. Pagaduan University of the Cordilleras College of Law
Section 1. The Philippines comprises all The national territory comprises the
the territory ceded to the United States
by the Treaty of Paris concluded Philippine archipelago, with all the
between the United States and Spain on
the tenth day of December, eighteen islands and waters embraced therein,
hundred and ninety-eight, the limits
which are set forth in Article III of said and all other territories over which the
treaty, together with all the islands
embraced in the treaty concluded at Philippines has sovereignty or jurisdiction,
Washington between the United States
and Spain on the seventh day of consisting of its terrestrial, fluvial and
November, nineteen hundred, and the
treaty concluded between the United aerial domains, including its territorial
States and Great Britain on the second
day of January, nineteen hundred and sea, the seabed, the subsoil, the insular
thirty, and all territory over which the
present Government of the Philippine shelves, and other submarine areas. The
Islands exercises jurisdiction.
waters around, between, and
1973 National Territory
connecting the islands of the
ARTICLE I
archipelago, regardless of their breadth
The National Territory
and dimensions, form part of the internal

waters of the Philippines.

Section 1. The national territory
comprises the Philippine archipelago,
with all the islands and waters
R.A9522
embraced therein, and all the other
territories belonging to the Philippines by
historic or legal title, including the REPUBLIC ACT NO. 9522
territorial sea, the air space, the subsoil,
the sea-bed, the insular shelves, and the
submarine areas over which the AN ACT TO AMEND CERTAIN PROVISIONS
Philippines has sovereignty or jurisdiction.
The waters around, between, and OF REPUBLIC ACT NO. 3046, AS
connecting the islands of the
archipelago, irrespective of their AMENDED BY REPUBLIC ACT NO. 5446, TO
breadth and dimensions, form part of
the internal waters of the Philippines. DEFINE THE ARCHIPELAGIC BASELINES OF

1987 National Territory THE PHILIPPINES, AND FOR OTHER

ARTICLE I
PURPOSES
NATIONAL TERRITORY

Constitutional Law 1 Nina Majica A. Pagaduan University of the Cordilleras College of Law
SECTION 1. Section 1 of Republic Act No. SECTION 3. This Act affirms that the

3046, entitled “An Act to Define the Republic of the Philippines has dominion,

Baselines of the Territorial Sea of the sovereignty and jurisdiction over all

Philippines”, as amended by Section 1 of portions of the national territory as

Republic Act No. 5446, is hereby defined in the Constitution and by

amended to read as follows: provisions of applicable laws including,

without limitation, Republic Act No. 7160,

“SEC. 1. The baselines of the Philippine
otherwise known as the Local
archipelago are hereby defined and
Government Code of 1991, as
described specifically as follows:
amended.

SECTION 2. The baselines in the following

SECTION 4. This Act, together with the
areas over which the Philippines likewise
geographic coordinates and the charts
exercises sovereignty and jurisdiction
and maps indicating the aforesaid
shall be determined as “Regime of
baselines, shall be deposited and
Islands” under the Republic of the
registered with the Secretary General of
Philippines consistent with Article 121 of
the United Nations.
the United Nations Convention on the

Law of the Sea (UNCLOS): SECTION 5. The National Mapping and

Resource Information Authority

a) The Kalayaan Island Group as
(NAMRIA) shall forthwith produce and
constituted under Presidential Decree
publish charts and maps of the
No. 1596; and
appropriate scale clearly representing

b) Bajo de Masinloc, also known as the delineation of basepoints and

Scarborough Shoal. baselines as set forth in this Act.

Constitutional Law 1 Nina Majica A. Pagaduan University of the Cordilleras College of Law
SECTION 6. The amount necessary to Published in the Malaya on March 12,

carry out the provisions of this Act shall be 2009.

provided in a supplemental budget or

REPUBLIC ACT NO. 5446
included in the General Appropriations

Act of the year of its enactment into law. AN ACT TO AMEND SECTION ONE OF

REPUBLIC ACT NUMBERED THIRTY

SECTION 7. If any portion or provision of
HUNDRED AND FORTY-SIX, ENTITLED “AN
this Act is declared unconstitutional or
ACT TO DEFINE THE BASELINES OF THE
invalid, the other portions or provisions
TERRITORIAL SEA OF THE PHILIPPINES”
hereof which are not affected thereby

shall continue to be in full force and SECTION 1. To correct typographical

effect. errors, Section one of Republic Act

numbered thirty hundred and forty-six is

SECTION 8. The provisions of Republic Act
amended to read as follows:
No. 3046, as amended by Republic Act

No. 5446, and all other laws, decrees, “SECTION 1. The baselines for the

executive orders, rules and issuances territorial sea of the Philippines are

inconsistent with this Act are hereby hereby defined and described

amended or modified accordingly. specifically as follows:

SECTION 9. This Act shall take effect SECTION 2. The definition of the baselines

fifteen (15) days following its publication of the territorial sea of the Philippine

in the Official Gazette or in any two (2) Archipelago as provided in this Act is

newspapers of general circulation. without prejudice to the delineation of

the baselines of the territorial sea around

Approved: March 10, 2009
the territory of Sabah, situated in North

Constitutional Law 1 Nina Majica A. Pagaduan University of the Cordilleras College of Law
Borneo, over which the Republic of the From a point [on the Philippine Treaty

Philippines has acquired dominion and Limits] at latitude 7°40′ North and

sovereignty. longitude 116°00′ East of Greenwich,

thence due West along the parallel of

SECTION 3. This Act shall take effect upon
7°40′ N to its intersection with the
its approval.
meridian of longitude 112°10′ E, thence

Approved: September 18, 1968 due north along the meridian of 112°10′ E

to its intersection with the parallel of 9°00′

Published in the Official Gazette, Vol. 65,
N, thence northeastward to the
No. 29, p. 7382 on July 21, 1969
intersection of the parallel of 12°00′ N
MALACAÑANG
with the meridian of longitude 114° 30′ E,
MANILA
thence, due East along the parallel of

12°00′ N to its intersection with the

PRESIDENTIAL DECREE NO.1596
meridian of 118° 00′ E, thence, due South
DECLARING CERTAIN AREA PART OF THE
along the meridian of longitude 118°00′ E
PHILIPPINE TERRITORY AND PROVIDING
to its intersection with the parallel of
FOR THEIR GOVERNMENT AND
10°00′ N, thence Southwestwards to the
ADMINISTRATION.
point of beginning at 7°40′ N, latitude

WHEREAS, by reason of their proximity the and 116° 00′ E longitude.

cluster of islands and islets in the South

are vital to the security and economic
China Sea situated within the following:
survival of the Philippines;

KALAYAAN ISLAND GROUP

Constitutional Law 1 Nina Majica A. Pagaduan University of the Cordilleras College of Law
WHEREAS, much of the above area is SECTION 1. The area within the following

part of the continental margin of the boundaries:

Philippine archipelago;
KALAYAAN ISLAND GROUP

WHEREAS, these areas do not legally

From a point [on the Philippine Treaty
belong to any state or nation but, by
Limits] at latitude 7°40′ North and
reason of history, indispensable need,
longitude 116°00′ East of Greenwich,
and effective occupation and control
thence due West along the parallel of 7°
established in accordance with
40′ N to its intersection with the meridian
international law, such areas must now
of longitude 112°10′ E, thence due north
be deemed to belong and subject to the
along the meridian of 112°10′ E to its
sovereignty of the Philippines;
intersection with the parallel of 9°00′ N,

WHEREAS, while other states have laid thence northeastward to the inter-

claims to some of these areas, their section of the parallel of 12°00′ N with the

claims have lapsed by abandonment meridian of longitude 114° 30′ E, thence,

and can not prevail over that of the due East along the parallel of 12°00′ N to

Philippines on legal, historical, and its intersection with the meridian of

equitable grounds. 118°00′ E, thence, due South along the

meridian of longitude 118° 00′ E to its

NOW, THEREFORE, I, FERDINAND E.
intersection with the parallel of 10°00′ N,
MARCOS, President of the Philippines, by
thence Southwestwards to the point of
virtue of the powers in me vested by the
beginning at 7°40′ N, latitude and 116°
Constitution, do hereby decree as
00′ E longitude;
follows:

Constitutional Law 1 Nina Majica A. Pagaduan University of the Cordilleras College of Law
including the sea-bed, sub-soil, PRESIDENTIAL DECREE No. 1599

continental margin and air space shall

ESTABLISHING AN EXCLUSIVE ECONOMIC
belong and be subject to the
ZONE AND FOR OTHER PURPOSES
sovereignty of the Philippines. Such area

is hereby constituted as a distinct and WHEREAS, an exclusive economic zone

separate municipality of the Province of extending to a distance of two hundred

Palawan and shall be known as nautical miles from the baselines from

“Kalayaan.” which the territorial sea is measured is

vital to the economic survival and

SEC. 2. Pending the election of its regular
development of the Republic of the
officials and during the period of
Philippines;
emergency declared in Proclamation

No. 1081, and unless earlier provided by WHEREAS, such a zone is now a

law, the administration and government recognized principle of international law;

of the area shall be vested in the

NOW, THEREFORE, I, FERDINAND E.
Secretary National Defense or in such
MARCOS, President of the Philippines, by
officers of the Armed Forces of the
virtue of the powers vested in me by the
Philippines as may designate.
Constitution, do hereby decree and

SEC. 3. This Decree shall take effect order:

immediately.
Section 1. There is hereby established a

Done in the City of Manila, this 11th day zone to be known as the exclusive

of June, in the year of Our Lord, nineteen economic zone of the Philippines. The

hundred and seventy-eight. exclusive economic zone shall extend to

a distance of two hundred nautical miles

Constitutional Law 1 Nina Majica A. Pagaduan University of the Cordilleras College of Law
beyond and from the baselines from subsoil and the superjacent waters, and

which the territorial sea is measured: with regard to other activities for the

Provided, That, where the outer limits of economic exploitation and exploration

the zone as thus determined overlap the of the resources of the zone, such as the

exclusive economic zone of an adjacent production of energy from the water,

or neighboring state, the common currents and winds;

boundaries shall be determined by

(b) Exclusive rights and jurisdiction with
agreement with the state concerned or
respect to the establishment and
in accordance with pertinent generally
utilization of artificial islands, off-shore
recognized principles of international law
terminals, installations and structures, the
on delimitation.
preservation of the marine environment,

Section 2. Without prejudice to the rights including the prevention and control of

of the Republic of the Philippines over it pollution, and scientific research;

territorial sea and continental shelf, it

(c) Such other rights as are recognized
shall have and exercise in the exclusive
by international law or state practice.
economic zone established herein the

following; Section 3. Except in accordance with the

terms of any agreement entered into

(a) Sovereignty rights for the purpose of
with the Republic of the Philippines or of
exploration and exploitation,
any license granted by it or under
conservation and management of the
authority by the Republic of the
natural resources, whether living or non-
Philippines, no person shall, in relation to
living, both renewable and non-
the exclusive economic zone:
renewable, of the sea-bed, including the

Constitutional Law 1 Nina Majica A. Pagaduan University of the Cordilleras College of Law
(a) explore or exploit any resources; uses of the sea relating to navigation and

communications.
(b) carry out any search, excavation or

drilling operations: Section 5. (a) The President may

authorize the appropriate government

(c) conduct any research;
office/agency to make and promulgate

(d) construct, maintain or operate any such rules and regulations which may be

artificial island, off-shore terminal, deemed proper and necessary for

installation or other structure or device; or carrying out the purposes of this degree.

(e) perform any act or engage in any (b) Any person who shall violate any

activity which is contrary to, or in provision of this decree or of any rule or

derogation of, the sovereign rights and regulation promulgated hereunder and

jurisdiction herein provided. approved by the President shall be

subject to a fine which shall not be less

Nothing herein shall be deemed a
than two thousand pesos (P2,000.00) nor
prohibition on a citizen of the Philippines,
be more than one hundred thousand
whether natural or juridical, against the
pesos (100,000.00) or imprisonment
performance of any of the foregoing
ranging from six (6) months to ten (10)
acts, if allowed under existing laws.
years, or both such fine and
Section 4. Other states shall enjoy in the
imprisonment, in the discretion of the
exclusive economic zone freedoms with
court. Vessels and other equipment or
respect to navigation and overflight, the
articles used in connection therewith
laying of submarine cables and
shall be subject to seizure and forfeiture.
pipelines, and other internationally lawful

Constitutional Law 1 Nina Majica A. Pagaduan University of the Cordilleras College of Law
Section 6. This Decree shall take effect on the Peace Process (OPAPP) or the so-

thirty (30) days after publication in the called Office of the Presidential Adviser

Official Gazette. on the Peace Process, respondents.

Done in the City of Manila, this 11th day DECISION

of June, in the year of Our Lord, nineteen

CARPIO MORALES, J.:
hundred and seventy-eight.

Subject of these consolidated cases is

the extent of the powers of the President

G.R. No. 183591 October 14, 2008
in pursuing the peace process.While the

THE PROVINCE OF NORTH COTABATO, facts surrounding this controversy center

duly represented by GOVERNOR JESUS on the armed conflict in Mindanao

SACDALAN and/or VICE-GOVERNOR between the government and the Moro

EMMANUEL PIÑOL, for and in his own Islamic Liberation Front (MILF), the legal

behalf, petitioners, issue involved has a bearing on all areas

vs. in the country where there has been a

THE GOVERNMENT OF THE REPUBLIC OF long-standing armed conflict. Yet again,

THE PHILIPPINES PEACE PANEL ON the Court is tasked to perform a delicate

ANCESTRAL DOMAIN (GRP), represented balancing act. It must uncompromisingly

by SEC. RODOLFO GARCIA, ATTY. LEAH delineate the bounds within which the

ARMAMENTO, ATTY. SEDFREY President may lawfully exercise her

CANDELARIA, MARK RYAN SULLIVAN discretion, but it must do so in strict

and/or GEN. HERMOGENES ESPERON, JR., adherence to the Constitution, lest its

the latter in his capacity as the present ruling unduly restricts the freedom of

and duly-appointed Presidential Adviser action vested by that same Constitution

Constitutional Law 1 Nina Majica A. Pagaduan University of the Cordilleras College of Law
in the Chief Executive precisely to enable MNLF away from an Islamic basis towards

her to pursue the peace process Marxist-Maoist orientations.1

effectively.
The signing of the MOA-AD between the

I. FACTUAL ANTECEDENTS OF THE GRP and the MILF was not to materialize,

PETITIONS however, for upon motion of petitioners,

specifically those who filed their cases

On August 5, 2008, the Government of
before the scheduled signing of the
the Republic of the Philippines (GRP) and
MOA-AD, this Court issued a Temporary
the MILF, through the Chairpersons of
Restraining Order enjoining the GRP from
their respective peace negotiating
signing the same.
panels, were scheduled to sign a

Memorandum of Agreement on the The MOA-AD was preceded by a long

Ancestral Domain (MOA-AD) Aspect of process of negotiation and the

the GRP-MILF Tripoli Agreement on concluding of several prior agreements

Peace of 2001 in Kuala Lumpur, between the two parties beginning in

Malaysia. 1996, when the GRP-MILF peace

negotiations began. On July 18, 1997, the

The MILF is a rebel group which was
GRP and MILF Peace Panels signed the
established in March 1984 when, under
Agreement on General Cessation of
the leadership of the late Salamat
Hostilities. The following year, they signed
Hashim, it splintered from the Moro
the General Framework of Agreement of
National Liberation Front (MNLF) then
Intent on August 27, 1998.
headed by Nur Misuari, on the ground,

among others, of what Salamat The Solicitor General, who represents

perceived to be the manipulation of the respondents, summarizes the MOA-AD

Constitutional Law 1 Nina Majica A. Pagaduan University of the Cordilleras College of Law
by stating that the same contained, offensive against the MILF was

among others, the commitment of the suspended and the government sought

parties to pursue peace negotiations, a resumption of the peace talks. The

protect and respect human rights, MILF, according to a leading MILF

negotiate with sincerity in the resolution member, initially responded with deep

and pacific settlement of the conflict, reservation, but when President Arroyo

and refrain from the use of threat or force asked the Government of Malaysia

to attain undue advantage while the through Prime Minister Mahathir

peace negotiations on the substantive Mohammad to help convince the MILF

agenda are on-going.2 to return to the negotiating table, the

MILF convened its Central Committee to

Early on, however, it was evident that
seriously discuss the matter and,
there was not going to be any smooth
eventually, decided to meet with the
sailing in the GRP-MILF peace process.
GRP.4
Towards the end of 1999 up to early 2000,

the MILF attacked a number of The parties met in Kuala Lumpur on

municipalities in Central Mindanao and, March 24, 2001, with the talks being

in March 2000, it took control of the town facilitated by the Malaysian

hall of Kauswagan, Lanao del Norte.3 In government, the parties signing on the

response, then President Joseph Estrada same date the Agreement on the

declared and carried out an "all-out-war" General Framework for the Resumption

against the MILF. of Peace Talks Between the GRP and the

MILF. The MILF thereafter suspended all its

When President Gloria Macapagal-
military actions.5
Arroyo assumed office, the military

Constitutional Law 1 Nina Majica A. Pagaduan University of the Cordilleras College of Law
Formal peace talks between the parties Agreement 2001, which was signed on

were held in Tripoli, Libya from June 20- May 7, 2002 at Putrajaya, Malaysia.

22, 2001, the outcome of which was the Nonetheless, there were many incidence

GRP-MILF Tripoli Agreement on Peace of violence between government forces

(Tripoli Agreement 2001) containing the and the MILF from 2002 to 2003.

basic principles and agenda on the

Meanwhile, then MILF Chairman Salamat
following aspects of the negotiation:
Hashim passed away on July 13, 2003
Security Aspect, Rehabilitation Aspect,
and he was replaced by Al Haj Murad,
and Ancestral Domain Aspect. With
who was then the chief peace
regard to the Ancestral Domain Aspect,
negotiator of the MILF. Murad's position
the parties in Tripoli Agreement 2001
as chief peace negotiator was taken
simply agreed "that the same be
over by Mohagher Iqbal.6
discussed further by the Parties in their

next meeting." In 2005, several exploratory talks were

held between the parties in Kuala

A second round of peace talks was held
Lumpur, eventually leading to the
in Cyberjaya, Malaysia on August 5-7,
crafting of the draft MOA-AD in its final
2001 which ended with the signing of the
form, which, as mentioned, was set to be
Implementing Guidelines on the Security
signed last August 5, 2008.
Aspect of the Tripoli Agreement 2001

leading to a ceasefire status between II. STATEMENT OF THE PROCEEDINGS

the parties. This was followed by the

Before the Court is what is perhaps the
Implementing Guidelines on the
most contentious "consensus" ever
Humanitarian Rehabilitation and
embodied in an instrument - the MOA-
Development Aspects of the Tripoli

Constitutional Law 1 Nina Majica A. Pagaduan University of the Cordilleras College of Law
AD which is assailed principally by the the disclosure of the contents of the

present petitions bearing docket MOA-AD and the holding of a public

numbers 183591, 183752, 183893, 183951 consultation thereon. Supplementarily,

and 183962. petitioners pray that the MOA-AD be

declared unconstitutional.10
Commonly impleaded as respondents

are the GRP Peace Panel on Ancestral This initial petition was followed by

Domain7 and the Presidential Adviser on another one, docketed as G.R. No.

the Peace Process (PAPP) Hermogenes 183752, also for Mandamus and

Esperon, Jr. Prohibition11 filed by the City of

Zamboanga,12 Mayor Celso Lobregat,

On July 23, 2008, the Province of North
Rep. Ma. Isabelle Climaco and Rep.
Cotabato8 and Vice-Governor
Erico Basilio Fabian who likewise pray for
Emmanuel Piñol filed a petition,
similar injunctive reliefs. Petitioners herein
docketed as G.R. No. 183591, for
moreover pray that the City of
Mandamus and Prohibition with Prayer
Zamboanga be excluded from the
for the Issuance of Writ of Preliminary
Bangsamoro Homeland and/or
Injunction and Temporary Restraining
Bangsamoro Juridical Entity and, in the
Order.9 Invoking the right to information
alternative, that the MOA-AD be
on matters of public concern, petitioners
declared null and void.
seek to compel respondents to disclose

and furnish them the complete and By Resolution of August 4, 2008, the Court

official copies of the MOA-AD including issued a Temporary Restraining Order

its attachments, and to prohibit the commanding and directing public

slated signing of the MOA-AD, pending respondents and their agents to cease

Constitutional Law 1 Nina Majica A. Pagaduan University of the Cordilleras College of Law
and desist from formally signing the filed on August 15, 2008 a petition for

MOA-AD.13 The Court also required the Certiorari, Mandamus and Prohibition,19

Solicitor General to submit to the Court docketed as G.R. No. 183951. They pray,

and petitioners the official copy of the inter alia, that the MOA-AD be declared

final draft of the MOA-AD,14 to which she null and void and without operative

complied.15 effect, and that respondents be

enjoined from executing the MOA-AD.

Meanwhile, the City of Iligan16 filed a

petition for Injunction and/or Declaratory On August 19, 2008, Ernesto Maceda,

Relief, docketed as G.R. No. 183893, Jejomar Binay, and Aquilino Pimentel III

praying that respondents be enjoined filed a petition for Prohibition,20docketed

from signing the MOA-AD or, if the same as G.R. No. 183962, praying for a

had already been signed, from judgment prohibiting and permanently

implementing the same, and that the enjoining respondents from formally

MOA-AD be declared unconstitutional. signing and executing the MOA-AD and

Petitioners herein additionally implead or any other agreement derived

Executive Secretary Eduardo Ermita as therefrom or similar thereto, and nullifying

respondent. the MOA-AD for being unconstitutional

and illegal. Petitioners herein additionally

The Province of Zamboanga del Norte,17
implead as respondent the MILF Peace
Governor Rolando Yebes, Vice-
Negotiating Panel represented by its
Governor Francis Olvis, Rep. Cecilia
Chairman Mohagher Iqbal.
Jalosjos-Carreon, Rep. Cesar Jalosjos,

and the members18 of the Sangguniang Various parties moved to intervene and

Panlalawigan of Zamboanga del Norte were granted leave of court to file their

Constitutional Law 1 Nina Majica A. Pagaduan University of the Cordilleras College of Law
petitions-/comments-in-intervention. on the petitions, while some of petitioners

Petitioners-in-Intervention include submitted their respective Replies.

Senator Manuel A. Roxas, former Senate

Respondents, by Manifestation and
President Franklin Drilon and Atty. Adel
Motion of August 19, 2008, stated that
Tamano, the City of Isabela21 and Mayor
the Executive Department shall
Cherrylyn Santos-Akbar, the Province of
thoroughly review the MOA-AD and
Sultan Kudarat22 and Gov. Suharto
pursue further negotiations to address
Mangudadatu, the Municipality of
the issues hurled against it, and thus
Linamon in Lanao del Norte,23 Ruy Elias
moved to dismiss the cases. In the
Lopez of Davao City and of the Bagobo
succeeding exchange of pleadings,
tribe, Sangguniang Panlungsod member
respondents' motion was met with
Marino Ridao and businessman Kisin
vigorous opposition from petitioners.
Buxani, both of Cotabato City; and

lawyers Carlo Gomez, Gerardo Dilig, The cases were heard on oral argument

Nesario Awat, Joselito Alisuag, Richalex on August 15, 22 and 29, 2008 that

Jagmis, all of Palawan City. The Muslim tackled the following principal issues:

Legal Assistance Foundation, Inc.

1. Whether the petitions have become
(Muslaf) and the Muslim Multi-Sectoral
moot and academic
Movement for Peace and Development
(i) insofar as the mandamus aspect is
(MMMPD) filed their respective
concerned, in view of the disclosure of
Comments-in-Intervention.
official copies of the final draft of the
By subsequent Resolutions, the Court
Memorandum of Agreement (MOA);
ordered the consolidation of the
and
petitions. Respondents filed Comments

Constitutional Law 1 Nina Majica A. Pagaduan University of the Cordilleras College of Law
(ii) insofar as the prohibition aspect No. 7160 (LOCAL GOVERNMENT CODE

involving the Local Government Units is OF 1991)[;]

concerned, if it is considered that

If it is in the affirmative, whether
consultation has become fait accompli
prohibition under Rule 65 of the 1997
with the finalization of the draft;
Rules of Civil Procedure is an appropriate

2. Whether the constitutionality and the remedy;

legality of the MOA is ripe for

5. Whether by signing the MOA, the
adjudication;
Government of the Republic of the

3. Whether respondent Government of Philippines would be BINDING itself

the Republic of the Philippines Peace

a) to create and recognize the
Panel committed grave abuse of
Bangsamoro Juridical Entity (BJE) as a
discretion amounting to lack or excess of
separate state, or a juridical, territorial or
jurisdiction when it negotiated and
political subdivision not recognized by
initiated the MOA vis-à-vis ISSUES Nos. 4
law;
and 5;

b) to revise or amend the Constitution

4. Whether there is a violation of the
and existing laws to conform to the
people's right to information on matters
MOA;
of public concern (1987 Constitution,

Article III, Sec. 7) under a state policy of c) to concede to or recognize the claim

full disclosure of all its transactions of the Moro Islamic Liberation Front for

involving public interest (1987 ancestral domain in violation of Republic

Constitution, Article II, Sec. 28) including Act No. 8371 (THE INDIGENOUS PEOPLES

public consultation under Republic Act RIGHTS ACT OF 1997), particularly Section

Constitutional Law 1 Nina Majica A. Pagaduan University of the Cordilleras College of Law
3(g) & Chapter VII (DELINEATION, III. OVERVIEW OF THE MOA-AD

RECOGNITION OF ANCESTRAL
As a necessary backdrop to the
DOMAINS)[;]
consideration of the objections raised in

If in the affirmative, whether the the subject five petitions and six petitions-

Executive Branch has the authority to so in-intervention against the MOA-AD, as

bind the Government of the Republic of well as the two comments-in-intervention

the Philippines; in favor of the MOA-AD, the Court takes

an overview of the MOA.

6. Whether the inclusion/exclusion of the

Province of North Cotabato, Cities of The MOA-AD identifies the Parties to it as

Zamboanga, Iligan and Isabela, and the the GRP and the MILF.

Municipality of Linamon, Lanao del Norte

Under the heading "Terms of Reference"
in/from the areas covered by the
(TOR), the MOA-AD includes not only four
projected Bangsamoro Homeland is a
earlier agreements between the GRP
justiciable question; and
and MILF, but also two agreements

7. Whether desistance from signing the between the GRP and the MNLF: the

MOA derogates any prior valid 1976 Tripoli Agreement, and the Final

commitments of the Government of the Peace Agreement on the

Republic of the Philippines.24 Implementation of the 1976 Tripoli

Agreement, signed on September 2,

The Court, thereafter, ordered the parties
1996 during the administration of
to submit their respective Memoranda.
President Fidel Ramos.
Most of the parties submitted their

memoranda on time.

Constitutional Law 1 Nina Majica A. Pagaduan University of the Cordilleras College of Law
The MOA-AD also identifies as TOR two and dar-ul-harb (the Abode of War). The

local statutes - the organic act for the first referred to those lands where Islamic

Autonomous Region in Muslim Mindanao laws held sway, while the second

(ARMM)25 and the Indigenous Peoples denoted those lands where Muslims were

Rights Act (IPRA),26 and several persecuted or where Muslim laws were

international law instruments - the ILO outlawed or ineffective.27 This way of

Convention No. 169 Concerning viewing the world, however, became

Indigenous and Tribal Peoples in more complex through the centuries as

Independent Countries in relation to the the Islamic world became part of the

UN Declaration on the Rights of the international community of nations.

Indigenous Peoples, and the UN Charter,

As Muslim States entered into treaties
among others.
with their neighbors, even with distant

The MOA-AD includes as a final TOR the States and inter-governmental

generic category of "compact rights organizations, the classical division of the

entrenchment emanating from the world into dar-ul-Islam and dar-ul-harb

regime of dar-ul-mua'hada (or territory eventually lost its meaning. New terms

under compact) and dar-ul-sulh (or were drawn up to describe novel ways of

territory under peace agreement) that perceiving non-Muslim territories. For

partakes the nature of a treaty device." instance, areas like dar-ul-mua'hada

(land of compact) and dar-ul-sulh (land

During the height of the Muslim Empire,
of treaty) referred to countries which,
early Muslim jurists tended to see the
though under a secular regime,
world through a simple dichotomy: there
maintained peaceful and cooperative
was the dar-ul-Islam (the Abode of Islam)
relations with Muslim States, having been

Constitutional Law 1 Nina Majica A. Pagaduan University of the Cordilleras College of Law
bound to each other by treaty or AS FOLLOWS," and starts with its main

agreement. Dar-ul-aman (land of order), body.

on the other hand, referred to countries

The main body of the MOA-AD is divided
which, though not bound by treaty with
into four strands, namely, Concepts and
Muslim States, maintained freedom of
Principles, Territory, Resources, and
religion for Muslims.28
Governance.

It thus appears that the "compact rights

A. CONCEPTS AND PRINCIPLES
entrenchment" emanating from the

regime of dar-ul-mua'hada and dar-ul- This strand begins with the statement that

sulh simply refers to all other agreements it is "the birthright of all Moros and all

between the MILF and the Philippine Indigenous peoples of Mindanao to

government - the Philippines being the identify themselves and be accepted as

land of compact and peace agreement ‘Bangsamoros.'" It defines "Bangsamoro

- that partake of the nature of a treaty people" as the natives or original

device, "treaty" being broadly defined as inhabitants of Mindanao and its

"any solemn agreement in writing that adjacent islands including Palawan and

sets out understandings, obligations, and the Sulu archipelago at the time of

benefits for both parties which provides conquest or colonization, and their

for a framework that elaborates the descendants whether mixed or of full

principles declared in the [MOA-AD]."29 blood, including their spouses.30

The MOA-AD states that the Parties Thus, the concept of "Bangsamoro," as

"HAVE AGREED AND ACKNOWLEDGED defined in this strand of the MOA-AD,

includes not only "Moros" as traditionally

Constitutional Law 1 Nina Majica A. Pagaduan University of the Cordilleras College of Law
understood even by Muslims,31 but all "karajaan/kadatuan" resembling a body

indigenous peoples of Mindanao and its politic endowed with all the elements of

adjacent islands. The MOA-AD adds that a nation-state in the modern sense.34

the freedom of choice of indigenous

The MOA-AD thus grounds the right to
peoples shall be respected. What this
self-governance of the Bangsamoro
freedom of choice consists in has not
people on the past suzerain authority of
been specifically defined.
the sultanates. As gathered, the territory

The MOA-AD proceeds to refer to the defined as the Bangsamoro homeland

"Bangsamoro homeland," the ownership was ruled by several sultanates and,

of which is vested exclusively in the specifically in the case of the Maranao,

Bangsamoro people by virtue of their by the Pat a Pangampong ku Ranaw, a

prior rights of occupation.32 Both parties confederation of independent

to the MOA-AD acknowledge that principalities (pangampong) each ruled

ancestral domain does not form part of by datus and sultans, none of whom was

the public domain.33 supreme over the others.35

The Bangsamoro people are The MOA-AD goes on to describe the

acknowledged as having the right to Bangsamoro people as "the ‘First Nation'

self-governance, which right is said to be with defined territory and with a system

rooted on ancestral territoriality of government having entered into

exercised originally under the suzerain treaties of amity and commerce with

authority of their sultanates and the Pat foreign nations."

a Pangampong ku Ranaw. The

The term "First Nation" is of Canadian
sultanates were described as states or
origin referring to the indigenous peoples

Constitutional Law 1 Nina Majica A. Pagaduan University of the Cordilleras College of Law
of that territory, particularly those known above it, embracing the Mindanao-Sulu-

as Indians. In Canada, each of these Palawan geographic region.38

indigenous peoples is equally entitled to

More specifically, the core of the BJE is
be called "First Nation," hence, all of
defined as the present geographic area
them are usually described collectively
of the ARMM - thus constituting the
by the plural "First Nations."36 To that
following areas: Lanao del Sur,
extent, the MOA-AD, by identifying the
Maguindanao, Sulu, Tawi-Tawi, Basilan,
Bangsamoro people as "the First Nation" -
and Marawi City. Significantly, this core
suggesting its exclusive entitlement to
also includes certain municipalities of
that designation - departs from the
Lanao del Norte that voted for inclusion
Canadian usage of the term.
in the ARMM in the 2001 plebiscite.39

The MOA-AD then mentions for the first

Outside of this core, the BJE is to cover
time the "Bangsamoro Juridical Entity"
other provinces, cities, municipalities and
(BJE) to which it grants the authority and
barangays, which are grouped into two
jurisdiction over the Ancestral Domain
categories, Category A and Category B.
and Ancestral Lands of the
Each of these areas is to be subjected to
Bangsamoro.37
a plebiscite to be held on different dates,

B. TERRITORY years apart from each other. Thus,

Category A areas are to be subjected to

The territory of the Bangsamoro
a plebiscite not later than twelve (12)
homeland is described as the land mass
months following the signing of the MOA-
as well as the maritime, terrestrial, fluvial
AD.40 Category B areas, also called
and alluvial domains, including the aerial
"Special Intervention Areas," on the other
domain and the atmospheric space

Constitutional Law 1 Nina Majica A. Pagaduan University of the Cordilleras College of Law
hand, are to be subjected to a plebiscite The MOA-AD further provides for the

twenty-five (25) years from the signing of sharing of minerals on the territorial

a separate agreement - the waters between the Central

Comprehensive Compact.41 Government and the BJE, in favor of the

latter, through production sharing and

The Parties to the MOA-AD stipulate that
economic cooperation agreement.44
the BJE shall have jurisdiction over all
The activities which the Parties are
natural resources within its
allowed to conduct on the territorial
"internalwaters," defined as extending
waters are enumerated, among which
fifteen (15) kilometers from the coastline
are the exploration and utilization of
of the BJE area;42 that the BJE shall also
natural resources, regulation of shipping
have "territorial waters," which shall
and fishing activities, and the
stretch beyond the BJE internal waters up
enforcement of police and safety
to the baselines of the Republic of the
measures.45 There is no similar provision
Philippines (RP) south east and south west
on the sharing of minerals and allowed
of mainland Mindanao; and that within
activities with respect to the internal
these territorial waters, the BJE and the
waters of the BJE.
"Central Government" (used

interchangeably with RP) shall exercise C. RESOURCES

joint jurisdiction, authority and

The MOA-AD states that the BJE is free to
management over all natural
enter into any economic cooperation
resources.43 Notably, the jurisdiction over
and trade relations with foreign countries
the internal waters is not similarly
and shall have the option to establish
described as "joint."
trade missions in those countries. Such

Constitutional Law 1 Nina Majica A. Pagaduan University of the Cordilleras College of Law
relationships and understandings, With regard to the right of exploring for,

however, are not to include aggression producing, and obtaining all potential

against the GRP. The BJE may also enter sources of energy, petroleum, fossil fuel,

into environmental cooperation mineral oil and natural gas, the

agreements.46 jurisdiction and control thereon is to be

vested in the BJE "as the party having

The external defense of the BJE is to
control within its territorial jurisdiction." This
remain the duty and obligation of the
right carries the proviso that, "in times of
Central Government. The Central
national emergency, when public
Government is also bound to "take
interest so requires," the Central
necessary steps to ensure the BJE's
Government may, for a fixed period and
participation in international meetings
under reasonable terms as may be
and events" like those of the ASEAN and
agreed upon by both Parties, assume or
the specialized agencies of the UN. The
direct the operation of such resources.48
BJE is to be entitled to participate in

Philippine official missions and The sharing between the Central

delegations for the negotiation of border Government and the BJE of total

agreements or protocols for production pertaining to natural

environmental protection and equitable resources is to be 75:25 in favor of the

sharing of incomes and revenues BJE.49

involving the bodies of water adjacent to

The MOA-AD provides that legitimate
or between the islands forming part of
grievances of the Bangsamoro people
the ancestral domain.47
arising from any unjust dispossession of

their territorial and proprietary rights,

Constitutional Law 1 Nina Majica A. Pagaduan University of the Cordilleras College of Law
customary land tenures, or their MOA-AD explicitly provides that the

marginalization shall be acknowledged. participation of the third party shall not in

Whenever restoration is no longer any way affect the status of the

possible, reparation is to be in such form relationship between the Central

as mutually determined by the Parties.50 Government and the BJE.52

The BJE may modify or cancel the forest The "associative" relationship

concessions, timber licenses, contracts or between the Central Government

agreements, mining concessions, and the BJE

Mineral Production and Sharing

The MOA-AD describes the relationship
Agreements (MPSA), Industrial Forest
of the Central Government and the BJE
Management Agreements (IFMA), and
as "associative," characterized by shared
other land tenure instruments granted by
authority and responsibility. And it states
the Philippine Government, including
that the structure of governance is to be
those issued by the present ARMM.51
based on executive, legislative, judicial,

D. GOVERNANCE and administrative institutions with

defined powers and functions in the

The MOA-AD binds the Parties to invite a
Comprehensive Compact.
multinational third-party to observe and

monitor the implementation of the The MOA-AD provides that its provisions

Comprehensive Compact. This compact requiring "amendments to the existing

is to embody the "details for the effective legal framework" shall take effect upon

enforcement" and "the mechanisms and signing of the Comprehensive Compact

modalities for the actual and upon effecting the aforesaid

implementation" of the MOA-AD. The amendments, with due regard to the

Constitutional Law 1 Nina Majica A. Pagaduan University of the Cordilleras College of Law
non-derogation of prior agreements and signatories as "the representatives of the

within the stipulated timeframe to be Parties," meaning the GRP and MILF

contained in the Comprehensive themselves, and not merely of the

Compact. As will be discussed later, negotiating panels.53 In addition, the

much of the present controversy hangs signature page of the MOA-AD states

on the legality of this provision. that it is "WITNESSED BY" Datuk Othman

Bin Abd Razak, Special Adviser to the

The BJE is granted the power to build,
Prime Minister of Malaysia, "ENDORSED
develop and maintain its own institutions
BY" Ambassador Sayed Elmasry, Adviser
inclusive of civil service, electoral,
to Organization of the Islamic
financial and banking, education,
Conference (OIC) Secretary General
legislation, legal, economic, police and
and Special Envoy for Peace Process in
internal security force, judicial system
Southern Philippines, and SIGNED "IN THE
and correctional institutions, the details
PRESENCE OF" Dr. Albert G. Romulo,
of which shall be discussed in the
Secretary of Foreign Affairs of RP and
negotiation of the comprehensive
Dato' Seri Utama Dr. Rais Bin Yatim,
compact.
Minister of Foreign Affairs, Malaysia, all of

As stated early on, the MOA-AD was set whom were scheduled to sign the

to be signed on August 5, 2008 by Agreement last August 5, 2008.

Rodolfo Garcia and Mohagher Iqbal,

Annexed to the MOA-AD are two
Chairpersons of the Peace Negotiating
documents containing the respective
Panels of the GRP and the MILF,
lists cum maps of the provinces,
respectively. Notably, the penultimate
municipalities, and barangays under
paragraph of the MOA-AD identifies the
Categories A and B earlier mentioned in

Constitutional Law 1 Nina Majica A. Pagaduan University of the Cordilleras College of Law
the discussion on the strand on legal rights that can be interpreted and

TERRITORY. enforced on the basis of existing law and

jurisprudence.57 The Court can decide

IV. PROCEDURAL ISSUES
the constitutionality of an act or treaty

A. RIPENESS only when a proper case between

opposing parties is submitted for judicial

The power of judicial review is limited to
determination.58
actual cases or controversies.54 Courts

decline to issue advisory opinions or to Related to the requirement of an actual

resolve hypothetical or feigned case or controversy is the requirement of

problems, or mere academic ripeness. A question is ripe for

questions.55 The limitation of the power of adjudication when the act being

judicial review to actual cases and challenged has had a direct adverse

controversies defines the role assigned to effect on the individual challenging it.59

the judiciary in a tripartite allocation of For a case to be considered ripe for

power, to assure that the courts will not adjudication, it is a prerequisite that

intrude into areas committed to the something had then been accomplished

other branches of government.56 or performed by either branch before a

court may come into the picture,60 and

An actual case or controversy involves a
the petitioner must allege the existence
conflict of legal rights, an assertion of
of an immediate or threatened injury to
opposite legal claims, susceptible of
itself as a result of the challenged
judicial resolution as distinguished from a
action.61 He must show that he has
hypothetical or abstract difference or
sustained or is immediately in danger of
dispute. There must be a contrariety of

Constitutional Law 1 Nina Majica A. Pagaduan University of the Cordilleras College of Law
sustaining some direct injury as a result of problems or interests with no concrete

the act complained of.62 bases. Considering the preliminary

character of the MOA-AD, there are no

The Solicitor General argues that there is
concrete acts that could possibly violate
no justiciable controversy that is ripe for
petitioners' and intervenors' rights since
judicial review in the present petitions,
the acts complained of are mere
reasoning that
contemplated steps toward the

The unsigned MOA-AD is simply a list of formulation of a final peace agreement.

consensus points subject to further Plainly, petitioners and intervenors'

negotiations and legislative enactments perceived injury, if at all, is merely

as well as constitutional processes aimed imaginary and illusory apart from being

at attaining a final peaceful agreement. unfounded and based on mere

Simply put, the MOA-AD remains to be a conjectures. (Underscoring supplied)

proposal that does not automatically

The Solicitor General cites63 the following
create legally demandable rights and
provisions of the MOA-AD:
obligations until the list of operative acts

required have been duly complied with. TERRITORY

xxx
xxxx

xxxx
2. Toward this end, the Parties enter into

In the cases at bar, it is respectfully the following stipulations:

submitted that this Honorable Court has

xxxx
no authority to pass upon issues based on

hypothetical or feigned constitutional

Constitutional Law 1 Nina Majica A. Pagaduan University of the Cordilleras College of Law
d. Without derogating from the implementation of this MOA-AD shall be

requirements of prior agreements, the spelt out in the Comprehensive

Government stipulates to conduct and Compact to mutually take such steps to

deliver, using all possible legal measures, enable it to occur effectively.

within twelve (12) months following the

Any provisions of the MOA-AD requiring
signing of the MOA-AD, a plebiscite
amendments to the existing legal
covering the areas as enumerated in the
framework shall come into force upon
list and depicted in the map as Category
the signing of a Comprehensive
A attached herein (the "Annex"). The
Compact and upon effecting the
Annex constitutes an integral part of this
necessary changes to the legal
framework agreement. Toward this end,
framework with due regard to non-
the Parties shall endeavor to complete
derogation of prior agreements and
the negotiations and resolve all
within the stipulated timeframe to be
outstanding issues on the
contained in the Comprehensive
Comprehensive Compact within fifteen
Compact.64 (Underscoring supplied)
(15) months from the signing of the MOA-

AD. The Solicitor General's arguments fail to

persuade.
xxxx

Concrete acts under the MOA-AD are

GOVERNANCE
not necessary to render the present

xxxx controversy ripe. In Pimentel, Jr. v.

Aguirre,65 this Court held:

7. The Parties agree that mechanisms

and modalities for the actual

Constitutional Law 1 Nina Majica A. Pagaduan University of the Cordilleras College of Law
x x x [B]y the mere enactment of the had yet been led under the policy,

questioned law or the approval of the because the policy was being

challenged action, the dispute is said to challenged as unconstitutional on its

have ripened into a judicial controversy face.68

even without any other overt act.

That the law or act in question is not yet
Indeed, even a singular violation of the
effective does not negate ripeness. For
Constitution and/or the law is enough to
example, in New York v. United States,69
awaken judicial duty.
decided in 1992, the United States

xxxx Supreme Court held that the action by

the State of New York challenging the

By the same token, when an act of the
provisions of the Low-Level Radioactive
President, who in our constitutional
Waste Policy Act was ripe for
scheme is a coequal of Congress, is
adjudication even if the questioned
seriously alleged to have infringed the
provision was not to take effect until
Constitution and the laws x x x settling the
January 1, 1996, because the parties
dispute becomes the duty and the
agreed that New York had to take
responsibility of the courts.66
immediate action to avoid the provision's

In Santa Fe Independent School District consequences.70

v. Doe,67 the United States Supreme

The present petitions pray for Certiorari,71
Court held that the challenge to the
Prohibition, and Mandamus. Certiorari
constitutionality of the school's policy
and Prohibition are remedies granted by
allowing student-led prayers and
law when any tribunal, board or officer
speeches before games was ripe for
has acted, in the case of certiorari, or is
adjudication, even if no public prayer

Constitutional Law 1 Nina Majica A. Pagaduan University of the Cordilleras College of Law
proceeding, in the case of prohibition, systematic approach and the

without or in excess of its jurisdiction or administrative structure for carrying out

with grave abuse of discretion the comprehensive peace process x x x

amounting to lack or excess of be governed by this Executive Order."76

jurisdiction.72 Mandamus is a remedy

The present petitions allege that
granted by law when any tribunal,
respondents GRP Panel and PAPP
corporation, board, officer or person
Esperon drafted the terms of the MOA-
unlawfully neglects the performance of
AD without consulting the local
an act which the law specifically enjoins
government units or communities
as a duty resulting from an office, trust, or
affected, nor informing them of the
station, or unlawfully excludes another
proceedings. As will be discussed in
from the use or enjoyment of a right or
greater detail later, such omission, by
office to which such other is entitled.73
itself, constitutes a departure by
Certiorari, Mandamus and Prohibition
respondents from their mandate under
are appropriate remedies to raise
E.O. No. 3.
constitutional issues and to review and/or

prohibit/nullify, when proper, acts of Furthermore, the petitions allege that the

legislative and executive officials.74 provisions of the MOA-AD violate the

Constitution. The MOA-AD provides that

The authority of the GRP Negotiating
"any provisions of the MOA-AD requiring
Panel is defined by Executive Order No. 3
amendments to the existing legal
(E.O. No. 3), issued on February 28,
framework shall come into force upon
2001.75 The said executive order requires
the signing of a Comprehensive
that "[t]he government's policy
Compact and upon effecting the
framework for peace, including the

Constitutional Law 1 Nina Majica A. Pagaduan University of the Cordilleras College of Law
necessary changes to the legal B. LOCUS STANDI

framework," implying an amendment of

For a party to have locus standi, one
the Constitution to accommodate the
must allege "such a personal stake in the
MOA-AD. This stipulation, in effect,
outcome of the controversy as to assure
guaranteed to the MILF the amendment
that concrete adverseness which
of the Constitution. Such act constitutes
sharpens the presentation of issues upon
another violation of its authority. Again,
which the court so largely depends for
these points will be discussed in more
illumination of difficult constitutional
detail later.
questions."78

As the petitions allege acts or omissions

Because constitutional cases are often
on the part of respondent that exceed
public actions in which the relief sought is
their authority, by violating their duties
likely to affect other persons, a
under E.O. No. 3 and the provisions of the
preliminary question frequently arises as
Constitution and statutes, the petitions
to this interest in the constitutional
make a prima facie case for Certiorari,
question raised.79
Prohibition, and Mandamus, and an

actual case or controversy ripe for When suing as a citizen, the person

adjudication exists. When an act of a complaining must allege that he has

branch of government is seriously been or is about to be denied some right

alleged to have infringed the or privilege to which he is lawfully entitled

Constitution, it becomes not only the right or that he is about to be subjected to

but in fact the duty of the judiciary to some burdens or penalties by reason of

settle the dispute.77 the statute or act complained of.80 When

the issue concerns a public right, it is

Constitutional Law 1 Nina Majica A. Pagaduan University of the Cordilleras College of Law
sufficient that the petitioner is a citizen An organization may be granted

and has an interest in the execution of standing to assert the rights of its

the laws.81 members,85 but the mere invocation by

the Integrated Bar of the Philippines or

For a taxpayer, one is allowed to sue
any member of the legal profession of
where there is an assertion that public
the duty to preserve the rule of law does
funds are illegally disbursed or deflected
not suffice to clothe it with standing.86
to an illegal purpose, or that there is a

wastage of public funds through the As regards a local government unit

enforcement of an invalid or (LGU), it can seek relief in order to protect

unconstitutional law.82 The Court retains or vindicate an interest of its own, and of

discretion whether or not to allow a the other LGUs.87

taxpayer's suit.83
Intervenors, meanwhile, may be given

In the case of a legislator or member of legal standing upon showing of facts

Congress, an act of the Executive that that satisfy the requirements of the law

injures the institution of Congress causes authorizing intervention,88 such as a legal

a derivative but nonetheless substantial interest in the matter in litigation, or in the

injury that can be questioned by success of either of the parties.

legislators. A member of the House of

In any case, the Court has discretion to
Representatives has standing to maintain
relax the procedural technicality on
inviolate the prerogatives, powers and
locus standi, given the liberal attitude it
privileges vested by the Constitution in his
has exercised, highlighted in the case of
office.84
David v. Macapagal-Arroyo,89 where

technicalities of procedure were

Constitutional Law 1 Nina Majica A. Pagaduan University of the Cordilleras College of Law
brushed aside, the constitutional issues Zamboanga (G.R. No. 183752) and

raised being of paramount public petitioners-in-intervention Province of

interest or of transcendental importance Sultan Kudarat, City of Isabela and

deserving the attention of the Court in Municipality of Linamon have locus

view of their seriousness, novelty and standi in view of the direct and

weight as precedents.90 The Court's substantial injury that they, as LGUs,

forbearing stance on locus standi on would suffer as their territories, whether in

issues involving constitutional issues has whole or in part, are to be included in the

for its purpose the protection of intended domain of the BJE. These

fundamental rights. petitioners allege that they did not vote

for their inclusion in the ARMM which

In not a few cases, the Court, in keeping
would be expanded to form the BJE
with its duty under the Constitution to
territory. Petitioners' legal standing is thus
determine whether the other branches
beyond doubt.
of government have kept themselves

within the limits of the Constitution and In G.R. No. 183962, petitioners Ernesto

the laws and have not abused the Maceda, Jejomar Binay and Aquilino

discretion given them, has brushed aside Pimentel III would have no standing as

technical rules of procedure.91 citizens and taxpayers for their failure to

specify that they would be denied some

In the petitions at bar, petitioners
right or privilege or there would be
Province of North Cotabato (G.R. No.
wastage of public funds. The fact that
183591) Province of Zamboanga del
they are a former Senator, an incumbent
Norte (G.R. No. 183951), City of Iligan
mayor of Makati City, and a resident of
(G.R. No. 183893) and City of
Cagayan de Oro, respectively, is of no

Constitutional Law 1 Nina Majica A. Pagaduan University of the Cordilleras College of Law
consequence. Considering their informed of the MOA-AD, as well as on a

invocation of the transcendental genuine legal interest in the matter in

importance of the issues at hand, litigation, or in the success or failure of

however, the Court grants them either of the parties. He thus possesses

standing. the requisite standing as an intervenor.

Intervenors Franklin Drilon and Adel With respect to Intervenors Ruy Elias

Tamano, in alleging their standing as Lopez, as a former congressman of the

taxpayers, assert that government funds 3rd district of Davao City, a taxpayer and

would be expended for the conduct of a member of the Bagobo tribe; Carlo B.

an illegal and unconstitutional plebiscite Gomez, et al., as members of the IBP

to delineate the BJE territory. On that Palawan chapter, citizens and

score alone, they can be given legal taxpayers; Marino Ridao, as taxpayer,

standing. Their allegation that the issues resident and member of the

involved in these petitions are of Sangguniang Panlungsod of Cotabato

"undeniable transcendental City; and Kisin Buxani, as taxpayer, they

importance" clothes them with added failed to allege any proper legal interest

basis for their personality to intervene in in the present petitions. Just the same,

these petitions. the Court exercises its discretion to relax

the procedural technicality on locus

With regard to Senator Manuel Roxas, his
standi given the paramount public
standing is premised on his being a
interest in the issues at hand.
member of the Senate and a citizen to

enforce compliance by respondents of Intervening respondents Muslim Multi-

the public's constitutional right to be Sectoral Movement for Peace and

Constitutional Law 1 Nina Majica A. Pagaduan University of the Cordilleras College of Law
Development, an advocacy group for that the President had already

justice and the attainment of peace and disbanded the GRP Peace Panel.93

prosperity in Muslim Mindanao; and

In David v. Macapagal-Arroyo,94 this
Muslim Legal Assistance Foundation Inc.,
Court held that the "moot and
a non-government organization of
academic" principle not being a
Muslim lawyers, allege that they stand to
magical formula that automatically
be benefited or prejudiced, as the case
dissuades courts in resolving a case, it will
may be, in the resolution of the petitions
decide cases, otherwise moot and
concerning the MOA-AD, and prays for
academic, if it finds that (a) there is a
the denial of the petitions on the grounds
grave violation of the Constitution;95 (b)
therein stated. Such legal interest suffices
the situation is of exceptional character
to clothe them with standing.
and paramount public interest is

B. MOOTNESS involved;96 (c) the constitutional issue

raised requires formulation of controlling

Respondents insist that the present
principles to guide the bench, the bar,
petitions have been rendered moot with
and the public;97 and (d) the case is
the satisfaction of all the reliefs prayed for
capable of repetition yet evading
by petitioners and the subsequent
review.98
pronouncement of the Executive

Secretary that "[n]o matter what the Another exclusionary circumstance that

Supreme Court ultimately decides[,] the may be considered is where there is a

government will not sign the MOA."92 voluntary cessation of the activity

complained of by the defendant or

In lending credence to this policy
doer. Thus, once a suit is filed and the
decision, the Solicitor General points out

Constitutional Law 1 Nina Majica A. Pagaduan University of the Cordilleras College of Law
doer voluntarily ceases the challenged MOA-AD and the eventual dissolution of

conduct, it does not automatically the GRP Peace Panel did not moot the

deprive the tribunal of power to hear present petitions. It bears emphasis that

and determine the case and does not the signing of the MOA-AD did not push

render the case moot especially when through due to the Court's issuance of a

the plaintiff seeks damages or prays for Temporary Restraining Order.

injunctive relief against the possible

Contrary too to respondents' position,
recurrence of the violation.99
the MOA-AD cannot be considered a

The present petitions fall squarely into mere "list of consensus points," especially

these exceptions to thus thrust them into given its nomenclature, the need to have

the domain of judicial review. The it signed or initialed by all the parties

grounds cited above in David are just as concerned on August 5, 2008, and the

applicable in the present cases as they far-reaching Constitutional implications

were, not only in David, but also in of these "consensus points," foremost of

Province of Batangas v. Romulo100 and which is the creation of the BJE.

Manalo v. Calderon101 where the Court

In fact, as what will, in the main, be
similarly decided them on the merits,
discussed, there is a commitment on the
supervening events that would ordinarily
part of respondents to amend and effect
have rendered the same moot
necessary changes to the existing legal
notwithstanding.
framework for certain provisions of the

Petitions not mooted MOA-AD to take effect. Consequently,

the present petitions are not confined to

Contrary then to the asseverations of
the terms and provisions of the MOA-AD,
respondents, the non-signing of the

Constitutional Law 1 Nina Majica A. Pagaduan University of the Cordilleras College of Law
but to other on-going and future and, in this case, the government and its

negotiations and agreements necessary negotiating entity.

for its realization. The petitions have not,

Respondents cite Suplico v. NEDA, et
therefore, been rendered moot and
al.103 where the Court did not
academic simply by the public
"pontificat[e] on issues which no longer
disclosure of the MOA-AD,102 the
legitimately constitute an actual case or
manifestation that it will not be signed as
controversy [as this] will do more harm
well as the disbanding of the GRP Panel
than good to the nation as a whole."
not withstanding.

The present petitions must be

Petitions are imbued with paramount
differentiated from Suplico. Primarily, in
public interest
Suplico, what was assailed and

There is no gainsaying that the petitions eventually cancelled was a stand-alone

are imbued with paramount public government procurement contract for a

interest, involving a significant part of the national broadband network involving a

country's territory and the wide-ranging one-time contractual relation between

political modifications of affected LGUs. two parties-the government and a

The assertion that the MOA-AD is subject private foreign corporation. As the issues

to further legal enactments including therein involved specific government

possible Constitutional amendments procurement policies and standard

more than ever provides impetus for the principles on contracts, the majority

Court to formulate controlling principles opinion in Suplico found nothing

to guide the bench, the bar, the public exceptional therein, the factual

circumstances being peculiar only to the

Constitutional Law 1 Nina Majica A. Pagaduan University of the Cordilleras College of Law
transactions and parties involved in the Need to formulate principles-guidelines

controversy.
Surely, the present MOA-AD can be

The MOA-AD is part of a series of renegotiated or another one will be

agreements drawn up to carry out the Ancestral

Domain Aspect of the Tripoli Agreement

In the present controversy, the MOA-AD
2001, in another or in any form, which
is a significant part of a series of
could contain similar or significantly
agreements necessary to carry out the
drastic provisions. While the Court notes
Tripoli Agreement 2001. The MOA-AD
the word of the Executive Secretary that
which dwells on the Ancestral Domain
the government "is committed to
Aspect of said Tripoli Agreement is the
securing an agreement that is both
third such component to be undertaken
constitutional and equitable because
following the implementation of the
that is the only way that long-lasting
Security Aspect in August 2001 and the
peace can be assured," it is minded to
Humanitarian, Rehabilitation and
render a decision on the merits in the
Development Aspect in May 2002.
present petitions to formulate controlling

Accordingly, even if the Executive principles to guide the bench, the bar,

Secretary, in his Memorandum of August the public and, most especially, the

28, 2008 to the Solicitor General, has government in negotiating with the MILF

stated that "no matter what the Supreme regarding Ancestral Domain.

Court ultimately decides[,] the

Respondents invite the Court's attention
government will not sign the MOA[-AD],"
to the separate opinion of then Chief
mootness will not set in in light of the
Justice Artemio Panganiban in Sanlakas
terms of the Tripoli Agreement 2001.

Constitutional Law 1 Nina Majica A. Pagaduan University of the Cordilleras College of Law
v. Reyes104 in which he stated that the apply the doctrine immediately referred

doctrine of "capable of repetition yet to as what it had done in a number of

evading review" can override mootness, landmark cases.106 There is a reasonable

"provided the party raising it in a proper expectation that petitioners, particularly

case has been and/or continue to be the Provinces of North Cotabato,

prejudiced or damaged as a direct result Zamboanga del Norte and Sultan

of their issuance." They contend that the Kudarat, the Cities of Zamboanga, Iligan

Court must have jurisdiction over the and Isabela, and the Municipality of

subject matter for the doctrine to be Linamon, will again be subjected to the

invoked. same problem in the future as

respondents' actions are capable of

The present petitions all contain prayers
repetition, in another or any form.
for Prohibition over which this Court

exercises original jurisdiction. While G.R. It is with respect to the prayers for

No. 183893 (City of Iligan v. GRP) is a Mandamus that the petitions have

petition for Injunction and Declaratory become moot, respondents having, by

Relief, the Court will treat it as one for Compliance of August 7, 2008, provided

Prohibition as it has far reaching this Court and petitioners with official

implications and raises questions that copies of the final draft of the MOA-AD

need to be resolved.105 At all events, the and its annexes. Too, intervenors have

Court has jurisdiction over most if not the been furnished, or have procured for

rest of the petitions. themselves, copies of the MOA-AD.

Indeed, the present petitions afford a V. SUBSTANTIVE ISSUES

proper venue for the Court to again

Constitutional Law 1 Nina Majica A. Pagaduan University of the Cordilleras College of Law
As culled from the Petitions and Petitions- pertaining to official acts, transactions, or

in-Intervention, there are basically two decisions, as well as to government

SUBSTANTIVE issues to be resolved, one research data used as basis for policy

relating to the manner in which the MOA- development, shall be afforded the

AD was negotiated and finalized, the citizen, subject to such limitations as may

other relating to its provisions, viz: be provided by law.107

1. Did respondents violate constitutional As early as 1948, in Subido v. Ozaeta,108

and statutory provisions on public the Court has recognized the statutory

consultation and the right to information right to examine and inspect public

when they negotiated and later initialed records, a right which was eventually

the MOA-AD? accorded constitutional status.

2. Do the contents of the MOA-AD The right of access to public documents,

violate the Constitution and the laws? as enshrined in both the 1973

Constitution and the 1987 Constitution,

ON THE FIRST SUBSTANTIVE ISSUE
has been recognized as a self-executory

Petitioners invoke their constitutional right constitutional right.109

to information on matters of public

In the 1976 case of Baldoza v. Hon.
concern, as provided in Section 7, Article
Judge Dimaano,110 the Court ruled that
III on the Bill of Rights:
access to public records is predicated

Sec. 7. The right of the people to on the right of the people to acquire

information on matters of public concern information on matters of public concern

shall be recognized. Access to official since, undoubtedly, in a democracy, the

records, and to documents, and papers

Constitutional Law 1 Nina Majica A. Pagaduan University of the Cordilleras College of Law
pubic has a legitimate interest in matters people in democratic decision-making

of social and political significance. by giving them a better perspective of

the vital issues confronting the nation112

x x x The incorporation of this right in the
so that they may be able to criticize and
Constitution is a recognition of the
participate in the affairs of the
fundamental role of free exchange of
government in a responsible, reasonable
information in a democracy. There can
and effective manner. It is by ensuring an
be no realistic perception by the public
unfettered and uninhibited exchange of
of the nation's problems, nor a
ideas among a well-informed public that
meaningful democratic decision-making
a government remains responsive to the
if they are denied access to information
changes desired by the people.113
of general interest. Information is needed

to enable the members of society to The MOA-AD is a matter of public

cope with the exigencies of the times. As concern

has been aptly observed: "Maintaining

That the subject of the information
the flow of such information depends on
sought in the present cases is a matter of
protection for both its acquisition and its
public concern114 faces no serious
dissemination since, if either process is
challenge. In fact, respondents admit
interrupted, the flow inevitably ceases." x
that the MOA-AD is indeed of public
x x111
concern.115 In previous cases, the Court

In the same way that free discussion found that the regularity of real estate

enables members of society to cope with transactions entered in the Register of

the exigencies of their time, access to Deeds,116 the need for adequate notice

information of general interest aids the to the public of the various laws,117 the

Constitutional Law 1 Nina Majica A. Pagaduan University of the Cordilleras College of Law
civil service eligibility of a public transaction." Certainly, a consummated

employee,118 the proper management contract is not a requirement for the

of GSIS funds allegedly used to grant exercise of the right to information.

loans to public officials,119 the recovery of Otherwise, the people can never

the Marcoses' alleged ill-gotten exercise the right if no contract is

wealth,120 and the identity of party-list consummated, and if one is

nominees,121 among others, are matters consummated, it may be too late for the

of public concern. Undoubtedly, the public to expose its defects.

MOA-AD subject of the present cases is

Requiring a consummated contract will
of public concern, involving as it does the
keep the public in the dark until the
sovereignty and territorial integrity of the
contract, which may be grossly
State, which directly affects the lives of
disadvantageous to the government or
the public at large.
even illegal, becomes fait accompli. This

Matters of public concern covered by negates the State policy of full

the right to information include steps and transparency on matters of public

negotiations leading to the concern, a situation which the framers of

consummation of the contract. In not the Constitution could not have

distinguishing as to the executory nature intended. Such a requirement will

or commercial character of agreements, prevent the citizenry from participating in

the Court has categorically ruled: the public discussion of any proposed

contract, effectively truncating a basic

x x x [T]he right to information
right enshrined in the Bill of Rights. We
"contemplates inclusion of negotiations
can allow neither an emasculation of a
leading to the consummation of the
constitutional right, nor a retreat by the

Constitutional Law 1 Nina Majica A. Pagaduan University of the Cordilleras College of Law
State of its avowed "policy of full officialdom to give information even if

disclosure of all its transactions involving nobody demands.125

public interest."122 (Emphasis and italics in

The policy of public disclosure establishes
the original)
a concrete ethical principle for the

Intended as a "splendid symmetry"123 to conduct of public affairs in a genuinely

the right to information under the Bill of open democracy, with the people's right

Rights is the policy of public disclosure to know as the centerpiece. It is a

under Section 28, Article II of the mandate of the State to be accountable

Constitution reading: by following such policy.126 These

provisions are vital to the exercise of the

Sec. 28. Subject to reasonable conditions
freedom of expression and essential to
prescribed by law, the State adopts and
hold public officials at all times
implements a policy of full public
accountable to the people.127
disclosure of all its transactions involving

public interest.124 Whether Section 28 is self-executory, the

records of the deliberations of the

The policy of full public disclosure
Constitutional Commission so disclose:
enunciated in above-quoted Section 28

complements the right of access to MR. SUAREZ. And since this is not self-

information on matters of public concern executory, this policy will not be

found in the Bill of Rights. The right to enunciated or will not be in force and

information guarantees the right of the effect until after Congress shall have

people to demand information, while provided it.

Section 28 recognizes the duty of

Constitutional Law 1 Nina Majica A. Pagaduan University of the Cordilleras College of Law
MR. OPLE. I expect it to influence the effect and Congress may provide for

climate of public ethics immediately but, reasonable safeguards on the sole

of course, the implementing law will ground national interest?

have to be enacted by Congress, Mr.

MR. OPLE. Yes. I think so, Mr. Presiding
Presiding Officer.128
Officer, I said earlier that it should

The following discourse, after immediately influence the climate of the

Commissioner Hilario Davide, Jr., sought conduct of public affairs but, of course,

clarification on the issue, is enlightening. Congress here may no longer pass a law

revoking it, or if this is approved, revoking

MR. DAVIDE. I would like to get some
this principle, which is inconsistent with
clarifications on this. Mr. Presiding Officer,
this policy.129 (Emphasis supplied)
did I get the Gentleman correctly as

having said that this is not a self- Indubitably, the effectivity of the policy of

executing provision? It would require a public disclosure need not await the

legislation by Congress to implement? passing of a statute. As Congress cannot

revoke this principle, it is merely directed

MR. OPLE. Yes. Originally, it was going to
to provide for "reasonable safeguards."
be self-executing, but I accepted an
The complete and effective exercise of
amendment from Commissioner
the right to information necessitates that
Regalado, so that the safeguards on
its complementary provision on public
national interest are modified by the
disclosure derive the same self-executory
clause "as may be provided by law"
nature. Since both provisions go hand-in-

MR. DAVIDE. But as worded, does it not hand, it is absurd to say that the

mean that this will immediately take broader130 right to information on matters

Constitutional Law 1 Nina Majica A. Pagaduan University of the Cordilleras College of Law
of public concern is already enforceable provide feedback mechanisms so that

while the correlative duty of the State to the people can participate and can

disclose its transactions involving public react where the existing media facilities

interest is not enforceable until there is an are not able to provide full feedback

enabling law. Respondents cannot thus mechanisms to the government? I

point to the absence of an implementing suppose this will be part of the

legislation as an excuse in not effecting government implementing operational

such policy. mechanisms.

An essential element of these freedoms is MR. OPLE. Yes. I think through their

to keep open a continuing dialogue or elected representatives and that is how

process of communication between the these courses take place. There is a

government and the people. It is in the message and a feedback, both ways.

interest of the State that the channels for

xxxx
free political discussion be maintained to

the end that the government may MS. ROSARIO BRAID. Mr. Presiding

perceive and be responsive to the Officer, may I just make one last

people's will.131Envisioned to be corollary sentence?

to the twin rights to information and

I think when we talk about the feedback
disclosure is the design for feedback
network, we are not talking about public
mechanisms.
officials but also network of private

MS. ROSARIO BRAID. Yes. And lastly, Mr. business o[r] community-based

Presiding Officer, will the people be able organizations that will be reacting. As a

to participate? Will the government matter of fact, we will put more

Constitutional Law 1 Nina Majica A. Pagaduan University of the Cordilleras College of Law
credence or credibility on the private reflecting the sentiments, values and

network of volunteers and voluntary principles important to all Filipinos" and

community-based organizations. So I do "shall be defined not by the government

not think we are afraid that there will be alone, nor by the different contending

another OMA in the making.132(Emphasis groups only, but by all Filipinos as one

supplied) community."134 Included as a

component of the comprehensive

The imperative of a public consultation,
peace process is consensus-building and
as a species of the right to information, is
empowerment for peace, which
evident in the "marching orders" to
includes "continuing consultations on
respondents. The mechanics for the duty
both national and local levels to build
to disclose information and to conduct
consensus for a peace agenda and
public consultation regarding the peace
process, and the mobilization and
agenda and process is manifestly
facilitation of people's participation in
provided by E.O. No. 3.133 The
the peace process."135
preambulatory clause of E.O. No. 3

declares that there is a need to further Clearly, E.O. No. 3 contemplates not just

enhance the contribution of civil society the conduct of a plebiscite to effectuate

to the comprehensive peace process by "continuing" consultations, contrary to

institutionalizing the people's respondents' position that plebiscite is

participation. "more than sufficient consultation."136

One of the three underlying principles of Further, E.O. No. 3 enumerates the

the comprehensive peace process is functions and responsibilities of the PAPP,

that it "should be community-based, one of which is to "[c]onduct regular

Constitutional Law 1 Nina Majica A. Pagaduan University of the Cordilleras College of Law
dialogues with the National Peace PAPP Esperon committed grave abuse of

Forum (NPF) and other peace partners to discretion

seek relevant information, comments,

The PAPP committed grave abuse of
recommendations as well as to render
discretion when he failed to carry out the
appropriate and timely reports on the
pertinent consultation. The furtive
progress of the comprehensive peace
process by which the MOA-AD was
process."137 E.O. No. 3 mandates the
designed and crafted runs contrary to
establishment of the NPF to be "the
and in excess of the legal authority, and
principal forum for the PAPP to consult
amounts to a whimsical, capricious,
with and seek advi[c]e from the peace
oppressive, arbitrary and despotic
advocates, peace partners and
exercise thereof.
concerned sectors of society on both

national and local levels, on the The Court may not, of course, require the

implementation of the comprehensive PAPP to conduct the consultation in a

peace process, as well as for particular way or manner. It may,

government[-]civil society dialogue and however, require him to comply with the

consensus-building on peace agenda law and discharge the functions within

and initiatives."138 the authority granted by the President.139

In fine, E.O. No. 3 establishes petitioners' Petitioners are not claiming a seat at the

right to be consulted on the peace negotiating table, contrary to

agenda, as a corollary to the respondents' retort in justifying the denial

constitutional right to information and of petitioners' right to be consulted.

disclosure. Respondents' stance manifests the

manner by which they treat the salient

Constitutional Law 1 Nina Majica A. Pagaduan University of the Cordilleras College of Law
provisions of E.O. No. 3 on people's recommendations from the people

participation. Such disregard of the through dialogue.

express mandate of the President is not

AT ALL EVENTS, respondents effectively
much different from superficial conduct
waived the defense of executive
toward token provisos that border on
privilege in view of their unqualified
classic lip service.140 It illustrates a gross
disclosure of the official copies of the
evasion of positive duty and a virtual
final draft of the MOA-AD. By
refusal to perform the duty enjoined.
unconditionally complying with the

As for respondents' invocation of the Court's August 4, 2008 Resolution, without

doctrine of executive privilege, it is not a prayer for the document's disclosure in

tenable under the premises. The camera, or without a manifestation that

argument defies sound reason when it was complying therewith ex

contrasted with E.O. No. 3's explicit abundante ad cautelam.

provisions on continuing consultation

Petitioners' assertion that the Local
and dialogue on both national and local
Government Code (LGC) of 1991
levels. The executive order even
declares it a State policy to "require all
recognizes the exercise of the public's
national agencies and offices to
right even before the GRP makes its
conduct periodic consultations with
official recommendations or before the
appropriate local government units,
government proffers its definite
non-governmental and people's
propositions.141 It bear emphasis that E.O.
organizations, and other concerned
No. 3 seeks to elicit relevant advice,
sectors of the community before any
information, comments and
project or program is implemented in

Constitutional Law 1 Nina Majica A. Pagaduan University of the Cordilleras College of Law
their respective jurisdictions"142 is well- a particular local community. Among

taken. The LGC chapter on the programs and projects covered are

intergovernmental relations puts flesh those that are critical to the environment

into this avowed policy: and human ecology including those that

may call for the eviction of a particular

Prior Consultations Required. - No project
group of people residing in the locality
or program shall be implemented by
where these will be implemented.145 The
government authorities unlessthe
MOA-AD is one peculiar program that
consultations mentioned in Sections 2 (c)
unequivocally and unilaterally vests
and 26 hereof are complied with, and
ownership of a vast territory to the
prior approval of the sanggunian
Bangsamoro people,146 which could
concerned is obtained: Provided, That
pervasively and drastically result to the
occupants in areas where such projects
diaspora or displacement of a great
are to be implemented shall not be
number of inhabitants from their total
evicted unless appropriate relocation
environment.
sites have been provided, in

accordance with the provisions of the With respect to the indigenous cultural

Constitution.143 (Italics and underscoring communities/indigenous peoples

supplied) (ICCs/IPs), whose interests are

represented herein by petitioner Lopez

In Lina, Jr. v. Hon. Paño,144 the Court held
and are adversely affected by the MOA-
that the above-stated policy and
AD, the ICCs/IPs have, under the IPRA,
above-quoted provision of the LGU
the right to participate fully at all levels of
apply only to national programs or
decision-making in matters which may
projects which are to be implemented in
affect their rights, lives and destinies.147

Constitutional Law 1 Nina Majica A. Pagaduan University of the Cordilleras College of Law
The MOA-AD, an instrument recognizing changes to the legal framework. While

ancestral domain, failed to justify its non- paragraph 7 on Governance suspends

compliance with the clear-cut the effectivity of all provisions requiring

mechanisms ordained in said Act,148 changes to the legal framework, such

which entails, among other things, the clause is itself invalid, as will be discussed

observance of the free and prior in the following section.

informed consent of the ICCs/IPs.

Indeed, ours is an open society, with all

Notably, the IPRA does not grant the the acts of the government subject to

Executive Department or any public scrutiny and available always to

government agency the power to public cognizance. This has to be so if the

delineate and recognize an ancestral country is to remain democratic, with

domain claim by mere agreement or sovereignty residing in the people and all

compromise. The recognition of the government authority emanating from

ancestral domain is the raison d'etre of them.149

the MOA-AD, without which all other

ON THE SECOND SUBSTANTIVE ISSUE
stipulations or "consensus points"

necessarily must fail. In proceeding to With regard to the provisions of the MOA-

make a sweeping declaration on AD, there can be no question that they

ancestral domain, without complying cannot all be accommodated under the

with the IPRA, which is cited as one of the present Constitution and laws.

TOR of the MOA-AD, respondents clearly Respondents have admitted as much in

transcended the boundaries of their the oral arguments before this Court, and

authority. As it seems, even the heart of the MOA-AD itself recognizes the need

the MOA-AD is still subject to necessary to amend the existing legal framework to

Constitutional Law 1 Nina Majica A. Pagaduan University of the Cordilleras College of Law
render effective at least some of its would be useful to turn first to a general

provisions. Respondents, nonetheless, idea that serves as a unifying link to the

counter that the MOA-AD is free of any different provisions of the MOA-AD,

legal infirmity because any provisions namely, the international law concept of

therein which are inconsistent with the association. Significantly, the MOA-AD

present legal framework will not be explicitly alludes to this concept,

effective until the necessary changes to indicating that the Parties actually

that framework are made. The validity of framed its provisions with it in mind.

this argument will be considered later.

Association is referred to in paragraph 3
For now, the Court shall pass upon how
on TERRITORY, paragraph 11 on

The MOA-AD is inconsistent with the RESOURCES, and paragraph 4 on

Constitution and laws as presently GOVERNANCE. It is in the last mentioned

worded. provision, however, that the MOA-AD

most clearly uses it to describe the

In general, the objections against the
envisioned relationship between the BJE
MOA-AD center on the extent of the
and the Central Government.
powers conceded therein to the BJE.

Petitioners assert that the powers 4. The relationship between the Central

granted to the BJE exceed those Government and the Bangsamoro

granted to any local government under juridical entity shall be associative

present laws, and even go beyond those characterized by shared authority and

of the present ARMM. Before assessing responsibility with a structure of

some of the specific powers that would governance based on executive,

have been vested in the BJE, however, it legislative, judicial and administrative

Constitutional Law 1 Nina Majica A. Pagaduan University of the Cordilleras College of Law
institutions with defined powers and [a]n association is formed when two

functions in the comprehensive states of unequal power voluntarily

compact. A period of transition shall be establish durable links. In the basic

established in a comprehensive peace model, one state, the associate,

compact specifying the relationship delegates certain responsibilities to the

between the Central Government and other, the principal, while maintaining its

the BJE. (Emphasis and underscoring international status as a state. Free

supplied) associations represent a middle ground

between integration and independence.

The nature of the "associative"
x x x150 (Emphasis and underscoring
relationship may have been intended to
supplied)
be defined more precisely in the still to be

forged Comprehensive Compact. For purposes of illustration, the Republic

Nonetheless, given that there is a of the Marshall Islands and the

concept of "association" in international Federated States of Micronesia (FSM),

law, and the MOA-AD - by its inclusion of formerly part of the U.S.-administered

international law instruments in its TOR- Trust Territory of the Pacific Islands,151 are

placed itself in an international legal associated states of the U.S. pursuant to

context, that concept of association a Compact of Free Association. The

may be brought to bear in currency in these countries is the U.S.

understanding the use of the term dollar, indicating their very close ties with

"associative" in the MOA-AD. the U.S., yet they issue their own travel

documents, which is a mark of their

Keitner and Reisman state that
statehood. Their international legal status

as states was confirmed by the UN

Constitutional Law 1 Nina Majica A. Pagaduan University of the Cordilleras College of Law
Security Council and by their admission within these associated states and has

to UN membership. the right to bar the military personnel of

any third country from having access to

According to their compacts of free
these territories for military purposes.
association, the Marshall Islands and the

FSM generally have the capacity to It bears noting that in U.S. constitutional

conduct foreign affairs in their own name and international practice, free

and right, such capacity extending to association is understood as an

matters such as the law of the sea, international association between

marine resources, trade, banking, postal, sovereigns. The Compact of Free

civil aviation, and cultural relations. The Association is a treaty which is

U.S. government, when conducting its subordinate to the associated nation's

foreign affairs, is obligated to consult with national constitution, and each party

the governments of the Marshall Islands may terminate the association consistent

or the FSM on matters which it (U.S. with the right of independence. It has

government) regards as relating to or been said that, with the admission of the

affecting either government. U.S.-associated states to the UN in 1990,

the UN recognized that the American

In the event of attacks or threats against
model of free association is actually
the Marshall Islands or the FSM, the U.S.
based on an underlying status of
government has the authority and
independence.152
obligation to defend them as if they were

part of U.S. territory. The U.S. government, In international practice, the "associated

moreover, has the option of establishing state" arrangement has usually been

and using military areas and facilities used as a transitional device of former

Constitutional Law 1 Nina Majica A. Pagaduan University of the Cordilleras College of Law
colonies on their way to full protection, and sharing of revenues

independence. Examples of states that pertaining to the bodies of water

have passed through the status of adjacent to or between the islands

associated states as a transitional phase forming part of the ancestral domain,

are Antigua, St. Kitts-Nevis-Anguilla, resembles the right of the governments

Dominica, St. Lucia, St. Vincent and of FSM and the Marshall Islands to be

Grenada. All have since become consulted by the U.S. government on any

independent states.153 foreign affairs matter affecting them.

Back to the MOA-AD, it contains many These provisions of the MOA indicate,

provisions which are consistent with the among other things, that the Parties

international legal concept of aimed to vest in the BJE the status of an

association, specifically the following: associated state or, at any rate, a status

the BJE's capacity to enter into closely approximating it.

economic and trade relations with

The concept of association is not
foreign countries, the commitment of the
recognized under the present
Central Government to ensure the BJE's
Constitution
participation in meetings and events in

the ASEAN and the specialized UN No province, city, or municipality, not

agencies, and the continuing even the ARMM, is recognized under our

responsibility of the Central Government laws as having an "associative"

over external defense. Moreover, the relationship with the national

BJE's right to participate in Philippine government. Indeed, the concept

official missions bearing on negotiation implies powers that go beyond anything

of border agreements, environmental ever granted by the Constitution to any

Constitutional Law 1 Nina Majica A. Pagaduan University of the Cordilleras College of Law
local or regional government. It also SECTION 15. There shall be created

implies the recognition of the associated autonomous regions in Muslim Mindanao

entity as a state. The Constitution, and in the Cordilleras consisting of

however, does not contemplate any provinces, cities, municipalities, and

state in this jurisdiction other than the geographical areas sharing common

Philippine State, much less does it and distinctive historical and cultural

provide for a transitory status that aims to heritage, economic and social

prepare any part of Philippine territory for structures, and other relevant

independence. characteristics within the framework of

this Constitution and the national

Even the mere concept animating many
sovereignty as well as territorial integrity
of the MOA-AD's provisions, therefore,
of the Republic of the Philippines.
already requires for its validity the

amendment of constitutional provisions, The BJE is a far more powerful

specifically the following provisions of entity than the autonomous region

Article X: recognized in the Constitution

SECTION 1. The territorial and political It is not merely an expanded version of

subdivisions of the Republic of the the ARMM, the status of its relationship

Philippines are the provinces, cities, with the national government being

municipalities, and barangays. There fundamentally different from that of the

shall be autonomous regions in Muslim ARMM. Indeed, BJE is a state in all but

Mindanao and the Cordilleras as name as it meets the criteria of a state

hereinafter provided. laid down in the Montevideo

Convention,154 namely, a permanent

Constitutional Law 1 Nina Majica A. Pagaduan University of the Cordilleras College of Law
population, a defined territory, a votes cast by the constituent units in a

government, and a capacity to enter plebiscite called for the purpose,

into relations with other states. provided that only provinces, cities, and

geographic areas voting favorably in

Even assuming arguendo that the MOA-
such plebiscite shall be included in the
AD would not necessarily sever any
autonomous region." (Emphasis supplied)
portion of Philippine territory, the spirit

animating it - which has betrayed itself by As reflected above, the BJE is more of a

its use of the concept of association - state than an autonomous region. But

runs counter to the national sovereignty even assuming that it is covered by the

and territorial integrity of the Republic. term "autonomous region" in the

constitutional provision just quoted, the

The defining concept underlying the
MOA-AD would still be in conflict with it.
relationship between the national
Under paragraph 2(c) on TERRITORY in
government and the BJE being itself
relation to 2(d) and 2(e), the present
contrary to the present Constitution, it is
geographic area of the ARMM and, in
not surprising that many of the specific
addition, the municipalities of Lanao del
provisions of the MOA-AD on the
Norte which voted for inclusion in the
formation and powers of the BJE are in
ARMM during the 2001 plebiscite - Baloi,
conflict with the Constitution and the
Munai, Nunungan, Pantar, Tagoloan and
laws.
Tangkal - are automatically part of the

Article X, Section 18 of the Constitution BJE without need of another plebiscite, in

provides that "[t]he creation of the contrast to the areas under Categories A

autonomous region shall be effective and B mentioned earlier in the overview.

when approved by a majority of the That the present components of the

Constitutional Law 1 Nina Majica A. Pagaduan University of the Cordilleras College of Law
ARMM and the above-mentioned (4) Personal, family, and property

municipalities voted for inclusion therein relations;

in 2001, however, does not render

(5) Regional urban and rural planning
another plebiscite unnecessary under
development;
the Constitution, precisely because what

these areas voted for then was their (6) Economic, social, and tourism

inclusion in the ARMM, not the BJE. development;

The MOA-AD, moreover, would not (7) Educational policies;

comply with Article X, Section 20 of

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

since that provision defines the powers of

(9) Such other matters as may be
autonomous regions as follows:
authorized by law for the promotion of

SECTION 20. Within its territorial jurisdiction the general welfare of the people of the

and subject to the provisions of this region. (Underscoring supplied)

Constitution and national laws, the

Again on the premise that the BJE may
organic act of autonomous regions shall
be regarded as an autonomous region,
provide for legislative powers over:
the MOA-AD would require an

(1) Administrative organization; amendment that would expand the

above-quoted provision. The mere

(2) Creation of sources of revenues;
passage of new legislation pursuant to

(3) Ancestral domain and natural sub-paragraph No. 9 of said

resources; constitutional provision would not suffice,

Constitutional Law 1 Nina Majica A. Pagaduan University of the Cordilleras College of Law
since any new law that might vest in the As the chief architect of foreign policy,

BJE the powers found in the MOA-AD the President acts as the country's

must, itself, comply with other provisions mouthpiece with respect to international

of the Constitution. It would not do, for affairs. Hence, the President is vested

instance, to merely pass legislation with the authority to deal with foreign

vesting the BJE with treaty-making power states and governments, extend or

in order to accommodate paragraph 4 withhold recognition, maintain

of the strand on RESOURCES which diplomatic relations, enter into treaties,

states: "The BJE is free to enter into any and otherwise transact the business of

economic cooperation and trade foreign relations. In the realm of treaty-

relations with foreign countries: provided, making, the President has the sole

however, that such relationships and authority to negotiate with other states.

understandings do not include (Emphasis and underscoring supplied)

aggression against the Government of

Article II, Section 22 of the Constitution
the Republic of the Philippines x x x."
must also be amended if the scheme
Under our constitutional system, it is only
envisioned in the MOA-AD is to be
the President who has that power.
effected. That constitutional provision
Pimentel v. Executive Secretary155
states: "The State recognizes and
instructs:
promotes the rights of indigenous cultural

In our system of government, the communities within the framework of

President, being the head of state, is national unity and development."

regarded as the sole organ and authority (Underscoring supplied) An associative

in external relations and is the country's arrangement does not uphold national

sole representative with foreign nations. unity. While there may be a semblance

Constitutional Law 1 Nina Majica A. Pagaduan University of the Cordilleras College of Law
of unity because of the associative ties refers to those who are natives or original

between the BJE and the national inhabitants of Mindanao and its adjacent

government, the act of placing a portion islands including Palawan and the Sulu

of Philippine territory in a status which, in archipelago at the time of conquest or

international practice, has generally colonization of its descendants whether

been a preparation for independence, is mixed or of full blood. Spouses and their

certainly not conducive to national descendants are classified as

unity. Bangsamoro. The freedom of choice of

the Indigenous people shall be

Besides being irreconcilable with the
respected. (Emphasis and underscoring
Constitution, the MOA-AD is also
supplied)
inconsistent with prevailing statutory law,

among which are R.A. No. 9054156 or the This use of the term Bangsamoro sharply

Organic Act of the ARMM, and the contrasts with that found in the Article X,

IPRA.157 Section 3 of the Organic Act, which,

rather than lumping together the

Article X, Section 3 of the Organic Act of
identities of the Bangsamoro and other
the ARMM is a bar to the adoption of the
indigenous peoples living in Mindanao,
definition of "Bangsamoro people" used
clearly distinguishes between
in the MOA-AD. Paragraph 1 on
Bangsamoro people and Tribal peoples,
Concepts and Principles states:
as follows:

1. It is the birthright of all Moros and all

"As used in this Organic Act, the phrase
Indigenous peoples of Mindanao to
"indigenous cultural community" refers to
identify themselves and be accepted as

"Bangsamoros". The Bangsamoro people

Constitutional Law 1 Nina Majica A. Pagaduan University of the Cordilleras College of Law
Filipino citizens residing in the fluvial and alluvial domains, and the

autonomous region who are: aerial domain, the atmospheric space

above it, embracing the Mindanao-Sulu-

(a) Tribal peoples. These are citizens
Palawan geographic region."
whose social, cultural and economic

conditions distinguish them from other Chapter VIII of the IPRA, on the other

sectors of the national community; and hand, lays down a detailed procedure,

as illustrated in the following provisions

(b) Bangsa Moro people. These are
thereof:
citizens who are believers in Islam and

who have retained some or all of their SECTION 52. Delineation Process. - The

own social, economic, cultural, and identification and delineation of

political institutions." ancestral domains shall be done in

accordance with the following

Respecting the IPRA, it lays down the
procedures:
prevailing procedure for the delineation

and recognition of ancestral domains. xxxx

The MOA-AD's manner of delineating the

b) Petition for Delineation. - The process
ancestral domain of the Bangsamoro
of delineating a specific perimeter may
people is a clear departure from that
be initiated by the NCIP with the consent
procedure. By paragraph 1 of Territory,
of the ICC/IP concerned, or through a
the Parties simply agree that, subject to
Petition for Delineation filed with the
the delimitations in the agreed
NCIP, by a majority of the members of
Schedules, "[t]he Bangsamoro homeland
the ICCs/IPs;
and historic territory refer to the land

mass as well as the maritime, terrestrial,

Constitutional Law 1 Nina Majica A. Pagaduan University of the Cordilleras College of Law
c) Delineation Proper. - The official 1) Written accounts of the ICCs/IPs

delineation of ancestral domain customs and traditions;

boundaries including census of all

2) Written accounts of the ICCs/IPs
community members therein, shall be
political structure and institution;
immediately undertaken by the

Ancestral Domains Office upon filing of 3) Pictures showing long term

the application by the ICCs/IPs occupation such as those of old

concerned. Delineation will be done in improvements, burial grounds, sacred

coordination with the community places and old villages;

concerned and shall at all times include

4) Historical accounts, including pacts
genuine involvement and participation
and agreements concerning boundaries
by the members of the communities
entered into by the ICCs/IPs concerned
concerned;
with other ICCs/IPs;

d) Proof Required. - Proof of Ancestral

5) Survey plans and sketch maps;
Domain Claims shall include the
6) Anthropological data;
testimony of elders or community under

oath, and other documents directly or

7) Genealogical surveys;
indirectly attesting to the possession or
8) Pictures and descriptive histories of
occupation of the area since time
traditional communal forests and
immemorial by such ICCs/IPs in the
hunting grounds;
concept of owners which shall be any

one (1) of the following authentic 9) Pictures and descriptive histories of

documents: traditional landmarks such as mountains,

Constitutional Law 1 Nina Majica A. Pagaduan University of the Cordilleras College of Law
rivers, creeks, ridges, hills, terraces and prominent place therein for at least

the like; and fifteen (15) days. A copy of the

document shall also be posted at the

10) Write-ups of names and places
local, provincial and regional offices of
derived from the native dialect of the
the NCIP, and shall be published in a
community.
newspaper of general circulation once a

e) Preparation of Maps. - On the basis of week for two (2) consecutive weeks to

such investigation and the findings of allow other claimants to file opposition

fact based thereon, the Ancestral thereto within fifteen (15) days from date

Domains Office of the NCIP shall prepare of such publication: Provided, That in

a perimeter map, complete with areas where no such newspaper exists,

technical descriptions, and a description broadcasting in a radio station will be a

of the natural features and landmarks valid substitute: Provided, further, That

embraced therein; mere posting shall be deemed sufficient

if both newspaper and radio station are

f) Report of Investigation and Other
not available;
Documents. - A complete copy of the

preliminary census and a report of h) Endorsement to NCIP. - Within fifteen

investigation, shall be prepared by the (15) days from publication, and of the

Ancestral Domains Office of the NCIP; inspection process, the Ancestral

Domains Office shall prepare a report to

g) Notice and Publication. - A copy of
the NCIP endorsing a favorable action
each document, including a translation
upon a claim that is deemed to have
in the native language of the ICCs/IPs
sufficient proof. However, if the proof is
concerned shall be posted in a
deemed insufficient, the Ancestral

Constitutional Law 1 Nina Majica A. Pagaduan University of the Cordilleras College of Law
Domains Office shall require the To remove all doubts about the

submission of additional evidence: irreconcilability of the MOA-AD with the

Provided, That the Ancestral Domains present legal system, a discussion of not

Office shall reject any claim that is only the Constitution and domestic

deemed patently false or fraudulent statutes, but also of international law is in

after inspection and verification: order, for

Provided, further, That in case of

Article II, Section 2 of the Constitution
rejection, the Ancestral Domains Office
states that the Philippines "adopts the
shall give the applicant due notice, copy
generally accepted principles of
furnished all concerned, containing the
international law as part of the law of the
grounds for denial. The denial shall be
land."
appealable to the NCIP: Provided,

furthermore, That in cases where there Applying this provision of the

are conflicting claims among ICCs/IPs on Constitution, the Court, in Mejoff v.

the boundaries of ancestral domain Director of Prisons,158 held that the

claims, the Ancestral Domains Office Universal Declaration of Human Rights is

shall cause the contending parties to part of the law of the land on account of

meet and assist them in coming up with which it ordered the release on bail of a

a preliminary resolution of the conflict, detained alien of Russian descent whose

without prejudice to its full adjudication deportation order had not been

according to the section below. executed even after two years. Similarly,

the Court in Agustin v. Edu159 applied the

xxxx
aforesaid constitutional provision to the

Constitutional Law 1 Nina Majica A. Pagaduan University of the Cordilleras College of Law
1968 Vienna Convention on Road Signs Cultural Rights162 which state, in Article 1

and Signals. of both covenants, that all peoples, by

virtue of the right of self-determination,

International law has long recognized
"freely determine their political status and
the right to self-determination of
freely pursue their economic, social, and
"peoples," understood not merely as the
cultural development."
entire population of a State but also a

portion thereof. In considering the The people's right to self-determination

question of whether the people of should not, however, be understood as

Quebec had a right to unilaterally extending to a unilateral right of

secede from Canada, the Canadian secession. A distinction should be made

Supreme Court in REFERENCE RE between the right of internal and

SECESSION OF QUEBEC160 had occasion external self-determination. REFERENCE

to acknowledge that "the right of a RE SECESSION OF QUEBEC is again

people to self-determination is now so instructive:

widely recognized in international

"(ii) Scope of the Right to Self-
conventions that the principle has
determination
acquired a status beyond ‘convention'

and is considered a general principle of 126. The recognized sources of

international law." international law establish that the right

to self-determination of a people is
Among the conventions referred to are
normally fulfilled through internal self-
the International Covenant on Civil and
determination - a people's pursuit of its
Political Rights161 and the International
political, economic, social and cultural
Covenant on Economic, Social and
development within the framework of an

Constitutional Law 1 Nina Majica A. Pagaduan University of the Cordilleras College of Law
existing state. A right to external self- integrity of existing states. The various

determination (which in this case international documents that support the

potentially takes the form of the assertion existence of a people's right to self-

of a right to unilateral secession) arises in determination also contain parallel

only the most extreme of cases and, statements supportive of the conclusion

even then, under carefully defined that the exercise of such a right must be

circumstances. x x x sufficiently limited to prevent threats to

an existing state's territorial integrity or the

External self-determination can be
stability of relations between sovereign
defined as in the following statement
states.
from the Declaration on Friendly

Relations, supra, as x x x x (Emphasis, italics and underscoring

supplied)
The establishment of a sovereign and

independent State, the free association The Canadian Court went on to discuss

or integration with an independent State the exceptional cases in which the right

or the emergence into any other political to external self-determination can arise,

status freely determined by a namely, where a people is under

peopleconstitute modes of colonial rule, is subject to foreign

implementing the right of self- domination or exploitation outside a

determination by that people. (Emphasis colonial context, and - less definitely but

added) asserted by a number of commentators -

is blocked from the meaningful exercise

127. The international law principle of
of its right to internal self-determination.
self-determination has evolved within a
The Court ultimately held that the
framework of respect for the territorial

Constitutional Law 1 Nina Majica A. Pagaduan University of the Cordilleras College of Law
population of Quebec had no right to before resolving the question, appointed

secession, as the same is not under an International Committee composed

colonial rule or foreign domination, nor is of three jurists to submit an opinion on the

it being deprived of the freedom to preliminary issue of whether the dispute

make political choices and pursue should, based on international law, be

economic, social and cultural entirely left to the domestic jurisdiction of

development, citing that Quebec is Finland. The Committee stated the rule

equitably represented in legislative, as follows:

executive and judicial institutions within

x x x [I]n the absence of express
Canada, even occupying prominent
provisions in international treaties, the
positions therein.
right of disposing of national territory is

The exceptional nature of the right of essentially an attribute of the sovereignty

secession is further exemplified in the of every State. Positive International Law

REPORT OF THE INTERNATIONAL does not recognize the right of national

COMMITTEE OF JURISTS ON THE LEGAL groups, as such, to separate themselves

ASPECTS OF THE AALAND ISLANDS from the State of which they form part by

QUESTION.163 There, Sweden presented the simple expression of a wish, any more

to the Council of the League of Nations than it recognizes the right of other States

the question of whether the inhabitants to claim such a separation. Generally

of the Aaland Islands should be speaking, the grant or refusal of the right

authorized to determine by plebiscite if to a portion of its population of

the archipelago should remain under determining its own political fate by

Finnish sovereignty or be incorporated in plebiscite or by some other method, is,

the kingdom of Sweden. The Council, exclusively, an attribute of the

Constitutional Law 1 Nina Majica A. Pagaduan University of the Cordilleras College of Law
sovereignty of every State which is international law to the domestic

definitively constituted. A dispute jurisdiction of Finland, thereby applying

between two States concerning such a the exception rather than the rule

question, under normal conditions elucidated above. Its ground for

therefore, bears upon a question which departing from the general rule,

International Law leaves entirely to the however, was a very narrow one,

domestic jurisdiction of one of the States namely, the Aaland Islands agitation

concerned. Any other solution would originated at a time when Finland was

amount to an infringement of sovereign undergoing drastic political

rights of a State and would involve the transformation. The internal situation of

risk of creating difficulties and a lack of Finland was, according to the

stability which would not only be Committee, so abnormal that, for a

contrary to the very idea embodied in considerable time, the conditions

term "State," but would also endanger required for the formation of a sovereign

the interests of the international State did not exist. In the midst of

community. If this right is not possessed revolution, anarchy, and civil war, the

by a large or small section of a nation, legitimacy of the Finnish national

neither can it be held by the State to government was disputed by a large

which the national group wishes to be section of the people, and it had, in fact,

attached, nor by any other State. been chased from the capital and

(Emphasis and underscoring supplied) forcibly prevented from carrying out its

duties. The armed camps and the police

The Committee held that the dispute
were divided into two opposing forces. In
concerning the Aaland Islands did not
light of these circumstances, Finland was
refer to a question which is left by

Constitutional Law 1 Nina Majica A. Pagaduan University of the Cordilleras College of Law
not, during the relevant time period, a born of the forces of empire and

"definitively constituted" sovereign state. conquest.164 Examples of groups who

The Committee, therefore, found that have been regarded as indigenous

Finland did not possess the right to peoples are the Maori of New Zealand

withhold from a portion of its population and the aboriginal peoples of Canada.

the option to separate itself - a right

As with the broader category of
which sovereign nations generally have
"peoples," indigenous peoples situated
with respect to their own populations.
within states do not have a general right

Turning now to the more specific to independence or secession from

category of indigenous peoples, this those states under international law,165

term has been used, in scholarship as but they do have rights amounting to

well as international, regional, and state what was discussed above as the right to

practices, to refer to groups with distinct internal self-determination.

cultures, histories, and connections to

In a historic development last September
land (spiritual and otherwise) that have
13, 2007, the UN General Assembly
been forcibly incorporated into a larger
adopted the United Nations Declaration
governing society. These groups are
on the Rights of Indigenous Peoples (UN
regarded as "indigenous" since they are
DRIP) through General Assembly
the living descendants of pre-invasion
Resolution 61/295. The vote was 143 to 4,
inhabitants of lands now dominated by
the Philippines being included among
others. Otherwise stated, indigenous
those in favor, and the four voting
peoples, nations, or communities are
against being Australia, Canada, New
culturally distinctive groups that find
Zealand, and the U.S. The Declaration
themselves engulfed by settler societies

Constitutional Law 1 Nina Majica A. Pagaduan University of the Cordilleras College of Law
clearly recognized the right of cultural institutions, while retaining their

indigenous peoples to self- right to participate fully, if they so

determination, encompassing the right to choose, in the political, economic, social

autonomy or self-government, to wit: and cultural life of the State.

Article 3 Self-government, as used in international

legal discourse pertaining to indigenous

Indigenous peoples have the right to
peoples, has been understood as
self-determination. By virtue of that right
equivalent to "internal self-
they freely determine their political status
determination."166 The extent of self-
and freely pursue their economic, social
determination provided for in the UN
and cultural development.
DRIP is more particularly defined in its

Article 4 subsequent articles, some of which are

quoted hereunder:
Indigenous peoples, in exercising their

right to self-determination, have the right Article 8

to autonomy or self-government in
1. Indigenous peoples and individuals
matters relating to their internal and local
have the right not to be subjected to
affairs, as well as ways and means for
forced assimilation or destruction of their
financing their autonomous functions.
culture.

Article 5
2. States shall provide effective

Indigenous peoples have the right to mechanisms for prevention of, and

maintain and strengthen their distinct redress for:

political, legal, economic, social and

Constitutional Law 1 Nina Majica A. Pagaduan University of the Cordilleras College of Law
(a) Any action which has the aim or vocational training and retraining,

effect of depriving them of their integrity housing, sanitation, health and social

as distinct peoples, or of their cultural security.

values or ethnic identities;

2. States shall take effective measures

(b) Any action which has the aim or and, where appropriate, special

effect of dispossessing them of their measures to ensure continuing

lands, territories or resources; improvement of their economic and

social conditions. Particular attention

(c) Any form of forced population transfer
shall be paid to the rights and special
which has the aim or effect of violating or
needs of indigenous elders, women,
undermining any of their rights;
youth, children and persons with

(d) Any form of forced assimilation or disabilities.

integration;
Article 26

(e) Any form of propaganda designed to

1. Indigenous peoples have the right to
promote or incite racial or ethnic
the lands, territories and resources which
discrimination directed against them.
they have traditionally owned, occupied

Article 21 or otherwise used or acquired.

1. Indigenous peoples have the right, 2. Indigenous peoples have the right to

without discrimination, to the own, use, develop and control the lands,

improvement of their economic and territories and resources that they possess

social conditions, including, inter alia, in by reason of traditional ownership or

the areas of education, employment, other traditional occupation or use, as

Constitutional Law 1 Nina Majica A. Pagaduan University of the Cordilleras College of Law
well as those which they have otherwise institutions, prior to using their lands or

acquired. territories for military activities.

3. States shall give legal recognition and Article 32

protection to these lands, territories and

1. Indigenous peoples have the right to
resources. Such recognition shall be
determine and develop priorities and
conducted with due respect to the
strategies for the development or use of
customs, traditions and land tenure
their lands or territories and other
systems of the indigenous peoples
resources.
concerned.

2. States shall consult and cooperate in

Article 30
good faith with the indigenous peoples

1. Military activities shall not take place in concerned through their own

the lands or territories of indigenous representative institutions in order to

peoples, unless justified by a relevant obtain their free and informed consent

public interest or otherwise freely agreed prior to the approval of any project

with or requested by the indigenous affecting their lands or territories and

peoples concerned. other resources, particularly in

connection with the development,

2. States shall undertake effective
utilization or exploitation of mineral,
consultations with the indigenous
water or other resources.
peoples concerned, through

appropriate procedures and in 3. States shall provide effective

particular through their representative mechanisms for just and fair redress for

any such activities, and appropriate

Constitutional Law 1 Nina Majica A. Pagaduan University of the Cordilleras College of Law
measures shall be taken to mitigate legislative measures, to achieve the ends

adverse environmental, economic, of this Declaration.

social, cultural or spiritual impact.

Assuming that the UN DRIP, like the

Article 37 Universal Declaration on Human Rights,

must now be regarded as embodying

1. Indigenous peoples have the right to
customary international law - a question
the recognition, observance and
which the Court need not definitively
enforcement of treaties, agreements
resolve here - the obligations
and other constructive arrangements
enumerated therein do not strictly
concluded with States or their successors
require the Republic to grant the
and to have States honour and respect
Bangsamoro people, through the
such treaties, agreements and other
instrumentality of the BJE, the particular
constructive arrangements.
rights and powers provided for in the

2. Nothing in this Declaration may be MOA-AD. Even the more specific

interpreted as diminishing or eliminating provisions of the UN DRIP are general in

the rights of indigenous peoples scope, allowing for flexibility in its

contained in treaties, agreements and application by the different States.

other constructive arrangements.

There is, for instance, no requirement in

Article 38 the UN DRIP that States now guarantee

indigenous peoples their own police and

States in consultation and cooperation
internal security force. Indeed, Article 8
with indigenous peoples, shall take the
presupposes that it is the State which will
appropriate measures, including
provide protection for indigenous

Constitutional Law 1 Nina Majica A. Pagaduan University of the Cordilleras College of Law
peoples against acts like the forced document are qualified in Article 46 as

dispossession of their lands - a function follows:

that is normally performed by police

1. Nothing in this Declaration may be
officers. If the protection of a right so
interpreted as implying for any State,
essential to indigenous people's identity
people, group or person any right to
is acknowledged to be the responsibility
engage in any activity or to perform any
of the State, then surely the protection of
act contrary to the Charter of the United
rights less significant to them as such
Nations or construed as authorizing or
peoples would also be the duty of States.
encouraging any action which would
Nor is there in the UN DRIP an
dismember or impair, totally or in part,
acknowledgement of the right of
the territorial integrity or political unity of
indigenous peoples to the aerial domain
sovereign and independent States.
and atmospheric space. What it

upholds, in Article 26 thereof, is the right Even if the UN DRIP were considered as

of indigenous peoples to the lands, part of the law of the land pursuant to

territories and resources which they have Article II, Section 2 of the Constitution, it

traditionally owned, occupied or would not suffice to uphold the validity of

otherwise used or acquired. the MOA-AD so as to render its

compliance with other laws

Moreover, the UN DRIP, while upholding
unnecessary.
the right of indigenous peoples to

autonomy, does not obligate States to It is, therefore, clear that the MOA-AD

grant indigenous peoples the near- contains numerous provisions that

independent status of an associated cannot be reconciled with the

state. All the rights recognized in that Constitution and the laws as presently

Constitutional Law 1 Nina Majica A. Pagaduan University of the Cordilleras College of Law
worded. Respondents proffer, however, regard to non derogation of prior

that the signing of the MOA-AD alone agreements and within the stipulated

would not have entailed any violation of timeframe to be contained in the

law or grave abuse of discretion on their Comprehensive Compact.

part, precisely because it stipulates that

Indeed, the foregoing stipulation keeps
the provisions thereof inconsistent with
many controversial provisions of the
the laws shall not take effect until these
MOA-AD from coming into force until the
laws are amended. They cite paragraph
necessary changes to the legal
7 of the MOA-AD strand on
framework are effected. While the word
GOVERNANCE quoted earlier, but which
"Constitution" is not mentioned in the
is reproduced below for convenience:
provision now under consideration or

7. The Parties agree that the mechanisms anywhere else in the MOA-AD, the term

and modalities for the actual "legal framework" is certainly broad

implementation of this MOA-AD shall be enough to include the Constitution.

spelt out in the Comprehensive

Notwithstanding the suspensive clause,
Compact to mutually take such steps to
however, respondents, by their mere act
enable it to occur effectively.
of incorporating in the MOA-AD the

Any provisions of the MOA-AD requiring provisions thereof regarding the

amendments to the existing legal associative relationship between the BJE

framework shall come into force upon and the Central Government, have

signing of a Comprehensive Compact already violated the Memorandum of

and upon effecting the necessary Instructions From The President dated

changes to the legal framework with due March 1, 2001, which states that the

Constitutional Law 1 Nina Majica A. Pagaduan University of the Cordilleras College of Law
"negotiations shall be conducted in to conduct negotiations, dialogues, and

accordance with x x x the principles of face-to-face discussions with rebel

the sovereignty and territorial integrityof groups." These negotiating panels are to

the Republic of the Philippines." report to the President, through the PAPP

(Emphasis supplied) Establishing an on the conduct and progress of the

associative relationship between the BJE negotiations.

and the Central Government is, for the

It bears noting that the GRP Peace
reasons already discussed, a preparation
Panel, in exploring lasting solutions to the
for independence, or worse, an implicit
Moro Problem through its negotiations
acknowledgment of an independent
with the MILF, was not restricted by E.O.
status already prevailing.
No. 3 only to those options available

Even apart from the above-mentioned under the laws as they presently stand.

Memorandum, however, the MOA-AD is One of the components of a

defective because the suspensive comprehensive peace process, which

clause is invalid, as discussed below. E.O. No. 3 collectively refers to as the

"Paths to Peace," is the pursuit of social,

The authority of the GRP Peace
economic, and political reforms which
Negotiating Panel to negotiate with the
may require new legislation or even
MILF is founded on E.O. No. 3, Section
constitutional amendments. Sec. 4(a) of
5(c), which states that there shall be
E.O. No. 3, which reiterates Section 3(a),
established Government Peace
of E.O. No. 125,167 states:
Negotiating Panels for negotiations with

different rebel groups to be "appointed SECTION 4. The Six Paths to Peace. - The

by the President as her official emissaries components of the comprehensive

Constitutional Law 1 Nina Majica A. Pagaduan University of the Cordilleras College of Law
peace process comprise the processes authorized them to "think outside the

known as the "Paths to Peace". These box," so to speak. Hence, they

component processes are interrelated negotiated and were set on signing the

and not mutually exclusive, and must MOA-AD that included various social,

therefore be pursued simultaneously in a economic, and political reforms which

coordinated and integrated fashion. cannot, however, all be

They shall include, but may not be limited accommodated within the present legal

to, the following: framework, and which thus would

require new legislation and constitutional

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

involves the vigorous implementation of The inquiry on the legality of the

various policies, reforms, programs and "suspensive clause," however, cannot

projects aimed at addressing the root stop here, because it must be asked

causes of internal armed conflicts and whether the President herself may

social unrest. This may require exercise the power delegated to the GRP

administrative action, new legislation or Peace Panel under E.O. No. 3, Sec. 4(a).

even constitutional amendments.

The President cannot delegate a power

x x x x (Emphasis supplied) that she herself does not possess. May

the President, in the course of peace

The MOA-AD, therefore, may reasonably
negotiations, agree to pursue reforms
be perceived as an attempt of
that would require new legislation and
respondents to address, pursuant to this
constitutional amendments, or should
provision of E.O. No. 3, the root causes of
the reforms be restricted only to those
the armed conflict in Mindanao. The E.O.

Constitutional Law 1 Nina Majica A. Pagaduan University of the Cordilleras College of Law
solutions which the present laws allow? power and which are necessary for her

The answer to this question requires a to comply with her duties under the

discussion of the extent of the President's Constitution. The powers of the President

power to conduct peace negotiations. are not limited to what are expressly

enumerated in the article on the

That the authority of the President to
Executive Department and in scattered
conduct peace negotiations with rebel
provisions of the Constitution. This is so,
groups is not explicitly mentioned in the
notwithstanding the avowed intent of
Constitution does not mean that she has
the members of the Constitutional
no such authority. In Sanlakas v.
Commission of 1986 to limit the powers of
Executive Secretary,168 in issue was the
the President as a reaction to the abuses
authority of the President to declare a
under the regime of Mr. Marcos, for the
state of rebellion - an authority which is
result was a limitation of specific powers
not expressly provided for in the
of the President, particularly those
Constitution. The Court held thus:
relating to the commander-in-chief

"In her ponencia in Marcos v. Manglapus, clause, but not a diminution of the

Justice Cortes put her thesis into general grant of executive power.

jurisprudence. There, the Court, by a slim

Thus, the President's authority to declare
8-7 margin, upheld the President's power
a state of rebellion springs in the main
to forbid the return of her exiled
from her powers as chief executive and,
predecessor. The rationale for the
at the same time, draws strength from her
majority's ruling rested on the President's
Commander-in-Chief powers. x x x

. . . unstated residual powers which are (Emphasis and underscoring supplied)

implied from the grant of executive

Constitutional Law 1 Nina Majica A. Pagaduan University of the Cordilleras College of Law
Similarly, the President's power to peace-building mission. As we have

conduct peace negotiations is implicitly observed in Liberia and Haiti over the last

included in her powers as Chief ten years, conflict cessation without

Executive and Commander-in-Chief. As modification of the political

Chief Executive, the President has the environment, even where state-building

general responsibility to promote public is undertaken through technical

peace, and as Commander-in-Chief, electoral assistance and institution- or

she has the more specific duty to prevent capacity-building, is unlikely to succeed.

and suppress rebellion and lawless On average, more than 50 percent of

violence.169 states emerging from conflict return to

conflict. Moreover, a substantial

As the experience of nations which have
proportion of transitions have resulted in
similarly gone through internal armed
weak or limited democracies.
conflict will show, however, peace is

rarely attained by simply pursuing a The design of a constitution and its

military solution. Oftentimes, changes as constitution-making process can play an

far-reaching as a fundamental important role in the political and

reconfiguration of the nation's governance transition. Constitution-

constitutional structure is required. The making after conflict is an opportunity to

observations of Dr. Kirsti Samuels are create a common vision of the future of

enlightening, to wit: a state and a road map on how to get

there. The constitution can be partly a

x x x [T]he fact remains that a successful
peace agreement and partly a
political and governance transition must
framework setting up the rules by which
form the core of any post-conflict
the new democracy will operate.170

Constitutional Law 1 Nina Majica A. Pagaduan University of the Cordilleras College of Law
In the same vein, Professor Christine Bell, MR. ROMULO. There are other speakers;

in her article on the nature and legal so, although I have some more questions,

status of peace agreements, observed I will reserve my right to ask them if they

that the typical way that peace are not covered by the other speakers. I

agreements establish or confirm have only two questions.

mechanisms for demilitarization and

I heard one of the Commissioners say
demobilization is by linking them to new
that local autonomy already exists in the
constitutional structures addressing
Muslim region; it is working very well; it
governance, elections, and legal and
has, in fact, diminished a great deal of
human rights institutions.171
the problems. So, my question is: since

In the Philippine experience, the link that already exists, why do we have to go

between peace agreements and into something new?

constitution-making has been

MR. OPLE. May I answer that on behalf of
recognized by no less than the framers of
Chairman Nolledo. Commissioner Yusup
the Constitution. Behind the provisions of
Abubakar is right that certain definite
the Constitution on autonomous
steps have been taken to implement the
regions172 is the framers' intention to
provisions of the Tripoli Agreement with
implement a particular peace
respect to an autonomous region in
agreement, namely, the Tripoli
Mindanao. This is a good first step, but
Agreement of 1976 between the GRP
there is no question that this is merely a
and the MNLF, signed by then
partial response to the Tripoli Agreement
Undersecretary of National Defense
itself and to the fuller standard of regional
Carmelo Z. Barbero and then MNLF
autonomy contemplated in that
Chairman Nur Misuari.

Constitutional Law 1 Nina Majica A. Pagaduan University of the Cordilleras College of Law
agreement, and now by state The President may not, of course,

policy.173(Emphasis supplied) unilaterally implement the solutions that

she considers viable, but she may not be

The constitutional provisions on
prevented from submitting them as
autonomy and the statutes enacted
recommendations to Congress, which
pursuant to them have, to the credit of
could then, if it is minded, act upon them
their drafters, been partly successful.
pursuant to the legal procedures for
Nonetheless, the Filipino people are still
constitutional amendment and revision.
faced with the reality of an on-going
In particular, Congress would have the
conflict between the Government and
option, pursuant to Article XVII, Sections 1
the MILF. If the President is to be
and 3 of the Constitution, to propose the
expected to find means for bringing this
recommended amendments or revision
conflict to an end and to achieve lasting
to the people, call a constitutional
peace in Mindanao, then she must be
convention, or submit to the electorate
given the leeway to explore, in the
the question of calling such a
course of peace negotiations, solutions
convention.
that may require changes to the

Constitution for their implementation. While the President does not possess

Being uniquely vested with the power to constituent powers - as those powers

conduct peace negotiations with rebel may be exercised only by Congress, a

groups, the President is in a singular Constitutional Convention, or the people

position to know the precise nature of through initiative and referendum - she

their grievances which, if resolved, may may submit proposals for constitutional

bring an end to hostilities. change to Congress in a manner that

Constitutional Law 1 Nina Majica A. Pagaduan University of the Cordilleras College of Law
does not involve the arrogation of that which was not disputed by either

constituent powers. side.

In Sanidad v. COMELEC,174 in issue was Justice Teehankee's dissent,175 in

the legality of then President Marcos' act particular, bears noting. While he

of directly submitting proposals for disagreed that the President may directly

constitutional amendments to a submit proposed constitutional

referendum, bypassing the interim amendments to a referendum, implicit in

National Assembly which was the body his opinion is a recognition that he would

vested by the 1973 Constitution with the have upheld the President's action along

power to propose such amendments. with the majority had the President

President Marcos, it will be recalled, convened the interim National Assembly

never convened the interim National and coursed his proposals through it. Thus

Assembly. The majority upheld the Justice Teehankee opined:

President's act, holding that "the urges of

"Since the Constitution provides for the
absolute necessity" compelled the
organization of the essential
President as the agent of the people to
departments of government, defines
act as he did, there being no interim
and delimits the powers of each and
National Assembly to propose
prescribes the manner of the exercise of
constitutional amendments. Against this
such powers, and the constituent power
ruling, Justices Teehankee and Muñoz
has not been granted to but has been
Palma vigorously dissented. The Court's
withheld from the President or Prime
concern at present, however, is not with
Minister, it follows that the President's
regard to the point on which it was then
questioned decrees proposing and
divided in that controversial case, but on

Constitutional Law 1 Nina Majica A. Pagaduan University of the Cordilleras College of Law
submitting constitutional amendments voted on in a plebiscite similar to what

directly to the people (without the President Marcos did in Sanidad, but for

intervention of the interim National their independent consideration of

Assembly in whom the power is expressly whether these recommendations merit

vested) are devoid of constitutional and being formally proposed through

legal basis."176 (Emphasis supplied) initiative.

From the foregoing discussion, the These recommendations, however, may

principle may be inferred that the amount to nothing more than the

President - in the course of conducting President's suggestions to the people, for

peace negotiations - may validly any further involvement in the process of

consider implementing even those initiative by the Chief Executive may

policies that require changes to the vitiate its character as a genuine

Constitution, but she may not unilaterally "people's initiative." The only initiative

implement them without the intervention recognized by the Constitution is that

of Congress, or act in any way as if the which truly proceeds from the people. As

assent of that body were assumed as a the Court stated in Lambino v.

certainty. COMELEC:177

Since, under the present Constitution, the "The Lambino Group claims that their

people also have the power to directly initiative is the ‘people's voice.' However,

propose amendments through initiative the Lambino Group unabashedly states

and referendum, the President may also in ULAP Resolution No. 2006-02, in the

submit her recommendations to the verification of their petition with the

people, not as a formal proposal to be COMELEC, that ‘ULAP maintains its

Constitutional Law 1 Nina Majica A. Pagaduan University of the Cordilleras College of Law
unqualified support to the agenda of Her The foregoing discussion focused on the

Excellency President Gloria Macapagal- President's authority to propose

Arroyo for constitutional reforms.' The constitutional amendments, since her

Lambino Group thus admits that their authority to propose new legislation is

‘people's' initiative is an ‘unqualified not in controversy. It has been an

support to the agenda' of the incumbent accepted practice for Presidents in this

President to change the Constitution. This jurisdiction to propose new legislation.

forewarns the Court to be wary of One of the more prominent instances the

incantations of ‘people's voice' or practice is usually done is in the yearly

‘sovereign will' in the present initiative." State of the Nation Address of the

President to Congress. Moreover, the

It will be observed that the President has
annual general appropriations bill has
authority, as stated in her oath of
always been based on the budget
office,178 only to preserve and defend
prepared by the President, which - for all
the Constitution. Such presidential power
intents and purposes - is a proposal for
does not, however, extend to allowing
new legislation coming from the
her to change the Constitution, but
President.179
simply to recommend proposed

amendments or revision. As long as she The "suspensive clause" in the MOA-AD

limits herself to recommending these viewed in light of the above-discussed

changes and submits to the proper standards

procedure for constitutional

Given the limited nature of the
amendments and revision, her mere
President's authority to propose
recommendation need not be
constitutional amendments, she cannot
construed as an unconstitutional act.

Constitutional Law 1 Nina Majica A. Pagaduan University of the Cordilleras College of Law
guaranteeto any third party that the for the paragraph goes on to state that

required amendments will eventually be the contemplated changes shall be

put in place, nor even be submitted to a "with due regard to non derogation of

plebiscite. The most she could do is prior agreements and within the

submit these proposals as stipulated timeframe to be contained in

recommendations either to Congress or the Comprehensive Compact."

the people, in whom constituent powers

Pursuant to this stipulation, therefore, it is
are vested.
mandatory for the GRP to effect the

Paragraph 7 on Governance of the changes to the legal framework

MOA-AD states, however, that all contemplated in the MOA-AD - which

provisions thereof which cannot be changes would include constitutional

reconciled with the present Constitution amendments, as discussed earlier. It

and laws "shall come into force upon bears noting that,

signing of a Comprehensive Compact

By the time these changes are put in
and upon effecting the necessary
place, the MOA-AD itself would be
changes to the legal framework." This
counted among the "prior agreements"
stipulation does not bear the marks of a
from which there could be no
suspensive condition - defined in civil law
derogation.
as a future and uncertain event - but of

a term. It is not a question of whether the What remains for discussion in the

necessary changes to the legal Comprehensive Compact would merely

framework will be effected, but when. be the implementing details for these

That there is no uncertainty being "consensus points" and, notably, the

contemplated is plain from what follows,

Constitutional Law 1 Nina Majica A. Pagaduan University of the Cordilleras College of Law
deadline for effecting the contemplated Executive Order, such as the Special

changes to the legal framework. Zone of Peace and Development

(SZOPAD) and the Southern Philippines

Plainly, stipulation-paragraph 7 on
Council for Peace and Development
GOVERNANCE is inconsistent with the
(SPCPD), while Phase II covered the
limits of the President's authority to
establishment of the new regional
propose constitutional amendments, it
autonomous government through
being a virtual guarantee that the
amendment or repeal of R.A. No. 6734,
Constitution and the laws of the Republic
which was then the Organic Act of the
of the Philippines will certainly be
ARMM.
adjusted to conform to all the "consensus

points" found in the MOA-AD. Hence, it The stipulations on Phase II consisted of

must be struck down as unconstitutional. specific agreements on the structure of

the expanded autonomous region

A comparison between the "suspensive
envisioned by the parties. To that extent,
clause" of the MOA-AD with a similar
they are similar to the provisions of the
provision appearing in the 1996 final
MOA-AD. There is, however, a crucial
peace agreement between the MNLF
difference between the two
and the GRP is most instructive.
agreements. While the MOA-AD virtually

As a backdrop, the parties to the 1996 guarantees that the "necessary changes

Agreement stipulated that it would be to the legal framework" will be put in

implemented in two phases. Phase place, the GRP-MNLF final peace

Icovered a three-year transitional period agreement states thus: "Accordingly,

involving the putting up of new these provisions [on Phase II] shall be

administrative structures through recommended by the GRP to Congress

Constitutional Law 1 Nina Majica A. Pagaduan University of the Cordilleras College of Law
for incorporation in the amendatory or would have had the status of a binding

repealing law." international agreement had it been

signed. An examination of the prevailing

Concerns have been raised that the
principles in international law, however,
MOA-AD would have given rise to a
leads to the contrary conclusion.
binding international law obligation on

the part of the Philippines to change its The Decision on Challenge to

Constitution in conformity thereto, on the Jurisdiction: Lomé Accord Amnesty180

ground that it may be considered either (the Lomé Accord case) of the Special

as a binding agreement under Court of Sierra Leone is enlightening. The

international law, or a unilateral Lomé Accord was a peace agreement

declaration of the Philippine government signed on July 7, 1999 between the

to the international community that it Government of Sierra Leone and the

would grant to the Bangsamoro people Revolutionary United Front (RUF), a rebel

all the concessions therein stated. group with which the Sierra Leone

Neither ground finds sufficient support in Government had been in armed conflict

international law, however. for around eight years at the time of

signing. There were non-contracting

The MOA-AD, as earlier mentioned in the
signatories to the agreement, among
overview thereof, would have included
which were the Government of the
foreign dignitaries as signatories. In
Togolese Republic, the Economic
addition, representatives of other nations
Community of West African States, and
were invited to witness its signing in Kuala
the UN.
Lumpur. These circumstances readily

lead one to surmise that the MOA-AD

Constitutional Law 1 Nina Majica A. Pagaduan University of the Cordilleras College of Law
On January 16, 2002, after a successful internationally binding obligation not to

negotiation between the UN Secretary- prosecute the beneficiaries of the

General and the Sierra Leone amnesty provided therein, citing, among

Government, another agreement was other things, the participation of foreign

entered into by the UN and that dignitaries and international

Government whereby the Special Court organizations in the finalization of that

of Sierra Leone was established. The sole agreement. The Special Court, however,

purpose of the Special Court, an rejected this argument, ruling that the

international court, was to try persons Lome Accord is not a treaty and that it

who bore the greatest responsibility for can only create binding obligations and

serious violations of international rights between the parties in municipal

humanitarian law and Sierra Leonean law, not in international law. Hence, the

law committed in the territory of Sierra Special Court held, it is ineffective in

Leone since November 30, 1996. depriving an international court like it of

jurisdiction.
Among the stipulations of the Lomé

Accord was a provision for the full "37. In regard to the nature of a

pardon of the members of the RUF with negotiated settlement of an internal

respect to anything done by them in armed conflict it is easy to assume and

pursuit of their objectives as members of to argue with some degree of plausibility,

that organization since the conflict as Defence counsel for the defendants

began. seem to have done, that the mere fact

that in addition to the parties to the

In the Lomé Accord case, the Defence
conflict, the document formalizing the
argued that the Accord created an
settlement is signed by foreign heads of

Constitutional Law 1 Nina Majica A. Pagaduan University of the Cordilleras College of Law
state or their representatives and principle that, in the terms of Article

representatives of international XXXIV of the Agreement, "this peace

organizations, means the agreement of agreement is implemented with integrity

the parties is internationalized so as to and in good faith by both parties". The

create obligations in international law. moral guarantors assumed no legal

obligation. It is recalled that the UN by its

xxxx
representative appended, presumably

40. Almost every conflict resolution will for avoidance of doubt, an

involve the parties to the conflict and the understanding of the extent of the

mediator or facilitator of the settlement, agreement to be implemented as not

or persons or bodies under whose including certain international crimes.

auspices the settlement took place but

42. An international agreement in the
who are not at all parties to the conflict,
nature of a treaty must create rights and
are not contracting parties and who do
obligations regulated by international
not claim any obligation from the
law so that a breach of its terms will be a
contracting parties or incur any
breach determined under international
obligation from the settlement.
law which will also provide principle

41. In this case, the parties to the conflict means of enforcement. The Lomé

are the lawful authority of the State and Agreement created neither rights nor

the RUF which has no status of statehood obligations capable of being regulated

and is to all intents and purposes a by international law. An agreement such

faction within the state. The non- as the Lomé Agreement which brings to

contracting signatories of the Lomé an end an internal armed conflict no

Agreement were moral guarantors of the doubt creates a factual situation of

Constitutional Law 1 Nina Majica A. Pagaduan University of the Cordilleras College of Law
restoration of peace that the ascribed the same status as one which

international community acting through settles an international armed conflict

the Security Council may take note of. which, essentially, must be between two

That, however, will not convert it to an or more warring States. The Lomé

international agreement which creates Agreement cannot be characterised as

an obligation enforceable in an international instrument. x x x"

international, as distinguished from (Emphasis, italics and underscoring

municipal, law. A breach of the terms of supplied)

such a peace agreement resulting in

Similarly, that the MOA-AD would have
resumption of internal armed conflict or
been signed by representatives of States
creating a threat to peace in the
and international organizations not
determination of the Security Council
parties to the Agreement would not
may indicate a reversal of the factual
have sufficed to vest in it a binding
situation of peace to be visited with
character under international law.
possible legal consequences arising from

the new situation of conflict created. In another vein, concern has been raised

Such consequences such as action by that the MOA-AD would amount to a

the Security Council pursuant to Chapter unilateral declaration of the Philippine

VII arise from the situation and not from State, binding under international law,

the agreement, nor from the obligation that it would comply with all the

imposed by it. Such action cannot be stipulations stated therein, with the result

regarded as a remedy for the breach. A that it would have to amend its

peace agreement which settles an Constitution accordingly regardless of

internal armed conflict cannot be the true will of the people. Cited as

Constitutional Law 1 Nina Majica A. Pagaduan University of the Cordilleras College of Law
authority for this view is Australia v. bound to the international community in

France,181 also known as the Nuclear issuing its public statements, viz:

Tests Case, decided by the International

43. It is well recognized that declarations
Court of Justice (ICJ).
made by way of unilateral acts,

In the Nuclear Tests Case, Australia concerning legal or factual situations,

challenged before the ICJ the legality of may have the effect of creating legal

France's nuclear tests in the South obligations. Declarations of this kind may

Pacific. France refused to appear in the be, and often are, very specific. When it

case, but public statements from its is the intention of the State making the

President, and similar statements from declaration that it should become bound

other French officials including its Minister according to its terms, that intention

of Defence, that its 1974 series of confers on the declaration the character

atmospheric tests would be its last, of a legal undertaking, the State being

persuaded the ICJ to dismiss the case.182 thenceforth legally required to follow a

Those statements, the ICJ held, course of conduct consistent with the

amounted to a legal undertaking declaration. An undertaking of this kind,

addressed to the international if given publicly, and with an intent to be

community, which required no bound, even though not made within

acceptance from other States for it to the context of international negotiations,

become effective. is binding. In these circumstances,

nothing in the nature of a quid pro quo

Essential to the ICJ ruling is its finding that
nor any subsequent acceptance of the
the French government intended to be
declaration, nor even any reply or

reaction from other States, is required for

Constitutional Law 1 Nina Majica A. Pagaduan University of the Cordilleras College of Law
the declaration to take effect, since such effective. The validity of these statements

a requirement would be inconsistent with and their legal consequences must be

the strictly unilateral nature of the considered within the general framework

juridical act by which the of the security of international

pronouncement by the State was made. intercourse, and the confidence and

trust which are so essential in the relations

44. Of course, not all unilateral acts imply
among States. It is from the actual
obligation; but a State may choose to
substance of these statements, and from
take up a certain position in relation to a
the circumstances attending their
particular matter with the intention of
making, that the legal implications of the
being bound-the intention is to be
unilateral act must be deduced. The
ascertained by interpretation of the act.
objects of these statements are clear
When States make statements by which
and they were addressed to the
their freedom of action is to be limited, a
international community as a whole, and
restrictive interpretation is called for.
the Court holds that they constitute an

xxxx undertaking possessing legal effect. The

Court considers *270 that the President of

51. In announcing that the 1974 series of
the Republic, in deciding upon the
atmospheric tests would be the last, the
effective cessation of atmospheric tests,
French Government conveyed to the
gave an undertaking to the international
world at large, including the Applicant,
community to which his words were
its intention effectively to terminate these
addressed. x x x (Emphasis and
tests. It was bound to assume that other
underscoring supplied)
States might take note of these

statements and rely on their being

Constitutional Law 1 Nina Majica A. Pagaduan University of the Cordilleras College of Law
As gathered from the above-quoted commission of the Organization of

ruling of the ICJ, public statements of a African Unity on a frontier dispute then

state representative may be construed pending between Mali and Burkina

as a unilateral declaration only when the Faso.

following conditions are present: the

Unlike in the Nuclear Tests Case, the ICJ
statements were clearly addressed to
held that the statement of Mali's
the international community, the state
President was not a unilateral act with
intended to be bound to that
legal implications. It clarified that its ruling
community by its statements, and that
in the Nuclear Tests case rested on the
not to give legal effect to those
peculiar circumstances surrounding the
statements would be detrimental to the
French declaration subject thereof, to
security of international intercourse.
wit:
Plainly, unilateral declarations arise only

in peculiar circumstances. 40. In order to assess the intentions of the

author of a unilateral act, account must

The limited applicability of the Nuclear
be taken of all the factual circumstances
Tests Case ruling was recognized in a
in which the act occurred. For example,
later case decided by the ICJ entitled
in the Nuclear Tests cases, the Court took
Burkina Faso v. Mali,183 also known as the
the view that since the applicant States
Case Concerning the Frontier Dispute.
were not the only ones concerned at the
The public declaration subject of that
possible continuance of atmospheric
case was a statement made by the
testing by the French Government, that
President of Mali, in an interview by a
Government's unilateral declarations
foreign press agency, that Mali would
had ‘conveyed to the world at large,
abide by the decision to be issued by a

Constitutional Law 1 Nina Majica A. Pagaduan University of the Cordilleras College of Law
including the Applicant, its intention made by Mali's head of State on 11 April

effectively to terminate these tests‘ (I.C.J. 1975 as a unilateral act with legal

Reports 1974, p. 269, para. 51; p. 474, implications in regard to the present

para. 53). In the particular circumstances case. (Emphasis and underscoring

of those cases, the French Government supplied)

could not express an intention to be

Assessing the MOA-AD in light of the
bound otherwise than by unilateral
above criteria, it would not have
declarations. It is difficult to see how it
amounted to a unilateral declaration on
could have accepted the terms of a
the part of the Philippine State to the
negotiated solution with each of the
international community. The Philippine
applicants without thereby jeopardizing
panel did not draft the same with the
its contention that its conduct was lawful.
clear intention of being bound thereby
The circumstances of the present case
to the international community as a
are radically different. Here, there was
whole or to any State, but only to the
nothing to hinder the Parties from
MILF. While there were States and
manifesting an intention to accept the
international organizations involved, one
binding character of the conclusions of
way or another, in the negotiation and
the Organization of African Unity
projected signing of the MOA-AD, they
Mediation Commission by the normal
participated merely as witnesses or, in
method: a formal agreement on the
the case of Malaysia, as facilitator. As
basis of reciprocity. Since no agreement
held in the Lomé Accord case, the mere
of this kind was concluded between the
fact that in addition to the parties to the
Parties, the Chamber finds that there are
conflict, the peace settlement is signed
no grounds to interpret the declaration
by representatives of states and

Constitutional Law 1 Nina Majica A. Pagaduan University of the Cordilleras College of Law
international organizations does not come about by the inclusion in the MOA-

mean that the agreement is AD of a clear commitment to be legally

internationalized so as to create bound to the international community,

obligations in international law. not just the MILF, and by an equally clear

indication that the signatures of the

Since the commitments in the MOA-AD
participating states-representatives
were not addressed to States, not to give
would constitute an acceptance of that
legal effect to such commitments would
commitment. Entering into such a formal
not be detrimental to the security of
agreement would not have resulted in a
international intercourse - to the trust and
loss of face for the Philippine government
confidence essential in the relations
before the international community,
among States.
which was one of the difficulties that

In one important respect, the prevented the French Government from

circumstances surrounding the MOA-AD entering into a formal agreement with

are closer to that of Burkina Faso other countries. That the Philippine panel

wherein, as already discussed, the Mali did not enter into such a formal

President's statement was not held to be agreement suggests that it had no

a binding unilateral declaration by the intention to be bound to the

ICJ. As in that case, there was also international community. On that

nothing to hinder the Philippine panel, ground, the MOA-AD may not be

had it really been its intention to be considered a unilateral declaration

bound to other States, to manifest that under international law.

intention by formal agreement. Here,

The MOA-AD not being a document that
that formal agreement would have
can bind the Philippines under

Constitutional Law 1 Nina Majica A. Pagaduan University of the Cordilleras College of Law
international law notwithstanding, portion of its own territory to the Moros for

respondents' almost consummated act the sake of peace, for it can change the

of guaranteeing amendments to the Constitution in any it wants, so long as the

legal framework is, by itself, sufficient to change is not inconsistent with what, in

constitute grave abuse of discretion. The international law, is known as Jus

grave abuse lies not in the fact that they Cogens.184 Respondents, however, may

considered, as a solution to the Moro not preempt it in that decision.

Problem, the creation of a state within a

SUMMARY
state, but in their brazen willingness to

guarantee that Congress and the The petitions are ripe for adjudication.

sovereign Filipino people would give The failure of respondents to consult the

their imprimatur to their solution. local government units or communities

Upholding such an act would amount to affected constitutes a departure by

authorizing a usurpation of the respondents from their mandate under

constituent powers vested only in E.O. No. 3. Moreover, respondents

Congress, a Constitutional Convention, exceeded their authority by the mere

or the people themselves through the act of guaranteeing amendments to the

process of initiative, for the only way that Constitution. Any alleged violation of the

the Executive can ensure the outcome Constitution by any branch of

of the amendment process is through an government is a proper matter for

undue influence or interference with that judicial review.

process.
As the petitions involve constitutional

The sovereign people may, if it so issues which are of paramount public

desired, go to the extent of giving up a interest or of transcendental importance,

Constitutional Law 1 Nina Majica A. Pagaduan University of the Cordilleras College of Law
the Court grants the petitioners, The MOA-AD is a significant part of a

petitioners-in-intervention and series of agreements necessary to carry

intervening respondents the requisite out the GRP-MILF Tripoli Agreement on

locus standi in keeping with the liberal Peace signed by the government and

stance adopted in David v. Macapagal- the MILF back in June 2001. Hence, the

Arroyo. present MOA-AD can be renegotiated or

another one drawn up that could

Contrary to the assertion of respondents
contain similar or significantly dissimilar
that the non-signing of the MOA-AD and
provisions compared to the original.
the eventual dissolution of the GRP

Peace Panel mooted the present The Court, however, finds that the

petitions, the Court finds that the present prayers for mandamus have been

petitions provide an exception to the rendered moot in view of the

"moot and academic" principle in view respondents' action in providing the

of (a) the grave violation of the Court and the petitioners with the official

Constitution involved; (b) the copy of the final draft of the MOA-AD

exceptional character of the situation and its annexes.

and paramount public interest; (c) the

The people's right to information on
need to formulate controlling principles
matters of public concern under Sec. 7,
to guide the bench, the bar, and the
Article III of the Constitution is in splendid
public; and (d) the fact that the case is
symmetry with the state policy of full
capable of repetition yet evading
public disclosure of all its transactions
review.
involving public interest under Sec. 28,

Article II of the Constitution. The right to

Constitutional Law 1 Nina Majica A. Pagaduan University of the Cordilleras College of Law
information guarantees the right of the An essential element of these twin

people to demand information, while freedoms is to keep a continuing

Section 28 recognizes the duty of dialogue or process of communication

officialdom to give information even if between the government and the

nobody demands. The complete and people. Corollary to these twin rights is

effective exercise of the right to the design for feedback mechanisms.

information necessitates that its The right to public consultation was

complementary provision on public envisioned to be a species of these

disclosure derive the same self-executory public rights.

nature, subject only to reasonable

At least three pertinent laws animate
safeguards or limitations as may be
these constitutional imperatives and
provided by law.
justify the exercise of the people's right to

The contents of the MOA-AD is a matter be consulted on relevant matters

of paramount public concern involving relating to the peace agenda.

public interest in the highest order. In

One, E.O. No. 3 itself is replete with
declaring that the right to information
mechanics for continuing consultations
contemplates steps and negotiations
on both national and local levels and for
leading to the consummation of the
a principal forum for consensus-building.
contract, jurisprudence finds no
In fact, it is the duty of the Presidential
distinction as to the executory nature or
Adviser on the Peace Process to conduct
commercial character of the
regular dialogues to seek relevant
agreement.
information, comments, advice, and

Constitutional Law 1 Nina Majica A. Pagaduan University of the Cordilleras College of Law
recommendations from peace partners things, the observance of the free and

and concerned sectors of society. prior informed consent of the Indigenous

Cultural Communities/Indigenous
Two, Republic Act No. 7160 or the Local
Peoples. Notably, the statute does not
Government Code of 1991 requires all
grant the Executive Department or any
national offices to conduct consultations
government agency the power to
before any project or program critical to
delineate and recognize an ancestral
the environment and human ecology
domain claim by mere agreement or
including those that may call for the
compromise.
eviction of a particular group of people

residing in such locality, is implemented The invocation of the doctrine of

therein. The MOA-AD is one peculiar executive privilege as a defense to the

program that unequivocally and general right to information or the

unilaterally vests ownership of a vast specific right to consultation is

territory to the Bangsamoro people, untenable. The various explicit legal

which could pervasively and drastically provisions fly in the face of executive

result to the diaspora or displacement of secrecy. In any event, respondents

a great number of inhabitants from their effectively waived such defense after it

total environment. unconditionally disclosed the official

copies of the final draft of the MOA-AD,

Three, Republic Act No. 8371 or the
for judicial compliance and public
Indigenous Peoples Rights Act of 1997
scrutiny.
provides for clear-cut procedure for the

recognition and delineation of ancestral In sum, the Presidential Adviser on the

domain, which entails, among other Peace Process committed grave abuse

Constitutional Law 1 Nina Majica A. Pagaduan University of the Cordilleras College of Law
of discretion when he failed to carry out While there is a clause in the MOA-AD

the pertinent consultation process, as stating that the provisions thereof

mandated by E.O. No. 3, Republic Act inconsistent with the present legal

No. 7160, and Republic Act No. 8371. The framework will not be effective until that

furtive process by which the MOA-AD framework is amended, the same does

was designed and crafted runs contrary not cure its defect. The inclusion of

to and in excess of the legal authority, provisions in the MOA-AD establishing an

and amounts to a whimsical, capricious, associative relationship between the BJE

oppressive, arbitrary and despotic and the Central Government is, itself, a

exercise thereof. It illustrates a gross violation of the Memorandum of

evasion of positive duty and a virtual Instructions From The President dated

refusal to perform the duty enjoined. March 1, 2001, addressed to the

government peace panel. Moreover, as

The MOA-AD cannot be reconciled with
the clause is worded, it virtually
the present Constitution and laws. Not
guarantees that the necessary
only its specific provisions but the very
amendments to the Constitution and the
concept underlying them, namely, the
laws will eventually be put in place.
associative relationship envisioned
Neither the GRP Peace Panel nor the
between the GRP and the BJE, are
President herself is authorized to make
unconstitutional, for the concept
such a guarantee. Upholding such an
presupposes that the associated entity is
act would amount to authorizing a
a state and implies that the same is on its
usurpation of the constituent powers
way to independence.
vested only in Congress, a Constitutional

Convention, or the people themselves

Constitutional Law 1 Nina Majica A. Pagaduan University of the Cordilleras College of Law
through the process of initiative, for the PROF. MERLIN M. MAGALLONA,

only way that the Executive can ensure AKBAYAN PARTY-LIST REP. RISA

the outcome of the amendment process HONTIVEROS, PROF. HARRY C. ROQUE,

is through an undue influence or JR., AND UNIVERSITY OF THE PHILIPPINES

interference with that process. COLLEGE OF LAW STUDENTS, ALITHEA

BARBARA ACAS, VOLTAIRE ALFERES,

While the MOA-AD would not amount to
CZARINA MAY ALTEZ, FRANCIS ALVIN
an international agreement or unilateral
ASILO, SHERYL BALOT, RUBY AMOR
declaration binding on the Philippines
BARRACA, JOSE JAVIER BAUTISTA,
under international law, respondents' act
ROMINA BERNARDO, VALERIE PAGASA
of guaranteeing amendments is, by itself,
BUENAVENTURA, EDAN MARRI CAÑETE,
already a constitutional violation that
VANN ALLEN DELA CRUZ, RENE DELORINO,
renders the MOA-AD fatally defective.
PAULYN MAY DUMAN, SHARON ESCOTO,

WHEREFORE, respondents' motion to RODRIGO FAJARDO III, GIRLIE FERRER,

dismiss is DENIED. The main and RAOULLE OSEN FERRER, CARLA REGINA

intervening petitions are GIVEN DUE GREPO, ANNA MARIE CECILIA GO, IRISH

COURSE and hereby GRANTED. KAY KALAW, MARY ANN JOY LEE, MARIA

LUISA MANALAYSAY, MIGUEL RAFAEL

The Memorandum of Agreement on the
MUSNGI, MICHAEL OCAMPO, JAKLYN
Ancestral Domain Aspect of the GRP-
HANNA PINEDA, WILLIAM RAGAMAT,
MILF Tripoli Agreement on Peace of 2001
MARICAR RAMOS, ENRIK FORT REVILLAS,
is declared contrary to law and the
JAMES MARK TERRY RIDON, JOHANN
Constitution.
FRANTZ RIVERA IV, CHRISTIAN RIVERO,
G.R No. 187167 August 16, 2011
DIANNE MARIE ROA, NICHOLAS SANTIZO,

Constitutional Law 1 Nina Majica A. Pagaduan University of the Cordilleras College of Law
MELISSA CHRISTINA SANTOS, CRISTINE The Case

MAE TABING, VANESSA ANNE TORNO,

This original action for the writs of
MARIA ESTER VANGUARDIA, and
certiorari and prohibition assails the
MARCELINO VELOSO III, Petitioners,
constitutionality of Republic Act No.
vs.
95221(RA 9522) adjusting the country’s
HON. EDUARDO ERMITA, IN HIS CAPACITY
archipelagic baselines and classifying
AS EXECUTIVE SECRETARY, HON. ALBERTO
the baseline regime of nearby territories.
ROMULO, IN HIS CAPACITY AS SECRETARY

OF THE DEPARTMENT OF FOREIGN The Antecedents

AFFAIRS, HON. ROLANDO ANDAYA, IN HIS

In 1961, Congress passed Republic Act
CAPACITY AS SECRETARY OF THE
No. 3046 (RA 3046)2 demarcating the
DEPARTMENT OF BUDGET AND
maritime baselines of the Philippines as
MANAGEMENT, HON. DIONY VENTURA, IN
an archipelagic State.3 This law followed
HIS CAPACITY AS ADMINISTRATOR OF THE
the framing of the Convention on the
NATIONAL MAPPING & RESOURCE
Territorial Sea and the Contiguous Zone
INFORMATION AUTHORITY, and HON.
in 1958 (UNCLOS I),4 codifying, among
HILARIO DAVIDE, JR., IN HIS CAPACITY AS
others, the sovereign right of States
REPRESENTATIVE OF THE PERMANENT
parties over their "territorial sea," the
MISSION OF THE REPUBLIC OF THE
breadth of which, however, was left
PHILIPPINES TO THE UNITED
undetermined. Attempts to fill this void
NATIONS,Respondents.
during the second round of negotiations

DECISION in Geneva in 1960 (UNCLOS II) proved

futile. Thus, domestically, RA 3046

CARPIO, J.:
remained unchanged for nearly five

Constitutional Law 1 Nina Majica A. Pagaduan University of the Cordilleras College of Law
decades, save for legislation passed in Group (KIG) and the Scarborough Shoal,

1968 (Republic Act No. 5446 [RA 5446]) as "regimes of islands" whose islands

correcting typographical errors and generate their own applicable maritime

reserving the drawing of baselines zones.

around Sabah in North Borneo.

Petitioners, professors of law, law students

In March 2009, Congress amended RA and a legislator, in their respective

3046 by enacting RA 9522, the statute capacities as "citizens, taxpayers or x x x

now under scrutiny. The change was legislators,"9 as the case may be, assail

prompted by the need to make RA 3046 the constitutionality of RA 9522 on two

compliant with the terms of the United principal grounds, namely: (1) RA 9522

Nations Convention on the Law of the reduces Philippine maritime territory, and

Sea (UNCLOS III),5 which the Philippines logically, the reach of the Philippine

ratified on 27 February 1984.6 Among state’s sovereign power, in violation of

others, UNCLOS III prescribes the water- Article 1 of the 1987 Constitution,10

land ratio, length, and contour of embodying the terms of the Treaty of

baselines of archipelagic States like the Paris11 and ancillary treaties,12 and (2) RA

Philippines7 and sets the deadline for the 9522 opens the country’s waters

filing of application for the extended landward of the baselines to maritime

continental shelf.8 Complying with these passage by all vessels and aircrafts,

requirements, RA 9522 shortened one undermining Philippine sovereignty and

baseline, optimized the location of some national security, contravening the

basepoints around the Philippine country’s nuclear-free policy, and

archipelago and classified adjacent damaging marine resources, in violation

territories, namely, the Kalayaan Island of relevant constitutional provisions.13

Constitutional Law 1 Nina Majica A. Pagaduan University of the Cordilleras College of Law
In addition, petitioners contend that RA of UNCLOS III, preserving Philippine

9522’s treatment of the KIG as "regime of territory over the KIG or Scarborough

islands" not only results in the loss of a Shoal. Respondents add that RA 9522

large maritime area but also prejudices does not undermine the country’s

the livelihood of subsistence fishermen.14 security, environment and economic

To buttress their argument of territorial interests or relinquish the Philippines’

diminution, petitioners facially attack RA claim over Sabah.

9522 for what it excluded and included –

Respondents also question the
its failure to reference either the Treaty of
normative force, under international law,
Paris or Sabah and its use of UNCLOS III’s
of petitioners’ assertion that what Spain
framework of regime of islands to
ceded to the United States under the
determine the maritime zones of the KIG
Treaty of Paris were the islands and all the
and the Scarborough Shoal.
waters found within the boundaries of

Commenting on the petition, respondent the rectangular area drawn under the

officials raised threshold issues Treaty of Paris.

questioning (1) the petition’s compliance

We left unacted petitioners’ prayer for an
with the case or controversy requirement
injunctive writ.
for judicial review grounded on

petitioners’ alleged lack of locus standi The Issues

and (2) the propriety of the writs of

The petition raises the following issues:
certiorari and prohibition to assail the
1. Preliminarily –
constitutionality of RA 9522. On the

merits, respondents defended RA 9522 as

the country’s compliance with the terms

Constitutional Law 1 Nina Majica A. Pagaduan University of the Cordilleras College of Law
1. Whether petitioners possess locus neither infringement of legislative

standi to bring this suit; and prerogative15 nor misuse of public

funds,16 occasioned by the passage and

2. Whether the writs of certiorari and
implementation of RA 9522. Nonetheless,
prohibition are the proper remedies to
we recognize petitioners’ locus standi as
assail the constitutionality of RA 9522.
citizens with constitutionally sufficient

2. On the merits, whether RA 9522 is interest in the resolution of the merits of

unconstitutional. the case which undoubtedly raises issues

of national significance necessitating

The Ruling of the Court
urgent resolution. Indeed, owing to the
On the threshold issues, we hold that (1)
peculiar nature of RA 9522, it is
petitioners possess locus standi to bring
understandably difficult to find other
this suit as citizens and (2) the writs of
litigants possessing "a more direct and
certiorari and prohibition are proper
specific interest" to bring the suit, thus
remedies to test the constitutionality of
satisfying one of the requirements for
RA 9522. On the merits, we find no basis
granting citizenship standing.17
to declare RA 9522 unconstitutional.
The Writs of Certiorari and Prohibition
On the Threshold Issues
Are Proper Remedies to Test
Petitioners Possess Locus
the Constitutionality of Statutes
Standi as Citizens
In praying for the dismissal of the petition
Petitioners themselves undermine their
on preliminary grounds, respondents
assertion of locus standi as legislators and
seek a strict observance of the offices of
taxpayers because the petition alleges
the writs of certiorari and prohibition,

Constitutional Law 1 Nina Majica A. Pagaduan University of the Cordilleras College of Law
noting that the writs cannot issue absent notwithstanding. The statute sought to

any showing of grave abuse of discretion be reviewed here is one such law.

in the exercise of judicial, quasi-judicial or

RA 9522 is Not Unconstitutional
ministerial powers on the part of
RA 9522 is a Statutory Tool
respondents and resulting prejudice on
to Demarcate the Country’s
the part of petitioners.18
Maritime Zones and Continental

Respondents’ submission holds true in Shelf Under UNCLOS III, not to

ordinary civil proceedings. When this Delineate Philippine Territory

Court exercises its constitutional power of

Petitioners submit that RA 9522
judicial review, however, we have, by
"dismembers a large portion of the
tradition, viewed the writs of certiorari
national territory"21 because it discards
and prohibition as proper remedial
the pre-UNCLOS III demarcation of
vehicles to test the constitutionality of
Philippine territory under the Treaty of
statutes,19 and indeed, of acts of other
Paris and related treaties, successively
branches of government.20 Issues of
encoded in the definition of national
constitutional import are sometimes
territory under the 1935, 1973 and 1987
crafted out of statutes which, while
Constitutions. Petitioners theorize that this
having no bearing on the personal
constitutional definition trumps any
interests of the petitioners, carry such
treaty or statutory provision denying the
relevance in the life of this nation that the
Philippines sovereign control over waters,
Court inevitably finds itself constrained to
beyond the territorial sea recognized at
take cognizance of the case and pass
the time of the Treaty of Paris, that Spain
upon the issues raised, non-compliance
supposedly ceded to the United States.
with the letter of procedural rules

Constitutional Law 1 Nina Majica A. Pagaduan University of the Cordilleras College of Law
Petitioners argue that from the Treaty of recognizing coastal and archipelagic

Paris’ technical description, Philippine States’ graduated authority over a

sovereignty over territorial waters limited span of waters and submarine

extends hundreds of nautical miles lands along their coasts.

around the Philippine archipelago,

On the other hand, baselines laws such
embracing the rectangular area
as RA 9522 are enacted by UNCLOS III
delineated in the Treaty of Paris.22
States parties to mark-out specific

Petitioners’ theory fails to persuade us. basepoints along their coasts from which

baselines are drawn, either straight or

UNCLOS III has nothing to do with the
contoured, to serve as geographic
acquisition (or loss) of territory. It is a
starting points to measure the breadth of
multilateral treaty regulating, among
the maritime zones and continental shelf.
others, sea-use rights over maritime zones
Article 48 of UNCLOS III on archipelagic
(i.e., the territorial waters [12 nautical
States like ours could not be any clearer:
miles from the baselines], contiguous

zone [24 nautical miles from the Article 48. Measurement of the breadth

baselines], exclusive economic zone [200 of the territorial sea, the contiguous zone,

nautical miles from the baselines]), and the exclusive economic zone and the

continental shelves that UNCLOS III continental shelf. – The breadth of the

delimits.23 UNCLOS III was the culmination territorial sea, the contiguous zone, the

of decades-long negotiations among exclusive economic zone and the

United Nations members to codify norms continental shelf shall be measured from

regulating the conduct of States in the archipelagic baselines drawn in

world’s oceans and submarine areas,

Constitutional Law 1 Nina Majica A. Pagaduan University of the Cordilleras College of Law
accordance with article 47. (Emphasis area delimited in the Treaty of Paris, the

supplied) baselines of the Philippines would still

have to be drawn in accordance with

Thus, baselines laws are nothing but
RA 9522 because this is the only way to
statutory mechanisms for UNCLOS III
draw the baselines in conformity with
States parties to delimit with precision the
UNCLOS III. The baselines cannot be
extent of their maritime zones and
drawn from the boundaries or other
continental shelves. In turn, this gives
portions of the rectangular area
notice to the rest of the international
delineated in the Treaty of Paris, but from
community of the scope of the maritime
the "outermost islands and drying reefs of
space and submarine areas within which
the archipelago."24
States parties exercise treaty-based

rights, namely, the exercise of UNCLOS III and its ancillary baselines laws

sovereignty over territorial waters (Article play no role in the acquisition,

2), the jurisdiction to enforce customs, enlargement or, as petitioners claim,

fiscal, immigration, and sanitation laws in diminution of territory. Under traditional

the contiguous zone (Article 33), and the international law typology, States

right to exploit the living and non-living acquire (or conversely, lose) territory

resources in the exclusive economic through occupation, accretion, cession

zone (Article 56) and continental shelf and prescription,25 not by executing

(Article 77). multilateral treaties on the regulations of

sea-use rights or enacting statutes to

Even under petitioners’ theory that the
comply with the treaty’s terms to delimit
Philippine territory embraces the islands
maritime zones and continental shelves.
and all the waters within the rectangular
Territorial claims to land features are

Constitutional Law 1 Nina Majica A. Pagaduan University of the Cordilleras College of Law
outside UNCLOS III, and are instead under RA 3046 and RA 9522 and the

governed by the rules on general extent of maritime space encompassed

international law.26 by each law, coupled with a reading of

the text of RA 9522 and its congressional

RA 9522’s Use of the Framework
deliberations, vis-à-vis the Philippines’
of Regime of Islands to Determine the
obligations under UNCLOS III, belie this
Maritime Zones of the KIG and the
view.1avvphi1
Scarborough Shoal, not Inconsistent

with the Philippines’ Claim of Sovereignty The configuration of the baselines drawn

Over these Areas under RA 3046 and RA 9522 shows that

RA 9522 merely followed the basepoints

Petitioners next submit that RA 9522’s use
mapped by RA 3046, save for at least
of UNCLOS III’s regime of islands
nine basepoints that RA 9522 skipped to
framework to draw the baselines, and to
optimize the location of basepoints and
measure the breadth of the applicable
adjust the length of one baseline (and
maritime zones of the KIG, "weakens our
thus comply with UNCLOS III’s limitation
territorial claim" over that
on the maximum length of baselines).
area.27Petitioners add that the KIG’s (and
Under RA 3046, as under RA 9522, the KIG
Scarborough Shoal’s) exclusion from the
and the Scarborough Shoal lie outside of
Philippine archipelagic baselines results
the baselines drawn around the
in the loss of "about 15,000 square
Philippine archipelago. This undeniable
nautical miles of territorial waters,"
cartographic fact takes the wind out of
prejudicing the livelihood of subsistence
petitioners’ argument branding RA 9522
fishermen.28 A comparison of the
as a statutory renunciation of the
configuration of the baselines drawn
Philippines’ claim over the KIG, assuming

Constitutional Law 1 Nina Majica A. Pagaduan University of the Cordilleras College of Law
that baselines are relevant for this
delimitation III (in
purpose.
(in square square

nautical nautical
Petitioners’ assertion of loss of "about
miles) miles)
15,000 square nautical miles of territorial

waters" under RA 9522 is similarly

unfounded both in fact and law. On the Internal or

contrary, RA 9522, by optimizing the archipelagic

location of basepoints, increased the waters 166,858 171,435

Philippines’ total maritime space

(covering its internal waters, territorial sea

Territorial
and exclusive economic zone) by
Sea 274,136 32,106
145,216 square nautical miles, as shown

in the table below:29

Exclusive

Economic
Extent of Extent of
Zone 382,669
maritime maritime

area using area

RA 3046, as using RA TOTAL 440,994 586,210

amended, 9522,

taking into taking Thus, as the map below shows, the reach

account the into of the exclusive economic zone drawn

Treaty of account under RA 9522 even extends way

Paris’ UNCLOS beyond the waters covered by the

Constitutional Law 1 Nina Majica A. Pagaduan University of the Cordilleras College of Law
rectangular demarcation under the by RA 9522 itself. Section 2 of the law

Treaty of Paris. Of course, where there commits to text the Philippines’

are overlapping exclusive economic continued claim of sovereignty and

zones of opposite or adjacent States, jurisdiction over the KIG and the

there will have to be a delineation of Scarborough Shoal:

maritime boundaries in accordance with

SEC. 2. The baselines in the following
UNCLOS III.30
areas over which the Philippines likewise

exercises sovereignty and jurisdiction

shall be determined as "Regime of

Islands" under the Republic of the

Philippines consistent with Article 121 of

the United Nations Convention on the

Law of the Sea (UNCLOS):

a) The Kalayaan Island Group as

constituted under Presidential Decree

No. 1596 and

b) Bajo de Masinloc, also known as

Scarborough Shoal. (Emphasis supplied)

Had Congress in RA 9522 enclosed the

Further, petitioners’ argument that the
KIG and the Scarborough Shoal as part
KIG now lies outside Philippine territory
of the Philippine archipelago, adverse
because the baselines that RA 9522
legal effects would have ensued. The
draws do not enclose the KIG is negated

Constitutional Law 1 Nina Majica A. Pagaduan University of the Cordilleras College of Law
Philippines would have committed a The principal sponsor of RA 9522 in the

breach of two provisions of UNCLOS III. Senate, Senator Miriam Defensor-

First, Article 47 (3) of UNCLOS III requires Santiago, took pains to emphasize the

that "[t]he drawing of such baselines shall foregoing during the Senate

not depart to any appreciable extent deliberations:

from the general configuration of the

What we call the Kalayaan Island Group
archipelago." Second, Article 47 (2) of
or what the rest of the world call[] the
UNCLOS III requires that "the length of the
Spratlys and the Scarborough Shoal are
baselines shall not exceed 100 nautical
outside our archipelagic baseline
miles," save for three per cent (3%) of the
because if we put them inside our
total number of baselines which can
baselines we might be accused of
reach up to 125 nautical miles.31
violating the provision of international

Although the Philippines has consistently law which states: "The drawing of such

claimed sovereignty over the KIG32 and baseline shall not depart to any

the Scarborough Shoal for several appreciable extent from the general

decades, these outlying areas are configuration of the archipelago." So sa

located at an appreciable distance loob ng ating baseline, dapat

from the nearest shoreline of the magkalapit ang mga islands. Dahil

Philippine archipelago,33 such that any malayo ang Scarborough Shoal, hindi

straight baseline loped around them natin masasabing malapit sila sa atin

from the nearest basepoint will inevitably although we are still allowed by

"depart to an appreciable extent from international law to claim them as our

the general configuration of the own.

archipelago."

Constitutional Law 1 Nina Majica A. Pagaduan University of the Cordilleras College of Law
This is called contested islands outside [T]he amendment of the baselines law

our configuration. We see that our was necessary to enable the Philippines

archipelago is defined by the orange line to draw the outer limits of its maritime

which [we] call[] archipelagic baseline. zones including the extended

Ngayon, tingnan ninyo ang maliit na continental shelf in the manner provided

circle doon sa itaas, that is Scarborough by Article 47 of [UNCLOS III]. As defined

Shoal, itong malaking circle sa ibaba, by R.A. 3046, as amended by R.A. 5446,

that is Kalayaan Group or the Spratlys. the baselines suffer from some technical

Malayo na sila sa ating archipelago kaya deficiencies, to wit:

kung ilihis pa natin ang dating

1. The length of the baseline across Moro
archipelagic baselines para lamang
Gulf (from Middle of 3 Rock Awash to
masama itong dalawang circles, hindi
Tongquil Point) is 140.06 nautical miles x x
na sila magkalapit at baka hindi na
x. This exceeds the maximum length
tatanggapin ng United Nations because
allowed under Article 47(2) of the
of the rule that it should follow the natural
[UNCLOS III], which states that "The
configuration of the archipelago.34
length of such baselines shall not exceed
(Emphasis supplied)
100 nautical miles, except that up to 3

Similarly, the length of one baseline that per cent of the total number of baselines

RA 3046 drew exceeded UNCLOS III’s enclosing any archipelago may exceed

limits.1avvphi1 The need to shorten this that length, up to a maximum length of

baseline, and in addition, to optimize the 125 nautical miles."

location of basepoints using current

2. The selection of basepoints is not
maps, became imperative as discussed
optimal. At least 9 basepoints can be
by respondents:

Constitutional Law 1 Nina Majica A. Pagaduan University of the Cordilleras College of Law
skipped or deleted from the baselines formed area of land, surrounded by

system. This will enclose an additional water, which is above water at high tide,"

2,195 nautical miles of water. such as portions of the KIG, qualifies

under the category of "regime of islands,"

3. Finally, the basepoints were drawn
whose islands generate their own
from maps existing in 1968, and not
applicable maritime zones.37
established by geodetic survey methods.

Accordingly, some of the points, Statutory Claim Over Sabah under

particularly along the west coasts of RA 5446 Retained

Luzon down to Palawan were later found

Petitioners’ argument for the invalidity of
to be located either inland or on water,
RA 9522 for its failure to textualize the
not on low-water line and drying reefs as
Philippines’ claim over Sabah in North
prescribed by Article 47.35
Borneo is also untenable. Section 2 of RA

Hence, far from surrendering the 5446, which RA 9522 did not repeal,

Philippines’ claim over the KIG and the keeps open the door for drawing the

Scarborough Shoal, Congress’ decision baselines of Sabah:

to classify the KIG and the Scarborough

Section 2. The definition of the baselines
Shoal as "‘Regime[s] of Islands’ under the
of the territorial sea of the Philippine
Republic of the Philippines consistent
Archipelago as provided in this Act is
with Article 121"36 of UNCLOS III manifests
without prejudice to the delineation of
the Philippine State’s responsible
the baselines of the territorial sea around
observance of its pacta sunt servanda
the territory of Sabah, situated in North
obligation under UNCLOS III. Under
Borneo, over which the Republic of the
Article 121 of UNCLOS III, any "naturally

Constitutional Law 1 Nina Majica A. Pagaduan University of the Cordilleras College of Law
Philippines has acquired dominion and baselines, including the air space over it

sovereignty. (Emphasis supplied) and the submarine areas underneath.

UNCLOS III affirms this:

UNCLOS III and RA 9522 not

Incompatible with the Constitution’s Article 49. Legal status of archipelagic

Delineation of Internal Waters waters, of the air space over

archipelagic waters and of their bed and

As their final argument against the
subsoil. –
validity of RA 9522, petitioners contend

that the law unconstitutionally "converts" 1. The sovereignty of an archipelagic

internal waters into archipelagic waters, State extends to the waters enclosed by

hence subjecting these waters to the the archipelagic baselines drawn in

right of innocent and sea lanes passage accordance with article 47, described as

under UNCLOS III, including overflight. archipelagic waters, regardless of their

Petitioners extrapolate that these depth or distance from the coast.

passage rights indubitably expose

2. This sovereignty extends to the air
Philippine internal waters to nuclear and
space over the archipelagic waters, as
maritime pollution hazards, in violation of
well as to their bed and subsoil, and the
the Constitution.38
resources contained therein.

Whether referred to as Philippine "internal

xxxx
waters" under Article I of the

Constitution39 or as "archipelagic waters" 4. The regime of archipelagic sea lanes

under UNCLOS III (Article 49 [1]), the passage established in this Part shall not

Philippines exercises sovereignty over the in other respects affect the status of the

body of water lying landward of the archipelagic waters, including the sea

Constitutional Law 1 Nina Majica A. Pagaduan University of the Cordilleras College of Law
lanes, or the exercise by the In the absence of municipal legislation,

archipelagic State of its sovereignty over international law norms, now codified in

such waters and their air space, bed and UNCLOS III, operate to grant innocent

subsoil, and the resources contained passage rights over the territorial sea or

therein. (Emphasis supplied) archipelagic waters, subject to the

treaty’s limitations and conditions for

The fact of sovereignty, however, does
their exercise.42 Significantly, the right of
not preclude the operation of municipal
innocent passage is a customary
and international law norms subjecting
international law,43 thus automatically
the territorial sea or archipelagic waters
incorporated in the corpus of Philippine
to necessary, if not marginal, burdens in
law.44 No modern State can validly
the interest of maintaining unimpeded,
invoke its sovereignty to absolutely forbid
expeditious international navigation,
innocent passage that is exercised in
consistent with the international law
accordance with customary
principle of freedom of navigation. Thus,
international law without risking
domestically, the political branches of
retaliatory measures from the
the Philippine government, in the
international community.
competent discharge of their

constitutional powers, may pass The fact that for archipelagic States, their

legislation designating routes within the archipelagic waters are subject to both

archipelagic waters to regulate innocent the right of innocent passage and sea

and sea lanes passage.40 Indeed, bills lanes passage45 does not place them in

drawing nautical highways for sea lanes lesser footing vis-à-vis continental coastal

passage are now pending in Congress.41 States which are subject, in their territorial

sea, to the right of innocent passage and

Constitutional Law 1 Nina Majica A. Pagaduan University of the Cordilleras College of Law
the right of transit passage through Petitioners’ invocation of non-executory

international straits. The imposition of constitutional provisions in Article II

these passage rights through (Declaration of Principles and State

archipelagic waters under UNCLOS III Policies)48 must also fail. Our present state

was a concession by archipelagic States, of jurisprudence considers the provisions

in exchange for their right to claim all the in Article II as mere legislative guides,

waters landward of their baselines, which, absent enabling legislation, "do

regardless of their depth or distance from not embody judicially enforceable

the coast, as archipelagic waters subject constitutional rights x x x."49 Article II

to their territorial sovereignty. More provisions serve as guides in formulating

importantly, the recognition of and interpreting implementing

archipelagic States’ archipelago and legislation, as well as in interpreting

the waters enclosed by their baselines as executory provisions of the Constitution.

one cohesive entity prevents the Although Oposa v. Factoran50 treated

treatment of their islands as separate the right to a healthful and balanced

islands under UNCLOS III.46 Separate ecology under Section 16 of Article II as

islands generate their own maritime an exception, the present petition lacks

zones, placing the waters between factual basis to substantiate the claimed

islands separated by more than 24 constitutional violation. The other

nautical miles beyond the States’ provisions petitioners cite, relating to the

territorial sovereignty, subjecting these protection of marine wealth (Article XII,

waters to the rights of other States under Section 2, paragraph 251 ) and

UNCLOS III.47 subsistence fishermen (Article XIII, Section

752 ), are not violated by RA 9522.

Constitutional Law 1 Nina Majica A. Pagaduan University of the Cordilleras College of Law
In fact, the demarcation of the baselines beyond the territorial sea before UNCLOS

enables the Philippines to delimit its III.

exclusive economic zone, reserving

RA 9522 and the Philippines’ Maritime
solely to the Philippines the exploitation
Zones
of all living and non-living resources

within such zone. Such a maritime Petitioners hold the view that, based on

delineation binds the international the permissive text of UNCLOS III,

community since the delineation is in Congress was not bound to pass RA

strict observance of UNCLOS III. If the 9522.54 We have looked at the relevant

maritime delineation is contrary to provision of UNCLOS III55 and we find

UNCLOS III, the international community petitioners’ reading plausible.

will of course reject it and will refuse to be Nevertheless, the prerogative of

bound by it. choosing this option belongs to

Congress, not to this Court. Moreover,

UNCLOS III favors States with a long
the luxury of choosing this option comes
coastline like the Philippines. UNCLOS III
at a very steep price. Absent an UNCLOS
creates a sui generis maritime space –
III compliant baselines law, an
the exclusive economic zone – in waters
archipelagic State like the Philippines will
previously part of the high seas. UNCLOS
find itself devoid of internationally
III grants new rights to coastal States to
acceptable baselines from where the
exclusively exploit the resources found
breadth of its maritime zones and
within this zone up to 200 nautical miles.53
continental shelf is measured. This is
UNCLOS III, however, preserves the
recipe for a two-fronted disaster: first, it
traditional freedom of navigation of
sends an open invitation to the seafaring
other States that attached to this zone

Constitutional Law 1 Nina Majica A. Pagaduan University of the Cordilleras College of Law
powers to freely enter and exploit the WE CONCUR:

resources in the waters and submarine

areas around our archipelago; and

second, it weakens the country’s case in

any international dispute over Philippine

maritime space. These are

consequences Congress wisely avoided.

The enactment of UNCLOS III compliant

baselines law for the Philippine

archipelago and adjacent areas, as

embodied in RA 9522, allows an

internationally-recognized delimitation

of the breadth of the Philippines’

maritime zones and continental shelf. RA

9522 is therefore a most vital step on the

part of the Philippines in safeguarding its

maritime zones, consistent with the

Constitution and our national interest.

WHEREFORE, we DISMISS the petition.

SO ORDERED.

ANTONIO T. CARPIO

Associate Justice

Constitutional Law 1 Nina Majica A. Pagaduan University of the Cordilleras College of Law