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Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 183591 October 14, 2008

THE PROVINCE OF NORTH COTABATO, duly represented by GOVERNOR JESUS


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

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

G.R. No. 183752 October 14, 2008

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


City Mayor of Zamboanga, and in his personal capacity as resident of the City of
Zamboanga, Rep. MA. ISABELLE G. CLIMACO, District 1, and Rep. ERICO BASILIO A.
FABIAN, District 2, City of Zamboanga, petitioners,
vs.
THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE NEGOTIATING
PANEL (GRP), as represented by RODOLFO C. GARCIA, LEAH ARMAMENTO, SEDFREY
CANDELARIA, MARK RYAN SULLIVAN and HERMOGENES ESPERON, in his capacity as
the Presidential Adviser on Peace Process,respondents.

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

G.R. No. 183893 October 14, 2008

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


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

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

G.R. No. 183951 October 14, 2008


THE PROVINCIAL GOVERNMENT OF ZAMBOANGA DEL NORTE, as represented by HON.
ROLANDO E. YEBES, in his capacity as Provincial Governor, HON. FRANCIS H. OLVIS, in
his capacity as Vice-Governor and Presiding Officer of the Sangguniang Panlalawigan,
HON. CECILIA JALOSJOS CARREON, Congresswoman, 1st Congressional District, HON.
CESAR G. JALOSJOS, Congressman, 3rd Congressional District, and Members of the
Sangguniang Panlalawigan of the Province of Zamboanga del Norte, namely, HON. SETH
FREDERICK P. JALOSJOS, HON. FERNANDO R. CABIGON, JR., HON. ULDARICO M.
MEJORADA II, HON. EDIONAR M. ZAMORAS, HON. EDGAR J. BAGUIO, HON. CEDRIC L.
ADRIATICO, HON. FELIXBERTO C. BOLANDO, HON. JOSEPH BRENDO C. AJERO, HON.
NORBIDEIRI B. EDDING, HON. ANECITO S. DARUNDAY, HON. ANGELICA J. CARREON
and HON. LUZVIMINDA E. TORRINO, petitioners,
vs.
THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE NEGOTIATING
PANEL [GRP], as represented by HON. RODOLFO C. GARCIA and HON. HERMOGENES
ESPERON, in his capacity as the Presidential Adviser of Peace Process, respondents.

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

G.R. No. 183962 October 14, 2008

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


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

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

FRANKLIN M. DRILON and ADEL ABBAS TAMANO, petitioners-in-intervention.

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

SEN. MANUEL A. ROXAS, petitioners-in-intervention.

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

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


DEANO, petitioners-in-intervention,

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

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


SANTOS-AKBAR,petitioners-in-intervention.

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

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

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

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

CARLO B. GOMEZ, GERARDO S. DILIG, NESARIO G. AWAT, JOSELITO C. ALISUAG and


RICHALEX G. JAGMIS, as citizens and residents of Palawan, petitioners-in-intervention.

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

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

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

MUSLIM LEGAL ASSISTANCE FOUNDATION, INC (MUSLAF), respondent-in-intervention.

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

MUSLIM MULTI-SECTORAL MOVEMENT FOR PEACE & DEVELOPMENT


(MMMPD), respondent-in-intervention.

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

DECISION

CARPIO MORALES, J.:

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

I. FACTUAL ANTECEDENTS OF THE PETITIONS

On August 5, 2008, the Government of the Republic of the Philippines (GRP) and the MILF,
through the Chairpersons of their respective peace negotiating panels, were scheduled to sign a
Memorandum of Agreement on the Ancestral Domain (MOA-AD) Aspect of the GRP-MILF
Tripoli Agreement on Peace of 2001 in Kuala Lumpur, Malaysia.
The MILF is a rebel group which was established in March 1984 when, under the leadership of
the late Salamat Hashim, it splintered from the Moro National Liberation Front (MNLF) then
headed by Nur Misuari, on the ground, among others, of what Salamat perceived to be the
manipulation of the MNLF away from an Islamic basis towards Marxist-Maoist orientations.1

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

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

The Solicitor General, who represents respondents, summarizes the MOA-AD by stating that
the same contained, among others, the commitment of the parties to pursue peace negotiations,
protect and respect human rights, negotiate with sincerity in the resolution and pacific
settlement of the conflict, and refrain from the use of threat or force to attain undue advantage
while the peace negotiations on the substantive agenda are on-going.2

Early on, however, it was evident that there was not going to be any smooth sailing in the GRP-
MILF peace process. Towards the end of 1999 up to early 2000, the MILF attacked a number of
municipalities in Central Mindanao and, in March 2000, it took control of the town hall of
Kauswagan, Lanao del Norte.3 In response, then President Joseph Estrada declared and
carried out an "all-out-war" against the MILF.

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

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

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

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

Meanwhile, then MILF Chairman Salamat Hashim passed away on July 13, 2003 and he was
replaced by Al Haj Murad, who was then the chief peace negotiator of the MILF. Murad's
position as chief peace negotiator was taken over by Mohagher Iqbal.6

In 2005, several exploratory talks were held between the parties in Kuala Lumpur, eventually
leading to the crafting of the draft MOA-AD in its final form, which, as mentioned, was set to be
signed last August 5, 2008.

II. STATEMENT OF THE PROCEEDINGS

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

Commonly impleaded as respondents are the GRP Peace Panel on Ancestral Domain7 and the
Presidential Adviser on the Peace Process (PAPP) Hermogenes Esperon, Jr.

On July 23, 2008, the Province of North Cotabato8 and Vice-Governor Emmanuel Piol filed a
petition, docketed as G.R. No. 183591, for Mandamus and Prohibition with Prayer for the
Issuance of Writ of Preliminary Injunction and Temporary Restraining Order. 9 Invoking the right
to information on matters of public concern, petitioners seek to compel respondents to disclose
and furnish them the complete and official copies of the MOA-AD including its attachments, and
to prohibit the slated signing of the MOA-AD, pending the disclosure of the contents of the
MOA-AD and the holding of a public consultation thereon. Supplementarily, petitioners pray that
the MOA-AD be declared unconstitutional.10

This initial petition was followed by another one, docketed as G.R. No. 183752, also for
Mandamus and Prohibition11 filed by the City of Zamboanga,12 Mayor Celso Lobregat, Rep. Ma.
Isabelle Climaco and Rep. Erico Basilio Fabian who likewise pray for similar injunctive reliefs.
Petitioners herein moreover pray that the City of Zamboanga be excluded from the Bangsamoro
Homeland and/or Bangsamoro Juridical Entity and, in the alternative, that the MOA-AD be
declared null and void.

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

Meanwhile, the City of Iligan16 filed a petition for Injunction and/or Declaratory Relief, docketed
as G.R. No. 183893, praying that respondents be enjoined from signing the MOA-AD or, if the
same had already been signed, from implementing the same, and that the MOA-AD be declared
unconstitutional. Petitioners herein additionally implead Executive Secretary Eduardo Ermita as
respondent.
The Province of Zamboanga del Norte,17 Governor Rolando Yebes, Vice-Governor Francis
Olvis, Rep. Cecilia Jalosjos-Carreon, Rep. Cesar Jalosjos, and the members18 of the
Sangguniang Panlalawigan of Zamboanga del Norte filed on August 15, 2008 a petition for
Certiorari, Mandamus and Prohibition,19 docketed as G.R. No. 183951. They pray, inter alia,
that the MOA-AD be declared null and void and without operative effect, and that respondents
be enjoined from executing the MOA-AD.

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

Various parties moved to intervene and were granted leave of court to file their petitions-
/comments-in-intervention. Petitioners-in-Intervention include Senator Manuel A. Roxas, former
Senate President Franklin Drilon and Atty. Adel Tamano, the City of Isabela21 and Mayor
Cherrylyn Santos-Akbar, the Province of Sultan Kudarat22 and Gov. Suharto Mangudadatu, the
Municipality of Linamon in Lanao del Norte,23 Ruy Elias Lopez of Davao City and of the Bagobo
tribe, Sangguniang Panlungsod member Marino Ridao and businessman Kisin Buxani, both of
Cotabato City; and lawyers Carlo Gomez, Gerardo Dilig, Nesario Awat, Joselito Alisuag,
Richalex Jagmis, all of Palawan City. The Muslim Legal Assistance Foundation, Inc. (Muslaf)
and the Muslim Multi-Sectoral Movement for Peace and Development (MMMPD) filed their
respective Comments-in-Intervention.

By subsequent Resolutions, the Court ordered the consolidation of the petitions. Respondents
filed Comments on the petitions, while some of petitioners submitted their respective Replies.

Respondents, by Manifestation and Motion of August 19, 2008, stated that the Executive
Department shall thoroughly review the MOA-AD and pursue further negotiations to address the
issues hurled against it, and thus moved to dismiss the cases. In the succeeding exchange of
pleadings, respondents' motion was met with vigorous opposition from petitioners.

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

1. Whether the petitions have become moot and academic

(i) insofar as the mandamus aspect is concerned, in view of the disclosure of


official copies of the final draft of the Memorandum of Agreement (MOA); and

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

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

3. Whether respondent Government of the Republic of the Philippines Peace Panel


committed grave abuse of discretion amounting to lack or excess of jurisdiction when it
negotiated and initiated the MOA vis--vis ISSUES Nos. 4 and 5;
4. Whether there is a violation of the people's right to information on matters of public
concern (1987 Constitution, Article III, Sec. 7) under a state policy of full disclosure of all
its transactions involving public interest (1987 Constitution, Article II, Sec. 28) including
public consultation under Republic Act No. 7160 (LOCAL GOVERNMENT CODE OF
1991)[;]

If it is in the affirmative, whether prohibition under Rule 65 of the 1997 Rules of Civil
Procedure is an appropriate remedy;

5. Whether by signing the MOA, the Government of the Republic of the Philippines
would be BINDING itself

a) to create and recognize the Bangsamoro Juridical Entity (BJE) as a separate


state, or a juridical, territorial or political subdivision not recognized by law;

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

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

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

6. Whether the inclusion/exclusion of the Province of North Cotabato, Cities of


Zamboanga, Iligan and Isabela, and the Municipality of Linamon, Lanao del Norte
in/from the areas covered by the projected Bangsamoro Homeland is a justiciable
question; and

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

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

III. OVERVIEW OF THE MOA-AD

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

The MOA-AD identifies the Parties to it as the GRP and the MILF.

Under the heading "Terms of Reference" (TOR), the MOA-AD includes not only four earlier
agreements between the GRP and MILF, but also two agreements between the GRP and the
MNLF: the 1976 Tripoli Agreement, and the Final Peace Agreement on the Implementation of
the 1976 Tripoli Agreement, signed on September 2, 1996 during the administration of
President Fidel Ramos.
The MOA-AD also identifies as TOR two local statutes - the organic act for the Autonomous
Region in Muslim Mindanao (ARMM)25 and the Indigenous Peoples Rights Act (IPRA),26 and
several international law instruments - the ILO Convention No. 169 Concerning Indigenous and
Tribal Peoples in Independent Countries in relation to the UN Declaration on the Rights of the
Indigenous Peoples, and the UN Charter, among others.

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

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

As Muslim States entered into treaties with their neighbors, even with distant States and inter-
governmental organizations, the classical division of the world into dar-ul-Islam and dar-ul-
harb eventually lost its meaning. New terms were drawn up to describe novel ways of perceiving
non-Muslim territories. For instance, areas like dar-ul-mua'hada (land of compact) and dar-ul-
sulh (land of treaty) referred to countries which, though under a secular regime, maintained
peaceful and cooperative relations with Muslim States, having been bound to each other by
treaty or agreement. Dar-ul-aman (land of order), on the other hand, referred to countries which,
though not bound by treaty with Muslim States, maintained freedom of religion for Muslims.28

It thus appears that the "compact rights entrenchment" emanating from the regime of dar-ul-
mua'hada and dar-ul-sulh simply refers to all other agreements between the MILF and the
Philippine government - the Philippines being the land of compact and peace agreement - that
partake of the nature of a treaty device, "treaty" being broadly defined as "any solemn
agreement in writing that sets out understandings, obligations, and benefits for both parties
which provides for a framework that elaborates the principles declared in the [MOA-AD]."29

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

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

A. CONCEPTS AND PRINCIPLES

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

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

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

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

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

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

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

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

B. TERRITORY

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

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

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

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

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

C. RESOURCES

The MOA-AD states that the BJE is free to enter into any economic cooperation and trade
relations with foreign countries and shall have the option to establish trade missions in those
countries. Such relationships and understandings, however, are not to include aggression
against the GRP. The BJE may also enter into environmental cooperation agreements.46

The external defense of the BJE is to remain the duty and obligation of the Central Government.
The Central Government is also bound to "take necessary steps to ensure the BJE's
participation in international meetings and events" like those of the ASEAN and the specialized
agencies of the UN. The BJE is to be entitled to participate in Philippine official missions and
delegations for the negotiation of border agreements or protocols for environmental protection
and equitable sharing of incomes and revenues involving the bodies of water adjacent to or
between the islands forming part of the ancestral domain.47

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

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

The MOA-AD provides that legitimate grievances of the Bangsamoro people arising from any
unjust dispossession of their territorial and proprietary rights, customary land tenures, or their
marginalization shall be acknowledged. Whenever restoration is no longer possible, reparation
is to be in such form as mutually determined by the Parties.50
The BJE may modify or cancel the forest concessions, timber licenses, contracts or
agreements, mining concessions, Mineral Production and Sharing Agreements (MPSA),
Industrial Forest Management Agreements (IFMA), and other land tenure instruments granted
by the Philippine Government, including those issued by the present ARMM.51

D. GOVERNANCE

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

The "associative" relationship


between the Central Government
and the BJE

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

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

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

As stated early on, the MOA-AD was set to be signed on August 5, 2008 by Rodolfo Garcia and
Mohagher Iqbal, Chairpersons of the Peace Negotiating Panels of the GRP and the MILF,
respectively. Notably, the penultimate paragraph of the MOA-AD identifies the signatories as
"the representatives of the Parties," meaning the GRP and MILF themselves, and not merely of
the negotiating panels.53 In addition, the signature page of the MOA-AD states that it is
"WITNESSED BY" Datuk Othman Bin Abd Razak, Special Adviser to the Prime Minister of
Malaysia, "ENDORSED BY" Ambassador Sayed Elmasry, Adviser to Organization of the Islamic
Conference (OIC) Secretary General and Special Envoy for Peace Process in Southern
Philippines, and SIGNED "IN THE PRESENCE OF" Dr. Albert G. Romulo, Secretary of Foreign
Affairs of RP and Dato' Seri Utama Dr. Rais Bin Yatim, Minister of Foreign Affairs, Malaysia, all
of whom were scheduled to sign the Agreement last August 5, 2008.

Annexed to the MOA-AD are two documents containing the respective lists cum maps of the
provinces, municipalities, and barangays under Categories A and B earlier mentioned in the
discussion on the strand on TERRITORY.

IV. PROCEDURAL ISSUES


A. RIPENESS

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

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

Related to the requirement of an actual case or controversy is the requirement of ripeness. A


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

The Solicitor General argues that there is no justiciable controversy that is ripe for judicial
review in the present petitions, reasoning that

The unsigned MOA-AD is simply a list of consensus points subject to further


negotiations and legislative enactments as well as constitutional processes aimed at
attaining a final peaceful agreement. Simply put, the MOA-AD remains to be a proposal
that does not automatically create legally demandable rights and obligations until the list
of operative acts required have been duly complied with. x x x

xxxx

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

The Solicitor General cites63 the following provisions of the MOA-AD:

TERRITORY

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

xxxx

d. Without derogating from the requirements of prior agreements, the Government


stipulates to conduct and deliver, using all possible legal measures, within twelve (12)
months following the signing of the MOA-AD, a plebiscite covering the areas as
enumerated in the list and depicted in the map as Category A attached herein (the
"Annex"). The Annex constitutes an integral part of this framework agreement. Toward
this end, the Parties shall endeavor to complete the negotiations and resolve all
outstanding issues on the Comprehensive Compact within fifteen (15) months from the
signing of the MOA-AD.

xxxx

GOVERNANCE

xxxx

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

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

The Solicitor General's arguments fail to persuade.

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

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

xxxx

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

In Santa Fe Independent School District v. Doe,67 the United States Supreme Court held that
the challenge to the constitutionality of the school's policy allowing student-led prayers and
speeches before games was ripe for adjudication, even if no public prayer had yet been led
under the policy, because the policy was being challenged as unconstitutional on its face.68
That the law or act in question is not yet effective does not negate ripeness. For example,
in New York v. United States,69 decided in 1992, the United States Supreme Court held that the
action by the State of New York challenging the provisions of the Low-Level Radioactive Waste
Policy Act was ripe for adjudication even if the questioned provision was not to take effect until
January 1, 1996, because the parties agreed that New York had to take immediate action to
avoid the provision's consequences.70

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

The authority of the GRP Negotiating Panel is defined by Executive Order No. 3 (E.O. No. 3),
issued on February 28, 2001.75 The said executive order requires that "[t]he government's policy
framework for peace, including the systematic approach and the administrative structure for
carrying out the comprehensive peace process x x x be governed by this Executive Order."76

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

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

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

B. LOCUS STANDI

For a party to have locus standi, one must allege "such a personal stake in the outcome of the
controversy as to assure that concrete adverseness which sharpens the presentation of issues
upon which the court so largely depends for illumination of difficult constitutional questions."78
Because constitutional cases are often public actions in which the relief sought is likely to affect
other persons, a preliminary question frequently arises as to this interest in the constitutional
question raised.79

When suing as a citizen, the person complaining must allege that he has been or is about to be
denied some right or privilege to which he is lawfully entitled or that he is about to be subjected
to some burdens or penalties by reason of the statute or act complained of.80 When the issue
concerns a public right, it is sufficient that the petitioner is a citizen and has an interest in the
execution of the laws.81

For a taxpayer, one is allowed to sue where there is an assertion that public funds are illegally
disbursed or deflected to an illegal purpose, or that there is a wastage of public funds through
the enforcement of an invalid or unconstitutional law.82 The Court retains discretion whether or
not to allow a taxpayer's suit.83

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

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

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

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

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

In not a few cases, the Court, in keeping with its duty under the Constitution to determine
whether the other branches of government have kept themselves within the limits of the
Constitution and the laws and have not abused the discretion given them, has brushed aside
technical rules of procedure.91

In the petitions at bar, petitioners Province of North Cotabato (G.R. No. 183591) Province of
Zamboanga del Norte (G.R. No. 183951), City of Iligan (G.R. No. 183893) and City of
Zamboanga (G.R. No. 183752) and petitioners-in-intervention Province of Sultan
Kudarat, City of Isabela and Municipality of Linamon have locus standi in view of the direct
and substantial injury that they, as LGUs, would suffer as their territories, whether in whole or in
part, are to be included in the intended domain of the BJE. These petitioners allege that they did
not vote for their inclusion in the ARMM which would be expanded to form the BJE territory.
Petitioners' legal standing is thus beyond doubt.

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

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

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

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

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


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

B. MOOTNESS

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

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

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

Another exclusionary circumstance that may be considered is where there is


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

The present petitions fall squarely into these exceptions to thus thrust them into the domain of
judicial review. The grounds cited above in David are just as applicable in the present cases as
they were, not only in David, but also in Province of Batangas v. Romulo100 and Manalo v.
Calderon101 where the Court similarly decided them on the merits, supervening events that
would ordinarily have rendered the same moot notwithstanding.

Petitions not mooted

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

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

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

Petitions are imbued with paramount public interest

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

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

The MOA-AD is part of a series of agreements

In the present controversy, the MOA-AD is a significant part of a series of


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

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

Need to formulate principles-guidelines

Surely, the present MOA-AD can be renegotiated or another one will be drawn up to carry out
the Ancestral Domain Aspect of the Tripoli Agreement 2001, in another or in any form,
which could contain similar or significantly drastic provisions. While the Court notes the word of
the Executive Secretary that the government "is committed to securing an agreement that is
both constitutional and equitable because that is the only way that long-lasting peace can be
assured," it is minded to render a decision on the merits in the present petitions to formulate
controlling principles to guide the bench, the bar, the public and, most especially, the
government in negotiating with the MILF regarding Ancestral Domain.

Respondents invite the Court's attention to the separate opinion of then Chief Justice Artemio
Panganiban in Sanlakas v. Reyes104 in which he stated that the doctrine of "capable of repetition
yet evading review" can override mootness, "provided the party raising it in a proper case has
been and/or continue to be prejudiced or damaged as a direct result of their issuance." They
contend that the Court must have jurisdiction over the subject matter for the doctrine to be
invoked.

The present petitions all contain prayers for Prohibition over which this Court exercises original
jurisdiction. While G.R. No. 183893 (City of Iligan v. GRP) is a petition for Injunction and
Declaratory Relief, the Court will treat it as one for Prohibition as it has far reaching implications
and raises questions that need to be resolved.105 At all events, the Court has jurisdiction over
most if not the rest of the petitions.
Indeed, the present petitions afford a proper venue for the Court to again apply the doctrine
immediately referred to as what it had done in a number of landmark cases.106 There is
a reasonable expectation that petitioners, particularly the Provinces of North Cotabato,
Zamboanga del Norte and Sultan Kudarat, the Cities of Zamboanga, Iligan and Isabela, and the
Municipality of Linamon, will again be subjected to the same problem in the future as
respondents' actions are capable of repetition, in another or any form.

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

V. SUBSTANTIVE ISSUES

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

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

2. Do the contents of the MOA-AD violate the Constitution and the laws?

ON THE FIRST SUBSTANTIVE ISSUE

Petitioners invoke their constitutional right to information on matters of public concern, as


provided in Section 7, Article III on the Bill of Rights:

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

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

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

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

x x x The incorporation of this right in the Constitution is a recognition of the fundamental role of
free exchange of information in a democracy. There can be no realistic perception by the public
of the nation's problems, nor a meaningful democratic decision-making if they are denied
access to information of general interest. Information is needed to enable the members of
society to cope with the exigencies of the times. As has been aptly observed: "Maintaining the
flow of such information depends on protection for both its acquisition and its dissemination
since, if either process is interrupted, the flow inevitably ceases." x x x111

In the same way that free discussion enables members of society to cope with the exigencies of
their time, access to information of general interest aids the people in democratic decision-
making by giving them a better perspective of the vital issues confronting the nation112 so that
they may be able to criticize and participate in the affairs of the government in a responsible,
reasonable and effective manner. It is by ensuring an unfettered and uninhibited exchange of
ideas among a well-informed public that a government remains responsive to the changes
desired by the people.113

The MOA-AD is a matter of public concern

That the subject of the information sought in the present cases is a matter of public
concern114 faces no serious challenge. In fact, respondents admit that the MOA-AD is indeed of
public concern.115 In previous cases, the Court found that the regularity of real estate
transactions entered in the Register of Deeds,116 the need for adequate notice to the public of
the various laws,117 the civil service eligibility of a public employee,118 the proper management of
GSIS funds allegedly used to grant loans to public officials,119 the recovery of the Marcoses'
alleged ill-gotten wealth,120 and the identity of party-list nominees,121 among others, are matters
of public concern. Undoubtedly, the MOA-AD subject of the present cases is of public
concern, involving as it does the sovereignty and territorial integrity of the State, which
directly affects the lives of the public at large.

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

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


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

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

Intended as a "splendid symmetry"123 to the right to information under the Bill of Rights is the
policy of public disclosure under Section 28, Article II of the Constitution reading:
Sec. 28. Subject to reasonable conditions prescribed by law, the State adopts and
implements a policy of full public disclosure of all its transactions involving public
interest.124

The policy of full public disclosure enunciated in above-quoted Section


28 complements the right of access to information on matters of public concern found in the Bill
of Rights. The right to information guarantees the right of the people to demand information,
while Section 28 recognizes the duty of officialdom to give information even if nobody
demands.125

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

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


Commission so disclose:

MR. SUAREZ. And since this is not self-executory, this policy will not be enunciated or
will not be in force and effect until after Congress shall have provided it.

MR. OPLE. I expect it to influence the climate of public ethics immediately but, of course,
the implementing law will have to be enacted by Congress, Mr. Presiding Officer. 128

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

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

MR. OPLE. Yes. Originally, it was going to be self-executing, but I accepted an


amendment from Commissioner Regalado, so that the safeguards on national interest
are modified by the clause "as may be provided by law"

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

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

Indubitably, the effectivity of the policy of public disclosure need not await the passing of
a statute. As Congress cannot revoke this principle, it is merely directed to provide for
"reasonable safeguards." The complete and effective exercise of the right to information
necessitates that its complementary provision on public disclosure derive the same self-
executory nature. Since both provisions go hand-in-hand, it is absurd to say that the
broader130 right to information on matters of public concern is already enforceable while the
correlative duty of the State to disclose its transactions involving public interest is not
enforceable until there is an enabling law. Respondents cannot thus point to the absence of an
implementing legislation as an excuse in not effecting such policy.

An essential element of these freedoms is to keep open a continuing dialogue or process of


communication between the government and the people. It is in the interest of the State that the
channels for free political discussion be maintained to the end that the government may
perceive and be responsive to the people's will.131Envisioned to be corollary to the twin rights to
information and disclosure is the design for feedback mechanisms.

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

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

xxxx

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

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

The imperative of a public consultation, as a species of the right to information, is evident in the
"marching orders" to respondents. The mechanics for the duty to disclose information and to
conduct public consultation regarding the peace agenda and process is manifestly provided by
E.O. No. 3.133 The preambulatory clause of E.O. No. 3 declares that there is a need to further
enhance the contribution of civil society to the comprehensive peace process by
institutionalizing the people's participation.

One of the three underlying principles of the comprehensive peace process is that it "should be
community-based, reflecting the sentiments, values and principles important to all Filipinos" and
"shall be defined not by the government alone, nor by the different contending groups only, but
by all Filipinos as one community."134 Included as a component of the comprehensive peace
process is consensus-building and empowerment for peace, which includes "continuing
consultations on both national and local levels to build consensus for a peace agenda and
process, and the mobilization and facilitation of people's participation in the peace process."135

Clearly, E.O. No. 3 contemplates not just the conduct of a plebiscite to effectuate
"continuing" consultations, contrary to respondents' position that plebiscite is "more
than sufficient consultation."136
Further, E.O. No. 3 enumerates the functions and responsibilities of the PAPP, one of which is
to "[c]onduct regular dialogues with the National Peace Forum (NPF) and other peace partners
to seek relevant information, comments, recommendations as well as to render appropriate and
timely reports on the progress of the comprehensive peace process."137 E.O. No. 3 mandates
the establishment of the NPF to be "the principal forum for the PAPP to consult with and seek
advi[c]e from the peace advocates, peace partners and concerned sectors of society on both
national and local levels, on the implementation of the comprehensive peace process, as well
as for government[-]civil society dialogue and consensus-building on peace agenda and
initiatives."138

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

PAPP Esperon committed grave abuse of discretion

The PAPP committed grave abuse of discretion when he failed to carry out the pertinent
consultation. The furtive process by which the MOA-AD was designed and crafted runs
contrary to and in excess of the legal authority, and amounts to a whimsical, capricious,
oppressive, arbitrary and despotic exercise thereof.

The Court may not, of course, require the PAPP to conduct the consultation in a particular way
or manner. It may, however, require him to comply with the law and discharge the
functions within the authority granted by the President.139

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

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

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

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

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


government authorities unlessthe consultations mentioned in Sections 2 (c) and 26
hereof are complied with, and prior approval of the sanggunian concerned is obtained:
Provided, That occupants in areas where such projects are to be implemented shall not
be evicted unless appropriate relocation sites have been provided, in accordance with
the provisions of the Constitution.143 (Italics and underscoring supplied)

In Lina, Jr. v. Hon. Pao,144 the Court held that the above-stated policy and above-quoted
provision of the LGU apply only to national programs or projects which are to be implemented in
a particular local community. Among the programs and projects covered are those that are
critical to the environment and human ecology including those that may call for the eviction of a
particular group of people residing in the locality where these will be implemented.145 The MOA-
AD is one peculiar program that unequivocally and unilaterally vests ownership of a vast
territory to the Bangsamoro people,146 which could pervasively and drastically result to
the diaspora or displacement of a great number of inhabitants from their total
environment.

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


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

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

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

ON THE SECOND SUBSTANTIVE ISSUE

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

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

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

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


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

4. The relationship between the Central Government and the Bangsamoro juridical
entity shall be associative characterized by shared authority and
responsibility with a structure of governance based on executive, legislative, judicial
and administrative institutions with defined powers and functions in the comprehensive
compact. A period of transition shall be established in a comprehensive peace compact
specifying the relationship between the Central Government and the BJE. (Emphasis
and underscoring supplied)

The nature of the "associative" relationship may have been intended to be defined more
precisely in the still to be forged Comprehensive Compact. Nonetheless, given that there is a
concept of "association" in international law, and the MOA-AD - by its inclusion of international
law instruments in its TOR- placed itself in an international legal context, that concept of
association may be brought to bear in understanding the use of the term "associative" in the
MOA-AD.

Keitner and Reisman state that

[a]n association is formed when two states of unequal power voluntarily establish
durable links. In the basic model, one state, the associate, delegates certain
responsibilities to the other, the principal, while maintaining its international
status as a state. Free associations represent a middle ground between
integration and independence. x x x150 (Emphasis and underscoring supplied)

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

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

In the event of attacks or threats against the Marshall Islands or the FSM, the U.S. government
has the authority and obligation to defend them as if they were part of U.S. territory. The U.S.
government, moreover, has the option of establishing and using military areas and facilities
within these associated states and has the right to bar the military personnel of any third country
from having access to these territories for military purposes.

It bears noting that in U.S. constitutional and international practice, free association is
understood as an international association between sovereigns. The Compact of Free
Association is a treaty which is subordinate to the associated nation's national constitution, and
each party may terminate the association consistent with the right of independence. It has been
said that, with the admission of the U.S.-associated states to the UN in 1990, the UN recognized
that the American model of free association is actually based on an underlying status of
independence.152

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

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

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

The concept of association is not recognized under the present Constitution

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

Even the mere concept animating many of the MOA-AD's provisions, therefore, already requires
for its validity the amendment of constitutional provisions, specifically the following provisions of
Article X:

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

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

The BJE is a far more powerful


entity than the autonomous region
recognized in the Constitution

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

Even assuming arguendo that the MOA-AD would not necessarily sever any portion of
Philippine territory, the spirit animating it - which has betrayed itself by its use of the concept
of association - runs counter to the national sovereignty and territorial integrity of the
Republic.

The defining concept underlying the relationship between the national government and
the BJE being itself contrary to the present Constitution, it is not surprising that many of
the specific provisions of the MOA-AD on the formation and powers of the BJE are in
conflict with the Constitution and the laws.

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

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

The MOA-AD, moreover, would not


comply with Article X, Section 20 of
the Constitution

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

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

(1) Administrative organization;

(2) Creation of sources of revenues;

(3) Ancestral domain and natural resources;

(4) Personal, family, and property relations;

(5) Regional urban and rural planning development;

(6) Economic, social, and tourism development;

(7) Educational policies;

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

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

Again on the premise that the BJE may be regarded as an autonomous region, the MOA-AD
would require an amendment that would expand the above-quoted provision. The mere
passage of new legislation pursuant to sub-paragraph No. 9 of said constitutional provision
would not suffice, since any new law that might vest in the BJE the powers found in the MOA-
AD must, itself, comply with other provisions of the Constitution. It would not do, for instance, to
merely pass legislation vesting the BJE with treaty-making power in order to accommodate
paragraph 4 of the strand on RESOURCES which states: "The BJE is free to enter into any
economic cooperation and trade relations with foreign countries: provided, however, that such
relationships and understandings do not include aggression against the Government of the
Republic of the Philippines x x x." Under our constitutional system, it is only the President who
has that power. Pimentel v. Executive Secretary155 instructs:
In our system of government, the President, being the head of state, is regarded
as the sole organ and authority in external relations and is the country's sole
representative with foreign nations. As the chief architect of foreign policy, the
President acts as the country's mouthpiece with respect to international affairs.
Hence, the President is vested with the authority to deal with foreign states and
governments, extend or withhold recognition, maintain diplomatic relations, enter into
treaties, and otherwise transact the business of foreign relations. In the realm of
treaty-making, the President has the sole authority to negotiate with other
states. (Emphasis and underscoring supplied)

Article II, Section 22 of the Constitution must also be amended if the scheme envisioned
in the MOA-AD is to be effected. That constitutional provision states: "The State recognizes
and promotes the rights of indigenous cultural communities within the framework of national
unity and development." (Underscoring supplied) An associative arrangement does not uphold
national unity. While there may be a semblance of unity because of the associative ties between
the BJE and the national government, the act of placing a portion of Philippine territory in a
status which, in international practice, has generally been a preparation for independence, is
certainly not conducive to national unity.

Besides being irreconcilable with the Constitution, the MOA-AD is also inconsistent with
prevailing statutory law, among which are R.A. No. 9054156 or the Organic Act of the ARMM,
and the IPRA.157

Article X, Section 3 of the Organic Act of the ARMM is a bar to the adoption of the
definition of "Bangsamoro people" used in the MOA-AD. Paragraph 1 on Concepts and
Principles states:

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

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

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

(a) Tribal peoples. These are citizens whose social, cultural and economic conditions
distinguish them from other sectors of the national community; and

(b) Bangsa Moro people. These are citizens who are believers in Islam and who have
retained some or all of their own social, economic, cultural, and political
institutions."
Respecting the IPRA, it lays down the prevailing procedure for the delineation and recognition of
ancestral domains. The MOA-AD's manner of delineating the ancestral domain of the
Bangsamoro people is a clear departure from that procedure. By paragraph 1 of Territory, the
Parties simply agree that, subject to the delimitations in the agreed Schedules, "[t]he
Bangsamoro homeland and historic territory refer to the land mass as well as the maritime,
terrestrial, fluvial and alluvial domains, and the aerial domain, the atmospheric space above it,
embracing the Mindanao-Sulu-Palawan geographic region."

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

SECTION 52. Delineation Process. - The identification and delineation of ancestral


domains shall be done in accordance with the following procedures:

xxxx

b) Petition for Delineation. - The process of delineating a specific perimeter may be


initiated by the NCIP with the consent of the ICC/IP concerned, or through a Petition for
Delineation filed with the NCIP, by a majority of the members of the ICCs/IPs;

c) Delineation Proper. - The official delineation of ancestral domain boundaries including


census of all community members therein, shall be immediately undertaken by the
Ancestral Domains Office upon filing of the application by the ICCs/IPs concerned.
Delineation will be done in coordination with the community concerned and shall at all
times include genuine involvement and participation by the members of the communities
concerned;

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

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

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

3) Pictures showing long term occupation such as those of old improvements,


burial grounds, sacred places and old villages;

4) Historical accounts, including pacts and agreements concerning boundaries


entered into by the ICCs/IPs concerned with other ICCs/IPs;

5) Survey plans and sketch maps;

6) Anthropological data;

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

9) Pictures and descriptive histories of traditional landmarks such as mountains,


rivers, creeks, ridges, hills, terraces and the like; and

10) Write-ups of names and places derived from the native dialect of the
community.

e) Preparation of Maps. - On the basis of such investigation and the findings of fact
based thereon, the Ancestral Domains Office of the NCIP shall prepare a perimeter map,
complete with technical descriptions, and a description of the natural features and
landmarks embraced therein;

f) Report of Investigation and Other Documents. - A complete copy of the preliminary


census and a report of investigation, shall be prepared by the Ancestral Domains Office
of the NCIP;

g) Notice and Publication. - A copy of each document, including a translation in the


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

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

xxxx

To remove all doubts about the irreconcilability of the MOA-AD with the present legal system, a
discussion of not only the Constitution and domestic statutes, but also of international law is in
order, for

Article II, Section 2 of the Constitution states that the Philippines "adopts the generally
accepted principles of international law as part of the law of the land."
Applying this provision of the Constitution, the Court, in Mejoff v. Director of Prisons,158 held that
the Universal Declaration of Human Rights is part of the law of the land on account of which it
ordered the release on bail of a detained alien of Russian descent whose deportation order had
not been executed even after two years. Similarly, the Court in Agustin v. Edu159 applied the
aforesaid constitutional provision to the 1968 Vienna Convention on Road Signs and Signals.

International law has long recognized the right to self-determination of "peoples," understood
not merely as the entire population of a State but also a portion thereof. In considering the
question of whether the people of Quebec had a right to unilaterally secede from Canada, the
Canadian Supreme Court in REFERENCE RE SECESSION OF QUEBEC160 had occasion to
acknowledge that "the right of a people to self-determination is now so widely recognized in
international conventions that the principle has acquired a status beyond convention' and is
considered a general principle of international law."

Among the conventions referred to are the International Covenant on Civil and Political
Rights161 and the International Covenant on Economic, Social and Cultural Rights162 which
state, in Article 1 of both covenants, that all peoples, by virtue of the right of self-determination,
"freely determine their political status and freely pursue their economic, social, and cultural
development."

The people's right to self-determination should not, however, be understood as extending to a


unilateral right of secession. A distinction should be made between the right of internal and
external self-determination. REFERENCE RE SECESSION OF QUEBEC is again instructive:

"(ii) Scope of the Right to Self-determination

126. The recognized sources of international law establish that the right to self-
determination of a people is normally fulfilled through internal self-determination -
a people's pursuit of its political, economic, social and cultural development
within the framework of an existing state. A right to external self-determination
(which in this case potentially takes the form of the assertion of a right to
unilateral secession) arises in only the most extreme of cases and, even then,
under carefully defined circumstances. x x x

External self-determination can be defined as in the following statement from


the Declaration on Friendly Relations, supra, as

The establishment of a sovereign and independent State, the free association or


integration with an independent State or the emergence into any other political
status freely determined by a peopleconstitute modes of implementing the right of
self-determination by that people. (Emphasis added)

127. The international law principle of self-determination has evolved within a


framework of respect for the territorial integrity of existing states. The various
international documents that support the existence of a people's right to self-
determination also contain parallel statements supportive of the conclusion that the
exercise of such a right must be sufficiently limited to prevent threats to an existing
state's territorial integrity or the stability of relations between sovereign states.

x x x x (Emphasis, italics and underscoring supplied)


The Canadian Court went on to discuss the exceptional cases in which the right to external self-
determination can arise, namely, where a people is under colonial rule, is subject to foreign
domination or exploitation outside a colonial context, and - less definitely but asserted by a
number of commentators - is blocked from the meaningful exercise of its right to internal self-
determination. The Court ultimately held that the population of Quebec had no right to
secession, as the same is not under colonial rule or foreign domination, nor is it being deprived
of the freedom to make political choices and pursue economic, social and cultural development,
citing that Quebec is equitably represented in legislative, executive and judicial institutions
within Canada, even occupying prominent positions therein.

The exceptional nature of the right of secession is further exemplified in the REPORT OF THE
INTERNATIONAL COMMITTEE OF JURISTS ON THE LEGAL ASPECTS OF THE AALAND
ISLANDS QUESTION.163 There, Sweden presented to the Council of the League of Nations the
question of whether the inhabitants of the Aaland Islands should be authorized to determine by
plebiscite if the archipelago should remain under Finnish sovereignty or be incorporated in the
kingdom of Sweden. The Council, before resolving the question, appointed an International
Committee composed of three jurists to submit an opinion on the preliminary issue of whether
the dispute should, based on international law, be entirely left to the domestic jurisdiction of
Finland. The Committee stated the rule as follows:

x x x [I]n the absence of express provisions in international treaties, the right of


disposing of national territory is essentially an attribute of the sovereignty of
every State. Positive International Law does not recognize the right of national
groups, as such, to separate themselves from the State of which they form part by
the simple expression of a wish, any more than it recognizes the right of other States
to claim such a separation. Generally speaking, the grant or refusal of the right to a
portion of its population of determining its own political fate by plebiscite or by
some other method, is, exclusively, an attribute of the sovereignty of every
State which is definitively constituted. A dispute between two States concerning such
a question, under normal conditions therefore, bears upon a question which International
Law leaves entirely to the domestic jurisdiction of one of the States concerned. Any
other solution would amount to an infringement of sovereign rights of a State and would
involve the risk of creating difficulties and a lack of stability which would not only be
contrary to the very idea embodied in term "State," but would also endanger the interests
of the international community. If this right is not possessed by a large or small section of
a nation, neither can it be held by the State to which the national group wishes to be
attached, nor by any other State. (Emphasis and underscoring supplied)

The Committee held that the dispute concerning the Aaland Islands did not refer to a question
which is left by international law to the domestic jurisdiction of Finland, thereby applying the
exception rather than the rule elucidated above. Its ground for departing from the general rule,
however, was a very narrow one, namely, the Aaland Islands agitation originated at a time when
Finland was undergoing drastic political transformation. The internal situation of Finland was,
according to the Committee, so abnormal that, for a considerable time, the conditions required
for the formation of a sovereign State did not exist. In the midst of revolution, anarchy, and civil
war, the legitimacy of the Finnish national government was disputed by a large section of the
people, and it had, in fact, been chased from the capital and forcibly prevented from carrying out
its duties. The armed camps and the police were divided into two opposing forces. In light of
these circumstances, Finland was not, during the relevant time period, a "definitively
constituted" sovereign state. The Committee, therefore, found that Finland did not possess the
right to withhold from a portion of its population the option to separate itself - a right which
sovereign nations generally have with respect to their own populations.

Turning now to the more specific category of indigenous peoples, this term has been used, in
scholarship as well as international, regional, and state practices, to refer to groups with distinct
cultures, histories, and connections to land (spiritual and otherwise) that have been forcibly
incorporated into a larger governing society. These groups are regarded as "indigenous" since
they are the living descendants of pre-invasion inhabitants of lands now dominated by others.
Otherwise stated, indigenous peoples, nations, or communities are culturally distinctive groups
that find themselves engulfed by settler societies born of the forces of empire and
conquest.164 Examples of groups who have been regarded as indigenous peoples are the Maori
of New Zealand and the aboriginal peoples of Canada.

As with the broader category of "peoples," indigenous peoples situated within states do not
have a general right to independence or secession from those states under international
law,165 but they do have rights amounting to what was discussed above as the right
to internal self-determination.

In a historic development last September 13, 2007, the UN General Assembly adopted the
United Nations Declaration on the Rights of Indigenous Peoples (UN DRIP) through General
Assembly Resolution 61/295. The vote was 143 to 4, the Philippines being included among
those in favor, and the four voting against being Australia, Canada, New Zealand, and the U.S.
The Declaration clearly recognized the right of indigenous peoples to self-determination,
encompassing the right to autonomy or self-government, to wit:

Article 3

Indigenous peoples have the right to self-determination. By virtue of that right they
freely determine their political status and freely pursue their economic, social and
cultural development.

Article 4

Indigenous peoples, in exercising their right to self-determination, have the right


to autonomy or self-government in matters relating to their internal and local
affairs, as well as ways and means for financing their autonomous functions.

Article 5

Indigenous peoples have the right to maintain and strengthen their distinct political,
legal, economic, social and cultural institutions, while retaining their right to participate
fully, if they so choose, in the political, economic, social and cultural life of the State.

Self-government, as used in international legal discourse pertaining to indigenous peoples, has


been understood as equivalent to "internal self-determination."166 The extent of self-
determination provided for in the UN DRIP is more particularly defined in its subsequent articles,
some of which are quoted hereunder:

Article 8
1. Indigenous peoples and individuals have the right not to be subjected to forced
assimilation or destruction of their culture.

2. States shall provide effective mechanisms for prevention of, and redress for:

(a) Any action which has the aim or effect of depriving them of their integrity as
distinct peoples, or of their cultural values or ethnic identities;

(b) Any action which has the aim or effect of dispossessing them of their lands,
territories or resources;

(c) Any form of forced population transfer which has the aim or effect of violating
or undermining any of their rights;

(d) Any form of forced assimilation or integration;

(e) Any form of propaganda designed to promote or incite racial or ethnic


discrimination directed against them.

Article 21

1. Indigenous peoples have the right, without discrimination, to the improvement of their
economic and social conditions, including, inter alia, in the areas of education,
employment, vocational training and retraining, housing, sanitation, health and social
security.

2. States shall take effective measures and, where appropriate, special measures to
ensure continuing improvement of their economic and social conditions. Particular
attention shall be paid to the rights and special needs of indigenous elders, women,
youth, children and persons with disabilities.

Article 26

1. Indigenous peoples have the right to the lands, territories and resources which
they have traditionally owned, occupied or otherwise used or acquired.

2. Indigenous peoples have the right to own, use, develop and control the lands,
territories and resources that they possess by reason of traditional ownership or other
traditional occupation or use, as well as those which they have otherwise acquired.

3. States shall give legal recognition and protection to these lands, territories and
resources. Such recognition shall be conducted with due respect to the customs,
traditions and land tenure systems of the indigenous peoples concerned.

Article 30

1. Military activities shall not take place in the lands or territories of indigenous peoples,
unless justified by a relevant public interest or otherwise freely agreed with or requested
by the indigenous peoples concerned.
2. States shall undertake effective consultations with the indigenous peoples concerned,
through appropriate procedures and in particular through their representative institutions,
prior to using their lands or territories for military activities.

Article 32

1. Indigenous peoples have the right to determine and develop priorities and strategies
for the development or use of their lands or territories and other resources.

2. States shall consult and cooperate in good faith with the indigenous peoples
concerned through their own representative institutions in order to obtain their free and
informed consent prior to the approval of any project affecting their lands or territories
and other resources, particularly in connection with the development, utilization or
exploitation of mineral, water or other resources.

3. States shall provide effective mechanisms for just and fair redress for any such
activities, and appropriate measures shall be taken to mitigate adverse environmental,
economic, social, cultural or spiritual impact.

Article 37

1. Indigenous peoples have the right to the recognition, observance and enforcement of
treaties, agreements and other constructive arrangements concluded with States or their
successors and to have States honour and respect such treaties, agreements and other
constructive arrangements.

2. Nothing in this Declaration may be interpreted as diminishing or eliminating the rights


of indigenous peoples contained in treaties, agreements and other constructive
arrangements.

Article 38

States in consultation and cooperation with indigenous peoples, shall take the
appropriate measures, including legislative measures, to achieve the ends of this
Declaration.

Assuming that the UN DRIP, like the Universal Declaration on Human Rights, must now be
regarded as embodying customary international law - a question which the Court need not
definitively resolve here - the obligations enumerated therein do not strictly require the Republic
to grant the Bangsamoro people, through the instrumentality of the BJE, the particular rights and
powers provided for in the MOA-AD. Even the more specific provisions of the UN DRIP are
general in scope, allowing for flexibility in its application by the different States.

There is, for instance, no requirement in the UN DRIP that States now guarantee indigenous
peoples their own police and internal security force. Indeed, Article 8 presupposes that it is the
State which will provide protection for indigenous peoples against acts like the forced
dispossession of their lands - a function that is normally performed by police officers. If the
protection of a right so essential to indigenous people's identity is acknowledged to be the
responsibility of the State, then surely the protection of rights less significant to them as such
peoples would also be the duty of States. Nor is there in the UN DRIP an acknowledgement of
the right of indigenous peoples to the aerial domain and atmospheric space. What it upholds, in
Article 26 thereof, is the right of indigenous peoples to the lands, territories and resources which
they have traditionally owned, occupied or otherwise used or acquired.

Moreover, the UN DRIP, while upholding the right of indigenous peoples to autonomy, does not
obligate States to grant indigenous peoples the near-independent status of an associated state.
All the rights recognized in that document are qualified in Article 46 as follows:

1. Nothing in this Declaration may be interpreted as implying for any State, people,
group or person any right to engage in any activity or to perform any act contrary to the
Charter of the United Nations or construed as authorizing or encouraging any action
which would dismember or impair, totally or in part, the territorial integrity or
political unity of sovereign and independent States.

Even if the UN DRIP were considered as part of the law of the land pursuant to Article II,
Section 2 of the Constitution, it would not suffice to uphold the validity of the MOA-AD so as to
render its compliance with other laws unnecessary.

It is, therefore, clear that the MOA-AD contains numerous provisions that cannot be
reconciled with the Constitution and the laws as presently worded. Respondents proffer,
however, that the signing of the MOA-AD alone would not have entailed any violation of law or
grave abuse of discretion on their part, precisely because it stipulates that the provisions thereof
inconsistent with the laws shall not take effect until these laws are amended. They cite
paragraph 7 of the MOA-AD strand on GOVERNANCE quoted earlier, but which is reproduced
below for convenience:

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

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

Indeed, the foregoing stipulation keeps many controversial provisions of the MOA-AD from
coming into force until the necessary changes to the legal framework are effected. While the
word "Constitution" is not mentioned in the provision now under consideration or
anywhere else in the MOA-AD, the term "legal framework" is certainly broad enough to
include the Constitution.

Notwithstanding the suspensive clause, however, respondents, by their mere act of


incorporating in the MOA-AD the provisions thereof regarding the associative relationship
between the BJE and the Central Government, have already violated the Memorandum of
Instructions From The President dated March 1, 2001, which states that the "negotiations shall
be conducted in accordance with x x x the principles of the sovereignty and territorial
integrityof the Republic of the Philippines." (Emphasis supplied) Establishing an associative
relationship between the BJE and the Central Government is, for the reasons already
discussed, a preparation for independence, or worse, an implicit acknowledgment of an
independent status already prevailing.

Even apart from the above-mentioned Memorandum, however, the MOA-AD is defective
because the suspensive clause is invalid, as discussed below.

The authority of the GRP Peace Negotiating Panel to negotiate with the MILF is founded on
E.O. No. 3, Section 5(c), which states that there shall be established Government Peace
Negotiating Panels for negotiations with different rebel groups to be "appointed by the President
as her official emissaries to conduct negotiations, dialogues, and face-to-face discussions with
rebel groups." These negotiating panels are to report to the President, through the PAPP on the
conduct and progress of the negotiations.

It bears noting that the GRP Peace Panel, in exploring lasting solutions to the Moro Problem
through its negotiations with the MILF, was not restricted by E.O. No. 3 only to those options
available under the laws as they presently stand. One of the components of a comprehensive
peace process, which E.O. No. 3 collectively refers to as the "Paths to Peace," is the pursuit of
social, economic, and political reforms which may require new legislation or even constitutional
amendments. Sec. 4(a) of E.O. No. 3, which reiterates Section 3(a), of E.O. No. 125, 167 states:

SECTION 4. The Six Paths to Peace. - The components of the comprehensive peace
process comprise the processes known as the "Paths to Peace". These component
processes are interrelated and not mutually exclusive, and must therefore be pursued
simultaneously in a coordinated and integrated fashion. They shall include, but may not
be limited to, the following:

a. PURSUIT OF SOCIAL, ECONOMIC AND POLITICAL REFORMS. This component


involves the vigorous implementation of various policies, reforms, programs and
projects aimed at addressing the root causes of internal armed conflicts and
social unrest. This may require administrative action, new legislation or even
constitutional amendments.

x x x x (Emphasis supplied)

The MOA-AD, therefore, may reasonably be perceived as an attempt of respondents to


address, pursuant to this provision of E.O. No. 3, the root causes of the armed conflict in
Mindanao. The E.O. authorized them to "think outside the box," so to speak. Hence, they
negotiated and were set on signing the MOA-AD that included various social, economic, and
political reforms which cannot, however, all be accommodated within the present legal
framework, and which thus would require new legislation and constitutional amendments.

The inquiry on the legality of the "suspensive clause," however, cannot stop here, because it
must be asked whether the President herself may exercise the power delegated to the
GRP Peace Panel under E.O. No. 3, Sec. 4(a).

The President cannot delegate a power that she herself does not possess. May the President,
in the course of peace negotiations, agree to pursue reforms that would require new legislation
and constitutional amendments, or should the reforms be restricted only to those solutions
which the present laws allow? The answer to this question requires a discussion of the extent
of the President's power to conduct peace negotiations.
That the authority of the President to conduct peace negotiations with rebel groups is not
explicitly mentioned in the Constitution does not mean that she has no such authority.
In Sanlakas v. Executive Secretary,168 in issue was the authority of the President to declare a
state of rebellion - an authority which is not expressly provided for in the Constitution. The Court
held thus:

"In her ponencia in Marcos v. Manglapus, Justice Cortes put her thesis into
jurisprudence. There, the Court, by a slim 8-7 margin, upheld the President's power to
forbid the return of her exiled predecessor. The rationale for the majority's ruling rested
on the President's

. . . unstated residual powers which are implied from the grant of executive
power and which are necessary for her to comply with her duties under the
Constitution. The powers of the President are not limited to what are
expressly enumerated in the article on the Executive Department and in
scattered provisions of the Constitution. This is so, notwithstanding the
avowed intent of the members of the Constitutional Commission of 1986 to limit
the powers of the President as a reaction to the abuses under the regime of Mr.
Marcos, for the result was a limitation of specific powers of the President,
particularly those relating to the commander-in-chief clause, but not a diminution
of the general grant of executive power.

Thus, the President's authority to declare a state of rebellion springs in the main
from her powers as chief executive and, at the same time, draws strength from her
Commander-in-Chief powers. x x x (Emphasis and underscoring supplied)

Similarly, the President's power to conduct peace negotiations is implicitly included in her
powers as Chief Executive and Commander-in-Chief. As Chief Executive, the President has the
general responsibility to promote public peace, and as Commander-in-Chief, she has the more
specific duty to prevent and suppress rebellion and lawless violence.169

As the experience of nations which have similarly gone through internal armed conflict will
show, however, peace is rarely attained by simply pursuing a military solution. Oftentimes,
changes as far-reaching as a fundamental reconfiguration of the nation's constitutional structure
is required. The observations of Dr. Kirsti Samuels are enlightening, to wit:

x x x [T]he fact remains that a successful political and governance transition must form
the core of any post-conflict peace-building mission. As we have observed in Liberia and
Haiti over the last ten years, conflict cessation without modification of the political
environment, even where state-building is undertaken through technical electoral
assistance and institution- or capacity-building, is unlikely to succeed. On average, more
than 50 percent of states emerging from conflict return to conflict. Moreover, a
substantial proportion of transitions have resulted in weak or limited democracies.

The design of a constitution and its constitution-making process can play an important
role in the political and governance transition. Constitution-making after conflict is an
opportunity to create a common vision of the future of a state and a road map on how to
get there. The constitution can be partly a peace agreement and partly a framework
setting up the rules by which the new democracy will operate.170
In the same vein, Professor Christine Bell, in her article on the nature and legal status of peace
agreements, observed that the typical way that peace agreements establish or confirm
mechanisms for demilitarization and demobilization is by linking them to new constitutional
structures addressing governance, elections, and legal and human rights institutions.171

In the Philippine experience, the link between peace agreements and constitution-making has
been recognized by no less than the framers of the Constitution. Behind the provisions of the
Constitution on autonomous regions172 is the framers' intention to implement a particular peace
agreement, namely, the Tripoli Agreement of 1976 between the GRP and the MNLF, signed by
then Undersecretary of National Defense Carmelo Z. Barbero and then MNLF Chairman Nur
Misuari.

MR. ROMULO. There are other speakers; so, although I have some more questions, I
will reserve my right to ask them if they are not covered by the other speakers. I have
only two questions.

I heard one of the Commissioners say that local autonomy already exists in the
Muslim region; it is working very well; it has, in fact, diminished a great deal of the
problems. So, my question is: since that already exists, why do we have to go into
something new?

MR. OPLE. May I answer that on behalf of Chairman Nolledo. Commissioner Yusup
Abubakar is right that certain definite steps have been taken to implement the
provisions of the Tripoli Agreement with respect to an autonomous region in
Mindanao. This is a good first step, but there is no question that this is merely a
partial response to the Tripoli Agreement itself and to the fuller standard of
regional autonomy contemplated in that agreement, and now by state
policy.173(Emphasis supplied)

The constitutional provisions on autonomy and the statutes enacted pursuant to them have, to
the credit of their drafters, been partly successful. Nonetheless, the Filipino people are still faced
with the reality of an on-going conflict between the Government and the MILF. If the President is
to be expected to find means for bringing this conflict to an end and to achieve lasting peace in
Mindanao, then she must be given the leeway to explore, in the course of peace negotiations,
solutions that may require changes to the Constitution for their implementation. Being uniquely
vested with the power to conduct peace negotiations with rebel groups, the President is in a
singular position to know the precise nature of their grievances which, if resolved, may bring an
end to hostilities.

The President may not, of course, unilaterally implement the solutions that she considers viable,
but she may not be prevented from submitting them as recommendations to Congress, which
could then, if it is minded, act upon them pursuant to the legal procedures for constitutional
amendment and revision. In particular, Congress would have the option, pursuant to Article
XVII, Sections 1 and 3 of the Constitution, to propose the recommended amendments or
revision to the people, call a constitutional convention, or submit to the electorate the question
of calling such a convention.

While the President does not possess constituent powers - as those powers may be exercised
only by Congress, a Constitutional Convention, or the people through initiative and referendum -
she may submit proposals for constitutional change to Congress in a manner that does not
involve the arrogation of constituent powers.

In Sanidad v. COMELEC,174 in issue was the legality of then President Marcos' act of directly
submitting proposals for constitutional amendments to a referendum, bypassing the interim
National Assembly which was the body vested by the 1973 Constitution with the power to
propose such amendments. President Marcos, it will be recalled, never convened the interim
National Assembly. The majority upheld the President's act, holding that "the urges of absolute
necessity" compelled the President as the agent of the people to act as he did, there being no
interim National Assembly to propose constitutional amendments. Against this ruling, Justices
Teehankee and Muoz Palma vigorously dissented. The Court's concern at present, however,
is not with regard to the point on which it was then divided in that controversial case, but on that
which was not disputed by either side.

Justice Teehankee's dissent,175 in particular, bears noting. While he disagreed that the
President may directly submit proposed constitutional amendments to a referendum, implicit in
his opinion is a recognition that he would have upheld the President's action along with the
majority had the President convened the interim National Assembly and coursed his proposals
through it. Thus Justice Teehankee opined:

"Since the Constitution provides for the organization of the essential departments of
government, defines and delimits the powers of each and prescribes the manner of the
exercise of such powers, and the constituent power has not been granted to but has
been withheld from the President or Prime Minister, it follows that the President's
questioned decrees proposing and submitting constitutional amendments directly to the
people (without the intervention of the interim National Assembly in whom the
power is expressly vested) are devoid of constitutional and legal basis."176 (Emphasis
supplied)

From the foregoing discussion, the principle may be inferred that the President - in the course of
conducting peace negotiations - may validly consider implementing even those policies that
require changes to the Constitution, but she may not unilaterally implement them without the
intervention of Congress, or act in any way as if the assent of that body were assumed as
a certainty.

Since, under the present Constitution, the people also have the power to directly propose
amendments through initiative and referendum, the President may also submit her
recommendations to the people, not as a formal proposal to be voted on in a plebiscite similar to
what President Marcos did in Sanidad, but for their independent consideration of whether these
recommendations merit being formally proposed through initiative.

These recommendations, however, may amount to nothing more than the President's
suggestions to the people, for any further involvement in the process of initiative by the Chief
Executive may vitiate its character as a genuine "people's initiative." The only initiative
recognized by the Constitution is that which truly proceeds from the people. As the Court stated
in Lambino v. COMELEC:177

"The Lambino Group claims that their initiative is the people's voice.' However, the
Lambino Group unabashedly states in ULAP Resolution No. 2006-02, in the verification
of their petition with the COMELEC, that ULAP maintains its unqualified support to the
agenda of Her Excellency President Gloria Macapagal-Arroyo for constitutional reforms.'
The Lambino Group thus admits that their people's' initiative is an unqualified support
to the agenda' of the incumbent President to change the Constitution. This forewarns
the Court to be wary of incantations of people's voice' or sovereign will' in the present
initiative."

It will be observed that the President has authority, as stated in her oath of office,178 only
to preserve and defend the Constitution. Such presidential power does not, however, extend to
allowing her to change the Constitution, but simply to recommend proposed amendments or
revision. As long as she limits herself to recommending these changes and submits to the
proper procedure for constitutional amendments and revision, her mere recommendation need
not be construed as an unconstitutional act.

The foregoing discussion focused on the President's authority to


propose constitutional amendments, since her authority to propose new legislation is not in
controversy. It has been an accepted practice for Presidents in this jurisdiction to propose new
legislation. One of the more prominent instances the practice is usually done is in the yearly
State of the Nation Address of the President to Congress. Moreover, the annual general
appropriations bill has always been based on the budget prepared by the President, which - for
all intents and purposes - is a proposal for new legislation coming from the President.179

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


standards

Given the limited nature of the President's authority to propose constitutional amendments,
she cannot guaranteeto any third party that the required amendments will eventually be put in
place, nor even be submitted to a plebiscite. The most she could do is submit these proposals
as recommendations either to Congress or the people, in whom constituent powers are vested.

Paragraph 7 on Governance of the MOA-AD states, however, that all provisions thereof which
cannot be reconciled with the present Constitution and laws "shall come into force upon signing
of a Comprehensive Compact and upon effecting the necessary changes to the legal
framework." This stipulation does not bear the marks of a suspensive condition - defined in civil
law as a future and uncertain event - but of a term. It is not a question of whether the necessary
changes to the legal framework will be effected, but when. That there is no uncertainty being
contemplated is plain from what follows, for the paragraph goes on to state that the
contemplated changes shall be "with due regard to non derogation of prior
agreements and within the stipulated timeframe to be contained in the Comprehensive
Compact."

Pursuant to this stipulation, therefore, it is mandatory for the GRP to effect the changes to the
legal framework contemplated in the MOA-AD - which changes would include constitutional
amendments, as discussed earlier. It bears noting that,

By the time these changes are put in place, the MOA-AD itself would be counted among
the "prior agreements" from which there could be no derogation.

What remains for discussion in the Comprehensive Compact would merely be the implementing
details for these "consensus points" and, notably, the deadline for effecting the contemplated
changes to the legal framework.
Plainly, stipulation-paragraph 7 on GOVERNANCE is inconsistent with the limits of the
President's authority to propose constitutional amendments, it being a virtual guarantee
that the Constitution and the laws of the Republic of the Philippines will certainly be adjusted to
conform to all the "consensus points" found in the MOA-AD. Hence, it must be struck down
as unconstitutional.

A comparison between the "suspensive clause" of the MOA-AD with a similar provision
appearing in the 1996 final peace agreement between the MNLF and the GRP is most
instructive.

As a backdrop, the parties to the 1996 Agreement stipulated that it would be implemented in two
phases. Phase Icovered a three-year transitional period involving the putting up of new
administrative structures through Executive Order, such as the Special Zone of Peace and
Development (SZOPAD) and the Southern Philippines Council for Peace and Development
(SPCPD), while Phase II covered the establishment of the new regional autonomous
government through amendment or repeal of R.A. No. 6734, which was then the Organic Act of
the ARMM.

The stipulations on Phase II consisted of specific agreements on the structure of the expanded
autonomous region envisioned by the parties. To that extent, they are similar to the provisions
of the MOA-AD. There is, however, a crucial difference between the two agreements. While the
MOA-AD virtually guarantees that the "necessary changes to the legal framework" will be
put in place, the GRP-MNLF final peace agreement states thus: "Accordingly, these provisions
[on Phase II] shall be recommended by the GRP to Congress for incorporation in the
amendatory or repealing law."

Concerns have been raised that the MOA-AD would have given rise to a binding international
law obligation on the part of the Philippines to change its Constitution in conformity thereto, on
the ground that it may be considered either as a binding agreement under international law, or a
unilateral declaration of the Philippine government to the international community that it would
grant to the Bangsamoro people all the concessions therein stated. Neither ground finds
sufficient support in international law, however.

The MOA-AD, as earlier mentioned in the overview thereof, would have included foreign
dignitaries as signatories. In addition, representatives of other nations were invited to witness its
signing in Kuala Lumpur. These circumstances readily lead one to surmise that the MOA-AD
would have had the status of a binding international agreement had it been signed. An
examination of the prevailing principles in international law, however, leads to the contrary
conclusion.

The Decision on Challenge to Jurisdiction: Lom Accord Amnesty180 (the Lom Accord case) of
the Special Court of Sierra Leone is enlightening. The Lom Accord was a peace agreement
signed on July 7, 1999 between the Government of Sierra Leone and the Revolutionary United
Front (RUF), a rebel group with which the Sierra Leone Government had been in armed conflict
for around eight years at the time of signing. There were non-contracting signatories to the
agreement, among which were the Government of the Togolese Republic, the Economic
Community of West African States, and the UN.

On January 16, 2002, after a successful negotiation between the UN Secretary-General and the
Sierra Leone Government, another agreement was entered into by the UN and that Government
whereby the Special Court of Sierra Leone was established. The sole purpose of the Special
Court, an international court, was to try persons who bore the greatest responsibility for serious
violations of international humanitarian law and Sierra Leonean law committed in the territory of
Sierra Leone since November 30, 1996.

Among the stipulations of the Lom Accord was a provision for the full pardon of the members
of the RUF with respect to anything done by them in pursuit of their objectives as members of
that organization since the conflict began.

In the Lom Accord case, the Defence argued that the Accord created an internationally
binding obligation not to prosecute the beneficiaries of the amnesty provided therein, citing,
among other things, the participation of foreign dignitaries and international organizations in the
finalization of that agreement. The Special Court, however, rejected this argument, ruling that
the Lome Accord is not a treaty and that it can only create binding obligations and rights
between the parties in municipal law, not in international law. Hence, the Special Court held, it is
ineffective in depriving an international court like it of jurisdiction.

"37. In regard to the nature of a negotiated settlement of an internal armed conflict it is


easy to assume and to argue with some degree of plausibility, as Defence counsel
for the defendants seem to have done, that the mere fact that in addition to the
parties to the conflict, the document formalizing the settlement is signed by
foreign heads of state or their representatives and representatives of international
organizations, means the agreement of the parties is internationalized so as to
create obligations in international law.

xxxx

40. Almost every conflict resolution will involve the parties to the conflict and the
mediator or facilitator of the settlement, or persons or bodies under whose auspices the
settlement took place but who are not at all parties to the conflict, are not contracting
parties and who do not claim any obligation from the contracting parties or incur any
obligation from the settlement.

41. In this case, the parties to the conflict are the lawful authority of the State and
the RUF which has no status of statehood and is to all intents and purposes a
faction within the state. The non-contracting signatories of the Lom Agreement
were moral guarantors of the principle that, in the terms of Article XXXIV of the
Agreement, "this peace agreement is implemented with integrity and in good faith
by both parties". The moral guarantors assumed no legal obligation. It is recalled
that the UN by its representative appended, presumably for avoidance of doubt, an
understanding of the extent of the agreement to be implemented as not including certain
international crimes.

42. An international agreement in the nature of a treaty must create rights and
obligations regulated by international law so that a breach of its terms will be a breach
determined under international law which will also provide principle means of
enforcement. The Lom Agreement created neither rights nor obligations capable
of being regulated by international law. An agreement such as the Lom
Agreement which brings to an end an internal armed conflict no doubt creates a
factual situation of restoration of peace that the international community acting
through the Security Council may take note of. That, however, will not convert it to
an international agreement which creates an obligation enforceable in
international, as distinguished from municipal, law. A breach of the terms of such a
peace agreement resulting in resumption of internal armed conflict or creating a threat to
peace in the determination of the Security Council may indicate a reversal of the factual
situation of peace to be visited with possible legal consequences arising from the new
situation of conflict created. Such consequences such as action by the Security Council
pursuant to Chapter VII arise from the situation and not from the agreement, nor from
the obligation imposed by it. Such action cannot be regarded as a remedy for the
breach. A peace agreement which settles an internal armed conflict cannot be
ascribed the same status as one which settles an international armed conflict
which, essentially, must be between two or more warring States. The Lom
Agreement cannot be characterised as an international instrument. x x x"
(Emphasis, italics and underscoring supplied)

Similarly, that the MOA-AD would have been signed by representatives of States and
international organizations not parties to the Agreement would not have sufficed to vest in it a
binding character under international law.

In another vein, concern has been raised that the MOA-AD would amount to a unilateral
declaration of the Philippine State, binding under international law, that it would comply with all
the stipulations stated therein, with the result that it would have to amend its Constitution
accordingly regardless of the true will of the people. Cited as authority for this view is Australia
v. France,181 also known as the Nuclear Tests Case, decided by the International Court of
Justice (ICJ).

In the Nuclear Tests Case, Australia challenged before the ICJ the legality of France's nuclear
tests in the South Pacific. France refused to appear in the case, but public statements from its
President, and similar statements from other French officials including its Minister of Defence,
that its 1974 series of atmospheric tests would be its last, persuaded the ICJ to dismiss the
case.182 Those statements, the ICJ held, amounted to a legal undertaking addressed to the
international community, which required no acceptance from other States for it to become
effective.

Essential to the ICJ ruling is its finding that the French government intended to be bound to the
international community in issuing its public statements, viz:

43. It is well recognized that declarations made by way of unilateral acts, concerning
legal or factual situations, may have the effect of creating legal obligations. Declarations
of this kind may be, and often are, very specific. When it is the intention of the State
making the declaration that it should become bound according to its terms, that
intention confers on the declaration the character of a legal undertaking, the State
being thenceforth legally required to follow a course of conduct consistent with
the declaration. An undertaking of this kind, if given publicly, and with an intent to be
bound, even though not made within the context of international negotiations, is binding.
In these circumstances, nothing in the nature of a quid pro quo nor any subsequent
acceptance of the declaration, nor even any reply or reaction from other States, is
required for the declaration to take effect, since such a requirement would be
inconsistent with the strictly unilateral nature of the juridical act by which the
pronouncement by the State was made.
44. Of course, not all unilateral acts imply obligation; but a State may choose to
take up a certain position in relation to a particular matter with the intention of
being bound-the intention is to be ascertained by interpretation of the act. When
States make statements by which their freedom of action is to be limited, a restrictive
interpretation is called for.

xxxx

51. In announcing that the 1974 series of atmospheric tests would be the last, the
French Government conveyed to the world at large, including the Applicant, its
intention effectively to terminate these tests. It was bound to assume that other
States might take note of these statements and rely on their being effective. The
validity of these statements and their legal consequences must be considered
within the general framework of the security of international intercourse, and the
confidence and trust which are so essential in the relations among States. It is from the
actual substance of these statements, and from the circumstances attending their
making, that the legal implications of the unilateral act must be deduced. The
objects of these statements are clear and they were addressed to the international
community as a whole, and the Court holds that they constitute an undertaking
possessing legal effect. The Court considers *270 that the President of the Republic,
in deciding upon the effective cessation of atmospheric tests, gave an undertaking to the
international community to which his words were addressed. x x x (Emphasis and
underscoring supplied)

As gathered from the above-quoted ruling of the ICJ, public statements of a state representative
may be construed as a unilateral declaration only when the following conditions are present: the
statements were clearly addressed to the international community, the state intended to be
bound to that community by its statements, and that not to give legal effect to those statements
would be detrimental to the security of international intercourse. Plainly, unilateral declarations
arise only in peculiar circumstances.

The limited applicability of the Nuclear Tests Case ruling was recognized in a later case decided
by the ICJ entitled Burkina Faso v. Mali,183 also known as the Case Concerning the Frontier
Dispute. The public declaration subject of that case was a statement made by the President of
Mali, in an interview by a foreign press agency, that Mali would abide by the decision to be
issued by a commission of the Organization of African Unity on a frontier dispute then pending
between Mali and Burkina Faso.

Unlike in the Nuclear Tests Case, the ICJ held that the statement of Mali's President was not a
unilateral act with legal implications. It clarified that its ruling in the Nuclear Tests case rested on
the peculiar circumstances surrounding the French declaration subject thereof, to wit:

40. In order to assess the intentions of the author of a unilateral act, account must be
taken of all the factual circumstances in which the act occurred. For example, in the
Nuclear Tests cases, the Court took the view that since the applicant States were
not the only ones concerned at the possible continuance of atmospheric testing
by the French Government, that Government's unilateral declarations had
conveyed to the world at large, including the Applicant, its intention effectively to
terminate these tests (I.C.J. Reports 1974, p. 269, para. 51; p. 474, para. 53). In the
particular circumstances of those cases, the French Government could not
express an intention to be bound otherwise than by unilateral declarations. It is
difficult to see how it could have accepted the terms of a negotiated solution with
each of the applicants without thereby jeopardizing its contention that its conduct
was lawful. The circumstances of the present case are radically different. Here,
there was nothing to hinder the Parties from manifesting an intention to accept
the binding character of the conclusions of the Organization of African Unity
Mediation Commission by the normal method: a formal agreement on the basis of
reciprocity. Since no agreement of this kind was concluded between the Parties, the
Chamber finds that there are no grounds to interpret the declaration made by Mali's
head of State on 11 April 1975 as a unilateral act with legal implications in regard to the
present case. (Emphasis and underscoring supplied)

Assessing the MOA-AD in light of the above criteria, it would not have amounted to a unilateral
declaration on the part of the Philippine State to the international community. The Philippine
panel did not draft the same with the clear intention of being bound thereby to the international
community as a whole or to any State, but only to the MILF. While there were States and
international organizations involved, one way or another, in the negotiation and projected
signing of the MOA-AD, they participated merely as witnesses or, in the case of Malaysia, as
facilitator. As held in the Lom Accord case, the mere fact that in addition to the parties to the
conflict, the peace settlement is signed by representatives of states and international
organizations does not mean that the agreement is internationalized so as to create obligations
in international law.

Since the commitments in the MOA-AD were not addressed to States, not to give legal effect to
such commitments would not be detrimental to the security of international intercourse - to the
trust and confidence essential in the relations among States.

In one important respect, the circumstances surrounding the MOA-AD are closer to that
of Burkina Faso wherein, as already discussed, the Mali President's statement was not held to
be a binding unilateral declaration by the ICJ. As in that case, there was also nothing to hinder
the Philippine panel, had it really been its intention to be bound to other States, to manifest that
intention by formal agreement. Here, that formal agreement would have come about by the
inclusion in the MOA-AD of a clear commitment to be legally bound to the international
community, not just the MILF, and by an equally clear indication that the signatures of the
participating states-representatives would constitute an acceptance of that commitment.
Entering into such a formal agreement would not have resulted in a loss of face for the
Philippine government before the international community, which was one of the difficulties that
prevented the French Government from entering into a formal agreement with other countries.
That the Philippine panel did not enter into such a formal agreement suggests that it had no
intention to be bound to the international community. On that ground, the MOA-AD may not
be considered a unilateral declaration under international law.

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

The sovereign people may, if it so desired, go to the extent of giving up a portion of its own
territory to the Moros for the sake of peace, for it can change the Constitution in any it wants, so
long as the change is not inconsistent with what, in international law, is known as Jus
Cogens.184 Respondents, however, may not preempt it in that decision.

SUMMARY

The petitions are ripe for adjudication. The failure of respondents to consult the local
government units or communities affected constitutes a departure by respondents from their
mandate under E.O. No. 3. Moreover, respondents exceeded their authority by the mere act of
guaranteeing amendments to the Constitution. Any alleged violation of the Constitution by any
branch of government is a proper matter for judicial review.

As the petitions involve constitutional issues which are of paramount public interest or of
transcendental importance, the Court grants the petitioners, petitioners-in-intervention and
intervening respondents the requisite locus standi in keeping with the liberal stance adopted
in David v. Macapagal-Arroyo.

Contrary to the assertion of respondents that the non-signing of the MOA-AD and the eventual
dissolution of the GRP Peace Panel mooted the present petitions, the Court finds that the
present petitions provide an exception to the "moot and academic" principle in view of (a) the
grave violation of the Constitution involved; (b) the exceptional character of the situation and
paramount public interest; (c) the need to formulate controlling principles to guide the bench, the
bar, and the public; and (d) the fact that the case is capable of repetition yet evading review.

The MOA-AD is a significant part of a series of agreements necessary to carry out the GRP-
MILF Tripoli Agreement on Peace signed by the government and the MILF back in June 2001.
Hence, the present MOA-AD can be renegotiated or another one drawn up that could contain
similar or significantly dissimilar provisions compared to the original.

The Court, however, finds that the prayers for mandamus have been rendered moot in view of
the respondents' action in providing the Court and the petitioners with the official copy of the
final draft of the MOA-AD and its annexes.

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

The contents of the MOA-AD is a matter of paramount public concern involving public interest in
the highest order. In declaring that the right to information contemplates steps and negotiations
leading to the consummation of the contract, jurisprudence finds no distinction as to the
executory nature or commercial character of the agreement.
An essential element of these twin freedoms is to keep a continuing dialogue or process of
communication between the government and the people. Corollary to these twin rights is the
design for feedback mechanisms. The right to public consultation was envisioned to be a
species of these public rights.

At least three pertinent laws animate these constitutional imperatives and justify the exercise of
the people's right to be consulted on relevant matters relating to the peace agenda.

One, E.O. No. 3 itself is replete with mechanics for continuing consultations on both national
and local levels and for a principal forum for consensus-building. In fact, it is the duty of the
Presidential Adviser on the Peace Process to conduct regular dialogues to seek relevant
information, comments, advice, and recommendations from peace partners and concerned
sectors of society.

Two, Republic Act No. 7160 or the Local Government Code of 1991 requires all national offices
to conduct consultations before any project or program critical to the environment and human
ecology including those that may call for the eviction of a particular group of people residing in
such locality, is implemented therein. The MOA-AD is one peculiar program that unequivocally
and unilaterally vests ownership of a vast territory to the Bangsamoro people, which could
pervasively and drastically result to the diaspora or displacement of a great number of
inhabitants from their total environment.

Three, Republic Act No. 8371 or the Indigenous Peoples Rights Act of 1997 provides for clear-
cut procedure for the recognition and delineation of ancestral domain, which entails, among
other things, the observance of the free and prior informed consent of the Indigenous Cultural
Communities/Indigenous Peoples. Notably, the statute does not grant the Executive Department
or any government agency the power to delineate and recognize an ancestral domain claim by
mere agreement or compromise.

The invocation of the doctrine of executive privilege as a defense to the general right to
information or the specific right to consultation is untenable. The various explicit legal provisions
fly in the face of executive secrecy. In any event, respondents effectively waived such defense
after it unconditionally disclosed the official copies of the final draft of the MOA-AD, for judicial
compliance and public scrutiny.

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

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

While there is a clause in the MOA-AD stating that the provisions thereof inconsistent with the
present legal framework will not be effective until that framework is amended, the same does
not cure its defect. The inclusion of provisions in the MOA-AD establishing an associative
relationship between the BJE and the Central Government is, itself, a violation of the
Memorandum of Instructions From The President dated March 1, 2001, addressed to the
government peace panel. Moreover, as the clause is worded, it virtually guarantees that the
necessary amendments to the Constitution and the laws will eventually be put in place. Neither
the GRP Peace Panel nor the President herself is authorized to make such a guarantee.
Upholding such an act would amount to authorizing a usurpation of the constituent powers
vested only in Congress, a Constitutional Convention, or the people themselves through the
process of initiative, for the only way that the Executive can ensure the outcome of the
amendment process is through an undue influence or interference with that process.

While the MOA-AD would not amount to an international agreement or unilateral declaration
binding on the Philippines under international law, respondents' act of guaranteeing
amendments is, by itself, already a constitutional violation that renders the MOA-AD fatally
defective.

WHEREFORE, respondents' motion to dismiss is DENIED. The main and intervening petitions
are GIVEN DUE COURSE and hereby GRANTED.

The Memorandum of Agreement on the Ancestral Domain Aspect of the GRP-MILF Tripoli
Agreement on Peace of 2001 is declared contrary to law and the Constitution.

SO ORDERED.
EN BANC

[G.R. No. 138570. October 10, 2000]

BAYAN (Bagong Alyansang Makabayan), a JUNK VFA MOVEMENT, BISHOP TOMAS


MILLAMENA (Iglesia Filipina Independiente), BISHOP ELMER BOLOCAN (United
Church of Christ of the Phil.), DR. REYNALDO LEGASCA, MD, KILUSANG
MAMBUBUKID NG PILIPINAS, KILUSANG MAYO UNO, GABRIELA, PROLABOR,
and the PUBLIC INTEREST LAW CENTER, petitioners, vs. EXECUTIVE
SECRETARY RONALDO ZAMORA, FOREIGN AFFAIRS SECRETARY DOMINGO
SIAZON, DEFENSE SECRETARY ORLANDO MERCADO, BRIG. GEN. ALEXANDER
AGUIRRE, SENATE PRESIDENT MARCELO FERNAN, SENATOR FRANKLIN
DRILON, SENATOR BLAS OPLE, SENATOR RODOLFO BIAZON, and SENATOR
FRANCISCO TATAD, respondents.

[G.R. No. 138572. October 10, 2000]

PHILIPPINE CONSTITUTION ASSOCIATION, INC.(PHILCONSA), EXEQUIEL B. GARCIA,


AMADOGAT INCIONG, CAMILO L. SABIO, AND RAMON A.
GONZALES, petitioners, vs. HON. RONALDO B. ZAMORA, as Executive Secretary,
HON. ORLANDO MERCADO, as Secretary of National Defense, and HON.
DOMINGO L. SIAZON, JR., as Secretary of Foreign Affairs, respondents.

[G.R. No. 138587. October 10, 2000]

TEOFISTO T. GUINGONA, JR., RAUL S. ROCO, and SERGIO R. OSMEA III, petitioners,
vs. JOSEPH E. ESTRADA, RONALDO B. ZAMORA, DOMINGO L. SIAZON, JR.,
ORLANDO B. MERCADO, MARCELO B. FERNAN, FRANKLIN M. DRILON, BLAS F.
OPLE and RODOLFO G. BIAZON, respondents.

[G.R. No. 138680. October 10, 2000]

INTEGRATED BAR OF THE PHILIPPINES, Represented by its National President, Jose


Aguila Grapilon, petitioners, vs. JOSEPH EJERCITO ESTRADA, in his capacity as
President, Republic of the Philippines, and HON. DOMINGO SIAZON, in his
capacity as Secretary of Foreign Affairs, respondents.
[G.R. No. 138698. October 10, 2000]

JOVITO R. SALONGA, WIGBERTO TAADA, ZENAIDA QUEZON-AVENCEA, ROLANDO


SIMBULAN, PABLITO V. SANIDAD, MA. SOCORRO I. DIOKNO, AGAPITO A.
AQUINO, JOKER P. ARROYO, FRANCISCO C. RIVERA JR., RENE A.V. SAGUISAG,
KILOSBAYAN, MOVEMENT OF ATTORNEYS FOR BROTHERHOOD, INTEGRITY
AND NATIONALISM, INC. (MABINI), petitioners, vs. THE EXECUTIVE SECRETARY,
THE SECRETARY OF FOREIGN AFFAIRS, THE SECRETARY OF NATIONAL
DEFENSE, SENATE PRESIDENT MARCELO B. FERNAN, SENATOR BLAS F.
OPLE, SENATOR RODOLFO G. BIAZON, AND ALL OTHER PERSONS ACTING
THEIR CONTROL, SUPERVISION, DIRECTION, AND INSTRUCTION IN RELATION
TO THE VISITING FORCES AGREEMENT (VFA), respondents.

DECISION
BUENA, J.:

Confronting the Court for resolution in the instant consolidated petitions for certiorari and
prohibition are issues relating to, and borne by, an agreement forged in the turn of the last
century between the Republic of the Philippines and the United States of America -the Visiting
Forces Agreement.
The antecedents unfold.
On March 14, 1947, the Philippines and the United States of America forged a Military
Bases Agreement which formalized, among others, the use of installations in the Philippine
territory by United States military personnel. To further strengthen their defense and security
relationship, the Philippines and the United States entered into a Mutual Defense Treaty on
August 30, 1951. Under the treaty, the parties agreed to respond to any external armed attack
on their territory, armed forces, public vessels, and aircraft.[1]
In view of the impending expiration of the RP-US Military Bases Agreement in 1991, the
Philippines and the United States negotiated for a possible extension of the military bases
agreement. On September 16, 1991, the Philippine Senate rejected the proposed RP-US Treaty
of Friendship, Cooperation and Security which, in effect, would have extended the presence of
US military bases in the Philippines.[2] With the expiration of the RP-US Military Bases
Agreement, the periodic military exercises conducted between the two countries were held in
abeyance. Notwithstanding, the defense and security relationship between the Philippines and
the United States of America continued pursuant to the Mutual Defense Treaty.
On July 18, 1997, the United States panel, headed by US Defense Deputy Assistant
Secretary for Asia Pacific Kurt Campbell, met with the Philippine panel, headed by Foreign
Affairs Undersecretary Rodolfo Severino Jr., to exchange notes on the complementing strategic
interests of the United States and the Philippines in the Asia-Pacific region. Both sides
discussed, among other things, the possible elements of the Visiting Forces Agreement (VFA
for brevity). Negotiations by both panels on the VFA led to a consolidated draft text, which in
turn resulted to a final series of conferences and negotiations[3] that culminated in Manila on
January 12 and 13, 1998. Thereafter, then President Fidel V. Ramos approved the VFA, which
was respectively signed by public respondent Secretary Siazon and Unites States Ambassador
Thomas Hubbard on February 10, 1998.
On October 5, 1998, President Joseph E. Estrada, through respondent Secretary of Foreign
Affairs, ratified the VFA.[4]
On October 6, 1998, the President, acting through respondent Executive Secretary Ronaldo
Zamora, officially transmitted to the Senate of the Philippines,[5] the Instrument of Ratification,
the letter of the President[6] and the VFA, for concurrence pursuant to Section 21, Article VII of
the 1987 Constitution. The Senate, in turn, referred the VFA to its Committee on Foreign
Relations, chaired by Senator Blas F. Ople, and its Committee on National Defense and
Security, chaired by Senator Rodolfo G. Biazon, for their joint consideration and
recommendation. Thereafter, joint public hearings were held by the two Committees.[7]
On May 3, 1999, the Committees submitted Proposed Senate Resolution No.
443[8] recommending the concurrence of the Senate to the VFA and the creation of a Legislative
Oversight Committee to oversee its implementation. Debates then ensued.
On May 27, 1999, Proposed Senate Resolution No. 443 was approved by the Senate, by a
two-thirds (2/3) vote[9] of its members. Senate Resolution No. 443 was then re-numbered as
Senate Resolution No. 18.[10]
On June 1, 1999, the VFA officially entered into force after an Exchange of Notes between
respondent Secretary Siazon and United States Ambassador Hubbard.
The VFA, which consists of a Preamble and nine (9) Articles, provides for the mechanism
for regulating the circumstances and conditions under which US Armed Forces and defense
personnel may be present in the Philippines, and is quoted in its full text, hereunder:

Article I
Definitions

As used in this Agreement, United States personnel means United States military and civilian
personnel temporarily in the Philippines in connection with activities approved by the Philippine
Government.

Within this definition:

1. The term military personnel refers to military members of the United States Army,
Navy, Marine Corps, Air Force, and Coast Guard.
2. The term civilian personnel refers to individuals who are neither nationals of, nor
ordinary residents in the Philippines and who are employed by the United States
armed forces or who are accompanying the United States armed forces, such as
employees of the American Red Cross and the United Services Organization.

Article II
Respect for Law

It is the duty of the United States personnel to respect the laws of the Republic of the Philippines and
to abstain from any activity inconsistent with the spirit of this agreement, and, in particular, from any
political activity in the Philippines. The Government of the United States shall take all measures
within its authority to ensure that this is done.

Article III
Entry and Departure
1. The Government of the Philippines shall facilitate the admission of United States personnel and
their departure from the Philippines in connection with activities covered by this agreement.

2. United States military personnel shall be exempt from passport and visa regulations upon entering
and departing the Philippines.

3. The following documents only, which shall be presented on demand, shall be required in respect
of United States military personnel who enter the Philippines:

(a) personal identity card issued by the appropriate United States authority showing full name,
date of birth, rank or grade and service number (if any), branch of service and photograph;

(b) individual or collective document issued by the appropriate United States authority,
authorizing the travel or visit and identifying the individual or group as United States
military personnel; and

(c) the commanding officer of a military aircraft or vessel shall present a declaration of health,
and when required by the cognizant representative of the Government of the Philippines,
shall conduct a quarantine inspection and will certify that the aircraft or vessel is free from
quarantinable diseases. Any quarantine inspection of United States aircraft or United States
vessels or cargoes thereon shall be conducted by the United States commanding officer in
accordance with the international health regulations as promulgated by the World Health
Organization, and mutually agreed procedures.

4. United States civilian personnel shall be exempt from visa requirements but shall present, upon
demand, valid passports upon entry and departure of the Philippines.

5. If the Government of the Philippines has requested the removal of any United States personnel
from its territory, the United States authorities shall be responsible for receiving the person
concerned within its own territory or otherwise disposing of said person outside of the
Philippines.

Article IV
Driving and Vehicle Registration

1. Philippine authorities shall accept as valid, without test or fee, a driving permit or license issued
by the appropriate United States authority to United States personnel for the operation of military
or official vehicles.

2. Vehicles owned by the Government of the United States need not be registered, but shall have
appropriate markings.

Article V
Criminal Jurisdiction

1. Subject to the provisions of this article:


(a) Philippine authorities shall have jurisdiction over United States personnel with
respect to offenses committed within the Philippines and punishable under the
law of the Philippines.
(b) United States military authorities shall have the right to exercise within the
Philippines all criminal and disciplinary jurisdiction conferred on them by the
military law of the United States over United States personnel in the Philippines.
2. (a) Philippine authorities exercise exclusive jurisdiction over United States
personnel with respect to offenses, including offenses relating to the security
of the Philippines, punishable under the laws of the Philippines, but not
under the laws of the United States.
(b) United States authorities exercise exclusive jurisdiction over United States
personnel with respect to offenses, including offenses relating to the security
of the United States, punishable under the laws of the United States, but not
under the laws of the Philippines.
(c) For the purposes of this paragraph and paragraph 3 of this article, an offense
relating to security means:

(1) treason;

(2) sabotage, espionage or violation of any law relating to national defense.

3. In cases where the right to exercise jurisdiction is concurrent, the following rules
shall apply:
(a) Philippine authorities shall have the primary right to exercise jurisdiction over all
offenses committed by United States personnel, except in cases provided for in
paragraphs 1(b), 2 (b), and 3 (b) of this Article.
(b) United States military authorities shall have the primary right to exercise
jurisdiction over United States personnel subject to the military law of the United
States in relation to.
(1) offenses solely against the property or security of the United States or
offenses solely against the property or person of United States personnel; and
(2) offenses arising out of any act or omission done in performance of official
duty.
(c) The authorities of either government may request the authorities of the other
government to waive their primary right to exercise jurisdiction in a particular
case.
(d) Recognizing the responsibility of the United States military authorities to maintain
good order and discipline among their forces, Philippine authorities will, upon
request by the United States, waive their primary right to exercise jurisdiction
except in cases of particular importance to the Philippines. If the Government of
the Philippines determines that the case is of particular importance, it shall
communicate such determination to the United States authorities within twenty
(20) days after the Philippine authorities receive the United States request.
(e) When the United States military commander determines that an offense charged
by authorities of the Philippines against United states personnel arises out of an
act or omission done in the performance of official duty, the commander will issue
a certificate setting forth such determination. This certificate will be transmitted to
the appropriate authorities of the Philippines and will constitute sufficient proof of
performance of official duty for the purposes of paragraph 3(b)(2) of this Article.
In those cases where the Government of the Philippines believes the
circumstances of the case require a review of the duty certificate, United States
military authorities and Philippine authorities shall consult immediately. Philippine
authorities at the highest levels may also present any information bearing on its
validity. United States military authorities shall take full account of the Philippine
position. Where appropriate, United States military authorities will take
disciplinary or other action against offenders in official duty cases, and notify the
Government of the Philippines of the actions taken.
(f) If the government having the primary right does not exercise jurisdiction, it shall
notify the authorities of the other government as soon as possible.
(g) The authorities of the Philippines and the United States shall notify each other of
the disposition of all cases in which both the authorities of the Philippines and the
United States have the right to exercise jurisdiction.
4. Within the scope of their legal competence, the authorities of the Philippines and
United States shall assist each other in the arrest of United States personnel in the
Philippines and in handling them over to authorities who are to exercise jurisdiction
in accordance with the provisions of this article.
5. United States military authorities shall promptly notify Philippine authorities of the
arrest or detention of United States personnel who are subject of Philippine primary
or exclusive jurisdiction. Philippine authorities shall promptly notify United States
military authorities of the arrest or detention of any United States personnel.
6. The custody of any United States personnel over whom the Philippines is to exercise
jurisdiction shall immediately reside with United States military authorities, if they so
request, from the commission of the offense until completion of all judicial
proceedings. United States military authorities shall, upon formal notification by the
Philippine authorities and without delay, make such personnel available to those
authorities in time for any investigative or judicial proceedings relating to the offense
with which the person has been charged in extraordinary cases, the Philippine
Government shall present its position to the United States Government regarding
custody, which the United States Government shall take into full account. In the
event Philippine judicial proceedings are not completed within one year, the United
States shall be relieved of any obligations under this paragraph. The one-year
period will not include the time necessary to appeal. Also, the one-year period will
not include any time during which scheduled trial procedures are delayed because
United States authorities, after timely notification by Philippine authorities to arrange
for the presence of the accused, fail to do so.
7. Within the scope of their legal authority, United States and Philippine authorities
shall assist each other in the carrying out of all necessary investigation into offenses
and shall cooperate in providing for the attendance of witnesses and in the
collection and production of evidence, including seizure and, in proper cases, the
delivery of objects connected with an offense.
8. When United States personnel have been tried in accordance with the provisions of
this Article and have been acquitted or have been convicted and are serving, or
have served their sentence, or have had their sentence remitted or suspended, or
have been pardoned, they may not be tried again for the same offense in the
Philippines. Nothing in this paragraph, however, shall prevent United States military
authorities from trying United States personnel for any violation of rules of discipline
arising from the act or omission which constituted an offense for which they were
tried by Philippine authorities.
9. When United States personnel are detained, taken into custody, or prosecuted by
Philippine authorities, they shall be accorded all procedural safeguards established
by the law of the Philippines. At the minimum, United States personnel shall be
entitled:
(a) To a prompt and speedy trial;
(b) To be informed in advance of trial of the specific charge or charges made against
them and to have reasonable time to prepare a defense;
(c) To be confronted with witnesses against them and to cross examine such
witnesses;
(d) To present evidence in their defense and to have compulsory process for
obtaining witnesses;
(e) To have free and assisted legal representation of their own choice on the same
basis as nationals of the Philippines;
(f) To have the service of a competent interpreter; and
(g) To communicate promptly with and to be visited regularly by United States
authorities, and to have such authorities present at all judicial proceedings. These
proceedings shall be public unless the court, in accordance with Philippine laws,
excludes persons who have no role in the proceedings.
10. The confinement or detention by Philippine authorities of United States personnel
shall be carried out in facilities agreed on by appropriate Philippine and United
States authorities. United States Personnel serving sentences in the Philippines
shall have the right to visits and material assistance.
11. United States personnel shall be subject to trial only in Philippine courts of ordinary
jurisdiction, and shall not be subject to the jurisdiction of Philippine military or
religious courts.

Article VI
Claims

1. Except for contractual arrangements, including United States foreign military sales
letters of offer and acceptance and leases of military equipment, both governments
waive any and all claims against each other for damage, loss or destruction to
property of each others armed forces or for death or injury to their military and
civilian personnel arising from activities to which this agreement applies.
2. For claims against the United States, other than contractual claims and those to
which paragraph 1 applies, the United States Government, in accordance with
United States law regarding foreign claims, will pay just and reasonable
compensation in settlement of meritorious claims for damage, loss, personal injury
or death, caused by acts or omissions of United States personnel, or otherwise
incident to the non-combat activities of the United States forces.

Article VII
Importation and Exportation

1. United States Government equipment, materials, supplies, and other property


imported into or acquired in the Philippines by or on behalf of the United States
armed forces in connection with activities to which this agreement applies, shall be
free of all Philippine duties, taxes and other similar charges. Title to such property
shall remain with the United States, which may remove such property from the
Philippines at any time, free from export duties, taxes, and other similar charges.
The exemptions provided in this paragraph shall also extend to any duty, tax, or
other similar charges which would otherwise be assessed upon such property after
importation into, or acquisition within, the Philippines. Such property may be
removed from the Philippines, or disposed of therein, provided that disposition of
such property in the Philippines to persons or entities not entitled to exemption from
applicable taxes and duties shall be subject to payment of such taxes, and duties
and prior approval of the Philippine Government.
2. Reasonable quantities of personal baggage, personal effects, and other property for
the personal use of United States personnel may be imported into and used in the
Philippines free of all duties, taxes and other similar charges during the period of
their temporary stay in the Philippines. Transfers to persons or entities in the
Philippines not entitled to import privileges may only be made upon prior approval of
the appropriate Philippine authorities including payment by the recipient of
applicable duties and taxes imposed in accordance with the laws of the Philippines.
The exportation of such property and of property acquired in the Philippines by
United States personnel shall be free of all Philippine duties, taxes, and other similar
charges.

Article VIII
Movement of Vessels and Aircraft

1. Aircraft operated by or for the United States armed forces may enter the Philippines
upon approval of the Government of the Philippines in accordance with procedures
stipulated in implementing arrangements.
2. Vessels operated by or for the United States armed forces may enter the Philippines
upon approval of the Government of the Philippines. The movement of vessels shall
be in accordance with international custom and practice governing such vessels,
and such agreed implementing arrangements as necessary.
3. Vehicles, vessels, and aircraft operated by or for the United States armed forces
shall not be subject to the payment of landing or port fees, navigation or over flight
charges, or tolls or other use charges, including light and harbor dues, while in the
Philippines. Aircraft operated by or for the United States armed forces shall observe
local air traffic control regulations while in the Philippines. Vessels owned or
operated by the United States solely on United States Government non-commercial
service shall not be subject to compulsory pilotage at Philippine ports.
Article IX
Duration and Termination

This agreement shall enter into force on the date on which the parties have notified each other in
writing through the diplomatic channel that they have completed their constitutional requirements
for entry into force. This agreement shall remain in force until the expiration of 180 days from the
date on which either party gives the other party notice in writing that it desires to terminate the
agreement.

Via these consolidated[11] petitions for certiorari and prohibition, petitioners - as legislators,
non-governmental organizations, citizens and taxpayers - assail the constitutionality of the VFA
and impute to herein respondents grave abuse of discretion in ratifying the agreement.
We have simplified the issues raised by the petitioners into the following:
I

Do petitioners have legal standing as concerned citizens, taxpayers, or legislators to question the
constitutionality of the VFA?

II

Is the VFA governed by the provisions of Section 21, Article VII or of Section 25, Article XVIII of
the Constitution?

III

Does the VFA constitute an abdication of Philippine sovereignty?

a. Are Philippine courts deprived of their jurisdiction to hear and try offenses committed
by US military personnel?
b. Is the Supreme Court deprived of its jurisdiction over offenses punishable by
reclusion perpetua or higher?
IV

Does the VFA violate:

a. the equal protection clause under Section 1, Article III of the Constitution?
b. the Prohibition against nuclear weapons under Article II, Section 8?
c. Section 28 (4), Article VI of the Constitution granting the exemption from taxes and
duties for the equipment, materials supplies and other properties imported into or
acquired in the Philippines by, or on behalf, of the US Armed Forces?

LOCUS STANDI
At the outset, respondents challenge petitioners standing to sue, on the ground that the
latter have not shown any interest in the case, and that petitioners failed to substantiate that
they have sustained, or will sustain direct injury as a result of the operation of the
VFA.[12] Petitioners, on the other hand, counter that the validity or invalidity of the VFA is a
matter of transcendental importance which justifies their standing.[13]
A party bringing a suit challenging the constitutionality of a law, act, or statute must show
not only that the law is invalid, but also that he has sustained or in is in immediate, or imminent
danger of sustaining some direct injury as a result of its enforcement, and not merely that he
suffers thereby in some indefinite way. He must show that he has been, or is about to be,
denied some right or privilege to which he is lawfully entitled, or that he is about to be subjected
to some burdens or penalties by reason of the statute complained of.[14]
In the case before us, petitioners failed to show, to the satisfaction of this Court, that they
have sustained, or are in danger of sustaining any direct injury as a result of the enforcement of
the VFA. As taxpayers, petitioners have not established that the VFA involves the exercise by
Congress of its taxing or spending powers.[15] On this point, it bears stressing that a taxpayers
suit refers to a case where the act complained of directly involves the illegal disbursement of
public funds derived from taxation.[16] Thus, in Bugnay Const. & Development Corp. vs.
Laron[17], we held:

x x x it is exigent that the taxpayer-plaintiff sufficiently show that he would be benefited or injured by the
judgment or entitled to the avails of the suit as a real party in interest. Before he can invoke the power of
judicial review, he must specifically prove that he has sufficient interest in preventing the illegal
expenditure of money raised by taxation and that he will sustain a direct injury as a result of the
enforcement of the questioned statute or contract. It is not sufficient that he has merely a general interest
common to all members of the public.

Clearly, inasmuch as no public funds raised by taxation are involved in this case, and in the
absence of any allegation by petitioners that public funds are being misspent or illegally
expended, petitioners, as taxpayers, have no legal standing to assail the legality of the VFA.
Similarly, Representatives Wigberto Taada, Agapito Aquino and Joker Arroyo, as
petitioners-legislators, do not possess the requisite locus standi to maintain the present
suit. While this Court, in Phil. Constitution Association vs. Hon. Salvador
Enriquez,[18] sustained the legal standing of a member of the Senate and the House of
Representatives to question the validity of a presidential veto or a condition imposed on an item
in an appropriation bull, we cannot, at this instance, similarly uphold petitioners standing as
members of Congress, in the absence of a clear showing of any direct injury to their person or
to the institution to which they belong.
Beyond this, the allegations of impairment of legislative power, such as the delegation of
the power of Congress to grant tax exemptions, are more apparent than real. While it may be
true that petitioners pointed to provisions of the VFA which allegedly impair their legislative
powers, petitioners failed however to sufficiently show that they have in fact suffered direct
injury.
In the same vein, petitioner Integrated Bar of the Philippines (IBP) is stripped of standing in
these cases. As aptly observed by the Solicitor General, the IBP lacks the legal capacity to bring
this suit in the absence of a board resolution from its Board of Governors authorizing its National
President to commence the present action.[19]
Notwithstanding, in view of the paramount importance and the constitutional significance of
the issues raised in the petitions, this Court, in the exercise of its sound discretion, brushes
aside the procedural barrier and takes cognizance of the petitions, as we have done in the
early Emergency Powers Cases,[20] where we had occasion to rule:

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

This principle was reiterated in the subsequent cases of Gonzales vs. COMELEC,[21] Daza
vs. Singson,[22] and Basco vs. Phil. Amusement and Gaming Corporation,[23] where we
emphatically held:

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

Again, in the more recent case of Kilosbayan vs. Guingona, Jr.,[24] thisCourt ruled that in
cases of transcendental importance, the Court may relax the standing requirements and
allow a suit to prosper even where there is no direct injury to the party claiming the right
of judicial review.
Although courts generally avoid having to decide a constitutional question based on the
doctrine of separation of powers, which enjoins upon the departments of the government a
becoming respect for each others acts,[25] this Court nevertheless resolves to take cognizance of
the instant petitions.

APPLICABLE CONSTITUTIONAL PROVISION

One focal point of inquiry in this controversy is the determination of which provision of the
Constitution applies, with regard to the exercise by the senate of its constitutional power to
concur with the VFA. Petitioners argue that Section 25, Article XVIII is applicable considering
that the VFA has for its subject the presence of foreign military troops in the
Philippines.Respondents, on the contrary, maintain that Section 21, Article VII should apply
inasmuch as the VFA is not a basing arrangement but an agreement which involves merely the
temporary visits of United States personnel engaged in joint military exercises.
The 1987 Philippine Constitution contains two provisions requiring the concurrence of the
Senate on treaties or international agreements. Section 21, Article VII, which herein
respondents invoke, reads:

No treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds
of all the Members of the Senate.
Section 25, Article XVIII, provides:

After the expiration in 1991 of the Agreement between the Republic of the Philippines and the United
States of America concerning Military Bases, foreign military bases, troops, or facilities shall not be
allowed in the Philippines except under a treaty duly concurred in by the senate and, when the Congress
so requires, ratified by a majority of the votes cast by the people in a national referendum held for that
purpose, and recognized as a treaty by the other contracting State.

Section 21, Article VII deals with treatise or international agreements in general, in which
case, the concurrence of at least two-thirds (2/3) of all the Members of the Senate is required to
make the subject treaty, or international agreement, valid and binding on the part of the
Philippines. This provision lays down the general rule on treatise or international agreements
and applies to any form of treaty with a wide variety of subject matter, such as, but not limited
to, extradition or tax treatise or those economic in nature. All treaties or international
agreements entered into by the Philippines, regardless of subject matter, coverage, or particular
designation or appellation, requires the concurrence of the Senate to be valid and effective.
In contrast, Section 25, Article XVIII is a special provision that applies to treaties which
involve the presence of foreign military bases, troops or facilities in the Philippines. Under this
provision, the concurrence of the Senate is only one of the requisites to render compliance with
the constitutional requirements and to consider the agreement binding on the
Philippines.Section 25, Article XVIII further requires that foreign military bases, troops, or
facilities may be allowed in the Philippines only by virtue of a treaty duly concurred in by the
Senate, ratified by a majority of the votes cast in a national referendum held for that purpose if
so required by Congress, and recognized as such by the other contracting state.
It is our considered view that both constitutional provisions, far from contradicting each
other, actually share some common ground. These constitutional provisions both embody
phrases in the negative and thus, are deemed prohibitory in mandate and character. In
particular, Section 21 opens with the clause No treaty x x x, and Section 25 contains the phrase
shall not be allowed. Additionally, in both instances, the concurrence of the Senate is
indispensable to render the treaty or international agreement valid and effective.
To our mind, the fact that the President referred the VFA to the Senate under Section 21,
Article VII, and that the Senate extended its concurrence under the same provision, is
immaterial. For in either case, whether under Section 21, Article VII or Section 25, Article XVIII,
the fundamental law is crystalline that the concurrence of the Senate is mandatory to comply
with the strict constitutional requirements.
On the whole, the VFA is an agreement which defines the treatment of United States troops
and personnel visiting the Philippines. It provides for the guidelines to govern such visits of
military personnel, and further defines the rights of the United States and the Philippine
government in the matter of criminal jurisdiction, movement of vessel and aircraft, importation
and exportation of equipment, materials and supplies.
Undoubtedly, Section 25, Article XVIII, which specifically deals with treaties involving
foreign military bases, troops, or facilities, should apply in the instant case. To a certain extent
and in a limited sense, however, the provisions of section 21, Article VII will find applicability
with regard to the issue and for the sole purpose of determining the number of votes required to
obtain the valid concurrence of the Senate, as will be further discussed hereunder.
It is a finely-imbedded principle in statutory construction that a special provision or law
prevails over a general one. Lex specialis derogat generali. Thus, where there is in the same
statute a particular enactment and also a general one which, in its most comprehensive sense,
would include what is embraced in the former, the particular enactment must be operative, and
the general enactment must be taken to affect only such cases within its general language
which are not within the provision of the particular enactment.[26]
In Leveriza vs. Intermediate Appellate Court,[27] we enunciated:

x x x that another basic principle of statutory construction mandates that general legislation must give
way to a special legislation on the same subject, and generally be so interpreted as to embrace only cases
in which the special provisions are not applicable (Sto. Domingo vs. de los Angeles, 96 SCRA 139), that
a specific statute prevails over a general statute (De Jesus vs. People, 120 SCRA 760) and that where two
statutes are of equal theoretical application to a particular case, the one designed therefor specially should
prevail (Wil Wilhensen Inc. vs. Baluyot, 83 SCRA 38).

Moreover, it is specious to argue that Section 25, Article XVIII is inapplicable to mere
transient agreements for the reason that there is no permanent placing of structure for the
establishment of a military base. On this score, the Constitution makes no distinction between
transient and permanent. Certainly, we find nothing in Section 25, Article XVIII that
requires foreign troops or facilities to be stationed or placed permanently in the Philippines.
It is a rudiment in legal hermenuetics that when no distinction is made by law, the Court
should not distinguish- Ubi lex non distinguit nec nos distinguire debemos.
In like manner, we do not subscribe to the argument that Section 25, Article XVIII is not
controlling since no foreign military bases, but merely foreign troops and facilities, are involved
in the VFA. Notably, a perusal of said constitutional provision reveals that the proscription
covers foreign military bases, troops, or facilities. Stated differently, this prohibition is not limited
to the entry of troops and facilities without any foreign bases being established. The clause does
not refer to foreign military bases, troops, or facilities collectively but treats them as separate
and independent subjects. The use of comma and the disjunctive word or clearly signifies
disassociation and independence of one thing from the others included in the
enumeration,[28]such that, the provision contemplates three different situations - a military treaty
the subject of which could be either (a) foreign bases, (b) foreign troops, or (c) foreign facilities -
any of the three standing alone places it under the coverage of Section 25, Article XVIII.
To this end, the intention of the framers of the Charter, as manifested during the
deliberations of the 1986 Constitutional Commission, is consistent with this interpretation:
MR. MAAMBONG. I just want to address a question or two to Commissioner Bernas.
This formulation speaks of three things: foreign military bases, troops or facilities. My first
question is: If the country does enter into such kind of a treaty, must it cover the
three-bases, troops or facilities-or could the treaty entered into cover only one or
two?
FR. BERNAS. Definitely, it can cover only one. Whether it covers only one or it covers
three, the requirement will be the same.
MR. MAAMBONG. In other words, the Philippine government can enter into a treaty
covering not bases but merely troops?
FR. BERNAS. Yes.
MR. MAAMBONG. I cannot find any reason why the government can enter into a treaty
covering only troops.
FR. BERNAS. Why not? Probably if we stretch our imagination a little bit more, we will find
some. We just want to cover everything.[29] (Underscoring Supplied)
Moreover, military bases established within the territory of another state is no longer viable
because of the alternatives offered by new means and weapons of warfare such as nuclear
weapons, guided missiles as well as huge sea vessels that can stay afloat in the sea even for
months and years without returning to their home country. These military warships are actually
used as substitutes for a land-home base not only of military aircraft but also of military
personnel and facilities. Besides, vessels are mobile as compared to a land-based military
headquarters.
At this juncture, we shall then resolve the issue of whether or not the requirements of
Section 25 were complied with when the Senate gave its concurrence to the VFA.
Section 25, Article XVIII disallows foreign military bases, troops, or facilities in the country,
unless the following conditions are sufficiently met, viz: (a) it must be under a treaty; (b) the
treaty must be duly concurred in by the Senate and, when so required by congress, ratified by
a majority of the votes cast by the people in a national referendum; and (c) recognized as a
treaty by the other contracting state.
There is no dispute as to the presence of the first two requisites in the case of the VFA. The
concurrence handed by the Senate through Resolution No. 18 is in accordance with the
provisions of the Constitution, whether under the general requirement in Section 21, Article VII,
or the specific mandate mentioned in Section 25, Article XVIII, the provision in the latter article
requiring ratification by a majority of the votes cast in a national referendum being unnecessary
since Congress has not required it.
As to the matter of voting, Section 21, Article VII particularly requires that a treaty or
international agreement, to be valid and effective, must be concurred in by at least two-thirds
of all the members of the Senate. On the other hand, Section 25, Article XVIII simply provides
that the treaty be duly concurred in by the Senate.
Applying the foregoing constitutional provisions, a two-thirds vote of all the members of the
Senate is clearly required so that the concurrence contemplated by law may be validly obtained
and deemed present. While it is true that Section 25, Article XVIII requires, among other things,
that the treaty-the VFA, in the instant case-be duly concurred in by the Senate, it is very true
however that said provision must be related and viewed in light of the clear mandate embodied
in Section 21, Article VII, which in more specific terms, requires that the concurrence of a treaty,
or international agreement, be made by a two -thirds vote of all the members of the
Senate. Indeed, Section 25, Article XVIII must not be treated in isolation to section 21, Article,
VII.
As noted, the concurrence requirement under Section 25, Article XVIII must be construed in
relation to the provisions of Section 21, Article VII. In a more particular language, the
concurrence of the Senate contemplated under Section 25, Article XVIII means that at least two-
thirds of all the members of the Senate favorably vote to concur with the treaty-the VFA in the
instant case.
Under these circumstances, the charter provides that the Senate shall be composed of
twenty-four (24) Senators.[30] Without a tinge of doubt, two-thirds (2/3) of this figure, or not less
than sixteen (16) members, favorably acting on the proposal is an unquestionable compliance
with the requisite number of votes mentioned in Section 21 of Article VII. The fact that there
were actually twenty-three (23) incumbent Senators at the time the voting was made, [31] will not
alter in any significant way the circumstance that more than two-thirds of the members of the
Senate concurred with the proposed VFA, even if the two-thirds vote requirement is based on
this figure of actual members (23). In this regard, the fundamental law is clear that two-thirds of
the 24 Senators, or at least 16 favorable votes, suffice so as to render compliance with the strict
constitutional mandate of giving concurrence to the subject treaty.
Having resolved that the first two requisites prescribed in Section 25, Article XVIII are
present, we shall now pass upon and delve on the requirement that the VFA should be
recognized as a treaty by the United States of America.
Petitioners content that the phrase recognized as a treaty, embodied in section 25, Article
XVIII, means that the VFA should have the advice and consent of the United States Senate
pursuant to its own constitutional process, and that it should not be considered merely an
executive agreement by the United States.
In opposition, respondents argue that the letter of United States Ambassador Hubbard
stating that the VFA is binding on the United States Government is conclusive, on the point that
the VFA is recognized as a treaty by the United States of America. According to respondents,
the VFA, to be binding, must only be accepted as a treaty by the United States.
This Court is of the firm view that the phrase recognized as a treaty means that the other
contracting party accepts or acknowledges the agreement as a treaty.[32] To require the other
contracting state, the United States of America in this case, to submit the VFA to the United
States Senate for concurrence pursuant to its Constitution,[33] is to accord strict meaning to the
phrase.
Well-entrenched is the principle that the words used in the Constitution are to be given their
ordinary meaning except where technical terms are employed, in which case the significance
thus attached to them prevails. Its language should be understood in the sense they have in
common use.[34]
Moreover, it is inconsequential whether the United States treats the VFA only as an
executive agreement because, under international law, an executive agreement is as binding as
a treaty.[35] To be sure, as long as the VFA possesses the elements of an agreement under
international law, the said agreement is to be taken equally as a treaty.
A treaty, as defined by the Vienna Convention on the Law of Treaties, is an international
instrument concluded between States in written form and governed by international law,
whether embodied in a single instrument or in two or more related instruments, and whatever its
particular designation.[36] There are many other terms used for a treaty or international
agreement, some of which are: act, protocol, agreement, compromis d arbitrage, concordat,
convention, declaration, exchange of notes, pact, statute, charter and modus vivendi. All writers,
from Hugo Grotius onward, have pointed out that the names or titles of international agreements
included under the general term treaty have little or no legal significance. Certain terms are
useful, but they furnish little more than mere description.[37]
Article 2(2) of the Vienna Convention provides that the provisions of paragraph 1 regarding
the use of terms in the present Convention are without prejudice to the use of those terms, or to
the meanings which may be given to them in the internal law of the State.
Thus, in international law, there is no difference between treaties and executive agreements
in their binding effect upon states concerned, as long as the negotiating functionaries have
remained within their powers.[38] International law continues to make no distinction between
treaties and executive agreements: they are equally binding obligations upon nations.[39]
In our jurisdiction, we have recognized the binding effect of executive agreements even
without the concurrence of the Senate or Congress. In Commissioner of Customs vs.
Eastern Sea Trading,[40] we had occasion to pronounce:

x x x the right of the Executive to enter into binding agreements without the necessity of subsequent
congressional approval has been confirmed by long usage. From the earliest days of our history we have
entered into executive agreements covering such subjects as commercial and consular relations, most-
favored-nation rights, patent rights, trademark and copyright protection, postal and navigation
arrangements and the settlement of claims. The validity of these has never been seriously questioned by
our courts.

xxxxxxxxx

Furthermore, the United States Supreme Court has expressly recognized the validity and constitutionality
of executive agreements entered into without Senate approval. (39 Columbia Law Review, pp. 753-754)
(See, also, U.S. vs. Curtis Wright Export Corporation, 299 U.S. 304, 81 L. ed. 255; U.S. vs. Belmont,
301 U.S. 324, 81 L. ed. 1134; U.S. vs. Pink, 315 U.S. 203, 86 L. ed. 796; Ozanic vs. U.S. 188 F. 2d.
288; Yale Law Journal, Vol. 15 pp. 1905-1906; California Law Review, Vol. 25, pp. 670-675; Hyde
on International Law [revised Edition], Vol. 2, pp. 1405, 1416-1418; willoughby on the U.S.
Constitution Law, Vol. I [2d ed.], pp. 537-540; Moore, International Law Digest, Vol. V, pp. 210-
218; Hackworth, International Law Digest, Vol. V, pp. 390-407). (Italics Supplied) (Emphasis Ours)

The deliberations of the Constitutional Commission which drafted the 1987 Constitution is
enlightening and highly-instructive:
MR. MAAMBONG. Of course it goes without saying that as far as ratification of the other
state is concerned, that is entirely their concern under their own laws.
FR. BERNAS. Yes, but we will accept whatever they say. If they say that we have done
everything to make it a treaty, then as far as we are concerned, we will accept it as a
treaty.[41]
The records reveal that the United States Government, through Ambassador Thomas C.
Hubbard, has stated that the United States government has fully committed to living up to the
terms of the VFA.[42] For as long as the united States of America accepts or acknowledges the
VFA as a treaty, and binds itself further to comply with its obligations under the treaty, there is
indeed marked compliance with the mandate of the Constitution.
Worth stressing too, is that the ratification, by the President, of the VFA and the
concurrence of the Senate should be taken as a clear an unequivocal expression of our nations
consent to be bound by said treaty, with the concomitant duty to uphold the obligations and
responsibilities embodied thereunder.
Ratification is generally held to be an executive act, undertaken by the head of the state or
of the government, as the case may be, through which the formal acceptance of the treaty is
proclaimed.[43] A State may provide in its domestic legislation the process of ratification of a
treaty. The consent of the State to be bound by a treaty is expressed by ratification when: (a)
the treaty provides for such ratification, (b) it is otherwise established that the negotiating States
agreed that ratification should be required, (c) the representative of the State has signed the
treaty subject to ratification, or (d) the intention of the State to sign the treaty subject to
ratification appears from the full powers of its representative, or was expressed during the
negotiation.[44]
In our jurisdiction, the power to ratify is vested in the President and not, as commonly
believed, in the legislature. The role of the Senate is limited only to giving or withholding its
consent, or concurrence, to the ratification.[45]
With the ratification of the VFA, which is equivalent to final acceptance, and with the
exchange of notes between the Philippines and the United States of America, it now becomes
obligatory and incumbent on our part, under the principles of international law, to be bound by
the terms of the agreement. Thus, no less than Section 2, Article II of the
Constitution,[46]declares that the Philippines adopts the generally accepted principles of
international law as part of the law of the land and adheres to the policy of peace, equality,
justice, freedom, cooperation and amity with all nations.
As a member of the family of nations, the Philippines agrees to be bound by generally
accepted rules for the conduct of its international relations. While the international obligation
devolves upon the state and not upon any particular branch, institution, or individual member of
its government, the Philippines is nonetheless responsible for violations committed by any
branch or subdivision of its government or any official thereof. As an integral part of the
community of nations, we are responsible to assure that our government, Constitution and laws
will carry out our international obligation.[47] Hence, we cannot readily plead the Constitution as a
convenient excuse for non-compliance with our obligations, duties and responsibilities under
international law.
Beyond this, Article 13 of the Declaration of Rights and Duties of States adopted by the
International Law Commission in 1949 provides: Every State has the duty to carry out in good
faith its obligations arising from treaties and other sources of international law, and it may not
invoke provisions in its constitution or its laws as an excuse for failure to perform this duty. [48]
Equally important is Article 26 of the convention which provides that Every treaty in force is
binding upon the parties to it and must be performed by them in good faith. This is known as the
principle of pacta sunt servanda which preserves the sanctity of treaties and have been one of
the most fundamental principles of positive international law, supported by the jurisprudence of
international tribunals.[49]

NO GRAVE ABUSE OF DISCRETION

In the instant controversy, the President, in effect, is heavily faulted for exercising a power
and performing a task conferred upon him by the Constitution-the power to enter into and ratify
treaties. Through the expediency of Rule 65 of the Rules of Court, petitioners in these
consolidated cases impute grave abuse of discretion on the part of the chief Executive in
ratifying the VFA, and referring the same to the Senate pursuant to the provisions of Section 21,
Article VII of the Constitution.
On this particular matter, grave abuse of discretion implies such capricious and whimsical
exercise of judgment as is equivalent to lack of jurisdiction, or, when the power is exercised in
an arbitrary or despotic manner by reason of passion or personal hostility, and it must be so
patent and gross as to amount to an evasion of positive duty enjoined or to act at all in
contemplation of law.[50]
By constitutional fiat and by the intrinsic nature of his office, the President, as head of State,
is the sole organ and authority in the external affairs of the country. In many ways, the President
is the chief architect of the nations foreign policy; his dominance in the field of foreign relations
is (then) conceded.[51] Wielding vast powers an influence, his conduct in the external affairs of
the nation, as Jefferson describes, is executive altogether."[52]
As regards the power to enter into treaties or international agreements, the Constitution
vests the same in the President, subject only to the concurrence of at least two-thirds vote of all
the members of the Senate. In this light, the negotiation of the VFA and the subsequent
ratification of the agreement are exclusive acts which pertain solely to the President, in the
lawful exercise of his vast executive and diplomatic powers granted him no less than by the
fundamental law itself. Into the field of negotiation the Senate cannot intrude, and Congress
itself is powerless to invade it.[53] Consequently, the acts or judgment calls of the President
involving the VFA-specifically the acts of ratification and entering into a treaty and those
necessary or incidental to the exercise of such principal acts - squarely fall within the sphere of
his constitutional powers and thus, may not be validly struck down, much less calibrated by this
Court, in the absence of clear showing of grave abuse of power or discretion.
It is the Courts considered view that the President, in ratifying the VFA and in submitting the
same to the Senate for concurrence, acted within the confines and limits of the powers vested in
him by the Constitution. It is of no moment that the President, in the exercise of his wide latitude
of discretion and in the honest belief that the VFA falls within the ambit of Section 21, Article VII
of the Constitution, referred the VFA to the Senate for concurrence under the aforementioned
provision. Certainly, no abuse of discretion, much less a grave, patent and whimsical abuse of
judgment, may be imputed to the President in his act of ratifying the VFA and referring the same
to the Senate for the purpose of complying with the concurrence requirement embodied in the
fundamental law. In doing so, the President merely performed a constitutional task and
exercised a prerogative that chiefly pertains to the functions of his office. Even if he erred in
submitting the VFA to the Senate for concurrence under the provisions of Section 21 of Article
VII, instead of Section 25 of Article XVIII of the Constitution, still, the President may not be
faulted or scarred, much less be adjudged guilty of committing an abuse of discretion in some
patent, gross, and capricious manner.
For while it is conceded that Article VIII, Section 1, of the Constitution has broadened the
scope of judicial inquiry into areas normally left to the political departments to decide, such as
those relating to national security, it has not altogether done away with political questions such
as those which arise in the field of foreign relations.[54] The High Tribunals function, as
sanctioned by Article VIII, Section 1, is merely (to) check whether or not the governmental
branch or agency has gone beyond the constitutional limits of its jurisdiction, not that it erred or
has a different view. In the absence of a showing (of) grave abuse of discretion amounting to
lack of jurisdiction, there is no occasion for the Court to exercise its corrective powerIt has no
power to look into what it thinks is apparent error.[55]
As to the power to concur with treaties, the constitution lodges the same with the Senate
alone. Thus, once the Senate[56] performs that power, or exercises its prerogative within the
boundaries prescribed by the Constitution, the concurrence cannot, in like manner, be viewed to
constitute an abuse of power, much less grave abuse thereof. Corollarily, the Senate, in the
exercise of its discretion and acting within the limits of such power, may not be similarly faulted
for having simply performed a task conferred and sanctioned by no less than the fundamental
law.
For the role of the Senate in relation to treaties is essentially legislative in character; [57] the
Senate, as an independent body possessed of its own erudite mind, has the prerogative to
either accept or reject the proposed agreement, and whatever action it takes in the exercise of
its wide latitude of discretion, pertains to the wisdom rather than the legality of the act. In this
sense, the Senate partakes a principal, yet delicate, role in keeping the principles of separation
of powers and of checks and balances alive and vigilantly ensures that these cherished
rudiments remain true to their form in a democratic government such as ours. The Constitution
thus animates, through this treaty-concurring power of the Senate, a healthy system of checks
and balances indispensable toward our nations pursuit of political maturity and growth. True
enough, rudimentary is the principle that matters pertaining to the wisdom of a legislative act are
beyond the ambit and province of the courts to inquire.
In fine, absent any clear showing of grave abuse of discretion on the part of respondents,
this Court- as the final arbiter of legal controversies and staunch sentinel of the rights of the
people - is then without power to conduct an incursion and meddle with such affairs purely
executive and legislative in character and nature. For the Constitution no less, maps out the
distinct boundaries and limits the metes and bounds within which each of the three political
branches of government may exercise the powers exclusively and essentially conferred to it by
law.
WHEREFORE, in light of the foregoing disquisitions, the instant petitions are hereby
DISMISSED.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 167919 February 14, 2007

PLARIDEL M. ABAYA, COMMODORE PLARIDEL C. GARCIA (retired) and PMA 59


FOUNDATION, INC., rep. by its President, COMMODORE CARLOS L. AGUSTIN
(retired), Petitioners,
vs.
HON. SECRETARY HERMOGENES E. EBDANE, JR., in his capacity as Secretary of the
DEPARTMENT OF PUBLIC WORKS and HIGHWAYS, HON. SECRETARY EMILIA T.
BONCODIN, in her capacity as Secretary of the DEPARTMENT OF BUDGET and
MANAGEMENT, HON. SECRETARY CESAR V. PURISIMA, in his capacity as Secretary of
the DEPARTMENT OF FINANCE, HON. TREASURER NORMA L. LASALA, in her capacity
as Treasurer of the Bureau of Treasury, and CHINA ROAD and BRIDGE
CORPORATION, Respondents.

DECISION

CALLEJO, SR., J.:

Before the Court is the petition for certiorari and prohibition under Rule 65 of the Rules of Court
seeking to set aside and nullify Resolution No. PJHL-A-04-012 dated May 7, 2004 issued by the
Bids and Awards Committee (BAC) of the Department of Public Works and Highways (DPWH)
and approved by then DPWH Acting Secretary Florante Soriquez. The assailed resolution
recommended the award to private respondent China Road & Bridge Corporation of the contract
for the implementation of civil works for Contract Package No. I (CP I), which consists of the
improvement/rehabilitation of the San Andres (Codon)-Virac-Jct. Bago-Viga road, with the
length of 79.818 kilometers, in the island province of Catanduanes.

The CP I project is one of the four packages comprising the project for the
improvement/rehabilitation of the Catanduanes Circumferential Road, covering a total length of
about 204.515 kilometers, which is the main highway in Catanduanes Province. The road
section (Catanduanes Circumferential Road) is part of the Arterial Road Links Development
Project (Phase IV) funded under Loan Agreement No. PH-P204 dated December 28, 1999
between the Japan Bank for International Cooperation (JBIC) and the Government of the
Republic of the Philippines.

Background

Based on the Exchange of Notes dated December 27, 1999,1 the Government of Japan and the
Government of the Philippines, through their respective representatives, namely, Mr. Yoshihisa
Ara, Ambassador Extraordinary and Plenipotentiary of Japan to the Republic of the Philippines,
and then Secretary of Foreign Affairs Domingo L. Siazon, have reached an understanding
concerning Japanese loans to be extended to the Philippines. These loans were aimed at
promoting our countrys economic stabilization and development efforts.
The Exchange of Notes consisted of two documents: (1) a Letter from the Government of
Japan, signed by Ambassador Ara, addressed to then Secretary of Foreign Affairs Siazon,
confirming the understanding reached between the two governments concerning the loans to be
extended by the Government of Japan to the Philippines; and (2) a document denominated as
Records of Discussion where the salient terms of the loans as set forth by the Government of
Japan, through the Japanese delegation, were reiterated and the said terms were accepted by
the Philippine delegation. Both Ambassador Ara and then Secretary Siazon signed the Records
of Discussion as representatives of the Government of Japan and Philippine Government,
respectively.

The Exchange of Notes provided that the loans to be extended by the Government of Japan to
the Philippines consisted of two loans: Loan I and Loan II. The Exchange of Notes stated in
part:

1. A loan in Japanese yen up to the amount of seventy-nine billion eight hundred and
sixty-one million yen (Y79,861,000,000) (hereinafter referred to as "the Loan I") will be
extended, in accordance with the relevant laws and regulations of Japan, to the
Government of the Republic of the Philippines (hereinafter referred to as "the Borrower
I") by the Japan Bank for International Cooperation (hereinafter referred to as "the
Bank") to implement the projects enumerated in the List A attached hereto (hereinafter
referred to as "the List A") according to the allocation for each project as specified in the
List A.

2. (1) The Loan I will be made available by loan agreements to be concluded between
the Borrower I and the Bank. The terms and conditions of the Loan I as well as the
procedure for its utilization will be governed by said loan agreements which will
contain, inter alia, the following principles:

...

(2) Each of the loan agreements mentioned in sub-paragraph (1) above will be
concluded after the Bank is satisfied of the feasibility, including environmental
consideration, of the project to which such loan agreement relates.

3. (1) The Loan I will be made available to cover payments to be made by the Philippine
executing agencies to suppliers, contractors and/or consultants of eligible source
countries under such contracts as may be entered into between them for purchases of
products and/or services required for the implementation of the projects enumerated in
the List A, provided that such purchases are made in such eligible source countries for
products produced in and/or services supplied from those countries.

(2) The scope of eligible source countries mentioned in sub-paragraph (1) above
will be agreed upon between the authorities concerned of the two Governments.

(3) A part of the Loan I may be used to cover eligible local currency requirements
for the implementation of the projects enumerated in the List A.
4. With regard to the shipping and marine insurance of the products purchased under
the Loan I, the Government of the Republic of the Philippines will refrain from imposing
any restrictions that may hinder fair and free competition among the shipping and marine
insurance companies.

x x x x2 1awphi1.net

Pertinently, List A, which specified the projects to be financed under the Loan I, includes the
Arterial Road Links Development Project (Phase IV), to wit:

LIST A

Maximum amount in million yen)

1. Secondary Education Development and Improvement Project 7,210

2. Rural Water Supply Project (Phase V) 951

3. Bohol Irrigation Project (Phase II) 6,078

4. Agrarian Reform Infrastructure Support Project (Phase II) 16,990

5. Arterial Road Links Development Project (Phase IV) 15,384

6. Cordillera Road Improvement Project 5,852

7. Philippines-Japan Friendship Highway Mindanao Section Rehabilitation Project


(Phase II) 7,434

8. Rehabilitation and Maintenance of Bridges Along Arterial Roads Project (Phase IV)
5,068

9. Maritime Safety Improvement Project (Phase C) 4,714

10. Pinatubo Hazard Urgent Mitigation Project (Phase II) 9,013

11. Pasig-Marikina River Channel Improvement Project (Phase I) 1,167

Total 79,8613

The Exchange of Notes further provided that:

III

xxxx

3. The Government of the Republic of the Philippines will ensure that the products and/or
services mentioned in sub-paragraph (1) of paragraph 3 of Part I and sub-paragraph (1) of
paragraph 4 of Part II are procured in accordance with the guidelines for procurement of the
Bank, which set forth, inter alia, the procedures of international tendering to be followed except
where such procedures are inapplicable or inappropriate.

x x x x4

The Records of Discussion, which formed part of the Exchange of Notes, also stated in part,
thus:

xxxx

1. With reference to sub-paragraph (3) of paragraph 3 of Part I of the Exchange of Notes


concerning the financing of eligible local currency requirements for the implementation of the
projects mentioned in the said sub-paragraph, the representative of the Japanese delegation
stated that:

(1) such requirement of local currency as general administrative expenses, interest


during construction, taxes and duties, expenses concerning office, remuneration to
employees of the executing agencies and housing, not directly related to the
implementation of the said projects, as well as purchase of land properties,
compensation and the like, however, will not be considered as eligible for financing
under the Loan I; and

(2) the procurement of products and/or services will be made in accordance with the
procedures of international competitive tendering except where such procedures are
inapplicable and inappropriate.

x x x x5

Thus, in accordance with the agreement reached by the Government of Japan and the
Philippine Government, as expressed in the Exchange of Notes between the representatives of
the two governments, the Philippines obtained from and was granted a loan by the JBIC. Loan
Agreement No. PH-P204 dated December 28, 1999, in particular, stated as follows:

Loan Agreement No. PH-P204, dated December 28, 1999, between JAPAN BANK FOR
INTERNATIONAL COOPERATION and the GOVERNMENT OF THE REPUBLIC OF THE
PHILIPPINES.

In the light of the contents of the Exchange of Notes between the Government of Japan and the
Government of the Republic of the Philippines dated December 27, 1999, concerning Japanese
loans to be extended with a view to promoting the economic stabilization and development
efforts of the Republic of the Philippines.

JAPAN BANK FOR INTERNATIONAL COOPERATION (hereinafter referred to as "the BANK")


and THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES (hereinafter referred to
as "the Borrower") herewith conclude the following Loan Agreement (hereinafter referred to as
"the Loan Agreement", which includes all agreements supplemental hereto).

x x x x6
Under the terms and conditions of Loan Agreement No. PH-P204, JBIC agreed to lend the
Philippine Government an amount not exceeding FIFTEEN BILLION THREE HUNDRED
EIGHTY-FOUR MILLION Japanese Yen (Y15,384,000,000) as principal for the implementation
of the Arterial Road Links Development Project (Phase IV) on the terms and conditions set forth
in the Loan Agreement and in accordance with the relevant laws and regulations of Japan.7 The
said amount shall be used for the purchase of eligible goods and services necessary for the
implementation of the above-mentioned project from suppliers, contractors or consultants.8

Further, it was provided under the said loan agreement that other terms and conditions
generally applicable thereto shall be set forth in the General Terms and Conditions, dated
November 1987, issued by the Overseas Economic Cooperation Fund (OECF) and for the
purpose, reference to "the OECF" and "Fund" therein (General Terms and Conditions) shall be
substituted by "the JBIC" and "Bank," respectively.9 Specifically, the guidelines for procurement
of all goods and services to be financed out of the proceeds of the said loan shall be as
stipulated in the Guidelines for Procurement under OECF Loans dated December 1997 (herein
referred to as JBIC Procurement Guidelines).10

As mentioned earlier, the proceeds of Loan Agreement No. PH-P204 was to be used to finance
the Arterial Road Links Development Project (Phase IV), of which the Catanduanes
Circumferential Road was a part. This road section, in turn, was divided into four contract
packages (CP):

CP I: San Andres (Codon)-Virac-Jct. Bato- Viga Road - 79.818 kms

CP II: Viga-Bagamanoc Road - 10.40 kms.

CP III: Bagamanoc-Pandan Road - 47.50 kms.

CP IV: Pandan-Caramoran-Codon Road - 66.40 kms.11

Subsequently, the DPWH, as the government agency tasked to implement the project, caused
the publication of the "Invitation to Prequalify and to Bid" for the implementation of the CP I
project in two leading national newspapers, namely, the Manila Times and Manila Standard on
November 22 and 29, and December 5, 2002.

A total of twenty-three (23) foreign and local contractors responded to the invitation by
submitting their accomplished prequalification documents on January 23, 2003. In accordance
with the established prequalification criteria, eight contractors were evaluated or considered
eligible to bid as concurred by the JBIC. One of them, however, withdrew; thus, only seven
contractors submitted their bid proposals.

The bid documents submitted by the prequalified contractors/bidders were examined to


determine their compliance with the requirements as
stipulated in Article 6 of the Instruction to Bidders.12 After the lapse of the deadline for the
submission of bid proposals, the opening of the bids commenced immediately. Prior to the
opening of the respective bid proposals, it was announced that the Approved Budget for the
Contract (ABC) was in the amount of 738,710,563.67.

The result of the bidding revealed the following three lowest bidders and their respective bids
vis--vis the ABC:13
Original Bid As Read As-Corrected Bid Amount
Name of Bidder Variance
(Pesos) (Pesos)
1) China Road And
993,183,904.98 952,564,821.71 28.95%
Bridge Corporation
2) Cavite Ideal Intl Const.
1,099,926,598.11 1,099,926,598.11 48.90%
Devt. Corp.
3) Italian Thai Devt.
1,125,022,075.34 1,125,392,475.36 52.35%
Public Company, Ltd.

The bid of private respondent China Road & Bridge Corporation was corrected from the original
993,183,904.98 (with variance of 34.45% from the ABC) to 952,564,821.71 (with variance of
28.95% from the ABC) based on their letter clarification dated April 21, 2004.14

After further evaluation of the bids, particularly those of the lowest three bidders, Mr. Hedifume
Ezawa, Project Manager of the Catanduanes Circumferential Road Improvement Project
(CCRIP), in his Contractors Bid Evaluation Report dated April 2004, recommended the award
of the contract to private respondent China Road & Bridge Corporation:

In accordance with the Guidelines for the Procurements under ODA [Official Development
Assistance] Loans, the Consultant hereby recommends the award of the contract for the
construction of CP I, San Andres (Codon) Virac Jct. Bato Viga Section under the Arterial
Road Links Development Projects, Phase IV, JBIC Loan No. PH-P204 to the Lowest Complying
Bidder, China Road and Bridge Corporation, at its total corrected bid amount of Nine Hundred
Fifty-Two Million Five Hundred Sixty-Four Thousand Eight Hundred Twenty-One & 71/100
Pesos.15

The BAC of the DPWH, with the approval of then Acting Secretary Soriquez, issued the assailed
Resolution No. PJHL-A-04-012 dated May 7, 2004 recommending the award in favor of private
respondent China Road & Bridge Corporation of the contract for the implementation of civil
works for CP I, San Andres (Codon) Virac Jct. Bato Viga Road (Catanduanes
Circumferential Road Improvement Project) of the Arterial Roads Links Development Project,
Phase IV, located in Catanduanes Province, under JBIC Loan Agreement No. PH-P204.16 On
September 29, 2004, a Contract of Agreement was entered into by and between the DPWH and
private respondent China Road & Bridge Corporation for the implementation of the CP I project.

The Parties

Petitioner Plaridel M. Abaya claims that he filed the instant petition as a taxpayer, former
lawmaker, and a Filipino citizen. Petitioner Plaridel C. Garcia likewise claims that he filed the
suit as a taxpayer, former military officer, and a Filipino citizen. Petitioner PMA 59 Foundation,
Inc., on the other hand, is a non-stock, non-profit corporation organized under the existing
Philippine laws. It claims that its members are all taxpayers and alumni of the Philippine Military
Academy. It is represented by its President, Carlos L. Agustin.

Named as public respondents are the DPWH, as the government agency tasked with the
implementation of government infrastructure projects; the Department of Budget and
Management (DBM) as the government agency that authorizes the release and disbursement of
public funds for the implementation of government infrastructure projects; and the Department
of Finance (DOF) as the government agency that acts as the custodian and manager of all
financial resources of the government. Also named as individual public respondents are
Hermogenes E. Ebdane, Jr., Emilia T. Boncodin and Cesar V. Purisima in their capacities as
former Secretaries of the DPWH, DBM and DOF, respectively. On the other hand, public
respondent Norma L. Lasala was impleaded in her capacity as Treasurer of the Bureau of
Treasury.

Private respondent China Road & Bridge Corporation is a duly organized corporation engaged
in the business of construction.

The Petitioners Case

The petitioners mainly seek to nullify DPWH Resolution No. PJHL-A-04-012 dated May 7, 2004,
which recommended the award to private respondent China Road & Bridge Corporation of the
contract for the implementation of the civil works of CP I. They also seek to annul the contract of
agreement subsequently entered into by and between the DPWH and private respondent China
Road & Bridge Corporation pursuant to the said resolution.

They pose the following issues for the Courts resolution:

I. Whether or not Petitioners have standing to file the instant Petition.

II. Whether or not Petitioners are entitled to the issuance of a Writ of Certiorari reversing
and setting aside DPWH Resolution No. PJHL-A-04-012, recommending the award of
the Contract Agreement for the implementation of civil works for CPI, San Andres
(CODON)-VIRAC-JCT BATO-VIGA ROAD (CATANDUANES CIRCUMFERENTIAL
ROAD IMPROVEMENT PROJECT) of the Arterial Road Links Development Project,
Phase IV, located in Catanduanes Province, under JBIC L/A No. PH-P204, to China
Road & Bridge Corporation.

III. Whether or not the Contract Agreement executed by and between the Republic of the
Philippines, through the Department of Public Works and Highways, and the China Road
& Bridge Corporation, for the implementation of civil works for CPI, San Andres
(CODON)-VIRAC-JCT BATO-VIGA ROAD (CATANDUANES CIRCUMFERENTIAL
ROAD IMPROVEMENT PROJECT) of the Arterial Road Links Development Project,
Phase IV, located in Catanduanes Province, under JBIC L/A No. PH-P204, is void ab
initio.

IV. Whether or not Petitioners are entitled to the issuance of a Writ of Prohibition
permanently prohibiting the implementation of DPWH Resolution No. PJHL-A-04-012
and the Contract Agreement executed by and between the Republic of the Philippines
(through the Department of Public Works and Highways) and the China Road & Bridge
Corporation, and the disbursement of public funds by the [D]epartment of [B]udget and
[M]anagement for such purpose.

V. Whether or not Petitioners are entitled to a Preliminary Injunction and/or a Temporary


Restraining Order immediately enjoining the implementation of DPWH Resolution No.
PJHL-A-04-012 and the Contract Agreement executed by and between the Republic of
the Philippines (through the Department of Public Works and Highways) and the China
Road & Bridge Corporation, and the disbursement of public funds by the Department of
Budget and Management for such purpose, during the pendency of this case.17

Preliminarily, the petitioners assert that they have standing or locus standi to file the instant
petition. They claim that as taxpayers and concerned citizens, they have the right and duty to
question the expenditure of public funds on illegal acts. They point out that the Philippine
Government allocates a peso-counterpart for CP I, which amount is appropriated by Congress
in the General Appropriations Act; hence, funds that are being utilized in the implementation of
the questioned project also partake of taxpayers money. The present action, as a taxpayers
suit, is thus allegedly proper.

They likewise characterize the instant petition as one of transcendental importance that
warrants the Courts adoption of a liberal stance on the issue of standing. It cited several cases
where the Court brushed aside procedural technicalities in order to resolve issues involving
paramount public interest and transcendental importance.18 Further, petitioner Abaya asserts
that he possesses the requisite standing as a former member of the House of Representatives
and one of the principal authors of Republic Act No. 9184 (RA 9184)19 known as the
Government Procurement Reform Act, the law allegedly violated by the public respondents.

On the substantive issues, the petitioners anchor the instant petition on the contention that the
award of the contract to private respondent China Road & Bridge Corporation violates RA 9184,
particularly Section 31 thereof which reads:

SEC. 31. Ceiling for Bid Prices. The ABC shall be the upper limit or ceiling for the Bid prices.
Bid prices that exceed this ceiling shall be disqualified outright from further participating in the
bidding. There shall be no lower limit to the amount of the award.

In relation thereto, the petitioners cite the definition of the ABC, thus:

SEC. 5. Definition of Terms.

xxx

(a) Approved Budget for the Contract (ABC). refers to the budget for the contract duly
approved by the Head of the Procuring Entity, as provided for in the General Appropriations Act
and/or continuing appropriations, in the case of National Government Agencies; the Corporate
Budget for the contract approved by the governing Boards, pursuant to E.O. No. 518, series of
1979, in the case of Government-Owned and/or Controlled Corporations, Government Financial
Institutions and State Universities and Colleges; and the Budget for the contract approved by
the respective Sanggunian, in the case of Local Government Units.

xxx

The petitioners theorize that the foregoing provisions show the mandatory character of ceilings
or upper limits of every bid. Under the above-quoted provisions of RA 9184, all bids or awards
should not exceed the ceilings or upper limits; otherwise, the contract is deemed void and
inexistent.

Resolution No. PJHL-A-04-012 was allegedly issued with grave abuse of discretion because it
recommended the award of the contract to private respondent China Road & Bridge Corporation
whose bid was more than 200 million overpriced based on the ABC. As such, the award is
allegedly illegal and unconscionable.

In this connection, the petitioners opine that the contract subsequently entered into by and
between the DPWH and private respondent China Road & Bridge Corporation is void ab initio
for being prohibited by RA 9184. They stress that Section 31 thereof expressly provides that
"bid prices that exceed this ceiling shall be disqualified outright from participating in the bidding."
The upper limit or ceiling is called the ABC and since the bid of private respondent China Road
& Bridge Corporation exceeded the ABC for the CP I project, it should have been allegedly
disqualified from the bidding process and should not, by law, have been awarded the said
contract. They invoke Article 1409 of the Civil Code:

ART. 1409. The following contracts are inexistent and void from the beginning:

(1) Those whose cause, object or purpose is contrary to law, morals, good customs,
public order or public policy;

(2) Those which are absolutely simulated or fictitious;

(3) Those whose cause or object did not exist at the time of the transaction;

(4) Those whose object is outside the commerce of men;

(5) Those which contemplate an impossible service;

(6) Those where the intention of the parties relative to the principal object of the contract
cannot be ascertained;

(7) Those expressly prohibited or declared void by law.

For violating the above provision, the contract between the DPWH and private respondent
China Road & Bridge Corporation is allegedly inexistent and void ab initio and can produce no
effects whatsoever.

It is the contention of the petitioners that RA 9184 is applicable to both local- and foreign-funded
procurement contracts. They cite the following excerpt of the deliberations of the Bicameral
Conference Committee on the Disagreeing Provisions of Senate Bill No. 2248 and House Bill
No. 4809:20

REP. ABAYA. Mr. Chairman, can we just propose additional amendments? Can we go back to
Section 4, Mr. Chairman?

THE CHAIRMAN (SEN. ANGARA). Section? Section ano, Del, 4? Definition definition of
terms.

REP. ABAYA. Sa House bill, it is sa scope and application.

THE CHAIRMAN (SEN. ANGARA). Okay.


REP. ABAYA. It should read as follows: "This Act shall apply to the procurement of goods,
supplies and materials, infrastructure projects and consulting services regardless of funding
source whether local or foreign by the government."

THE CHAIRMAN (SEN. ANGARA). Okay, accepted. We accept. The Senate accepts it. 21

xxx xxx xxx

THE CHAIRMAN (SEN ANGARA). Just take note of that ano. Medyo nga problematic yan eh.
Now, just for the record Del, can you repeat again the justification for including foreign funded
contracts within the scope para malinaw because the World Bank daw might raise some
objection to it.

REP. ABAYA. Well, Mr. Chairman, we should include foreign funded projects kasi these are the
big projects. To give an example, if you allow bids above government estimate, lets say take
the case of 500 million project, included in that 500 million is the 20 percent profit. If you allow
them to bid above government estimate, they will add another say 28 percent of (sic) 30
percent, 30 percent of 500 million is another 150 million. Ito, this is a rich source of graft money,
aregluhan na lang, 150 million, five contractors will gather, "O eto 20 million, 20 million, 20
million." So, it is rigged. Yun ang practice na nangyayari. If we eliminate that, if we have a
ceiling then, it will not be very tempting kasi walang extra money na pwedeng ibigay sa ibang
contractor. So this promote (sic) collusion among bidders, of course, with the cooperation of
irresponsible officials of some agencies. So we should have a ceiling to include foreign funded
projects.22

The petitioners insist that Loan Agreement No. PH-P204 between the JBIC and the Philippine
Government is neither a treaty, an international nor an executive agreement that would bar the
application of RA 9184. They point out that to be considered a treaty, an international or an
executive agreement, the parties must be two sovereigns or States whereas in the case of Loan
Agreement No. PH-P204, the parties are the Philippine Government and the JBIC, a banking
agency of Japan, which has a separate juridical personality from the Japanese Government.

They further insist on the applicability of RA 9184 contending that while it took effect on January
26, 200323 and Loan Agreement No. PH-P204 was executed prior thereto or on December 28,
1999, the actual procurement or award of the contract to private respondent China Road &
Bridge Corporation was done after the effectivity of RA 9184. The said law is allegedly specific
as to its application, which is on the actual procurement of infrastructure and other projects only,
and not on the loan agreements attached to such projects. Thus, the petition only prays for the
annulment of Resolution No. PJHL-A-04-012 as well as the contract between the DPWH and
private respondent China Road & Bridge Corporation. The petitioners clarify that they do not
pray for the annulment of Loan Agreement No. PH-P204. Since the subject procurement and
award of the contract were done after the effectivity of RA 9184, necessarily, the procurement
rules established by that law allegedly apply, and not Presidential Decree No. 1594 (PD
1594)24 and Executive Order No. 40 (EO 40), series of 2001, 25 as contended by the
respondents. The latter laws, including their implementing rules, have allegedly been repealed
by RA 9184. Even RA 4860, as amended, known as the Foreign Borrowings Act, the petitioners
posit, may have also been repealed or modified by RA 9184 insofar as its provisions are
inconsistent with the latter.
The petitioners also argue that the "Implementing Rules and Regulations (IRR) of RA 9184,
Otherwise Known as the Government Procurement Reform Act, Part A" (IRR-A) cited by the
respondents is not applicable as these rules only govern domestically-funded procurement
contracts. They aver that the implementing rules to govern foreign-funded procurement, as in
the present case, have yet to be drafted and in fact, there are concurrent resolutions drafted by
both houses of Congress for the Reconvening of the Joint Congressional Oversight Committee
for the formulation of the IRR for foreign-funded procurements under RA 9184.

The petitioners maintain that disbursement of public funds to implement a patently void and
illegal contract is itself illegal and must be enjoined. They bring to the Courts attention the fact
that the works on the CP I project have already commenced as early as October 2004. They
thus urge the Court to issue a writ of certiorari to set aside Resolution No. PJHL-A-04-012 as
well as to declare null and void the contract entered into between the DPWH and private
respondent China Road & Bridge Corporation. They also pray for the issuance of a temporary
restraining order and, eventually, a writ of prohibition to permanently enjoin the DPWH from
implementing Resolution No. PJHL-A-04-012 and its contract with private respondent China
Road & Bridge Corporation as well as the DBM from disbursing funds for the said purpose.

The Respondents Counter-Arguments

The public respondents, namely the DPWH, DBM and DOF, and their respective named
officials, through the Office of the Solicitor General, urge the Court to dismiss the petition on
grounds that the petitioners have no locus standi and, in any case, Resolution No. PJHL-A-04-
012 and the contract between the DPWH and private respondent China Road & Bridge
Corporation are valid.

According to the public respondents, a taxpayers locus standi was recognized in the following
cases: (a) where a tax measure is assailed as unconstitutional;26 (b) where there is a question
of validity of election laws;27 (c) where legislators questioned the validity of any official action
upon the claim that it infringes on their prerogatives as legislators;28 (d) where there is a claim of
illegal disbursement or wastage of public funds through the enforcement of an invalid or
unconstitutional law;29 (e) where it involves the right of members of the Senate or House of
Representatives to question the validity of a presidential veto or condition imposed on an item in
an appropriation bill;30 or (f) where it involves an invalid law, which when enforced will put the
petitioner in imminent danger of sustaining some direct injury as a result thereof, or that he has
been or is about to be denied some right or privilege to which he is lawfully entitled or that he is
about to be subjected to some burdens or penalties by reason of the statute complained
of.31 None of the above considerations allegedly obtains in the present case.

It is also the view of the public respondents that the fact that petitioner Abaya was a former
lawmaker would not suffice to confer locus standi on himself. Members of Congress may
properly challenge the validity of an official act of any department of the government only upon
showing that the assailed official act affects or impairs their rights and prerogatives as
legislators.

The public respondents further assail the standing of the petitioners to file the instant suit
claiming that they failed to allege any specific injury suffered nor an interest that is direct and
personal to them. If at all, the interest or injuries claimed by the petitioners are allegedly merely
of a general interest common to all members of the public. Their interest is allegedly too vague,
highly speculative and uncertain to satisfy the requirements of locus standi.
The public respondents find it noteworthy that the petitioners do not raise issues of
constitutionality but only of contract law, which the petitioners not being privies to the agreement
cannot raise. This is following the principle that a stranger to a contract cannot sue either or
both the contracting parties to annul and set aside the same except when he is prejudiced on
his rights and can show detriment which would positively result to him from the implementation
of the contract in which he has no intervention. There being no particularized interest or
elemental substantial injury necessary to confer locus standi, the public respondents implore the
Court to dismiss the petition.

On the merits, the public respondents maintain that the imposition of ceilings or upper limits on
bid prices in RA 9184 does not apply because the CP I project and the entire Catanduanes
Circumferential Road Improvement Project, financed by Loan Agreement No. PH-P204
executed between the Philippine Government and the JBIC, is governed by the latters
Procurement Guidelines which precludes the imposition of ceilings on bid prices. Section 5.06 of
the JBIC Procurement Guidelines reads:

Section 5.06. Evaluation and Comparison of Bids.

xxx

(e) Any procedure under which bids above or below a predetermined bid value assessment are
automatically disqualified is not permitted.

It was explained that other foreign banks such as the Asian Development Bank (ADB) and the
World Bank (WB) similarly prohibit the bracketing or imposition of a ceiling on bid prices.

The public respondents stress that it was pursuant to Loan Agreement No. PH-P204 that the
assailed Resolution No. PJHL-A-04-012 and the subsequent contract between the DPWH and
private respondent China Road & Bridge Corporation materialized. They likewise aver that Loan
Agreement No. PH-P204 is governed by RA 4860, as amended, or the Foreign Borrowings Act.
Section 4 thereof states:

SEC. 4. In the contracting of any loan, credit or indebtedness under this Act, the President of
the Philippines may, when necessary, agree to waive or modify, the application of any law
granting preferences or imposing restrictions on international competitive bidding, including
among others [Act No. 4239, Commonwealth Act No. 138], the provisions of [CA 541], insofar
as such provisions do not pertain to constructions primarily for national defense or security
purposes, [RA 5183]; Provided, however, That as far as practicable, utilization of the services of
qualified domestic firms in the prosecution of projects financed under this Act shall be
encouraged: Provided, further, That in case where international competitive bidding shall be
conducted preference of at least fifteen per centum shall be granted in favor of articles,
materials or supplies of the growth, production or manufacture of the Philippines: Provided,
finally, That the method and procedure in comparison of bids shall be the subject of agreement
between the Philippine Government and the lending institution.

DOJ Opinion No. 46, Series of 1987, is relied upon by the public respondents as it opined that
an agreement for the exclusion of foreign assisted projects from the coverage of local bidding
regulations does not contravene existing legislations because the statutory basis for foreign loan
agreements is RA 4860, as amended, and under Section 4 thereof, the President is empowered
to waive the application of any law imposing restrictions on the procurement of goods and
services pursuant to such loans.

Memorandum Circular Nos. 104 and 108, issued by the President, to clarify RA 4860, as
amended, and PD 1594, relative to the award of foreign-assisted projects, are also invoked by
the public respondents, to wit:

Memorandum Circular No. 104:

In view of the provisions of Section 4 of Republic Act No. 4860, as amended, otherwise known
as the "Foreign Borrowings Act"

xxx

It is hereby clarified that foreign-assisted infrastructure projects may be exempted from the
application for the pertinent provisions of the Implementing Rules and Regulations (IRR) of
Presidential Decree (P.D.) No. 1594 relative to the method and procedure in the comparison of
bids, which matter may be the subject of agreement between the infrastructure agency
concerned and the lending institution. It should be made clear however that public bidding is still
required and can only be waived pursuant to existing laws.

Memorandum Circular No. 108:

In view of the provisions of Section 4 of Republic Act No. 4860, as amended, otherwise known
as the "Foreign Borrowings Act", it is hereby clarified that, for projects supported in whole or in
part by foreign assistance awarded through international or local competitive bidding, the
government agency concerned may award the contract to the lowest evaluated bidder at his bid
price consistent with the provisions of the applicable loan/grant agreement.

Specifically, when the loan/grant agreement so stipulates, the government agency concerned
may award the contract to the lowest bidder even if his/its bid exceeds the approved agency
estimate.

It is understood that the concerned government agency shall, as far as practicable, adhere
closely to the implementing rules and regulations of Presidential Decree No. 1594 during
loan/grant negotiation and the implementation of the projects.32

The public respondents characterize foreign loan agreements, including Loan Agreement No.
PH-P204, as executive agreements and, as such, should be observed pursuant to the
fundamental principle in international law of pacta sunt servanda.33 They cite Section 20 of
Article VII of the Constitution as giving the President the authority to contract foreign loans:

SEC. 20. The President may contract or guarantee foreign loans on behalf of the Republic of
the Philippines with the prior concurrence of the Monetary Board, and subject to such limitations
as may be provided by law. The Monetary Board shall, within thirty days from the end of every
quarter of the calendar year, submit to the Congress a complete report of its decisions on
applications for loans to be contracted or guaranteed by the Government or Government-owned
and Controlled Corporations which would have the effect of increasing the foreign debt, and
containing other matters as may be provided by law.
The Constitution, the public respondents emphasize, recognizes the enforceability of executive
agreements in the same way that it recognizes generally accepted principles of international law
as forming part of the law of the land.34 This recognition allegedly buttresses the binding effect
of executive agreements to which the Philippine Government is a signatory. It is pointed out by
the public respondents that executive agreements are essentially contracts governing the rights
and obligations of the parties. A contract, being the law between the parties, must be faithfully
adhered to by them. Guided by the fundamental rule of pacta sunt servanda, the Philippine
Government bound itself to perform in good faith its duties and obligations under Loan
Agreement No. PH-P204.

The public respondents further argue against the applicability of RA 9184 stating that it was
signed into law on January 10, 2003.35 On the other hand, Loan Agreement No. PH-P204 was
executed on December 28, 1999, where the laws then in force on government procurements
were PD 1594 and EO 40. The latter law (EO 40), in particular, excluded from its application
"any existing and future government commitments with respect to the bidding and award of
contracts financed partly or wholly with funds from international financing institutions as well as
from bilateral and other similar foreign sources."

The applicability of EO 40, not RA 9184, is allegedly bolstered by the fact that the "Invitation to
Prequalify and to Bid" for the implementation of the CP I project was published in two leading
national newspapers, namely, the Manila Times and Manila Standard on November 22, 29 and
December 5, 2002, or before the signing into law of RA 9184 on January 10, 2003. In this
connection, the public respondents point to Section 77 of IRR-A, which reads:

SEC. 77. Transitory Clause.

In all procurement activities, if the advertisement or invitation for bids was issued prior to the
effectivity of the Act, the provisions of EO 40 and its IRR, PD 1594 and its IRR, RA 7160 and its
IRR, or other applicable laws as the case may be, shall govern.

In cases where the advertisements or invitations for bids were issued after the effectivity of the
Act but before the effectivity of this IRR-A, procuring entities may continue adopting the
procurement procedures, rules and regulations provided in EO 40 and its IRR, or other
applicable laws, as the case may be.

Section 4 of RA 9184 is also invoked by the public respondents as it provides:

SEC. 4. Scope and Applications. This Act shall apply to the Procurement of Infrastructure
Projects, Goods and Consulting Services, regardless of source of funds, whether local or
foreign, by all branches and instrumentalities of government, its departments, offices and
agencies, including government-owned and/or controlled corporations and local government
units, subject to the provisions of Commonwealth Act No. 138. Any treaty or international or
executive agreement affecting the subject matter of this Act to which the Philippine government
is a signatory shall be observed.

It is also the position of the public respondents that even granting arguendo that Loan
Agreement No. PH-P204 were an ordinary loan contract, still, RA 9184 is inapplicable under the
non-impairment clause36 of the Constitution. The said loan agreement expressly provided that
the procurement of goods and services for the project financed by the same shall be governed
by the Guidelines for Procurement under OECF Loans dated December 1997. Further, Section
5.06 of the JBIC Procurement Guidelines categorically provides that "[a]ny procedure under
which bids above or below a predetermined bid value assessment are automatically disqualified
is not permitted."

The public respondents explain that since the contract is the law between the parties and Loan
Agreement No. PH-P204 states that the JBIC Procurement Guidelines shall govern the parties
relationship and further dictates that there be no ceiling price for the bidding, it naturally follows
that any subsequent law passed contrary to the letters of the said contract would have no effect
with respect to the parties rights and obligations arising therefrom.

To insist on the application of RA 9184 on the bidding for the CP I project would,
notwithstanding the terms and conditions of Loan Agreement No. PH-P204, allegedly violate the
constitutional provision on non-impairment of obligations and contracts, and destroy vested
rights duly acquired under the said loan agreement.

Lastly, the public respondents deny that there was illegal disbursement of public funds by the
DBM. They asseverate that all the releases made by the DBM for the implementation of the
entire Arterial Road Links Project Phase IV, which includes the Catanduanes Circumferential
Road Improvement Project, were covered by the necessary appropriations made by law,
specifically the General Appropriations Act (GAA). Further, the requirements and procedures
prescribed for the release of the said funds were duly complied with.

For its part, private respondent China Road & Bridge Corporation similarly assails the standing
of the petitioners, either as taxpayers or, in the case of petitioner Abaya, as a former lawmaker,
to file the present suit. In addition, it is also alleged that, by filing the petition directly to this
Court, the petitioners failed to observe the hierarchy of courts.

On the merits, private respondent China Road & Bridge Corporation asserts that the applicable
law to govern the bidding of the CP I project was EO 40, not RA 9184, because the former was
the law governing the procurement of government projects at the time that it was bidded out. EO
40 was issued by the Office of the President on October 8, 2001 and Section 1 thereof states
that:

SEC. 1. Scope and Application. This Executive Order shall apply to the procurement of: (a)
goods, supplies, materials and related services; (b) civil works; and (c) consulting services, by
all National Government agencies, including State Universities and Colleges (SUCs),
Government-Owned or Controlled Corporations (GOCCs) and Government Financial Institutions
(GFIs), hereby referred to as the Agencies. This Executive Order shall cover the procurement
process from the pre-procurement conference up to the award of contract.

xxx

The Invitation to Prequalify and to Bid was first published on November 22, 2002. On the other
hand, RA 9184 was signed into law only on January 10, 2003. Since the law in effect at the time
the procurement process was initiated was EO 40, private respondent China Road & Bridge
Corporation submits that it should be the said law which should govern the entire procurement
process relative to the CP I project.
EO 40 expressly recognizes as an exception from the application of the provisions thereof on
approved budget ceilings, those projects financed by international financing institutions (IFIs)
and foreign bilateral sources. Section 1 thereof, quoted in part earlier, further states:

SEC. 1. Scope and Application. x x x

Nothing in this Order shall negate any existing and future government commitments with
respect to the bidding and award of contracts financed partly or wholly with funds from
international financing institutions as well as from bilateral and other similar foreign sources.

Section 1.2 of the Implementing Rules and Regulations of EO 40 is likewise invoked as it


provides:

For procurement financed wholly or partly from Official Development Assistance (ODA) funds
from International Financing Institutions (IFIs), as well as from bilateral and other similar foreign
sources, the corresponding loan/grant agreement governing said funds as negotiated and
agreed upon by and between the Government and the concerned IFI shall be observed.

Private respondent China Road & Bridge Corporation thus postulates that following EO 40, the
procurement of goods and services for the CP I project should be governed by the terms and
conditions of Loan Agreement No. PH-P204 entered into between the JBIC and the Philippine
Government. Pertinently, Section 5.06 of the JBIC Procurement Guidelines prohibits the setting
of ceilings on bid prices.

Private respondent China Road & Bridge Corporation claims that when it submitted its bid for
the CP I project, it relied in good faith on the provisions of EO 40. It was allegedly on the basis
of the said law that the DPWH awarded the project to private respondent China Road & Bridge
Coporation even if its bid was higher than the ABC. Under the circumstances, RA 9184 could
not be applied retroactively for to do so would allegedly impair the vested rights of private
respondent China Road & Bridge Corporation arising from its contract with the DPWH.

It is also contended by private respondent China Road & Bridge Corporation that even
assuming arguendo that RA 9184 could be applied retroactively, it is still the terms of Loan
Agreement No. PH-P204 which should govern the procurement of goods and services for the
CP I project. It supports its theory by characterizing the said loan agreement, executed pursuant
to the Exchange of Notes between the Government of Japan and the Philippine Government, as
an executive agreement.

Private respondent China Road & Bridge Corporation, like the public respondents, cites RA
4860 as the basis for the Exchange of Notes and Loan Agreement No. PH-P204. As an
international or executive agreement, the Exchange of Notes and Loan Agreement No. PH-
P204 allegedly created a legally binding obligation on the parties.

The following excerpt of the deliberations of the Bicameral Conference Committee on the
Disagreeing Provision of Senate Bill No. 2248 and House Bill No. 4809 is cited by private
respondent China Road & Bridge Corporation to support its contention that it is the intent of the
lawmakers to exclude from the application of RA 9184 those foreign-funded projects:

xxx
REP. MARCOS. Yes, Mr. Chairman, to respond and to put into the record, a justification for the
inclusion of foreign contracts, may we just state that foreign contracts have, of course, been
brought into the ambit of the law because of the Filipino counterpart for this foreign projects,
they are no longer strictly foreign in nature but fall under the laws of the Philippine government.

THE CHAIRMAN (SEN. ANGARA). Okay. I think thats pretty clear. I think the possible concern
is that some ODA are with strings attached especially the Japanese. The Japanese are quite
strict about that, that they are (sic) even provide the architect and the design, etcetera, plus, of
course, the goods that will be supplied.

Now, I think weve already provided that this is open to all and we will recognize our
international agreements so that this bill will not also restrict the flow of foreign funding, because
some countries now make it a condition that they supply both services and goods especially the
Japanese.

So I think we can put a sentence that we continue to honor our international obligations, di ba
Laura?

MR. ENCARNACION. Actually, subject to any treaty.

THE CHAIRMAN (SEN. ANGARA). Yun pala eh. That should allay their anxiety and concern.
Okay, buti na lang for the record para malaman nila na we are conscious sa ODA.37

Private respondent China Road & Bridge Corporation submits that based on the provisions of
the Exchange of Notes and Loan Agreement No. PH-P204, it was rightfully and legally awarded
the CP I project. It urges the Court to dismiss the petition for lack of merit.

The Courts Rulings

Petitioners, as taxpayers, possess locus standi to file the present suit

Briefly stated, locus standi is "a right of appearance in a court of justice on a given
question."38 More particularly, it is a partys personal and substantial interest in a case such that
he has sustained or will sustain direct injury as a result of the governmental act being
challenged. It calls for more than just a generalized grievance. The term "interest" means a
material interest, an interest in issue affected by the decree, as distinguished from mere interest
in the question involved, or a mere incidental interest.39 Standing or locus standi is a peculiar
concept in constitutional law40 and the rationale for requiring a party who challenges the
constitutionality of a statute to allege such a personal stake in the outcome of the controversy is
"to assure that concrete adverseness which sharpens the presentation of issues upon which the
court so largely depends for illumination of difficult constitutional questions."41

Locus standi, however, is merely a matter of procedure42 and it has been recognized that in
some cases, suits are not brought by parties who have been personally injured by the operation
of a law or any other government act but by concerned citizens, taxpayers or voters who
actually sue in the public interest.43 Consequently, the Court, in a catena of cases,44 has
invariably adopted a liberal stance on locus standi, including those cases involving taxpayers.

The prevailing doctrine in taxpayers suits is to allow taxpayers to question contracts entered
into by the national government or government- owned or controlled corporations allegedly in
contravention of law.45 A taxpayer is allowed to sue where there is a claim that public funds are
illegally disbursed, or that public money is being deflected to any improper purpose, or that
there is a wastage of public funds through the enforcement of an invalid or unconstitutional
law.46 Significantly, a taxpayer need not be a party to the contract to challenge its validity.47

In the present case, the petitioners are suing as taxpayers. They have sufficiently demonstrated
that, notwithstanding the fact that the CP I project is primarily financed from loans obtained by
the government from the JBIC, nonetheless, taxpayers money would be or is being spent on
the project considering that the Philippine Government is required to allocate a peso-counterpart
therefor. The public respondents themselves admit that appropriations for these foreign-assisted
projects in the GAA are composed of the loan proceeds and the peso-counterpart. The
counterpart funds, the Solicitor General explains, refer to the component of the project cost to
be financed from government-appropriated funds, as part of the governments commitment in
the implementation of the project.48 Hence, the petitioners correctly asserted their standing
since a part of the funds being utilized in the implementation of the CP I project partakes of
taxpayers money.

Further, the serious legal questions raised by the petitioners, e.g., whether RA 9184 applies to
the CP I project, in particular, and to foreign-funded government projects, in general, and the
fact that public interest is indubitably involved considering the public expenditure of millions of
pesos, warrant the Court to adopt in the present case its liberal policy on locus standi.

In any case, for reasons which will be discussed shortly, the substantive arguments raised by
the petitioners fail to persuade the Court as it holds that Resolution No. PJHL-A-04-012 is valid.
As a corollary, the subsequent contract entered into by and between the DPWH and private
respondent China Road & Bridge Corporation is likewise valid.

History of Philippine Procurement Laws

It is necessary, at this point, to give a brief history of Philippine laws pertaining to procurement
through public bidding. The United States Philippine Commission introduced the American
practice of public bidding through Act No. 22, enacted on October 15, 1900, by requiring the
Chief Engineer, United States Army for the Division of the Philippine Islands, acting as
purchasing agent under the control of the then Military Governor, to advertise and call for a
competitive bidding for the purchase of the necessary materials and lands to be used for the
construction of highways and bridges in the Philippine Islands.49 Act No. 74, enacted on January
21, 1901 by the Philippine Commission, required the General Superintendent of Public
Instruction to purchase office supplies through competitive public bidding.50 Act No. 82,
approved on January 31, 1901, and Act No. 83, approved on February 6, 1901, required the
municipal and provincial governments, respectively, to hold competitive public biddings in the
making of contracts for public works and the purchase of office supplies.51

On June 21, 1901, the Philippine Commission, through Act No. 146, created the Bureau of
Supply and with its creation, public bidding became a popular policy in the purchase of supplies,
materials and equipment for the use of the national government, its subdivisions and
instrumentalities.52 On February 3, 1936, then President Manuel L. Quezon issued Executive
Order No. 16 declaring as a matter of general policy that government contracts for public
service or for furnishing supplies, materials and equipment to the government should be
subjected to public bidding.53 The requirement of public bidding was likewise imposed for public
works of construction or repair pursuant to the Revised Administrative Code of 1917.
Then President Diosdado Macapagal, in Executive Order No. 40 dated June 1, 1963, reiterated
the directive that no government contract for public service or for furnishing supplies, materials
and equipment to the government or any of its branches, agencies or instrumentalities, should
be entered into without public bidding except for very extraordinary reasons to be determined by
a Committee constituted thereunder. Then President Ferdinand Marcos issued PD 1594
prescribing guidelines for government infrastructure projects and Section 454 thereof stated that
they should generally be undertaken by contract after competitive public bidding.

Then President Corazon Aquino issued Executive Order No. 301 (1987) prescribing guidelines
for government negotiated contracts. Pertinently, Section 62 of the Administrative Code of 1987
reiterated the requirement of competitive public bidding in government projects. In 1990,
Congress passed RA 6957,55 which authorized the financing, construction, operation and
maintenance of infrastructure by the private sector. RA 7160 was likewise enacted by Congress
in 1991 and it contains provisions governing the procurement of goods and locally-funded civil
works by the local government units.

Then President Fidel Ramos issued Executive Order No. 302 (1996), providing guidelines for
the procurement of goods and supplies by the national government. Then President Joseph
Ejercito Estrada issued Executive Order No. 201 (2000), providing additional guidelines in the
procurement of goods and supplies by the national government. Thereafter, he issued
Executive Order No. 262 (2000) amending EO 302 (1996) and EO 201 (2000).

On October 8, 2001, President Gloria Macapagal-Arroyo issued EO 40, the law mainly relied
upon by the respondents, entitled Consolidating Procurement Rules and Procedures for All
National Government Agencies, Government-Owned or Controlled Corporations and
Government Financial Institutions, and Requiring the Use of the Government Procurement
System. It accordingly repealed, amended or modified all executive issuances, orders, rules and
regulations or parts thereof inconsistent therewith.56

On January 10, 2003, President Arroyo signed into law RA 9184. It took effect on January 26,
2004, or fifteen days after its publication in two newspapers of general circulation.57 It expressly
repealed, among others, EO 40, EO 262 (2000), EO 302(1996) and PD 1594, as amended:

SEC. 76. Repealing Clause. This law repeals Executive Order No. 40, series of 2001, entitled
"Consolidating Procurement Rules and Procedures for All National Government Agencies,
Government Owned or Controlled Corporations and/or Government Financial Institutions, and
Requiring the Use of the Government Electronic Procurement System"; Executive Order No.
262, series of 1996, entitled "Amending Executive Order No. 302, series of 1996, entitled
Providing Policies, Guidelines, Rules and Regulations for the Procurement of Goods/Supplies
by the National Government" and Section 3 of Executive Order No. 201, series of 2000, entitled
"Providing Additional Policies and Guidelines in the Procurement of Goods/Supplies by the
National Government"; Executive Order No. 302, series of 1996, entitled "Providing Policies,
Guidelines, Rules and Regulations for the Procurement of Goods/Supplies by the National
Government" and Presidential Decree No. 1594 dated June 11, 1978, entitled "Prescribing
Policies, Guidelines, Rules and Regulations for Government Infrastructure Contracts." This law
amends Title Six, Book Two of Republic Act No. 7160, otherwise known as the "Local
Government Code of 1991"; the relevant provisions of Executive Order No. 164, series of 1987,
entitled "Providing Additional Guidelines in the Processing and Approval of Contracts of the
National Government"; and the relevant provisions of Republic Act No. 7898 dated February 23,
1995, entitled "An Act Providing for the Modernization of the Armed Forces of the Philippines
and for Other Purposes." Any other law, presidential decree or issuance, executive order, letter
of instruction, administrative order, proclamation, charter, rule or regulation and/or parts thereof
contrary to or inconsistent with the provisions of this Act is hereby repealed, modified or
amended accordingly.

In addition to these laws, RA 4860, as amended, must be mentioned as Section 4 thereof


provides that "[i]n the contracting of any loan, credit or indebtedness under this Act, the
President of the Philippines may, when necessary, agree to waive or modify the application of
any law granting preferences or imposing restrictions on international competitive bidding x x x
Provided, finally, That the method and procedure in the comparison of bids shall be the subject
of agreement between the Philippine Government and the lending institution."

EO 40, not RA 9184, is applicable to the procurement

process undertaken for the CP I project. RA 9184

cannot be given retroactive application.

It is not disputed that with respect to the CP I project, the Invitation to Prequalify and to Bid for
its implementation was published in two leading national newspapers, namely, the Manila Times
and Manila Standard on November 22, 29 and December 5, 2002. At the time, the law in effect
was EO 40. On the other hand, RA 9184 took effect two months later or on January 26, 2003.
Further, its full implementation was even delayed as IRR-A was only approved by President
Arroyo on September 18, 2003 and subsequently published on September 23, 2003 in the
Manila Times and Malaya newspapers.58

The provisions of EO 40 apply to the procurement process pertaining to the CP I project as it is


explicitly provided in Section 1 thereof that:

SEC. 1. Scope and Application. This Executive Order shall apply to see procurement of (a)
goods, supplies, materials and related service; (b) civil works; and (c) consulting services, by all
National Government agencies, including State Universities and Colleges (SUCs), Government-
Owned or Controlled Corporations (GOCCs) and Government Financial Institutions (GFIs),
hereby referred to as "Agencies." This Executive Order shall cover the procurement process
from the pre-procurement conference up to the award of the contract.

Nothing in this Order shall negate any existing and future government commitments with
respect to the bidding and award of contracts financed partly or wholly with funds from
international financing institutions as well as from bilateral and similar foreign sources.

The procurement process basically involves the following steps: (1) pre-procurement
conference; (2) advertisement of the invitation to bid; (3) pre-bid conference; (4) eligibility check
of prospective bidders; (5) submission and receipt of bids; (6) modification and withdrawal of
bids; (7) bid opening and examination; (8) bid evaluation; (9) post qualification; (10) award of
contract and notice to proceed.59 Clearly then, when the Invitation to Prequalify and to Bid for
the implementation of the CP I project was published on November 22, 29 and December 5,
2002, the procurement process thereof had already commenced and the application of EO 40 to
the procurement process for the CP I project had already attached.
RA 9184 cannot be applied retroactively to govern the procurement process relative to the CP I
project because it is well settled that a law or regulation has no retroactive application unless it
expressly provides for retroactivity.60Indeed, Article 4 of the Civil Code is clear on the matter:
"[l]aws shall have no retroactive effect, unless the contrary is provided." In the absence of such
categorical provision, RA 9184 will not be applied retroactively to the CP I project whose
procurement process commenced even before the said law took effect.

That the legislators did not intend RA 9184 to have retroactive effect could be gleaned from the
IRR-A formulated by the Joint Congressional Oversight Committee (composed of the Chairman
of the Senate Committee on Constitutional Amendments and Revision of Laws, and two
members thereof appointed by the Senate President and the Chairman of the House Committee
on Appropriations, and two members thereof appointed by the Speaker of the House of
Representatives) and the Government Procurement Policy Board (GPPB). Section 77 of the
IRR-A states, thus:

SEC. 77. Transitory Clause

In all procurement activities, if the advertisement or invitation for bids was issued prior to the
effectivity of the Act, the provisions of E.O. 40 and its IRR, P.D. 1594 and its IRR, R.A. 7160
and its IRR, or other applicable laws, as the case may be, shall govern.

In cases where the advertisements or invitations for bids were issued after the effectivity of the
Act but before the effectivity of this IRR-A, procuring entities may continue adopting the
procurement procedures, rules and regulations provided in E.O. 40 and its IRR, P.D. 1594 and
its IRR, R.A. 7160 and its IRR, or other applicable laws, as the case may be.

In other words, under IRR-A, if the advertisement of the invitation for bids was issued prior to
the effectivity of RA 9184, such as in the case of the CP I project, the provisions of EO 40 and
its IRR, and PD 1594 and its IRR in the case of national government agencies, and RA 7160
and its IRR in the case of local government units, shall govern.

Admittedly, IRR-A covers only fully domestically-funded procurement activities from


procurement planning up to contract implementation and that it is expressly stated that IRR-B
for foreign-funded procurement activities shall be subject of a subsequent
issuance.61 Nonetheless, there is no reason why the policy behind Section 77 of IRR-A cannot
be applied to foreign-funded procurement projects like the CP I project. Stated differently, the
policy on the prospective or non-retroactive application of RA 9184 with respect to domestically-
funded procurement projects cannot be any different with respect to foreign-funded procurement
projects like the CP I project. It would be incongruous, even absurd, to provide for the
prospective application of RA 9184 with respect to domestically-funded procurement projects
and, on the other hand, as urged by the petitioners, apply RA 9184 retroactively with respect to
foreign- funded procurement projects. To be sure, the lawmakers could not have intended such
an absurdity.

Thus, in the light of Section 1 of EO 40, Section 77 of IRR-A, as well as the fundamental rule
embodied in Article 4 of the Civil Code on prospectivity of laws, the Court holds that the
procurement process for the implementation of the CP I project is governed by EO 40 and its
IRR, not RA 9184.

Under EO 40, the award of the contract to private


respondent China Road & Bridge Corporation is valid

Section 25 of EO 40 provides that "[t]he approved budget of the contract shall be the upper limit
or ceiling of the bid price. Bid prices which exceed this ceiling shall be disqualified outright from
further participating in the bidding. There shall be no lower limit to the amount of the award. x x
x" It should be observed that this text is almost similar to the wording of Section 31 of RA 9184,
relied upon by the petitioners in contending that since the bid price of private respondent China
Road & Bridge Corporation exceeded the ABC, then it should not have been awarded the
contract for the CP I project.

Nonetheless, EO 40 expressly recognizes as an exception to its scope and application those


government commitments with respect to bidding and award of contracts financed partly or
wholly with funds from international financing institutions as well as from bilateral and other
similar foreign sources. The pertinent portion of Section 1 of EO 40 is quoted anew:

SEC. 1. Scope and Application. x x x

Nothing in this Order shall negate any existing and future government commitments with
respect to the bidding and award of contracts financed partly or wholly with funds from
international financing institutions as well as from bilateral and similar foreign sources.

In relation thereto, Section 4 of RA 4860, as amended, was correctly cited by the respondents
as likewise authorizing the President, in the contracting of any loan, credit or indebtedness
thereunder, "when necessary, agree to waive or modify the application of any law granting
preferences or imposing restrictions on international competitive bidding x x x." The said
provision of law further provides that "the method and procedure in the comparison of bids shall
be the subject of agreement between the Philippine Government and the lending institution."

Consequently, in accordance with these applicable laws, the procurement of goods and
services for the CP I project is governed by the corresponding loan agreement entered into by
the government and the JBIC, i.e., Loan Agreement No. PH-P204. The said loan agreement
stipulated that the procurement of goods and services for the Arterial Road Links Development
Project (Phase IV), of which CP I is a component, is to be governed by the JBIC Procurement
Guidelines. Section 5.06, Part II (International Competitive Bidding) thereof quoted earlier reads:

Section 5.06. Evaluation and Comparison of Bids

xxx

(e) Any procedure under which bids above or below a predetermined bid value assessment are
automatically disqualified is not permitted.62

It is clear that the JBIC Procurement Guidelines proscribe the imposition of ceilings on bid
prices. On the other hand, it enjoins the award of the contract to the bidder whose bid has been
determined to be the lowest evaluated bid. The pertinent provision, quoted earlier, is reiterated,
thus:

Section 5.09. Award of Contract


The contract is to be awarded to the bidder whose bid has been determined to be the lowest
evaluated bid and who meets the appropriate standards of capability and financial resources. A
bidder shall not be required as a condition of award to undertake responsibilities or work not
stipulated in the specifications or to modify the bid.63

Since these terms and conditions are made part of Loan Agreement No. PH-P204, the
government is obliged to observe and enforce the same in the procurement of goods and
services for the CP I project. As shown earlier, private respondent China Road & Bridge
Corporations bid was the lowest evaluated bid, albeit 28.95% higher than the ABC. In
accordance with the JBIC Procurement Guidelines, therefore, it was correctly awarded the
contract for the CP I project.

Even if RA 9184 were to be applied retroactively, the terms of the Exchange of Notes dated
December 27, 1999 and Loan Agreement No. PH-P204 would still govern the procurement for
the CP I project

For clarity, Section 4 of RA 9184 is quoted anew, thus:

SEC. 4. Scope and Applications. This Act shall apply to the Procurement of Infrastructure
Projects, Goods and Consulting Services, regardless of source of funds, whether local or
foreign, by all branches and instrumentalities of government, its departments, offices and
agencies, including government-owned and/or controlled corporations and local government
units, subject to the provisions of Commonwealth Act No. 138. Any treaty or international or
executive agreement affecting the subject matter of this Act to which the Philippine government
is a signatory shall be observed.

The petitioners, in order to place the procurement process undertaken for the CP I project within
the ambit of RA 9184, vigorously assert that Loan Agreement No. PH-P204 is neither a treaty,
an international agreement nor an executive agreement. They cite Executive Order No. 459
dated November 25, 1997 where the three agreements are defined in this wise:

a) International agreement shall refer to a contract or understanding, regardless of


nomenclature, entered into between the Philippines and another government in written
form and governed by international law, whether embodied in a single instrument or in
two or more related instruments.

b) Treaties international agreements entered into by the Philippines which require


legislative concurrence after executive ratification. This term may include compacts like
conventions, declarations, covenants and acts.

c) Executive agreements similar to treaties except that they do not require legislative
concurrence.64

The petitioners mainly argue that Loan Agreement No. PH-P204 does not fall under any of the
three categories because to be any of the three, an agreement had to be one where the parties
are the Philippines as a State and another State. The JBIC, the petitioners maintain, is a
Japanese banking agency, which presumably has a separate juridical personality from the
Japanese Government.
The petitioners arguments fail to persuade. The Court holds that Loan Agreement No. PH-P204
taken in conjunction with the Exchange of Notes dated December 27, 1999 between the
Japanese Government and the Philippine Government is an executive agreement.

To recall, Loan Agreement No. PH-P204 was executed by and between the JBIC and the
Philippine Government pursuant to the Exchange of Notes executed by and between Mr.
Yoshihisa Ara, Ambassador Extraordinary and Plenipotentiary of Japan to the Philippines, and
then Foreign Affairs Secretary Siazon, in behalf of their respective governments. The Exchange
of Notes expressed that the two governments have reached an understanding concerning
Japanese loans to be extended to the Philippines and that these loans were aimed at promoting
our countrys economic stabilization and development efforts.

Loan Agreement No. PH-P204 was subsequently executed and it declared that it was so
entered by the parties "[i]n the light of the contents of the Exchange of Notes between the
Government of Japan and the Government of the Republic of the Philippines dated December
27, 1999, concerning Japanese loans to be extended with a view to promoting the economic
stabilization and development efforts of the Republic of the Philippines."65 Under the
circumstances, the JBIC may well be considered an adjunct of the Japanese Government.
Further, Loan Agreement No. PH-P204 is indubitably an integral part of the Exchange of Notes.
It forms part of the Exchange of Notes such that it cannot be properly taken independent
thereof.

In this connection, it is well to understand the definition of an "exchange of notes" under


international law. The term is defined in the United Nations Treaty Collection in this wise:

An "exchange of notes" is a record of a routine agreement that has many similarities with the
private law contract. The agreement consists of the exchange of two documents, each of the
parties being in the possession of the one signed by the representative of the other. Under the
usual procedure, the accepting State repeats the text of the offering State to record its assent.
The signatories of the letters may be government Ministers, diplomats or departmental heads.
The technique of exchange of notes is frequently resorted to, either because of its speedy
procedure, or, sometimes, to avoid the process of legislative approval.66

It is stated that "treaties, agreements, conventions, charters, protocols, declarations,


memoranda of understanding, modus vivendi and exchange of notes" all refer to "international
instruments binding at international law."67 It is further explained that-

Although these instruments differ from each other by title, they all have common features and
international law has applied basically the same rules to all these instruments. These rules are
the result of long practice among the States, which have accepted them as binding norms in
their mutual relations. Therefore, they are regarded as international customary law. Since there
was a general desire to codify these customary rules, two international conventions were
negotiated. The 1969 Vienna Convention on the Law of Treaties ("1969 Vienna Convention"),
which entered into force on 27 January 1980, contains rules for treaties concluded between
States. The 1986 Vienna Convention on the Law of Treaties between States and International
Organizations ("1986 Vienna Convention"), which has still not entered into force, added rules for
treaties with international organizations as parties. Both the 1969 Vienna Convention and the
1986 Vienna Convention do not distinguish between the different designations of these
instruments. Instead, their rules apply to all of those instruments as long as they meet the
common requirements.68
Significantly, an exchange of notes is considered a form of an executive agreement, which
becomes binding through executive action without the need of a vote by the Senate or
Congress. The following disquisition by Francis B. Sayre, former United States High
Commissioner to the Philippines, entitled "The Constitutionality of Trade Agreement Acts,"
quoted in Commissioner of Customs v. Eastern Sea Trading,69 is apropos:

Agreements concluded by the President which fall short of treaties are commonly referred to as
executive agreements and are no less common in our scheme of government than are the more
formal instruments treaties and conventions. They sometimes take the form of exchange of
notes and at other times that of more formal documents denominated "agreements" or
"protocols". The point where ordinary correspondence between this and other governments
ends and agreements whether denominated executive agreements or exchange of notes or
otherwise begin, may sometimes be difficult of ready ascertainment. It would be useless to
undertake to discuss here the large variety of executive agreements as such, concluded from
time to time. Hundreds of executive agreements, other than those entered into under the trade-
agreements act, have been negotiated with foreign governments. x x x70

The Exchange of Notes dated December 27, 1999, stated, inter alia, that the Government of
Japan would extend loans to the Philippines with a view to promoting its economic stabilization
and development efforts; Loan I in the amount of Y79,8651,000,000 would be extended by the
JBIC to the Philippine Government to implement the projects in the List A (including the Arterial
Road Links Development Project - Phase IV); and that such loan (Loan I) would be used to
cover payments to be made by the Philippine executing agencies to suppliers, contractors
and/or consultants of eligible source countries under such contracts as may be entered into
between them for purchases of products and/or services required for the implementation of the
projects enumerated in the List A.71 With respect to the procurement of the goods and services
for the projects, it bears reiterating that as stipulated:

3. The Government of the Republic of the Philippines will ensure that the products and/or
services mentioned in sub-paragraph (1) of paragraph 3 of Part I and sub-paragraph (1) of
paragraph 4 of Part II are procured in accordance with the guidelines for procurement of the
Bank, which set forth, inter alia, the procedures of international tendering to be followed except
where such procedures are inapplicable or inappropriate.72

The JBIC Procurements Guidelines, as quoted earlier, forbids any procedure under which bids
above or below a predetermined bid value assessment are automatically disqualified. Succinctly
put, it absolutely prohibits the imposition of ceilings on bids.

Under the fundamental principle of international law of pacta sunt servanda,73 which is, in fact,
embodied in Section 4 of RA 9184 as it provides that "[a]ny treaty or international or executive
agreement affecting the subject matter of this Act to which the Philippine government is a
signatory shall be observed," the DPWH, as the executing agency of the projects financed by
Loan Agreement No. PH-P204, rightfully awarded the contract for the implementation of civil
works for the CP I project to private respondent China Road & Bridge Corporation.

WHEREFORE, premises considered, the petition is DISMISSED.

SO ORDERED.
EN BANC

[G.R. No. 139465. January 18, 2000]

SECRETARY OF JUSTICE, petitioner, vs. HON. RALPH C. LANTION, Presiding Judge,


Regional Trial Court of Manila, Branch 25, and MARK B. JIMENEZ, respondents.

DECISION

MELO, J.:

The individual citizen is but a speck of particle or molecule vis--vis the vast and overwhelming powers of
government. His only guarantee against oppression and tyranny are his fundamental liberties under the
Bill of Rights which shield him in times of need. The Court is now called to decide whether to uphold a
citizens basic due process rights, or the governments ironclad duties under a treaty. The bugle sounds and
this Court must once again act as the faithful guardian of the fundamental writ.

The petition at our doorstep is cast against the following factual backdrop:

On January 13, 1977, then President Ferdinand E. Marcos issued Presidential Decree No. 1069
"Prescribing the Procedure for the Extradition of Persons Who Have Committed Crimes in a Foreign
Country". The Decree is founded on: the doctrine of incorporation under the Constitution; the mutual
concern for the suppression of crime both in the state where it was committed and the state where the
criminal may have escaped; the extradition treaty with the Republic of Indonesia and the intention of the
Philippines to enter into similar treaties with other interested countries; and the need for rules to guide the
executive department and the courts in the proper implementation of said treaties.

On November 13, 1994, then Secretary of Justice Franklin M. Drilon, representing the Government of the
Republic of the Philippines, signed in Manila the "Extradition Treaty Between the Government of the
Republic of the Philippines and the Government of the United States of America" (hereinafter referred to
as the RP-US Extradition Treaty). The Senate, by way of Resolution No. 11, expressed its concurrence in
the ratification of said treaty. It also expressed its concurrence in the Diplomatic Notes correcting
Paragraph (5)(a), Article 7 thereof (on the admissibility of the documents accompanying an extradition
request upon certification by the principal diplomatic or consular officer of the requested state resident in
the Requesting State).

On June 18, 1999, the Department of Justice received from the Department of Foreign Affairs U. S. Note
Verbale No. 0522 containing a request for the extradition of private respondent Mark Jimenez to the
United States. Attached to the Note Verbale were the Grand Jury Indictment, the warrant of arrest issued
by the U.S. District Court, Southern District of Florida, and other supporting documents for said
extradition. Based on the papers submitted, private respondent appears to be charged in the United States
with violation of the following provisions of the United States Code (USC):

A)......18 USC 371 (Conspiracy to commit offense or to defraud the United States; two
[2] counts; Maximum Penalty 5 years on each count);

B)......26 USC 7201 (Attempt to evade or defeat tax; four [4] counts; Maximum Penalty 5
years on each count);
C)......18 USC 1343 (Fraud by wire, radio, or television; two [2] counts; Maximum
Penalty 5 years on each count);

D)......18 USC 1001 (False statement or entries; six [6] counts; Maximum Penalty 5
years on each count);

E)......2 USC 441f (Election contributions in name of another; thirty-three [33] counts;
Maximum Penalty less than one year).

(p. 14, Rollo.)

On the same day, petitioner issued Department Order No. 249 designating and authorizing a panel of
attorneys to take charge of and to handle the case pursuant to Section 5(1) of Presidential Decree No.
1069. Accordingly, the panel began with the "technical evaluation and assessment" of the extradition
request and the documents in support thereof. The panel found that the "official English translation of
some documents in Spanish were not attached to the request and that there are some other matters that
needed to be addressed" (p. 15, Rollo).

Pending evaluation of the aforestated extradition documents, private respondent, through counsel, wrote a
letter dated July 1, 1999 addressed to petitioner requesting copies of the official extradition request from
the U. S. Government, as well as all documents and papers submitted therewith; and that he be given
ample time to comment on the request after he shall have received copies of the requested papers. Private
respondent also requested that the proceedings on the matter be held in abeyance in the meantime.

Later, private respondent requested that preliminarily, he be given at least a copy of, or access to, the
request of the United States Government, and after receiving a copy of the Diplomatic Note, a period of
time to amplify on his request.

In response to private respondents July 1, 1999 letter, petitioner, in a reply-letter dated July 13, 1999 (but
received by private respondent only on August 4, 1999), denied the foregoing requests for the following
reasons:

1. We find it premature to furnish you with copies of the extradition request and
supporting documents from the United States Government, pending evaluation by this
Department of the sufficiency of the extradition documents submitted in accordance with
the provisions of the extradition treaty and our extradition law. Article 7 of the
Extradition Treaty between the Philippines and the United States enumerates the
documentary requirements and establishes the procedures under which the documents
submitted shall be received and admitted as evidence. Evidentiary requirements under our
domestic law are also set forth in Section 4 of P.D. No. 1069.

Evaluation by this Department of the aforementioned documents is not a preliminary


investigation nor akin to preliminary investigation of criminal cases. We merely
determine whether the procedures and requirements under the relevant law and treaty
have been complied with by the Requesting Government. The constitutionally guaranteed
rights of the accused in all criminal prosecutions are therefore not available.

It is only after the filing of the petition for extradition when the person sought to be
extradited will be furnished by the court with copies of the petition, request and
extradition documents and this Department will not pose any objection to a request for
ample time to evaluate said documents.

2. The formal request for extradition of the United States contains grand jury information
and documents obtained through grand jury process covered by strict secrecy rules under
United States law. The United States had to secure orders from the concerned District
Courts authorizing the United States to disclose certain grand jury information to
Philippine government and law enforcement personnel for the purpose of extradition of
Mr. Jimenez. Any further disclosure of the said information is not authorized by the
United States District Courts. In this particular extradition request the United States
Government requested the Philippine Government to prevent unauthorized disclosure of
the subject information. This Departments denial of your request is consistent with
Article 7 of the RP-US Extradition Treaty which provides that the Philippine Government
must represent the interests of the United States in any proceedings arising out of a
request for extradition. The Department of Justice under P.D. No. 1069 is the counsel of
the foreign governments in all extradition requests.

3. This Department is not in a position to hold in abeyance proceedings in connection


with an extradition request. Article 26 of the Vienna Convention on the Law of Treaties,
to which we are a party provides that "[E]very treaty in force is binding upon the parties
to it and must be performed by them in good faith". Extradition is a tool of criminal law
enforcement and to be effective, requests for extradition or surrender of accused or
convicted persons must be processed expeditiously.

(pp. 77-78, Rollo.)

Such was the state of affairs when, on August 6, 1999, private respondent filed with the Regional Trial
Court of the National Capital Judicial Region a petition against the Secretary of Justice, the Secretary of
Foreign Affairs, and the Director of the National Bureau of Investigation, for mandamus (to compel
herein petitioner to furnish private respondent the extradition documents, to give him access thereto, and
to afford him an opportunity to comment on, or oppose, the extradition request, and thereafter to evaluate
the request impartially, fairly and objectively); certiorari (to set aside herein petitioners letter dated July
13, 1999); and prohibition (to restrain petitioner from considering the extradition request and from filing
an extradition petition in court; and to enjoin the Secretary of Foreign Affairs and the Director of the NBI
from performing any act directed to the extradition of private respondent to the United States), with an
application for the issuance of a temporary restraining order and a writ of preliminary injunction (pp. 104-
105, Rollo).

The aforementioned petition was docketed as Civil Case No. 99-94684 and thereafter raffled to Branch 25
of said regional trial court stationed in Manila which is presided over by the Honorable Ralph C. Lantion.

After due notice to the parties, the case was heard on August 9, 1999. Petitioner, who appeared in his own
behalf, moved that he be given ample time to file a memorandum, but the same was denied.

On August 10, 1999, respondent judge issued an order dated the previous day, disposing:

WHEREFORE, this Court hereby Orders the respondents, namely: the Secretary of
Justice, the Secretary of Foreign Affairs and the Director of the National Bureau of
Investigation, their agents and/or representatives to maintain the status quo by refraining
from committing the acts complained of; from conducting further proceedings in
connection with the request of the United States Government for the extradition of the
petitioner; from filing the corresponding Petition with a Regional Trial court; and from
performing any act directed to the extradition of the petitioner to the United States, for a
period of twenty (20) days from service on respondents of this Order, pursuant to Section
5, Rule 58 of the 1997 Rules of Court.

The hearing as to whether or not this Court shall issue the preliminary injunction, as
agreed upon by the counsels for the parties herein, is set on August 17, 1999 at 9:00
oclock in the morning. The respondents are, likewise, ordered to file their written
comment and/or opposition to the issuance of a Preliminary Injunction on or before said
date.

SO ORDERED.

(pp. 110-111, Rollo.)

Forthwith, petitioner initiated the instant proceedings, arguing that:

PUBLIC RESPONDENT ACTED WITHOUT OR IN EXCESS OF JURISDICTION OR


WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION IN ISSUING THE TEMPORARY RESTRAINING ORDER
BECAUSE:

I.

BY ORDERING HEREIN PETITIONER TO REFRAIN FROM COMMITTING THE


ACTS COMPLAINED OF, I. E., TO DESIST FROM REFUSING PRIVATE
RESPONDENT ACCESS TO THE OFFICIAL EXTRADITION REQUEST AND
DOCUMENTS AND FROM DENYING PRIVATE RESPONDENT AN
OPPORTUNITY TO FILE A COMMENT ON, OR OPPOSITION TO, THE REQUEST,
THE MAIN PRAYER FOR A WRIT OF MANDAMUS IN THE PETITION FOR
MANDAMUS, CERTIORARI AND PROHIBITION WAS, IN EFFECT, GRANTED
SO AS TO CONSTITUTE AN ADJUDICATION ON THE MERITS OF THE
MANDAMUS ISSUES;

II.

PETITIONER WAS UNQUALIFIEDLY PREVENTED FROM PERFORMING LEGAL


DUTIES UNDER THE EXTRADITION TREATY AND THE PHILIPPINE
EXTRADITION LAW;

III.

THE PETITION FOR (MANDAMUS), CERTIORARI AND PROHIBITION IS, ON


ITS FACE, FORMALLY AND SUBSTANTIALLY DEFICIENT; AND

IV.
PRIVATE RESPONDENT HAS NO RIGHT IN ESSE THAT NEEDS PROTECTION
AND ENFORCEMENT, AND WILL NOT SUFFER ANY IRREPARABLE INJURY.

(pp. 19-20, Rollo.)

On August 17, 1999, the Court required private respondent to file his comment. Also issued, as prayed
for, was a temporary restraining order (TRO) providing:

NOW, THEREFORE, effective immediately and continuing until further orders from this
Court, You, Respondent Judge Ralph C. Lantion, your agents, representatives or any
person or persons acting in your place or stead are hereby ORDERED to CEASE and
DESIST from enforcing the assailed order dated August 9, 1999 issued by public
respondent in Civil Case No. 99-94684.

GIVEN by the Honorable HILARIO G. DAVIDE, JR., Chief Justice, Supreme Court of
the Philippines, this 17th day of August 1999.

(pp. 120-121, Rollo.)

The case was heard on oral argument on August 31, 1999, after which the parties, as directed, filed their
respective memoranda.

From the pleadings of the opposing parties, both procedural and substantive issues are patent. However, a
review of these issues as well as the extensive arguments of both parties, compel us to delineate the focal
point raised by the pleadings: During the evaluation stage of the extradition proceedings, is private
respondent entitled to the two basic due process rights of notice and hearing? An affirmative answer
would necessarily render the proceedings at the trial court, moot and academic (the issues of which are
substantially the same as those before us now), while a negative resolution would call for the immediate
lifting of the TRO issued by this Court dated August 24, 1999, thus allowing petitioner to fast-track the
process leading to the filing of the extradition petition with the proper regional trial court. Corollarily, in
the event that private respondent is adjudged entitled to basic due process rights at the evaluation stage of
the extradition proceedings, would this entitlement constitute a breach of the legal commitments and
obligations of the Philippine Government under the RP-US Extradition Treaty? And assuming that the
result would indeed be a breach, is there any conflict between private respondents basic due process rights
and the provisions of the RP-US Extradition Treaty?

The issues having transcendental importance, the Court has elected to go directly into the substantive
merits of the case, brushing aside peripheral procedural matters which concern the proceedings in Civil
Case No. 99-94684, particularly the propriety of the filing of the petition therein, and of the issuance of
the TRO of August 17, 1999 by the trial court.

To be sure, the issues call for a review of the extradition procedure. The RP-US Extradition Treaty which
was executed only on November 13, 1994, ushered into force the implementing provisions of Presidential
Decree No. 1069, also called as the Philippine Extradition Law. Section 2(a) thereof defines extradition as
"the removal of an accused from the Philippines with the object of placing him at the disposal of foreign
authorities to enable the requesting state or government to hold him in connection with any criminal
investigation directed against him or the execution of a penalty imposed on him under the penal or
criminal law of the requesting state or government." The portions of the Decree relevant to the instant
case which involves a charged and not convicted individual, are abstracted as follows:
The Extradition Request

The request is made by the Foreign Diplomat of the Requesting State, addressed to the Secretary of
Foreign Affairs, and shall be accompanied by:

1. The original or an authentic copy of the criminal charge and the warrant of arrest issued by the
authority of the Requesting State having jurisdiction over the matter, or some other instruments having
equivalent legal force;

2. A recital of the acts for which extradition is requested, with the fullest particulars as to the name and
identity of the accused, his whereabouts in the Philippines, if known, the acts or omissions complained of,
and the time and place of the commission of these acts;

3. The text of the applicable law or a statement of the contents of said law, and the designation or
description of the offense by the law, sufficient for evaluation of the request; and

4. Such other documents or information in support of the request.

(Section 4, Presidential Decree No. 1069.)

Section 5 of the Presidential Decree, which sets forth the duty of the Secretary of Foreign Affairs,
pertinently provides:

. . . (1) Unless it appears to the Secretary of Foreign Affairs that the request fails to meet
the requirements of this law and the relevant treaty or convention, he shall forward the
request together with the related documents to the Secretary of Justice, who shall
immediately designate and authorize an attorney in his office to take charge of the case.

The above provision shows only too clearly that the executive authority given the task of evaluating the
sufficiency of the request and the supporting documents is the Secretary of Foreign Affairs. What then is
the coverage of this task?

In accordance with Paragraphs 2 and 3, Article 7 of the RP-US Extradition Treaty, the executive authority
must ascertain whether or not the request is supported by:

1. Documents, statements, or other types of information which describe the identity and probable location
of the person sought;

2. A statement of the facts of the offense and the procedural history of the case;

3. A statement of the provisions of the law describing the essential elements of the offense for which
extradition is requested;

4. A statement of the provisions of law describing the punishment for the offense;

5. A statement of the provisions of the law describing any time limit on the prosecution or the execution
of punishment for the offense;
6. Documents, statements, or other types of information specified in paragraph 3 or paragraph 4 of said
Article, as applicable.

(Paragraph 2, Article 7, Presidential Decree No. 1069.)

7. Such evidence as, according to the law of the Requested State, would provide probable cause for his
arrest and committal for trial if the offense had been committed there;

8. A copy of the warrant or order of arrest issued by a judge or other competent authority; and

9. A copy of the charging document.

(Paragraph 3, ibid.)

The executive authority (Secretary of Foreign Affairs) must also see to it that the accompanying
documents received in support of the request had been certified by the principal diplomatic or consular
officer of the Requested State resident in the Requesting State (Embassy Note No. 052 from U. S.
Embassy; Embassy Note No. 951309 from the Department of Foreign Affairs).

In this light, Paragraph 3, Article 3 of the Treaty provides that "[e]xtradition shall not be granted if the
executive authority of the Requested State determines that the request is politically motivated, or that the
offense is a military offense which is not punishable under non-military penal legislation."

The Extradition Petition

Upon a finding made by the Secretary of Foreign Affairs that the extradition request and its supporting
documents are sufficient and complete in form and substance, he shall deliver the same to the Secretary of
Justice, who shall immediately designate and authorize an attorney in his office to take charge of the case
(Paragraph [1], Section 5, P. D. No. 1069). The lawyer designated shall then file a written petition with
the proper regional trial court of the province or city, with a prayer that the court take the extradition
request under consideration (Paragraph [2], ibid.).

The presiding judge of the regional trial court, upon receipt of the petition for extradition, shall, as soon as
practicable, issue an order summoning the prospective extraditee to appear and to answer the petition on
the day and hour fixed in the order. The judge may issue a warrant of arrest if it appears that the
immediate arrest and temporary detention of the accused will best serve the ends of justice (Paragraph [1],
Section 6, ibid.), particularly to prevent the flight of the prospective extraditee.

The Extradition Hearing

The Extradition Law does not specifically indicate whether the extradition proceeding is criminal, civil, or
a special proceeding. Nevertheless, Paragraph [1], Section 9 thereof provides that in the hearing of the
extradition petition, the provisions of the Rules of Court, insofar as practicable and not inconsistent with
the summary nature of the proceedings, shall apply. During the hearing, Section 8 of the Decree provides
that the attorney having charge of the case may, upon application by the Requesting State, represent the
latter throughout the proceedings.

Upon conclusion of the hearing, the court shall render a decision granting the extradition and giving the
reasons therefor upon a showing of the existence of a prima facie case, or dismiss the petition (Section
10, ibid.). Said decision is appealable to the Court of Appeals, whose decision shall be final and
immediately executory (Section 12, ibid.). The provisions of the Rules of Court governing appeal in
criminal cases in the Court of Appeals shall apply in the aforementioned appeal, except for the required
15-day period to file brief (Section 13, ibid.).

The trial court determines whether or not the offense mentioned in the petition is extraditable based on the
application of the dual criminality rule and other conditions mentioned in Article 2 of the RP-US
Extradition Treaty. The trial court also determines whether or not the offense for which extradition is
requested is a political one (Paragraph [1], Article 3, RP-US Extradition Treaty).

With the foregoing abstract of the extradition proceedings as backdrop, the following query presents
itself: What is the nature of the role of the Department of Justice at the evaluation stage of the extradition
proceedings?

A strict observance of the Extradition Law indicates that the only duty of the Secretary of Justice is to file
the extradition petition after the request and all the supporting papers are forwarded to him by the
Secretary of Foreign Affairs. It is the latter official who is authorized to evaluate the extradition papers, to
assure their sufficiency, and under Paragraph [3], Article 3 of the Treaty, to determine whether or not the
request is politically motivated, or that the offense is a military offense which is not punishable under
non-military penal legislation. Ipso facto, as expressly provided in Paragraph [1], Section 5 of the
Extradition Law, the Secretary of Justice has the ministerial duty of filing the extradition papers.

However, looking at the factual milieu of the case before us, it would appear that there was failure to
abide by the provisions of Presidential Decree No. 1069. For while it is true that the extradition request
was delivered to the Department of Foreign Affairs on June 17, 1999, the following day or less than 24
hours later, the Department of Justice received the request, apparently without the Department of Foreign
Affairs discharging its duty of thoroughly evaluating the same and its accompanying documents. The
statement of an assistant secretary at the Department of Foreign Affairs that his Department, in this
regard, is merely acting as a post office, for which reason he simply forwarded the request to the
Department of Justice, indicates the magnitude of the error of the Department of Foreign Affairs in taking
lightly its responsibilities. Thereafter, the Department of Justice took it upon itself to determine the
completeness of the documents and to evaluate the same to find out whether they comply with the
requirements laid down in the Extradition Law and the RP-US Extradition Treaty. Petitioner ratiocinates
in this connection that although the Department of Justice had no obligation to evaluate the extradition
documents, the Department also had to go over them so as to be able to prepare an extradition petition
(tsn, August 31, 1999, pp. 24-25). Notably, it was also at this stage where private respondent insisted on
the following: (1) the right to be furnished the request and the supporting papers; (2) the right to be heard
which consists in having a reasonable period of time to oppose the request, and to present evidence in
support of the opposition; and (3) that the evaluation proceedings be held in abeyance pending the filing
of private respondent's opposition to the request.

The two Departments seem to have misread the scope of their duties and authority, one abdicating its
powers and the other enlarging its commission. The Department of Foreign Affairs, moreover, has,
through the Solicitor General, filed a manifestation that it is adopting the instant petition as its own,
indirectly conveying the message that if it were to evaluate the extradition request, it would not allow
private respondent to participate in the process of evaluation.

Plainly then, the record cannot support the presumption of regularity that the Department of Foreign
Affairs thoroughly reviewed the extradition request and supporting documents and that it arrived at a
well-founded judgment that the request and its annexed documents satisfy the requirements of law. The
Secretary of Justice, eminent as he is in the field of law, could not privately review the papers all by
himself. He had to officially constitute a panel of attorneys. How then could the DFA Secretary or his
undersecretary, in less than one day, make the more authoritative determination?

The evaluation process, just like the extradition proceedings proper, belongs to a class by itself. It is sui
generis. It is not a criminal investigation, but it is also erroneous to say that it is purely an exercise of
ministerial functions. At such stage, the executive authority has the power: (a) to make a technical
assessment of the completeness and sufficiency of the extradition papers; (b) to outrightly deny the
request if on its face and on the face of the supporting documents the crimes indicated are not
extraditable; and (c) to make a determination whether or not the request is politically motivated, or that
the offense is a military one which is not punishable under non-military penal legislation (tsn, August 31,
1999, pp. 28-29; Article 2 & and Paragraph [3], Article 3, RP-US Extradition Treaty). Hence, said process
may be characterized as an investigative or inquisitorial process in contrast to a proceeding conducted in
the exercise of an administrative bodys quasi-judicial power.

In administrative law, a quasi-judicial proceeding involves: (a) taking and evaluation of evidence; (b)
determining facts based upon the evidence presented; and (c) rendering an order or decision supported by
the facts proved (De Leon, Administrative Law: Text and Cases, 1993 ed., p. 198, citing Morgan vs.
United States, 304 U.S. 1). Inquisitorial power, which is also known as examining or investigatory power,
is one of the determinative powers of an administrative body which better enables it to exercise its quasi-
judicial authority (Cruz, Phil. Administrative Law, 1996 ed., p. 26). This power allows the administrative
body to inspect the records and premises, and investigate the activities, of persons or entities coming
under its jurisdiction (Ibid., p. 27), or to require disclosure of information by means of accounts, records,
reports, testimony of witnesses, production of documents, or otherwise (De Leon, op. cit., p. 64).

The power of investigation consists in gathering, organizing, and analyzing evidence, which is a useful
aid or tool in an administrative agencys performance of its rule-making or quasi-judicial functions.
Notably, investigation is indispensable to prosecution.

In Ruperto v. Torres (100 Phil. 1098 [1957], unreported), the Court had occasion to rule on the functions
of an investigatory body with the sole power of investigation. It does not exercise judicial functions and
its power is limited to investigating the facts and making findings in respect thereto. The Court laid down
the test of determining whether an administrative body is exercising judicial functions or merely
investigatory functions: Adjudication signifies the exercise of power and authority to adjudicate upon the
rights and obligations of the parties before it. Hence, if the only purpose for investigation is to evaluate
evidence submitted before it based on the facts and circumstances presented to it, and if the agency is not
authorized to make a final pronouncement affecting the parties, then there is an absence of judicial
discretion and judgment.

The above description in Ruperto applies to an administrative body authorized to evaluate extradition
documents. The body has no power to adjudicate in regard to the rights and obligations of both the
Requesting State and the prospective extraditee. Its only power is to determine whether the papers comply
with the requirements of the law and the treaty and, therefore, sufficient to be the basis of an extradition
petition. Such finding is thus merely initial and not final. The body has no power to determine whether or
not the extradition should be effected. That is the role of the court. The bodys power is limited to an initial
finding of whether or not the extradition petition can be filed in court.

It is to be noted, however, that in contrast to ordinary investigations, the evaluation procedure is


characterized by certain peculiarities. Primarily, it sets into motion the wheels of the extradition process.
Ultimately, it may result in the deprivation of liberty of the prospective extraditee. This deprivation can be
effected at two stages: First, the provisional arrest of the prospective extraditee pending the submission of
the request. This is so because the Treaty provides that in case of urgency, a contracting party may request
the provisional arrest of the person sought pending presentation of the request (Paragraph [1], Article 9,
RP-US Extradition Treaty), but he shall be automatically discharged after 60 days if no request is
submitted (Paragraph 4). Presidential Decree No. 1069 provides for a shorter period of 20 days after
which the arrested person could be discharged (Section 20[d]). Logically, although the Extradition Law is
silent on this respect, the provisions only mean that once a request is forwarded to the Requested State,
the prospective extraditee may be continuously detained, or if not, subsequently rearrested (Paragraph [5],
Article 9, RP-US Extradition Treaty), for he will only be discharged if no request is submitted.
Practically, the purpose of this detention is to prevent his possible flight from the Requested
State. Second, the temporary arrest of the prospective extraditee during the pendency of the extradition
petition in court (Section 6, Presidential Decree No. 1069).

Clearly, there is an impending threat to a prospective extraditees liberty as early as during the evaluation
stage. It is not only an imagined threat to his liberty, but a very imminent one.

Because of these possible consequences, we conclude that the evaluation process is akin to an
administrative agency conducting an investigative proceeding, the consequences of which are essentially
criminal since such technical assessment sets off or commences the procedure for, and ultimately, the
deprivation of liberty of a prospective extraditee. As described by petitioner himself, this is a "tool" for
criminal law enforcement (p. 78, Rollo). In essence, therefore, the evaluation process partakes of the
nature of a criminal investigation. In a number of cases, we had occasion to make available to a
respondent in an administrative case or investigation certain constitutional rights that are ordinarily
available only in criminal prosecutions. Further, as pointed out by Mr. Justice Mendoza during the oral
arguments, there are rights formerly available only at the trial stage that had been advanced to an earlier
stage in the proceedings, such as the right to counsel and the right against self-incrimination (tsn, August
31, 1999, p. 135;Escobedo vs. Illinois, 378 U.S. 478; Gideon vs. Wainwright, 372 U.S. 335; Miranda vs.
Arizona, 384 U.S. 436).

In Pascual v. Board of Medical Examiners (28 SCRA 344 [1969]), we held that the right against self-
incrimination under Section 17, Article III of the 1987 Constitution which is ordinarily available only in
criminal prosecutions, extends to administrative proceedings which possess a criminal or penal aspect,
such as an administrative investigation of a licensed physician who is charged with immorality, which
could result in his loss of the privilege to practice medicine if found guilty. The Court, citing the earlier
case of Cabal vs. Kapunan (6 SCRA 1059 [1962]), pointed out that the revocation of ones license as a
medical practitioner, is an even greater deprivation than forfeiture of property.

Cabal vs. Kapunan (supra) involved an administrative charge of unexplained wealth against a respondent
which was filed under Republic Act No. 1379, or the Anti-Graft Law. Again, we therein ruled that since
the investigation may result in forfeiture of property, the administrative proceedings are deemed criminal
or penal, and such forfeiture partakes the nature of a penalty. There is also the earlier case of Almeda, Sr.
vs. Perez (5 SCRA 970 [1962]), where the Court, citing American jurisprudence, laid down the test to
determine whether a proceeding is civil or criminal: If the proceeding is under a statute such that if an
indictment is presented the forfeiture can be included in the criminal case, such proceeding is criminal in
nature, although it may be civil in form; and where it must be gathered from the statute that the action is
meant to be criminal in its nature, it cannot be considered as civil. If, however, the proceeding does not
involve the conviction of the wrongdoer for the offense charged, the proceeding is civil in
nature.
The cases mentioned above refer to an impending threat of deprivation of ones property or property right.
No less is this true, but even more so in the case before us, involving as it does the possible deprivation of
liberty, which, based on the hierarchy of constitutionally protected rights, is placed second only to life
itself and enjoys precedence over property, for while forfeited property can be returned or replaced, the
time spent in incarceration is irretrievable and beyond recompense.

By comparison, a favorable action in an extradition request exposes a person to eventual extradition to a


foreign country, thus saliently exhibiting the criminal or penal aspect of the process. In this sense, the
evaluation procedure is akin to a preliminary investigation since both procedures may have the same
result the arrest and imprisonment of the respondent or the person charged. Similar to the evaluation stage
of extradition proceedings, a preliminary investigation, which may result in the filing of an information
against the respondent, can possibly lead to his arrest, and to the deprivation of his liberty.

Petitioners reliance on Wright vs. Court of Appeals (235 SCRA 241 [1992]) (p. 8, Petitioners
Memorandum) that the extradition treaty is neither a piece of criminal legislation nor a criminal
procedural statute is not well-taken. Wright is not authority for petitioners conclusion that his preliminary
processing is not akin to a preliminary investigation. The characterization of a treaty in Wright was in
reference to the applicability of the prohibition against an ex post facto law. It had nothing to do with the
denial of the right to notice, information, and hearing.

As early as 1884, the United States Supreme Court ruled that "any legal proceeding enforced by public
authority, whether sanctioned by age or custom, or newly devised in the discretion of the legislative
power, in furtherance of the general public good, which regards and preserves these principles of liberty
and justice, must be held to be due process of law" (Hurtado vs. California, 110 U.S. 516). Compliance
with due process requirements cannot be deemed non-compliance with treaty commitments.

The United States and the Philippines share a mutual concern about the suppression and punishment of
crime in their respective jurisdictions. At the same time, both States accord common due process
protection to their respective citizens.

The due process clauses in the American and Philippine Constitutions are not only worded in exactly
identical language and terminology, but more importantly, they are alike in what their respective Supreme
Courts have expounded as the spirit with which the provisions are informed and impressed, the elasticity
in their interpretation, their dynamic and resilient character which make them capable of meeting every
modern problem, and their having been designed from earliest time to the present to meet the exigencies
of an undefined and expanding future. The requirements of due process are interpreted in both the United
States and the Philippines as not denying to the law the capacity for progress and improvement. Toward
this effect and in order to avoid the confines of a legal straitjacket, the courts instead prefer to have the
meaning of the due process clause "gradually ascertained by the process of inclusion and exclusion in the
course of the decisions of cases as they arise" (Twining vs. New Jersey, 211 U.S. 78). Capsulized, it refers
to "the embodiment of the sporting idea of fair play" (Ermita-Malate Hotel and Motel Owners
Association vs. City Mayor of Manila, 20 SCRA 849 [1967]). It relates to certain immutable principles of
justice which inhere in the very idea of free government (Holden vs. Hardy, 169 U.S. 366).

Due process is comprised of two components substantive due process which requires the intrinsic validity
of the law in interfering with the rights of the person to his life, liberty, or property, and procedural due
process which consists of the two basic rights of notice and hearing, as well as the guarantee of being
heard by an impartial and competent tribunal (Cruz, Constitutional Law, 1993 Ed., pp. 102-106).
True to the mandate of the due process clause, the basic rights of notice and hearing pervade not only in
criminal and civil proceedings, but in administrative proceedings as well. Non-observance of these rights
will invalidate the proceedings. Individuals are entitled to be notified of any pending case affecting their
interests, and upon notice, they may claim the right to appear therein and present their side and to refute
the position of the opposing parties (Cruz, Phil. Administrative Law, 1996 ed., p. 64).

In a preliminary investigation which is an administrative investigatory proceeding, Section 3, Rule 112 of


the Rules of Court guarantees the respondents basic due process rights, granting him the right to be
furnished a copy of the complaint, the affidavits, and other supporting documents, and the right to submit
counter-affidavits and other supporting documents within ten days from receipt thereof. Moreover, the
respondent shall have the right to examine all other evidence submitted by the complainant.

These twin rights may, however, be considered dispensable in certain instances, such as:

1. In proceedings where there is an urgent need for immediate action, like the summary abatement of a
nuisance per se (Article 704, Civil Code), the preventive suspension of a public servant facing
administrative charges (Section 63, Local Government Code, B. P. Blg. 337), the padlocking of filthy
restaurants or theaters showing obscene movies or like establishments which are immediate threats to
public health and decency, and the cancellation of a passport of a person sought for criminal prosecution;

2. Where there is tentativeness of administrative action, that is, where the respondent is not precluded
from enjoying the right to notice and hearing at a later time without prejudice to the person affected, such
as the summary distraint and levy of the property of a delinquent taxpayer, and the replacement of a
temporary appointee; and

3. Where the twin rights have previously been offered but the right to exercise them had not been claimed.

Applying the above principles to the case at bar, the query may be asked: Does the evaluation stage of the
extradition proceedings fall under any of the described situations mentioned above?

Let us take a brief look at the nature of American extradition proceedings which are quite noteworthy
considering that the subject treaty involves the U.S. Government.

American jurisprudence distinguishes between interstate rendition or extradition which is based on the
Extradition Clause in the U.S. Constitution (Art. IV, 2 cl 2), and international extradition proceedings. In
interstate rendition or extradition, the governor of the asylum state has the duty to deliver the fugitive to
the demanding state. The Extradition Clause and the implementing statute are given a liberal construction
to carry out their manifest purpose, which is to effect the return as swiftly as possible of persons for trial
to the state in which they have been charged with crime (31A Am Jur 2d 754-755). In order to achieve
extradition of an alleged fugitive, the requisition papers or the demand must be in proper form, and all the
elements or jurisdictional facts essential to the extradition must appear on the face of the papers, such as
the allegation that the person demanded was in the demanding state at the time the offense charged was
committed, and that the person demanded is charged with the commission of the crime or that prosecution
has been begun in the demanding state before some court or magistrate (35 C.J.S. 406-407). The
extradition documents are then filed with the governor of the asylum state, and must contain such papers
and documents prescribed by statute, which essentially include a copy of the instrument charging the
person demanded with a crime, such as an indictment or an affidavit made before a magistrate. Statutory
requirements with respect to said charging instrument or papers are mandatory since said papers are
necessary in order to confer jurisdiction on the governor of the asylum state to effect the extradition
(35 C.J.S. 408-410). A statutory provision requiring duplicate copies of the indictment, information,
affidavit, or judgment of conviction or sentence and other instruments accompanying the demand or
requisitions be furnished and delivered to the fugitive or his attorney is directory. However, the right
being such a basic one has been held to be a right mandatory on demand (Ibid., p. 410, citing Ex parte
Moore, 256 S.W. 2d 103, 158 Tex. Cr. 407 and Ex parte Tucker, Cr., 324, S.W.2d
853).

In international proceedings, extradition treaties generally provide for the presentation to the executive
authority of the Requested State of a requisition or demand for the return of the alleged offender, and the
designation of the particular officer having authority to act in behalf of the demanding nation (31A Am
Jur 2d 815).

In petitioners memorandum filed on September 15, 1999, he attached thereto a letter dated September 13,
1999 from the Criminal Division of the U.S. Department of Justice, summarizing the U.S. extradition
procedures and principles, which are basically governed by a combination of treaties (with special
reference to the RP-US Extradition Treaty), federal statutes, and judicial decisions, to wit:

1. All requests for extradition are transmitted through the diplomatic channel. In urgent cases, requests for
the provisional arrest of an individual may be made directly by the Philippine Department of Justice to the
U.S. Department of Justice, and vice-versa. In the event of a provisional arrest, a formal request for
extradition is transmitted subsequently through the diplomatic channel.

2. The Department of State forwards the incoming Philippine extradition request to the Department of
Justice. Before doing so, the Department of State prepares a declaration confirming that a formal request
has been made, that the treaty is in full force and effect, that under Article 17 thereof the parties provide
reciprocal legal representation in extradition proceedings, that the offenses are covered as extraditable
offenses under Article 2 thereof, and that the documents have been authenticated in accordance with the
federal statute that ensures admissibility at any subsequent extradition hearing.

3. A judge or magistrate judge is authorized to issue a warrant for the arrest of the prospective extraditee
(18 U.S.C. 3184). Said judge or magistrate is authorized to hold a hearing to consider the evidence
offered in support of the extradition request (Ibid.)

4. At the hearing, the court must determine whether the person arrested is extraditable to the foreign
country. The court must also determine that (a) it has jurisdiction over the defendant and jurisdiction to
conduct the hearing; (b) the defendant is being sought for offenses for which the applicable treaty permits
extradition; and (c) there is probable cause to believe that the defendant is the person sought and that he
committed the offenses charged (Ibid.)

5. The judge or magistrate judge is vested with jurisdiction to certify extraditability after having received
a "complaint made under oath, charging any person found within his jurisdiction" with having committed
any of the crimes provided for by the governing treaty in the country requesting extradition (Ibid.) [In this
regard, it is noted that a long line of American decisions pronounce that international extradition
proceedings partake of the character of a preliminary examination before a committing magistrate, rather
than a trial of the guilt or innocence of the alleged fugitive (31A Am Jur 2d 826).]

6. If the court decides that the elements necessary for extradition are present, it incorporates its
determinations in factual findings and conclusions of law and certifies the persons extraditability. The
court then forwards this certification of extraditability to the Department of State for disposition by the
Secretary of State. The ultimate decision whether to surrender an individual rests with the Secretary of
State (18 U.S.C. 3186).
7. The subject of an extradition request may not litigate questions concerning the motives of the
requesting government in seeking his extradition. However, a person facing extradition may present
whatever information he deems relevant to the Secretary of State, who makes the final determination
whether to surrender an individual to the foreign government concerned.

From the foregoing, it may be observed that in the United States, extradition begins and ends with one
entity the Department of State which has the power to evaluate the request and the extradition documents
in the beginning, and, in the person of the Secretary of State, the power to act or not to act on the courts
determination of extraditability. In the Philippine setting, it is the Department of Foreign Affairs which
should make the initial evaluation of the request, and having satisfied itself on the points earlier
mentioned (see pp. 10-12), then forwards the request to the Department of Justice for the preparation and
filing of the petition for extradition. Sadly, however, the Department of Foreign Affairs, in the instant
case, perfunctorily turned over the request to the Department of Justice which has taken over the task of
evaluating the request as well as thereafter, if so warranted, preparing, filing, and prosecuting the petition
for extradition.

Private respondent asks what prejudice will be caused to the U.S. Government should the person sought
to be extradited be given due process rights by the Philippines in the evaluation stage. He emphasizes that
petitioners primary concern is the possible delay in the evaluation process.

We agree with private respondents citation of an American Supreme Court ruling:

The establishment of prompt efficacious procedures to achieve legitimate state ends is a


proper state interest worthy of cognizance in constitutional adjudication. But the
Constitution recognizes higher values than speed and efficiency. Indeed, one might fairly
say of the Bill of Rights in general, and the Due Process Clause, in particular, that they
were designed to protect the fragile values of a vulnerable citizenry from the overbearing
concern for efficiency and efficacy that may characterize praiseworthy government
officials no less, and perhaps more, than mediocre ones.

(Stanley vs. Illinois, 404 U.S. 645, 656)

The United States, no doubt, shares the same interest as the Philippine Government that
no right that of liberty secured not only by the Bills of Rights of the Philippines
Constitution but of the United States as well, is sacrificed at the altar of expediency.

(pp. 40-41, Private Respondents Memorandum.)

In the Philippine context, this Courts ruling is invoked:

One of the basic principles of the democratic system is that where the rights of the
individual are concerned, the end does not justify the means. It is not enough that there be
a valid objective; it is also necessary that the means employed to pursue it be in keeping
with the Constitution. Mere expediency will not excuse constitutional shortcuts. There is
no question that not even the strongest moral conviction or the most urgent public need,
subject only to a few notable exceptions, will excuse the bypassing of an individuals
rights. It is no exaggeration to say that a person invoking a right guaranteed under Article
III of the Constitution is a majority of one even as against the rest of the nation who
would deny him that right (Association of Small Landowners in the Philippines, Inc. vs.
Secretary of Agrarian Reform, 175 SCRA 343, 375-376 [1989]).
There can be no dispute over petitioners argument that extradition is a tool of criminal law enforcement.
To be effective, requests for extradition or the surrender of accused or convicted persons must be
processed expeditiously. Nevertheless, accelerated or fast-tracked proceedings and adherence to fair
procedures are, however, not always incompatible. They do not always clash in discord. Summary does
not mean precipitous haste. It does not carry a disregard of the basic principles inherent in "ordered
liberty."

Is there really an urgent need for immediate action at the evaluation stage? At that point, there is no
extraditee yet in the strict sense of the word. Extradition may or may not occur. In interstate extradition,
the governor of the asylum state may not, in the absence of mandatory statute, be compelled to act
favorably (37 C.J.S. 387) since after a close evaluation of the extradition papers, he may hold that federal
and statutory requirements, which are significantly jurisdictional, have not been met (31 Am Jur 2d 819).
Similarly, under an extradition treaty, the executive authority of the requested state has the power to deny
the behest from the requesting state. Accordingly, if after a careful examination of the extradition
documents the Secretary of Foreign Affairs finds that the request fails to meet the requirements of the law
and the treaty, he shall not forward the request to the Department of Justice for the filing of the extradition
petition since non-compliance with the aforesaid requirements will not vest our government with
jurisdiction to effect the extradition.

In this light, it should be observed that the Department of Justice exerted notable efforts in assuring
compliance with the requirements of the law and the treaty since it even informed the U.S. Government of
certain problems in the extradition papers (such as those that are in Spanish and without the official
English translation, and those that are not properly authenticated). In fact, petitioner even admits that
consultation meetings are still supposed to take place between the lawyers in his Department and those
from the U.S. Justice Department. With the meticulous nature of the evaluation, which cannot just be
completed in an abbreviated period of time due to its intricacies, how then can we say that it is a
proceeding that urgently necessitates immediate and prompt action where notice and hearing can be
dispensed with?

Worthy of inquiry is the issue of whether or not there is tentativeness of administrative action. Is private
respondent precluded from enjoying the right to notice and hearing at a later time without prejudice to
him? Here lies the peculiarity and deviant characteristic of the evaluation procedure. On one hand, there is
yet no extraditee, but ironically on the other, it results in an administrative determination which, if
adverse to the person involved, may cause his immediate incarceration. The grant of the request shall lead
to the filing of the extradition petition in court. The "accused" (as Section 2[c] of Presidential Decree No.
1069 calls him), faces the threat of arrest, not only after the extradition petition is filed in court, but even
during the evaluation proceeding itself by virtue of the provisional arrest allowed under the treaty and the
implementing law. The prejudice to the "accused" is thus blatant and manifest.

Plainly, the notice and hearing requirements of administrative due process cannot be dispensed with and
shelved aside.

Apart from the due process clause of the Constitution, private respondent likewise invokes Section 7 of
Article III which reads:

Sec. 7. The right of the people to information on matters of public concern shall be
recognized. Access to official records, and to documents and papers pertaining to official
acts, transactions, or decisions, as well as to government research data used as basis for
policy development, shall be afforded the citizen, subject to such limitations as may be
provided by law.
The above provision guarantees political rights which are available to citizens of the Philippines, namely:
(1) the right to information on matters of public concern, and (2) the corollary right of access to official
records and documents. The general right guaranteed by said provision is the right to information on
matters of public concern. In its implementation, the right of access to official records is likewise
conferred. These cognate or related rights are "subject to limitations as may be provided by law" (Bernas,
The 1987 Phil. Constitution A Reviewer-Primer, 1997 ed., p. 104) and rely on the premise that ultimately
it is an informed and critical public opinion which alone can protect the values of democratic government
(Ibid.).

Petitioner argues that the matters covered by private respondents letter-request dated July 1, 1999 do not
fall under the guarantee of the foregoing provision since the matters contained in the documents requested
are not of public concern. On the other hand, private respondent argues that the distinction between
matters vested with public interest and matters which are of purely private interest only becomes material
when a third person, who is not directly affected by the matters requested, invokes the right to
information. However, if the person invoking the right is the one directly affected thereby, his right to
information becomes absolute.

The concept of matters of public concern escapes exact definition. Strictly speaking, every act of a public
officer in the conduct of the governmental process is a matter of public concern (Bernas, The 1987
Constitution of the Republic of the Philippines, 1996 ed., p. 336). This concept embraces a broad
spectrum of subjects which the public may want to know, either because these directly affect their lives or
simply because such matters arouse the interest of an ordinary citizen (Legaspi v. Civil Service
Commission, 150 SCRA 530 [1987]). Hence, the real party in interest is the people and any citizen has
"standing".

When the individual himself is involved in official government action because said action has a direct
bearing on his life, and may either cause him some kind of deprivation or injury, he actually invokes the
basic right to be notified under Section 1 of the Bill of Rights and not exactly the right to information on
matters of public concern. As to an accused in a criminal proceeding, he invokes Section 14, particularly
the right to be informed of the nature and cause of the accusation against him.

The right to information is implemented by the right of access to information within the control of the
government (Bernas, The 1987 Constitution of the Republic of the Philippines, 1996 ed., p. 337). Such
information may be contained in official records, and in documents and papers pertaining to official acts,
transactions, or decisions.

In the case at bar, the papers requested by private respondent pertain to official government action from
the U. S. Government. No official action from our country has yet been taken. Moreover, the papers have
some relation to matters of foreign relations with the U. S. Government. Consequently, if a third party
invokes this constitutional provision, stating that the extradition papers are matters of public concern
since they may result in the extradition of a Filipino, we are afraid that the balance must be tilted, at such
particular time, in favor of the interests necessary for the proper functioning of the government. During
the evaluation procedure, no official governmental action of our own government has as yet been done;
hence the invocation of the right is premature. Later, and in contrast, records of the extradition hearing
would already fall under matters of public concern, because our government by then shall have already
made an official decision to grant the extradition request. The extradition of a fellow Filipino would be
forthcoming.

We now pass upon the final issue pertinent to the subject matter of the instant controversy: Would private
respondents entitlement to notice and hearing during the evaluation stage of the proceedings constitute a
breach of the legal duties of the Philippine Government under the RP-Extradition Treaty? Assuming the
answer is in the affirmative, is there really a conflict between the treaty and the due process clause in the
Constitution?

First and foremost, let us categorically say that this is not the proper time to pass upon the
constitutionality of the provisions of the RP-US Extradition Treaty nor the Extradition Law implementing
the same. We limit ourselves only to the effect of the grant of the basic rights of notice and hearing to
private respondent on foreign relations.

The rule of pacta sunt servanda, one of the oldest and most fundamental maxims of international law,
requires the parties to a treaty to keep their agreement therein in good faith. The observance of our
country's legal duties under a treaty is also compelled by Section 2, Article II of the Constitution which
provides that "[t]he Philippines renounces war as an instrument of national policy, adopts the generally
accepted principles of international law as part of the law of the land, and adheres to the policy of peace,
equality, justice, freedom, cooperation and amity with all nations." Under the doctrine of incorporation,
rules of international law form part of the law of the land and no further legislative action is needed to
make such rules applicable in the domestic sphere (Salonga & Yap, Public International Law, 1992 ed., p.
12).

The doctrine of incorporation is applied whenever municipal tribunals (or local courts) are confronted
with situations in which there appears to be a conflict between a rule of international law and the
provisions of the constitution or statute of the local state. Efforts should first be exerted to harmonize
them, so as to give effect to both since it is to be presumed that municipal law was enacted with proper
regard for the generally accepted principles of international law in observance of the Incorporation Clause
in the above-cited constitutional provision (Cruz, Philippine Political Law, 1996 ed., p. 55). In a situation,
however, where the conflict is irreconcilable and a choice has to be made between a rule of international
law and municipal law, jurisprudence dictates that municipal law should be upheld by the municipal
courts (Ichong vs. Hernandez, 101 Phil. 1155 [1957]; Gonzales vs. Hechanova, 9 SCRA 230 [1963]; In
re: Garcia, 2 SCRA 984 [1961]) for the reason that such courts are organs of municipal law and are
accordingly bound by it in all circumstances (Salonga & Yap, op. cit., p. 13). The fact that international
law has been made part of the law of the land does not pertain to or imply the primacy of international
law over national or municipal law in the municipal sphere. The doctrine of incorporation, as applied in
most countries, decrees that rules of international law are given equal standing with, but are not superior
to, national legislative enactments. Accordingly, the principle lex posterior derogat priori takes effect a
treaty may repeal a statute and a statute may repeal a treaty. In states where the constitution is the highest
law of the land, such as the Republic of the Philippines, both statutes and treaties may be invalidated if
they are in conflict with the constitution (Ibid.).

In the case at bar, is there really a conflict between international law and municipal or national law? En
contrario, these two components of the law of the land are not pitted against each other. There is no
occasion to choose which of the two should be upheld. Instead, we see a void in the provisions of the RP-
US Extradition Treaty, as implemented by Presidential Decree No. 1069, as regards the basic due process
rights of a prospective extraditee at the evaluation stage of extradition proceedings. From the procedures
earlier abstracted, after the filing of the extradition petition and during the judicial determination of the
propriety of extradition, the rights of notice and hearing are clearly granted to the prospective extraditee.
However, prior thereto, the law is silent as to these rights. Reference to the U.S. extradition procedures
also manifests this silence.
Petitioner interprets this silence as unavailability of these rights. Consequently, he describes the
evaluation procedure as an "ex parte technical assessment" of the sufficiency of the extradition request
and the supporting documents.

We disagree.

In the absence of a law or principle of law, we must apply the rules of fair play. An application of the
basic twin due process rights of notice and hearing will not go against the treaty or the implementing law.
Neither the Treaty nor the Extradition Law precludes these rights from a prospective extraditee. Similarly,
American jurisprudence and procedures on extradition pose no proscription. In fact, in interstate
extradition proceedings as explained above, the prospective extraditee may even request for copies of the
extradition documents from the governor of the asylum state, and if he does, his right to be supplied the
same becomes a demandable right (35 C.J.S. 410).

Petitioner contends that the United States requested the Philippine Government to prevent unauthorized
disclosure of confidential information. Hence, the secrecy surrounding the action of the Department of
Justice Panel of Attorneys. The confidentiality argument is, however, overturned by petitioners revelation
that everything it refuses to make available at this stage would be obtainable during trial. The Department
of Justice states that the U.S. District Court concerned has authorized the disclosure of certain grand jury
information. If the information is truly confidential, the veil of secrecy cannot be lifted at any stage of the
extradition proceedings. Not even during trial.

A libertarian approach is thus called for under the premises.

One will search in vain the RP-US Extradition Treaty, the Extradition Law, as well as American
jurisprudence and procedures on extradition, for any prohibition against the conferment of the two basic
due process rights of notice and hearing during the evaluation stage of the extradition proceedings. We
have to consider similar situations in jurisprudence for an application by analogy.

Earlier, we stated that there are similarities between the evaluation process and a preliminary
investigation since both procedures may result in the arrest of the respondent or the prospective
extraditee. In the evaluation process, a provisional arrest is even allowed by the Treaty and the Extradition
Law (Article 9, RP-US Extradition Treaty; Sec. 20, Presidential Decree No. 1069). Following petitioners
theory, because there is no provision of its availability, does this imply that for a period of time, the
privilege of the writ of habeas corpus is suspended, despite Section 15, Article III of the Constitution
which states that "[t]he privilege of the writ of habeas corpus shall not be suspended except in cases of
invasion or rebellion when the public safety requires it"? Petitioners theory would also infer that bail is
not available during the arrest of the prospective extraditee when the extradition petition has already been
filed in court since Presidential Decree No. 1069 does not provide therefor, notwithstanding Section 13,
Article III of the Constitution which provides that "[a]ll persons, except those charged with offenses
punishable by reclusion perpetua when evidence of guilt is strong, shall, before conviction, be bailable by
sufficient sureties, or be released on recognizance as may be provided by law. The right to bail shall not
be impaired even when the privilege of the writ of habeas corpus is suspended " Can petitioner validly
argue that since these contraventions are by virtue of a treaty and hence affecting foreign relations, the
aforestated guarantees in the Bill of Rights could thus be subservient thereto?

The basic principles of administrative law instruct us that "the essence of due process in administrative
proceedings is an opportunity to explain ones side or an opportunity to seek reconsideration of the actions
or ruling complained of (Mirano vs. NLRC, 270 SCRA 96 [1997]; Padilla vs. NLRC, 273 SCRA 457
[1997]; PLDT vs. NLRC, 276 SCRA 1 [1997]; Helpmate, Inc. vs. NLRC, 276 SCRA 315 [1997]; Aquinas
School vs. Magnaye, 278 SCRA 602 [1997]; Jamer vs. NLRC, 278 SCRA 632 [1997]). In essence,
procedural due process refers to the method or manner by which the law is enforced (Corona vs. United
Harbor Pilots Association of the Phils., 283 SCRA 31 [1997]). This Court will not tolerate the least
disregard of constitutional guarantees in the enforcement of a law or treaty. Petitioners fears that the
Requesting State may have valid objections to the Requested States non-performance of its commitments
under the Extradition Treaty are insubstantial and should not be given paramount consideration.

How then do we implement the RP-US Extradition Treaty? Do we limit ourselves to the four corners of
Presidential Decree No. 1069?

Of analogous application are the rulings in Government Service Insurance System vs. Court of
Appeals (201 SCRA 661 [1991]) and Go vs. National Police Commission (271 SCRA 447 [1997]) where
we ruled that in summary proceedings under Presidential Decree No. 807 (Providing for the Organization
of the Civil Service Commission in Accordance with Provisions of the Constitution, Prescribing its
Powers and Functions and for Other Purposes), and Presidential Decree No. 971 (Providing Legal
Assistance for Members of the Integrated National Police who may be charged for Service-Connected
Offenses and Improving the Disciplinary System in the Integrated National Police, Appropriating Funds
Therefor and for other purposes), as amended by Presidential Decree No. 1707, although summary
dismissals may be effected without the necessity of a formal investigation, the minimum requirements of
due process still operate. As held in GSIS vs. Court of Appeals:

... [I]t is clear to us that what the opening sentence of Section 40 is saying is that an
employee may be removed or dismissed even without formal investigation, in certain
instances. It is equally clear to us that an employee must be informed of the charges
preferred against him, and that the normal way by which the employee is so informed is
by furnishing him with a copy of the charges against him. This is a basic procedural
requirement that a statute cannot dispense with and still remain consistent with the
constitutional provision on due process. The second minimum requirement is that the
employee charged with some misfeasance or malfeasance must have a reasonable
opportunity to present his side of the matter, that is to say, his defenses against the
charges levelled against him and to present evidence in support of his
defenses.

(at p. 671)

Said summary dismissal proceedings are also non-litigious in nature, yet we upheld the due process rights
of the respondent.

In the case at bar, private respondent does not only face a clear and present danger of loss of property or
employment, but of liberty itself, which may eventually lead to his forcible banishment to a foreign land.
The convergence of petitioners favorable action on the extradition request and the deprivation of private
respondents liberty is easily comprehensible.

We have ruled time and again that this Courts equity jurisdiction, which is aptly described as "justice
outside legality," may be availed of only in the absence of, and never against, statutory law or judicial
pronouncements (Smith Bell & Co., Inc. vs. Court of Appeals, 267 SCRA 530 [1997]; David-Chan vs.
Court of Appeals, 268 SCRA 677 [1997]). The constitutional issue in the case at bar does not even call for
"justice outside legality," since private respondents due process rights, although not guaranteed by statute
or by treaty, are protected by constitutional guarantees. We would not be true to the organic law of the
land if we choose strict construction over guarantees against the deprivation of liberty. That would not be
in keeping with the principles of democracy on which our Constitution is premised.

Verily, as one traverses treacherous waters of conflicting and opposing currents of liberty and government
authority, he must ever hold the oar of freedom in the stronger arm, lest an errant and wayward course be
laid.

WHEREFORE, in view of the foregoing premises, the instant petition is hereby DISMISSED for lack of
merit. Petitioner is ordered to furnish private respondent copies of the extradition request and its
supporting papers, and to grant him a reasonable period within which to file his comment with supporting
evidence. The incidents in Civil Case No. 99-94684 having been rendered moot and academic by this
decision, the same is hereby ordered dismissed.

SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-7995 May 31, 1957

LAO H. ICHONG, in his own behalf and in behalf of other alien residents, corporations
and partnerships adversely affected. by Republic Act No. 1180, petitioner,
vs.
JAIME HERNANDEZ, Secretary of Finance, and MARCELINO SARMIENTO, City Treasurer
of Manila,respondents.

Ozaeta, Lichauco and Picazo and Sycip, Quisumbing, Salazar and Associates for petitioner.
Office of the Solicitor General Ambrosio Padilla and Solicitor Pacifico P. de Castro for
respondent Secretary of Finance.
City Fiscal Eugenio Angeles and Assistant City Fiscal Eulogio S. Serrano for respondent City
Treasurer.
Dionisio Reyes as Amicus Curiae.
Marcial G. Mendiola as Amicus Curiae.
Emiliano R. Navarro as Amicus Curiae.

LABRADOR, J.:

I. The case and issue, in general

This Court has before it the delicate task of passing upon the validity and constitutionality of a
legislative enactment, fundamental and far-reaching in significance. The enactment poses
questions of due process, police power and equal protection of the laws. It also poses an
important issue of fact, that is whether the conditions which the disputed law purports to remedy
really or actually exist. Admittedly springing from a deep, militant, and positive nationalistic
impulse, the law purports to protect citizen and country from the alien retailer. Through it, and
within the field of economy it regulates, Congress attempts to translate national aspirations for
economic independence and national security, rooted in the drive and urge for national survival
and welfare, into a concrete and tangible measures designed to free the national retailer from
the competing dominance of the alien, so that the country and the nation may be free from a
supposed economic dependence and bondage. Do the facts and circumstances justify the
enactment?

II. Pertinent provisions of Republic Act No. 1180

Republic Act No. 1180 is entitled "An Act to Regulate the Retail Business." In effect it
nationalizes the retail trade business. The main provisions of the Act are: (1) a prohibition
against persons, not citizens of the Philippines, and against associations, partnerships, or
corporations the capital of which are not wholly owned by citizens of the Philippines, from
engaging directly or indirectly in the retail trade; (2) an exception from the above prohibition in
favor of aliens actually engaged in said business on May 15, 1954, who are allowed to continue
to engaged therein, unless their licenses are forfeited in accordance with the law, until their
death or voluntary retirement in case of natural persons, and for ten years after the approval of
the Act or until the expiration of term in case of juridical persons; (3) an exception therefrom in
favor of citizens and juridical entities of the United States; (4) a provision for the forfeiture of
licenses (to engage in the retail business) for violation of the laws on nationalization, control
weights and measures and labor and other laws relating to trade, commerce and industry; (5) a
prohibition against the establishment or opening by aliens actually engaged in the retail
business of additional stores or branches of retail business, (6) a provision requiring aliens
actually engaged in the retail business to present for registration with the proper authorities a
verified statement concerning their businesses, giving, among other matters, the nature of the
business, their assets and liabilities and their offices and principal offices of judicial entities; and
(7) a provision allowing the heirs of aliens now engaged in the retail business who die, to
continue such business for a period of six months for purposes of liquidation.

III. Grounds upon which petition is based-Answer thereto

Petitioner, for and in his own behalf and on behalf of other alien residents corporations and
partnerships adversely affected by the provisions of Republic Act. No. 1180, brought this action
to obtain a judicial declaration that said Act is unconstitutional, and to enjoin the Secretary of
Finance and all other persons acting under him, particularly city and municipal treasurers, from
enforcing its provisions. Petitioner attacks the constitutionality of the Act, contending that: (1) it
denies to alien residents the equal protection of the laws and deprives of their liberty and
property without due process of law ; (2) the subject of the Act is not expressed or
comprehended in the title thereof; (3) the Act violates international and treaty obligations of the
Republic of the Philippines; (4) the provisions of the Act against the transmission by aliens of
their retail business thru hereditary succession, and those requiring 100% Filipino capitalization
for a corporation or entity to entitle it to engage in the retail business, violate the spirit of
Sections 1 and 5, Article XIII and Section 8 of Article XIV of the Constitution.

In answer, the Solicitor-General and the Fiscal of the City of Manila contend that: (1) the Act
was passed in the valid exercise of the police power of the State, which exercise is authorized in
the Constitution in the interest of national economic survival; (2) the Act has only one subject
embraced in the title; (3) no treaty or international obligations are infringed; (4) as regards
hereditary succession, only the form is affected but the value of the property is not impaired,
and the institution of inheritance is only of statutory origin.

IV. Preliminary consideration of legal principles involved

a. The police power.

There is no question that the Act was approved in the exercise of the police power, but
petitioner claims that its exercise in this instance is attended by a violation of the constitutional
requirements of due process and equal protection of the laws. But before proceeding to the
consideration and resolution of the ultimate issue involved, it would be well to bear in mind
certain basic and fundamental, albeit preliminary, considerations in the determination of the ever
recurrent conflict between police power and the guarantees of due process and equal protection
of the laws. What is the scope of police power, and how are the due process and equal
protection clauses related to it? What is the province and power of the legislature, and what is
the function and duty of the courts? These consideration must be clearly and correctly
understood that their application to the facts of the case may be brought forth with clarity and
the issue accordingly resolved.
It has been said the police power is so far - reaching in scope, that it has become almost
impossible to limit its sweep. As it derives its existence from the very existence of the State
itself, it does not need to be expressed or defined in its scope; it is said to be co-extensive with
self-protection and survival, and as such it is the most positive and active of all governmental
processes, the most essential, insistent and illimitable. Especially is it so under a modern
democratic framework where the demands of society and of nations have multiplied to almost
unimaginable proportions; the field and scope of police power has become almost boundless,
just as the fields of public interest and public welfare have become almost all-embracing and
have transcended human foresight. Otherwise stated, as we cannot foresee the needs and
demands of public interest and welfare in this constantly changing and progressive world, so we
cannot delimit beforehand the extent or scope of police power by which and through which the
State seeks to attain or achieve interest or welfare. So it is that Constitutions do not define the
scope or extent of the police power of the State; what they do is to set forth the limitations
thereof. The most important of these are the due process clause and the equal protection
clause.

b. Limitations on police power.

The basic limitations of due process and equal protection are found in the following provisions of
our Constitution:

SECTION 1.(1) No person shall be deprived of life, liberty or property without due
process of law, nor any person be denied the equal protection of the laws. (Article III,
Phil. Constitution)

These constitutional guarantees which embody the essence of individual liberty and freedom in
democracies, are not limited to citizens alone but are admittedly universal in their application,
without regard to any differences of race, of color, or of nationality. (Yick Wo vs. Hopkins, 30, L.
ed. 220, 226.)

c. The, equal protection clause.

The equal protection of the law clause is against undue favor and individual or class privilege,
as well as hostile discrimination or the oppression of inequality. It is not intended to prohibit
legislation, which is limited either in the object to which it is directed or by territory within which
is to operate. It does not demand absolute equality among residents; it merely requires that all
persons shall be treated alike, under like circumstances and conditions both as to privileges
conferred and liabilities enforced. The equal protection clause is not infringed by legislation
which applies only to those persons falling within a specified class, if it applies alike to all
persons within such class, and reasonable grounds exists for making a distinction between
those who fall within such class and those who do not. (2 Cooley, Constitutional Limitations,
824-825.)

d. The due process clause.

The due process clause has to do with the reasonableness of legislation enacted in pursuance
of the police power. Is there public interest, a public purpose; is public welfare involved? Is the
Act reasonably necessary for the accomplishment of the legislature's purpose; is it not
unreasonable, arbitrary or oppressive? Is there sufficient foundation or reason in connection
with the matter involved; or has there not been a capricious use of the legislative power? Can
the aims conceived be achieved by the means used, or is it not merely an unjustified
interference with private interest? These are the questions that we ask when the due process
test is applied.

The conflict, therefore, between police power and the guarantees of due process and equal
protection of the laws is more apparent than real. Properly related, the power and the
guarantees are supposed to coexist. The balancing is the essence or, shall it be said, the
indispensable means for the attainment of legitimate aspirations of any democratic society.
There can be no absolute power, whoever exercise it, for that would be tyranny. Yet there can
neither be absolute liberty, for that would mean license and anarchy. So the State can deprive
persons of life, liberty and property, provided there is due process of law; and persons may be
classified into classes and groups, provided everyone is given the equal protection of the law.
The test or standard, as always, is reason. The police power legislation must be firmly grounded
on public interest and welfare, and a reasonable relation must exist between purposes and
means. And if distinction and classification has been made, there must be a reasonable basis
for said distinction.

e. Legislative discretion not subject to judicial review.

Now, in this matter of equitable balancing, what is the proper place and role of the courts? It
must not be overlooked, in the first place, that the legislature, which is the constitutional
repository of police power and exercises the prerogative of determining the policy of the State,
is by force of circumstances primarily the judge of necessity, adequacy or reasonableness and
wisdom, of any law promulgated in the exercise of the police power, or of the measures adopted
to implement the public policy or to achieve public interest. On the other hand, courts, although
zealous guardians of individual liberty and right, have nevertheless evinced a reluctance to
interfere with the exercise of the legislative prerogative. They have done so early where there
has been a clear, patent or palpable arbitrary and unreasonable abuse of the legislative
prerogative. Moreover, courts are not supposed to override legitimate policy, and courts never
inquire into the wisdom of the law.

V. Economic problems sought to be remedied

With the above considerations in mind, we will now proceed to delve directly into the issue
involved. If the disputed legislation were merely a regulation, as its title indicates, there would be
no question that it falls within the legitimate scope of legislative power. But it goes further and
prohibits a group of residents, the aliens, from engaging therein. The problem becomes more
complex because its subject is a common, trade or occupation, as old as society itself, which
from the immemorial has always been open to residents, irrespective of race, color or
citizenship.

a. Importance of retail trade in the economy of the nation.

In a primitive economy where families produce all that they consume and consume all that they
produce, the dealer, of course, is unknown. But as group life develops and families begin to live
in communities producing more than what they consume and needing an infinite number of
things they do not produce, the dealer comes into existence. As villages develop into big
communities and specialization in production begins, the dealer's importance is enhanced.
Under modern conditions and standards of living, in which man's needs have multiplied and
diversified to unlimited extents and proportions, the retailer comes as essential as the producer,
because thru him the infinite variety of articles, goods and needed for daily life are placed within
the easy reach of consumers. Retail dealers perform the functions of capillaries in the human
body, thru which all the needed food and supplies are ministered to members of the
communities comprising the nation.

There cannot be any question about the importance of the retailer in the life of the community.
He ministers to the resident's daily needs, food in all its increasing forms, and the various little
gadgets and things needed for home and daily life. He provides his customers around his store
with the rice or corn, the fish, the salt, the vinegar, the spices needed for the daily cooking. He
has cloths to sell, even the needle and the thread to sew them or darn the clothes that wear out.
The retailer, therefore, from the lowly peddler, the owner of a small sari-sari store, to the
operator of a department store or, a supermarket is so much a part of day-to-day existence.

b. The alien retailer's trait.

The alien retailer must have started plying his trades in this country in the bigger centers of
population (Time there was when he was unknown in provincial towns and villages). Slowly but
gradually be invaded towns and villages; now he predominates in the cities and big centers of
population. He even pioneers, in far away nooks where the beginnings of community life
appear, ministering to the daily needs of the residents and purchasing their agricultural produce
for sale in the towns. It is an undeniable fact that in many communities the alien has replaced
the native retailer. He has shown in this trade, industry without limit, and the patience and
forbearance of a slave.

Derogatory epithets are hurled at him, but he laughs these off without murmur; insults of ill-bred
and insolent neighbors and customers are made in his face, but he heeds them not, and he
forgets and forgives. The community takes note of him, as he appears to be harmless and
extremely useful.

c. Alleged alien control and dominance.

There is a general feeling on the part of the public, which appears to be true to fact, about the
controlling and dominant position that the alien retailer holds in the nation's economy. Food and
other essentials, clothing, almost all articles of daily life reach the residents mostly through him.
In big cities and centers of population he has acquired not only predominance, but apparent
control over distribution of almost all kinds of goods, such as lumber, hardware, textiles,
groceries, drugs, sugar, flour, garlic, and scores of other goods and articles. And were it not for
some national corporations like the Naric, the Namarco, the Facomas and the Acefa, his control
over principal foods and products would easily become full and complete.

Petitioner denies that there is alien predominance and control in the retail trade. In one breath it
is said that the fear is unfounded and the threat is imagined; in another, it is charged that the
law is merely the result of radicalism and pure and unabashed nationalism. Alienage, it is said,
is not an element of control; also so many unmanageable factors in the retail business make
control virtually impossible. The first argument which brings up an issue of fact merits serious
consideration. The others are matters of opinion within the exclusive competence of the
legislature and beyond our prerogative to pass upon and decide.

The best evidence are the statistics on the retail trade, which put down the figures in black and
white. Between the constitutional convention year (1935), when the fear of alien domination and
control of the retail trade already filled the minds of our leaders with fears and misgivings, and
the year of the enactment of the nationalization of the retail trade act (1954), official statistics
unmistakably point out to the ever-increasing dominance and control by the alien of the retail
trade, as witness the following tables:

Assets Gross Sales


Year and
No.- Per cent Per cent
Retailers Pesos Pesos
Establishments Distribution Distribution
Nationality
1941:
Filipino 106,671 200,323,138 55.82 174,181,924 51.74
..........
Chinese 15,356 118,348,692 32.98 148,813,239 44.21
...........
Others 1,646 40,187,090 11.20 13,630,239 4.05
............
1947:
Filipino 111,107 208,658,946 65.05 279,583,333 57.03
..........
Chinese 13,774 106,156,218 33.56 205,701,134 41.96
...........
Others 354 8,761,260 .49 4,927,168 1.01
...........
1948: (Census)
Filipino 113,631 213,342,264 67.30 467,161,667 60.51
..........
Chinese 12,087 93,155,459 29.38 294,894,227 38.20
..........
Others 422 10,514,675 3.32 9,995,402 1.29
..........
1949:
Filipino 113,659 213,451,602 60.89 462,532,901 53.47
..........
Chinese 16,248 125,223,336 35.72 392,414,875 45.36
..........
Others 486 12,056,365 3.39 10,078,364 1.17
..........
1951:
Filipino 119,352 224,053,620 61.09 466,058,052 53.07
.........
Chinese 17,429 134,325,303 36.60 404,481,384 46.06
..........
Others 347 8,614,025 2.31 7,645,327 87
..........

AVERAGE
ASSETS AND GROSS SALES PER ESTABLISHMENT

Item Gross
Year and Retailer's
Assets Sales
Nationality
(Pesos) (Pesos)

1941:

Filipino 1,878 1,633


.............................................

Chinese 7,707 9,691


..............................................

Others 24,415 8,281


...............................................

1947:

Filipino 1,878 2,516


.............................................

Chinese 7,707 14,934


...........................................

Others 24,749 13,919


..............................................

1948: (Census)

Filipino 1,878 4,111


.............................................

Chinese 7,707 24,398


.............................................

Others 24,916 23,686


..............................................

1949:

Filipino 1,878 4,069


.............................................

Chinese 7,707 24,152


..............................................
Others 24,807 20,737
..............................................

1951:

Filipino 1,877 3,905


.............................................

Chinese 7,707 33,207


.............................................

Others 24,824 22,033


...............................................

(Estimated Assets and Gross Sales of Retail Establishments, By Year and Nationality of
Owners, Benchmark: 1948 Census, issued by the Bureau of Census and Statistics,
Department of Commerce and Industry; pp. 18-19 of Answer.)

The above statistics do not include corporations and partnerships, while the figures on Filipino
establishments already include mere market vendors, whose capital is necessarily small..

The above figures reveal that in percentage distribution of assests and gross sales, alien
participation has steadily increased during the years. It is true, of course, that Filipinos have the
edge in the number of retailers, but aliens more than make up for the numerical gap through
their assests and gross sales which average between six and seven times those of the very
many Filipino retailers. Numbers in retailers, here, do not imply superiority; the alien invests
more capital, buys and sells six to seven times more, and gains much more. The same official
report, pointing out to the known predominance of foreign elements in the retail trade, remarks
that the Filipino retailers were largely engaged in minor retailer enterprises. As observed by
respondents, the native investment is thinly spread, and the Filipino retailer is practically
helpless in matters of capital, credit, price and supply.

d. Alien control and threat, subject of apprehension in Constitutional convention.

It is this domination and control, which we believe has been sufficiently shown to exist, that is
the legislature's target in the enactment of the disputed nationalization would never have been
adopted. The framers of our Constitution also believed in the existence of this alien dominance
and control when they approved a resolution categorically declaring among other things, that "it
is the sense of the Convention that the public interest requires the nationalization of the retail
trade; . . . ." (II Aruego, The Framing of the Philippine Constitution, 662-663, quoted on page 67
of Petitioner.) That was twenty-two years ago; and the events since then have not been either
pleasant or comforting. Dean Sinco of the University of the Philippines College of Law,
commenting on the patrimony clause of the Preamble opines that the fathers of our Constitution
were merely translating the general preoccupation of Filipinos "of the dangers from alien
interests that had already brought under their control the commercial and other economic
activities of the country" (Sinco, Phil. Political Law, 10th ed., p. 114); and analyzing the concern
of the members of the constitutional convention for the economic life of the citizens, in
connection with the nationalistic provisions of the Constitution, he says:
But there has been a general feeling that alien dominance over the economic life of the
country is not desirable and that if such a situation should remain, political independence
alone is no guarantee to national stability and strength. Filipino private capital is not big
enough to wrest from alien hands the control of the national economy. Moreover, it is but
of recent formation and hence, largely inexperienced, timid and hesitant. Under such
conditions, the government as the instrumentality of the national will, has to step in and
assume the initiative, if not the leadership, in the struggle for the economic freedom of
the nation in somewhat the same way that it did in the crusade for political freedom.
Thus . . . it (the Constitution) envisages an organized movement for the protection of the
nation not only against the possibilities of armed invasion but also against its economic
subjugation by alien interests in the economic field. (Phil. Political Law by Sinco, 10th
ed., p. 476.)

Belief in the existence of alien control and predominance is felt in other quarters. Filipino
businessmen, manufacturers and producers believe so; they fear the dangers coming from alien
control, and they express sentiments of economic independence. Witness thereto is Resolution
No. 1, approved on July 18, 1953, of the Fifth National convention of Filipino Businessmen, and
a similar resolution, approved on March 20, 1954, of the Second National Convention of
Manufacturers and Producers. The man in the street also believes, and fears, alien
predominance and control; so our newspapers, which have editorially pointed out not only to
control but to alien stranglehold. We, therefore, find alien domination and control to be a fact, a
reality proved by official statistics, and felt by all the sections and groups that compose the
Filipino community.

e. Dangers of alien control and dominance in retail.

But the dangers arising from alien participation in the retail trade does not seem to lie in the
predominance alone; there is a prevailing feeling that such predominance may truly endanger
the national interest. With ample capital, unity of purpose and action and thorough organization,
alien retailers and merchants can act in such complete unison and concert on such vital matters
as the fixing of prices, the determination of the amount of goods or articles to be made available
in the market, and even the choice of the goods or articles they would or would not patronize or
distribute, that fears of dislocation of the national economy and of the complete subservience of
national economy and of the consuming public are not entirely unfounded. Nationals, producers
and consumers alike can be placed completely at their mercy. This is easily illustrated. Suppose
an article of daily use is desired to be prescribed by the aliens, because the producer or
importer does not offer them sufficient profits, or because a new competing article offers bigger
profits for its introduction. All that aliens would do is to agree to refuse to sell the first article,
eliminating it from their stocks, offering the new one as a substitute. Hence, the producers or
importers of the prescribed article, or its consumers, find the article suddenly out of the
prescribed article, or its consumers, find the article suddenly out of circulation. Freedom of trade
is thus curtailed and free enterprise correspondingly suppressed.

We can even go farther than theoretical illustrations to show the pernicious influences of alien
domination. Grave abuses have characterized the exercise of the retail trade by aliens. It is a
fact within judicial notice, which courts of justice may not properly overlook or ignore in the
interests of truth and justice, that there exists a general feeling on the part of the public that
alien participation in the retail trade has been attended by a pernicious and intolerable practices,
the mention of a few of which would suffice for our purposes; that at some time or other they
have cornered the market of essential commodities, like corn and rice, creating artificial
scarcities to justify and enhance profits to unreasonable proportions; that they have hoarded
essential foods to the inconvenience and prejudice of the consuming public, so much so that the
Government has had to establish the National Rice and Corn Corporation to save the public
from their continuous hoarding practices and tendencies; that they have violated price control
laws, especially on foods and essential commodities, such that the legislature had to enact a
law (Sec. 9, Republic Act No. 1168), authorizing their immediate and automatic deportation for
price control convictions; that they have secret combinations among themselves to control
prices, cheating the operation of the law of supply and demand; that they have connived to
boycott honest merchants and traders who would not cater or yield to their demands, in unlawful
restraint of freedom of trade and enterprise. They are believed by the public to have evaded tax
laws, smuggled goods and money into and out of the land, violated import and export
prohibitions, control laws and the like, in derision and contempt of lawful authority. It is also
believed that they have engaged in corrupting public officials with fabulous bribes, indirectly
causing the prevalence of graft and corruption in the Government. As a matter of fact appeals to
unscrupulous aliens have been made both by the Government and by their own lawful
diplomatic representatives, action which impliedly admits a prevailing feeling about the
existence of many of the above practices.

The circumstances above set forth create well founded fears that worse things may come in the
future. The present dominance of the alien retailer, especially in the big centers of population,
therefore, becomes a potential source of danger on occasions of war or other calamity. We do
not have here in this country isolated groups of harmless aliens retailing goods among
nationals; what we have are well organized and powerful groups that dominate the distribution
of goods and commodities in the communities and big centers of population. They owe no
allegiance or loyalty to the State, and the State cannot rely upon them in times of crisis or
emergency. While the national holds his life, his person and his property subject to the needs of
his country, the alien may even become the potential enemy of the State.

f. Law enacted in interest of national economic survival and security.

We are fully satisfied upon a consideration of all the facts and circumstances that the disputed
law is not the product of racial hostility, prejudice or discrimination, but the expression of the
legitimate desire and determination of the people, thru their authorized representatives, to free
the nation from the economic situation that has unfortunately been saddled upon it rightly or
wrongly, to its disadvantage. The law is clearly in the interest of the public, nay of the national
security itself, and indisputably falls within the scope of police power, thru which and by which
the State insures its existence and security and the supreme welfare of its citizens.

VI. The Equal Protection Limitation

a. Objections to alien participation in retail trade. The next question that now poses solution
is, Does the law deny the equal protection of the laws? As pointed out above, the mere fact of
alienage is the root and cause of the distinction between the alien and the national as a trader.
The alien resident owes allegiance to the country of his birth or his adopted country; his stay
here is for personal convenience; he is attracted by the lure of gain and profit. His aim or
purpose of stay, we admit, is neither illegitimate nor immoral, but he is naturally lacking in that
spirit of loyalty and enthusiasm for this country where he temporarily stays and makes his living,
or of that spirit of regard, sympathy and consideration for his Filipino customers as would
prevent him from taking advantage of their weakness and exploiting them. The faster he makes
his pile, the earlier can the alien go back to his beloved country and his beloved kin and
countrymen. The experience of the country is that the alien retailer has shown such utter
disregard for his customers and the people on whom he makes his profit, that it has been found
necessary to adopt the legislation, radical as it may seem.

Another objection to the alien retailer in this country is that he never really makes a genuine
contribution to national income and wealth. He undoubtedly contributes to general distribution,
but the gains and profits he makes are not invested in industries that would help the country's
economy and increase national wealth. The alien's interest in this country being merely transient
and temporary, it would indeed be ill-advised to continue entrusting the very important function
of retail distribution to his hands.

The practices resorted to by aliens in the control of distribution, as already pointed out above,
their secret manipulations of stocks of commodities and prices, their utter disregard of the
welfare of their customers and of the ultimate happiness of the people of the nation of which
they are mere guests, which practices, manipulations and disregard do not attend the exercise
of the trade by the nationals, show the existence of real and actual, positive and fundamental
differences between an alien and a national which fully justify the legislative classification
adopted in the retail trade measure. These differences are certainly a valid reason for the State
to prefer the national over the alien in the retail trade. We would be doing violence to fact and
reality were we to hold that no reason or ground for a legitimate distinction can be found
between one and the other.

b. Difference in alien aims and purposes sufficient basis for distinction.

The above objectionable characteristics of the exercise of the retail trade by the aliens, which
are actual and real, furnish sufficient grounds for legislative classification of retail traders into
nationals and aliens. Some may disagree with the wisdom of the legislature's classification. To
this we answer, that this is the prerogative of the law-making power. Since the Court finds that
the classification is actual, real and reasonable, and all persons of one class are treated alike,
and as it cannot be said that the classification is patently unreasonable and unfounded, it is in
duty bound to declare that the legislature acted within its legitimate prerogative and it can not
declare that the act transcends the limit of equal protection established by the Constitution.

Broadly speaking, the power of the legislature to make distinctions and classifications among
persons is not curtailed or denied by the equal protection of the laws clause. The legislative
power admits of a wide scope of discretion, and a law can be violative of the constitutional
limitation only when the classification is without reasonable basis. In addition to the authorities
we have earlier cited, we can also refer to the case of Linsey vs. Natural Carbonic Fas Co.
(1911), 55 L. ed., 369, which clearly and succinctly defined the application of equal protection
clause to a law sought to be voided as contrary thereto:

. . . . "1. The equal protection clause of the Fourteenth Amendment does not take from
the state the power to classify in the adoption of police laws, but admits of the exercise
of the wide scope of discretion in that regard, and avoids what is done only when it is
without any reasonable basis, and therefore is purely arbitrary. 2. A classification having
some reasonable basis does not offend against that clause merely because it is not
made with mathematical nicety, or because in practice it results in some inequality. 3.
When the classification in such a law is called in question, if any state of facts
reasonably can be conceived that would sustain it, the existence of that state of facts at
the time the law was enacted must be assumed. 4. One who assails the classification in
such a law must carry the burden of showing that it does not rest upon any reasonable
basis but is essentially arbitrary."

c. Authorities recognizing citizenship as basis for classification.

The question as to whether or not citizenship is a legal and valid ground for classification has
already been affirmatively decided in this jurisdiction as well as in various courts in the United
States. In the case of Smith Bell & Co. vs. Natividad, 40 Phil. 136, where the validity of Act No.
2761 of the Philippine Legislature was in issue, because of a condition therein limiting the
ownership of vessels engaged in coastwise trade to corporations formed by citizens of the
Philippine Islands or the United States, thus denying the right to aliens, it was held that the
Philippine Legislature did not violate the equal protection clause of the Philippine Bill of Rights.
The legislature in enacting the law had as ultimate purpose the encouragement of Philippine
shipbuilding and the safety for these Islands from foreign interlopers. We held that this was a
valid exercise of the police power, and all presumptions are in favor of its constitutionality. In
substance, we held that the limitation of domestic ownership of vessels engaged in coastwise
trade to citizens of the Philippines does not violate the equal protection of the law and due
process or law clauses of the Philippine Bill of Rights. In rendering said decision we quoted with
approval the concurring opinion of Justice Johnson in the case of Gibbons vs. Ogden, 9 Wheat.,
I, as follows:

"Licensing acts, in fact, in legislation, are universally restraining acts; as, for example,
acts licensing gaming houses, retailers of spirituous liquors, etc. The act, in this
instance, is distinctly of that character, and forms part of an extensive system, the object
of which is to encourage American shipping, and place them on an equal footing with the
shipping of other nations. Almost every commercial nation reserves to its own subjects a
monopoly of its coasting trade; and a countervailing privilege in favor of American
shipping is contemplated, in the whole legislation of the United States on this subject. It
is not to give the vessel an American character, that the license is granted; that effect
has been correctly attributed to the act of her enrollment. But it is to confer on her
American privileges, as contra distinguished from foreign; and to preserve the
Government from fraud by foreigners; in surreptitiously intruding themselves into the
American commercial marine, as well as frauds upon the revenue in the trade coastwise,
that this whole system is projected."

The rule in general is as follows:

Aliens are under no special constitutional protection which forbids a classification


otherwise justified simply because the limitation of the class falls along the lines of
nationality. That would be requiring a higher degree of protection for aliens as a class
than for similar classes than for similar classes of American citizens. Broadly speaking,
the difference in status between citizens and aliens constitutes a basis for reasonable
classification in the exercise of police power. (2 Am., Jur. 468-469.)

In Commonwealth vs. Hana, 81 N. E. 149 (Massachusetts, 1907), a statute on the licensing of


hawkers and peddlers, which provided that no one can obtain a license unless he is, or has
declared his intention, to become a citizen of the United States, was held valid, for the following
reason: It may seem wise to the legislature to limit the business of those who are supposed to
have regard for the welfare, good order and happiness of the community, and the court cannot
question this judgment and conclusion. In Bloomfield vs. State, 99 N. E. 309 (Ohio, 1912), a
statute which prevented certain persons, among them aliens, from engaging in the traffic of
liquors, was found not to be the result of race hatred, or in hospitality, or a deliberate purpose to
discriminate, but was based on the belief that an alien cannot be sufficiently acquainted with
"our institutions and our life as to enable him to appreciate the relation of this particular business
to our entire social fabric", and was not, therefore, invalid. In Ohio ex rel. Clarke vs. Deckebach,
274 U. S. 392, 71 L. ed. 115 (1926), the U.S. Supreme Court had under consideration an
ordinance of the city of Cincinnati prohibiting the issuance of licenses (pools and billiard rooms)
to aliens. It held that plainly irrational discrimination against aliens is prohibited, but it does not
follow that alien race and allegiance may not bear in some instances such a relation to a
legitimate object of legislation as to be made the basis of permitted classification, and that it
could not state that the legislation is clearly wrong; and that latitude must be allowed for the
legislative appraisement of local conditions and for the legislative choice of methods for
controlling an apprehended evil. The case of State vs. Carrol, 124 N. E. 129 (Ohio, 1919) is a
parallel case to the one at bar. In Asakura vs. City of Seattle, 210 P. 30 (Washington, 1922), the
business of pawn brooking was considered as having tendencies injuring public interest, and
limiting it to citizens is within the scope of police power. A similar statute denying aliens the right
to engage in auctioneering was also sustained in Wright vs. May, L.R.A., 1915 P. 151
(Minnesota, 1914). So also in Anton vs. Van Winkle, 297 F. 340 (Oregon, 1924), the court said
that aliens are judicially known to have different interests, knowledge, attitude, psychology and
loyalty, hence the prohibitions of issuance of licenses to them for the business of pawnbroker,
pool, billiard, card room, dance hall, is not an infringement of constitutional rights. In Templar vs.
Michigan State Board of Examiners, 90 N.W. 1058 (Michigan, 1902), a law prohibiting the
licensing of aliens as barbers was held void, but the reason for the decision was the court's
findings that the exercise of the business by the aliens does not in any way affect the morals,
the health, or even the convenience of the community. In Takahashi vs. Fish and Game
Commission, 92 L. ed. 1479 (1947), a California statute banning the issuance of commercial
fishing licenses to person ineligible to citizenship was held void, because the law conflicts with
Federal power over immigration, and because there is no public interest in the mere claim of
ownership of the waters and the fish in them, so there was no adequate justification for the
discrimination. It further added that the law was the outgrowth of antagonism toward the
persons of Japanese ancestry. However, two Justices dissented on the theory that fishing rights
have been treated traditionally as natural resources. In Fraser vs. McConway & Tarley Co., 82
Fed. 257 (Pennsylvania, 1897), a state law which imposed a tax on every employer of foreign-
born unnaturalized male persons over 21 years of age, was declared void because the court
found that there was no reason for the classification and the tax was an arbitrary deduction from
the daily wage of an employee.

d. Authorities contra explained.

It is true that some decisions of the Federal court and of the State courts in the United States
hold that the distinction between aliens and citizens is not a valid ground for classification. But in
this decision the laws declared invalid were found to be either arbitrary, unreasonable or
capricious, or were the result or product of racial antagonism and hostility, and there was no
question of public interest involved or pursued. In Yu Cong Eng vs. Trinidad, 70 L. ed. 1059
(1925), the United States Supreme Court declared invalid a Philippine law making unlawful the
keeping of books of account in any language other than English, Spanish or any other local
dialect, but the main reasons for the decisions are: (1) that if Chinese were driven out of
business there would be no other system of distribution, and (2) that the Chinese would fall prey
to all kinds of fraud, because they would be deprived of their right to be advised of their
business and to direct its conduct. The real reason for the decision, therefore, is the court's
belief that no public benefit would be derived from the operations of the law and on the other
hand it would deprive Chinese of something indispensable for carrying on their business. In Yick
Wo vs. Hopkins, 30 L. ed 220 (1885) an ordinance conferring powers on officials to withhold
consent in the operation of laundries both as to persons and place, was declared invalid, but the
court said that the power granted was arbitrary, that there was no reason for the discrimination
which attended the administration and implementation of the law, and that the motive thereof
was mere racial hostility. In State vs. Montgomery, 47 A. 165 (Maine, 1900), a law prohibiting
aliens to engage as hawkers and peddlers was declared void, because the discrimination bore
no reasonable and just relation to the act in respect to which the classification was proposed.

The case at bar is radically different, and the facts make them so. As we already have said,
aliens do not naturally possess the sympathetic consideration and regard for the customers with
whom they come in daily contact, nor the patriotic desire to help bolster the nation's economy,
except in so far as it enhances their profit, nor the loyalty and allegiance which the national
owes to the land. These limitations on the qualifications of the aliens have been shown on many
occasions and instances, especially in times of crisis and emergency. We can do no better than
borrow the language of Anton vs. Van Winkle, 297 F. 340, 342, to drive home the reality and
significance of the distinction between the alien and the national, thus:

. . . . It may be judicially known, however, that alien coming into this country are without
the intimate knowledge of our laws, customs, and usages that our own people have. So
it is likewise known that certain classes of aliens are of different psychology from our
fellow countrymen. Furthermore, it is natural and reasonable to suppose that the foreign
born, whose allegiance is first to their own country, and whose ideals of governmental
environment and control have been engendered and formed under entirely different
regimes and political systems, have not the same inspiration for the public weal, nor are
they as well disposed toward the United States, as those who by citizenship, are a part
of the government itself. Further enlargement, is unnecessary. I have said enough so
that obviously it cannot be affirmed with absolute confidence that the Legislature was
without plausible reason for making the classification, and therefore appropriate
discriminations against aliens as it relates to the subject of legislation. . . . .

VII. The Due Process of Law Limitation.

a. Reasonability, the test of the limitation; determination by legislature decisive.

We now come to due process as a limitation on the exercise of the police power. It has been
stated by the highest authority in the United States that:

. . . . And the guaranty of due process, as has often been held, demands only that the
law shall not be unreasonable, arbitrary or capricious, and that the means selected shall
have a real and substantial relation to the subject sought to be attained. . . . .

xxx xxx xxx

So far as the requirement of due process is concerned and in the absence of other
constitutional restriction a state is free to adopt whatever economic policy may
reasonably be deemed to promote public welfare, and to enforce that policy by
legislation adapted to its purpose. The courts are without authority either to declare such
policy, or, when it is declared by the legislature, to override it. If the laws passed are
seen to have a reasonable relation to a proper legislative purpose, and are neither
arbitrary nor discriminatory, the requirements of due process are satisfied, and judicial
determination to that effect renders a court functus officio. . . . (Nebbia vs. New York, 78
L. ed. 940, 950, 957.)

Another authority states the principle thus:

. . . . Too much significance cannot be given to the word "reasonable" in considering the
scope of the police power in a constitutional sense, for the test used to determine the
constitutionality of the means employed by the legislature is to inquire whether the
restriction it imposes on rights secured to individuals by the Bill of Rights are
unreasonable, and not whether it imposes any restrictions on such rights. . . .

xxx xxx xxx

. . . . A statute to be within this power must also be reasonable in its operation upon the
persons whom it affects, must not be for the annoyance of a particular class, and must
not be unduly oppressive. (11 Am. Jur. Sec. 302., 1:1)- 1074-1075.)

In the case of Lawton vs. Steele, 38 L. ed. 385, 388. it was also held:

. . . . To justify the state in thus interposing its authority in behalf of the public, it must
appear, first, that the interests of the public generally, as distinguished from those of a
particular class, require such interference; and second, that the means are reasonably
necessary for the accomplishment of the purpose, and not unduly oppressive upon
individuals. . . .

Prata Undertaking Co. vs. State Board of Embalming, 104 ALR, 389, 395, fixes this test of
constitutionality:

In determining whether a given act of the Legislature, passed in the exercise of the
police power to regulate the operation of a business, is or is not constitutional, one of the
first questions to be considered by the court is whether the power as exercised has a
sufficient foundation in reason in connection with the matter involved, or is an arbitrary,
oppressive, and capricious use of that power, without substantial relation to the health,
safety, morals, comfort, and general welfare of the public.

b. Petitioner's argument considered.

Petitioner's main argument is that retail is a common, ordinary occupation, one of those
privileges long ago recognized as essential to the orderly pursuant of happiness by free men;
that it is a gainful and honest occupation and therefore beyond the power of the legislature to
prohibit and penalized. This arguments overlooks fact and reality and rests on an incorrect
assumption and premise, i.e., that in this country where the occupation is engaged in by
petitioner, it has been so engaged by him, by the alien in an honest creditable and
unimpeachable manner, without harm or injury to the citizens and without ultimate danger to
their economic peace, tranquility and welfare. But the Legislature has found, as we have also
found and indicated, that the privilege has been so grossly abused by the alien, thru the
illegitimate use of pernicious designs and practices, that he now enjoys a monopolistic control of
the occupation and threatens a deadly stranglehold on the nation's economy endangering the
national security in times of crisis and emergency.
The real question at issue, therefore, is not that posed by petitioner, which overlooks and
ignores the facts and circumstances, but this, Is the exclusion in the future of aliens from the
retail trade unreasonable. Arbitrary capricious, taking into account the illegitimate and pernicious
form and manner in which the aliens have heretofore engaged therein? As thus correctly stated
the answer is clear. The law in question is deemed absolutely necessary to bring about the
desired legislative objective, i.e., to free national economy from alien control and dominance. It
is not necessarily unreasonable because it affects private rights and privileges (11 Am. Jur. pp.
1080-1081.) The test of reasonableness of a law is the appropriateness or adequacy under all
circumstances of the means adopted to carry out its purpose into effect (Id.) Judged by this test,
disputed legislation, which is not merely reasonable but actually necessary, must be considered
not to have infringed the constitutional limitation of reasonableness.

The necessity of the law in question is explained in the explanatory note that accompanied the
bill, which later was enacted into law:

This bill proposes to regulate the retail business. Its purpose is to prevent persons who
are not citizens of the Philippines from having a strangle hold upon our economic life. If
the persons who control this vital artery of our economic life are the ones who owe no
allegiance to this Republic, who have no profound devotion to our free institutions, and
who have no permanent stake in our people's welfare, we are not really the masters of
our destiny. All aspects of our life, even our national security, will be at the mercy of
other people.

In seeking to accomplish the foregoing purpose, we do not propose to deprive persons


who are not citizens of the Philippines of their means of livelihood. While this bill seeks
to take away from the hands of persons who are not citizens of the Philippines a power
that can be wielded to paralyze all aspects of our national life and endanger our national
security it respects existing rights.

The approval of this bill is necessary for our national survival.

If political independence is a legitimate aspiration of a people, then economic independence is


none the less legitimate. Freedom and liberty are not real and positive if the people are subject
to the economic control and domination of others, especially if not of their own race or country.
The removal and eradication of the shackles of foreign economic control and domination, is one
of the noblest motives that a national legislature may pursue. It is impossible to conceive that
legislation that seeks to bring it about can infringe the constitutional limitation of due process.
The attainment of a legitimate aspiration of a people can never be beyond the limits of
legislative authority.

c. Law expressly held by Constitutional Convention to be within the sphere of legislative action.

The framers of the Constitution could not have intended to impose the constitutional restrictions
of due process on the attainment of such a noble motive as freedom from economic control and
domination, thru the exercise of the police power. The fathers of the Constitution must have
given to the legislature full authority and power to enact legislation that would promote the
supreme happiness of the people, their freedom and liberty. On the precise issue now before
us, they expressly made their voice clear; they adopted a resolution expressing their belief that
the legislation in question is within the scope of the legislative power. Thus they declared the
their Resolution:

That it is the sense of the Convention that the public interest requires the nationalization
of retail trade; but it abstain from approving the amendment introduced by the Delegate
for Manila, Mr. Araneta, and others on this matter because it is convinced that the
National Assembly is authorized to promulgate a law which limits to Filipino and
American citizens the privilege to engage in the retail trade. (11 Aruego, The Framing of
the Philippine Constitution, quoted on pages 66 and 67 of the Memorandum for the
Petitioner.)

It would do well to refer to the nationalistic tendency manifested in various provisions of the
Constitution. Thus in the preamble, a principle objective is the conservation of the patrimony of
the nation and as corollary the provision limiting to citizens of the Philippines the exploitation,
development and utilization of its natural resources. And in Section 8 of Article XIV, it is
provided that "no franchise, certificate, or any other form of authorization for the operation of the
public utility shall be granted except to citizens of the Philippines." The nationalization of the
retail trade is only a continuance of the nationalistic protective policy laid down as a primary
objective of the Constitution. Can it be said that a law imbued with the same purpose and spirit
underlying many of the provisions of the Constitution is unreasonable, invalid and
unconstitutional?

The seriousness of the Legislature's concern for the plight of the nationals as manifested in the
approval of the radical measures is, therefore, fully justified. It would have been recreant to its
duties towards the country and its people would it view the sorry plight of the nationals with the
complacency and refuse or neglect to adopt a remedy commensurate with the demands of
public interest and national survival. As the repository of the sovereign power of legislation, the
Legislature was in duty bound to face the problem and meet, through adequate measures, the
danger and threat that alien domination of retail trade poses to national economy.

d. Provisions of law not unreasonable.

A cursory study of the provisions of the law immediately reveals how tolerant, how reasonable
the Legislature has been. The law is made prospective and recognizes the right and privilege of
those already engaged in the occupation to continue therein during the rest of their lives; and
similar recognition of the right to continue is accorded associations of aliens. The right or
privilege is denied to those only upon conviction of certain offenses. In the deliberations of the
Court on this case, attention was called to the fact that the privilege should not have been
denied to children and heirs of aliens now engaged in the retail trade. Such provision would
defeat the law itself, its aims and purposes. Beside, the exercise of legislative discretion is not
subject to judicial review. It is well settled that the Court will not inquire into the motives of the
Legislature, nor pass upon general matters of legislative judgment. The Legislature is primarily
the judge of the necessity of an enactment or of any of its provisions, and every presumption is
in favor of its validity, and though the Court may hold views inconsistent with the wisdom of the
law, it may not annul the legislation if not palpably in excess of the legislative power.
Furthermore, the test of the validity of a law attacked as a violation of due process, is not its
reasonableness, but its unreasonableness, and we find the provisions are not unreasonable.
These principles also answer various other arguments raised against the law, some of which
are: that the law does not promote general welfare; that thousands of aliens would be thrown
out of employment; that prices will increase because of the elimination of competition; that there
is no need for the legislation; that adequate replacement is problematical; that there may be
general breakdown; that there would be repercussions from foreigners; etc. Many of these
arguments are directed against the supposed wisdom of the law which lies solely within the
legislative prerogative; they do not import invalidity.

VIII. Alleged defect in the title of the law

A subordinate ground or reason for the alleged invalidity of the law is the claim that the title
thereof is misleading or deceptive, as it conceals the real purpose of the bill which is to
nationalize the retail business and prohibit aliens from engaging therein. The constitutional
provision which is claimed to be violated in Section 21 (1) of Article VI, which reads:

No bill which may be enacted in the law shall embrace more than one subject which
shall be expressed in the title of the bill.

What the above provision prohibits is duplicity, that is, if its title completely fails to appraise the
legislators or the public of the nature, scope and consequences of the law or its operation (I
Sutherland, Statutory Construction, Sec. 1707, p. 297.) A cursory consideration of the title and
the provisions of the bill fails to show the presence of duplicity. It is true that the term "regulate"
does not and may not readily and at first glance convey the idea of "nationalization" and
"prohibition", which terms express the two main purposes and objectives of the law. But
"regulate" is a broader term than either prohibition or nationalization. Both of these have always
been included within the term regulation.

Under the title of an act to "regulate", the sale of intoxicating liquors, the Legislature may
prohibit the sale of intoxicating liquors. (Sweet vs. City of Wabash, 41 Ind., 7; quoted in
page 41 of Answer.)

Within the meaning of the Constitution requiring that the subject of every act of the
Legislature shall be stated in the tale, the title to regulate the sale of intoxicating liquors,
etc." sufficiently expresses the subject of an actprohibiting the sale of such liquors to
minors and to persons in the habit of getting intoxicated; such matters being properly
included within the subject of regulating the sale. (Williams vs. State, 48 Ind. 306, 308,
quoted in p. 42 of Answer.)

The word "regulate" is of broad import, and necessarily implies some degree of
restraint and prohibition of acts usually done in connection with the thing to be regulated.
While word regulate does not ordinarily convey meaning of prohibit, there is no absolute
reason why it should not have such meaning when used in delegating police power in
connection with a thing the best or only efficacious regulation of which involves
suppression. (State vs. Morton, 162 So. 718, 182 La. 887, quoted in p. 42 of Answer.)

The general rule is for the use of general terms in the title of a bill; it has also been said that the
title need not be an index to the entire contents of the law (I Sutherland, Statutory Construction,
See. 4803, p. 345.) The above rule was followed the title of the Act in question adopted the
more general term "regulate" instead of "nationalize" or "prohibit". Furthermore, the law also
contains other rules for the regulation of the retail trade which may not be included in the terms
"nationalization" or "prohibition"; so were the title changed from "regulate" to "nationalize" or
"prohibit", there would have been many provisions not falling within the scope of the title which
would have made the Act invalid. The use of the term "regulate", therefore, is in accord with the
principle governing the drafting of statutes, under which a simple or general term should be
adopted in the title, which would include all other provisions found in the body of the Act.

One purpose of the constitutional directive that the subject of a bill should be embraced in its
title is to apprise the legislators of the purposes, the nature and scope of its provisions, and
prevent the enactment into law of matters which have received the notice, action and study of
the legislators or of the public. In the case at bar it cannot be claimed that the legislators have
been appraised of the nature of the law, especially the nationalization and the prohibition
provisions. The legislators took active interest in the discussion of the law, and a great many of
the persons affected by the prohibitions in the law conducted a campaign against its approval. It
cannot be claimed, therefore, that the reasons for declaring the law invalid ever existed. The
objection must therefore, be overruled.

IX. Alleged violation of international treaties and obligations

Another subordinate argument against the validity of the law is the supposed violation thereby of
the Charter of the United Nations and of the Declaration of the Human Rights adopted by the
United Nations General Assembly. We find no merit in the Nations Charter imposes no strict or
legal obligations regarding the rights and freedom of their subjects (Hans Kelsen, The Law of
the United Nations, 1951 ed. pp. 29-32), and the Declaration of Human Rights contains nothing
more than a mere recommendation or a common standard of achievement for all peoples and
all nations (Id. p. 39.) That such is the import of the United Nations Charter aid of the
Declaration of Human Rights can be inferred the fact that members of the United Nations
Organizations, such as Norway and Denmark, prohibit foreigners from engaging in retail trade,
and in most nations of the world laws against foreigners engaged in domestic trade are
adopted.

The Treaty of Amity between the Republic of the Philippines and the Republic of China of April
18, 1947 is also claimed to be violated by the law in question. All that the treaty guarantees is
equality of treatment to the Chinese nationals "upon the same terms as the nationals of any
other country." But the nationals of China are not discriminating against because nationals of all
other countries, except those of the United States, who are granted special rights by the
Constitution, are all prohibited from engaging in the retail trade. But even supposing that the law
infringes upon the said treaty, the treaty is always subject to qualification or amendment by a
subsequent law (U. S. vs. Thompson, 258, Fed. 257, 260), and the same may never curtail or
restrict the scope of the police power of the State (plaston vs. Pennsylvania, 58 L. ed. 539.)

X. Conclusion

Resuming what we have set forth above we hold that the disputed law was enacted to remedy a
real actual threat and danger to national economy posed by alien dominance and control of the
retail business and free citizens and country from dominance and control; that the enactment
clearly falls within the scope of the police power of the State, thru which and by which it protects
its own personality and insures its security and future; that the law does not violate the equal
protection clause of the Constitution because sufficient grounds exist for the distinction between
alien and citizen in the exercise of the occupation regulated, nor the due process of law clause,
because the law is prospective in operation and recognizes the privilege of aliens already
engaged in the occupation and reasonably protects their privilege; that the wisdom and efficacy
of the law to carry out its objectives appear to us to be plainly evident as a matter of fact it
seems not only appropriate but actually necessary and that in any case such matter falls
within the prerogative of the Legislature, with whose power and discretion the Judicial
department of the Government may not interfere; that the provisions of the law are clearly
embraced in the title, and this suffers from no duplicity and has not misled the legislators or the
segment of the population affected; and that it cannot be said to be void for supposed conflict
with treaty obligations because no treaty has actually been entered into on the subject and the
police power may not be curtailed or surrendered by any treaty or any other conventional
agreement.

Some members of the Court are of the opinion that the radical effects of the law could have
been made less harsh in its impact on the aliens. Thus it is stated that the more time should
have been given in the law for the liquidation of existing businesses when the time comes for
them to close. Our legal duty, however, is merely to determine if the law falls within the scope of
legislative authority and does not transcend the limitations of due process and equal protection
guaranteed in the Constitution. Remedies against the harshness of the law should be
addressed to the Legislature; they are beyond our power and jurisdiction.

The petition is hereby denied, with costs against petitioner.


Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-2662 March 26, 1949

SHIGENORI KURODA, petitioner,


vs.
Major General RAFAEL JALANDONI, Brigadier General CALIXTO DUQUE, Colonel
MARGARITO TORALBA, Colonel IRENEO BUENCONSEJO, Colonel PEDRO TABUENA,
Major FEDERICO ARANAS, MELVILLE S. HUSSEY and ROBERT PORT, respondents.

Pedro Serran, Jose G. Lukban, and Liberato B. Cinco for petitioner.


Fred Ruiz Castro Federico Arenas Mariano Yengco, Jr., Ricardo A. Arcilla and S. Melville
Hussey for respondents.

MORAN, C.J.:

Shigenori Kuroda, formerly a Lieutenant-General of the Japanese Imperial Army and


Commanding General of the Japanese Imperial Forces in The Philippines during a period
covering 19433 and 19444 who is now charged before a military Commission convened by the
Chief of Staff of the Armed forces of the Philippines with having unlawfully disregarded and
failed "to discharge his duties as such command, permitting them to commit brutal atrocities and
other high crimes against noncombatant civilians and prisoners of the Imperial Japanese Forces
in violation of the laws and customs of war" comes before this Court seeking to establish the
illegality of Executive Order No. 68 of the President of the Philippines: to enjoin and prohibit
respondents Melville S. Hussey and Robert Port from participating in the prosecution of
petitioner's case before the Military Commission and to permanently prohibit respondents from
proceeding with the case of petitioners.

In support of his case petitioner tenders the following principal arguments.

First. "That Executive Order No. 68 is illegal on the ground that it violates not only the
provision of our constitutional law but also our local laws to say nothing of the fact (that) the
Philippines is not a signatory nor an adherent to the Hague Convention on Rules and
Regulations covering Land Warfare and therefore petitioners is charged of 'crimes' not based on
law, national and international." Hence petitioner argues "That in view off the fact that this
commission has been empanelled by virtue of an unconstitutional law an illegal order this
commission is without jurisdiction to try herein petitioner."

Second. That the participation in the prosecution of the case against petitioner before the
Commission in behalf of the United State of America of attorneys Melville Hussey and Robert
Port who are not attorneys authorized by the Supreme Court to practice law in the Philippines is
a diminution of our personality as an independent state and their appointment as prosecutor are
a violation of our Constitution for the reason that they are not qualified to practice law in the
Philippines.
Third. That Attorneys Hussey and Port have no personality as prosecution the United State
not being a party in interest in the case.

Executive Order No. 68, establishing a National War Crimes Office prescribing rule and
regulation governing the trial of accused war criminals, was issued by the President of the
Philippines on the 29th days of July, 1947 This Court holds that this order is valid and
constitutional. Article 2 of our Constitution provides in its section 3, that

The Philippines renounces war as an instrument of national policy and adopts the
generally accepted principles of international law as part of the of the nation.

In accordance with the generally accepted principle of international law of the present day
including the Hague Convention the Geneva Convention and significant precedents of
international jurisprudence established by the United Nation all those person military or civilian
who have been guilty of planning preparing or waging a war of aggression and of the
commission of crimes and offenses consequential and incidental thereto in violation of the laws
and customs of war, of humanity and civilization are held accountable therefor. Consequently in
the promulgation and enforcement of Execution Order No. 68 the President of the Philippines
has acted in conformity with the generally accepted and policies of international law which are
part of the our Constitution.

The promulgation of said executive order is an exercise by the President of his power as
Commander in chief of all our armed forces as upheld by this Court in the case of
Yamashita vs. Styer (L-129, 42 Off. Gaz., 664) 1 when we said

War is not ended simply because hostilities have ceased. After cessation of armed
hostilities incident of war may remain pending which should be disposed of as in time of
war. An importance incident to a conduct of war is the adoption of measure by the
military command not only to repel and defeat the enemies but to seize and subject to
disciplinary measure those enemies who in their attempt to thwart or impede our military
effort have violated the law of war. (Ex parte Quirin 317 U.S., 1; 63 Sup. Ct., 2.) Indeed
the power to create a military commission for the trial and punishment of war criminals is
an aspect of waging war. And in the language of a writer a military commission has
jurisdiction so long as a technical state of war continues. This includes the period of an
armistice or military occupation up to the effective of a treaty of peace and may extend
beyond by treaty agreement. (Cowles Trial of War Criminals by Military Tribunals,
America Bar Association Journal June, 1944.)

Consequently, the President as Commander in Chief is fully empowered to consummate this


unfinished aspect of war namely the trial and punishment of war criminal through the issuance
and enforcement of Executive Order No. 68.

Petitioner argues that respondent Military Commission has no Jurisdiction to try petitioner for
acts committed in violation of the Hague Convention and the Geneva Convention because the
Philippines is not a signatory to the first and signed the second only in 1947. It cannot be denied
that the rules and regulation of the Hague and Geneva conventions form, part of and are wholly
based on the generally accepted principals of international law. In facts these rules and
principles were accepted by the two belligerent nation the United State and Japan who were
signatories to the two Convention, Such rule and principles therefore form part of the law of our
nation even if the Philippines was not a signatory to the conventions embodying them for our
Constitution has been deliberately general and extensive in its scope and is not confined to the
recognition of rule and principle of international law as continued inn treaties to which our
government may have been or shall be a signatory.

Furthermore when the crimes charged against petitioner were allegedly committed the
Philippines was under the sovereignty of United States and thus we were equally bound
together with the United States and with Japan to the right and obligation contained in the
treaties between the belligerent countries. These rights and obligation were not erased by our
assumption of full sovereignty. If at all our emergency as a free state entitles us to enforce the
right on our own of trying and punishing those who committed crimes against crimes against our
people. In this connection it is well to remember what we have said in the case of Laurel vs.
Misa (76 Phil., 372):

. . . The change of our form government from Commonwealth to Republic does not affect
the prosecution of those charged with the crime of treason committed during then
Commonwealth because it is an offense against the same sovereign people. . . .

By the same token war crimes committed against our people and our government while we
were a Commonwealth are triable and punishable by our present Republic.

Petitioner challenges the participation of two American attorneys namely Melville S. Hussey and
Robert Port in the prosecution of his case on the ground that said attorney's are not qualified to
practice law in Philippines in accordance with our Rules of court and the appointment of said
attorneys as prosecutors is violative of our national sovereignty.

In the first place respondent Military Commission is a special military tribunal governed by a
special law and not by the Rules of court which govern ordinary civil court. It has already been
shown that Executive Order No. 68 which provides for the organization of such military
commission is a valid and constitutional law. There is nothing in said executive order which
requires that counsel appearing before said commission must be attorneys qualified to practice
law in the Philippines in accordance with the Rules of Court. In facts it is common in military
tribunals that counsel for the parties are usually military personnel who are neither attorneys nor
even possessed of legal training.

Secondly the appointment of the two American attorneys is not violative of our nation
sovereignty. It is only fair and proper that United States, which has submitted the vindication of
crimes against her government and her people to a tribunal of our nation should be allowed
representation in the trial of those very crimes. If there has been any relinquishment of
sovereignty it has not been by our government but by the United State Government which has
yielded to us the trial and punishment of her enemies. The least that we could do in the spirit of
comity is to allow them representation in said trials.

Alleging that the United State is not a party in interest in the case petitioner challenges the
personality of attorneys Hussey and Port as prosecutors. It is of common knowledge that the
United State and its people have been equally if not more greatly aggrieved by the crimes with
which petitioner stands charged before the Military Commission. It can be considered a privilege
for our Republic that a leader nation should submit the vindication of the honor of its citizens
and its government to a military tribunal of our country.
The Military Commission having been convened by virtue of a valid law with jurisdiction over the
crimes charged which fall under the provisions of Executive Order No. 68, and having said
petitioner in its custody, this Court will not interfere with the due process of such Military
commission.

For all the foregoing the petition is denied with costs de oficio.

Paras, Feria, Pablo, Bengzon, Tuason, Montemayor and Reyes, JJ., concur.

Separate Opinions

PERFECTO, J., dissenting:

A military commission was empanelled on December 1, 1948 to try Lt. Gen. Shigenori Kuroda
for Violation of the laws and customs of land warfare.

Melville S. Hussey and Robert Port, American citizens and not authorized by the Supreme Court
to practice law were appointed prosecutor representing the American CIC in the trial of the
case.

The commission was empanelled under the authority of Executive Order No. 68 of the President
of the Philippines the validity of which is challenged by petitioner on constitutional grounds.
Petitioner has also challenged the personality of Attorneys Hussey and Port to appear as
prosecutors before the commission.

The charges against petitioner has been filed since June 26, 1948 in the name of the people of
the Philippines as accusers.

We will consideration briefly the challenge against the appearance of Attorneys Hussey and
Port. It appearing that they are aliens and have not been authorized by the Supreme Court to
practice law there could not be any question that said person cannot appear as prosecutors in
petitioner case as with such appearance they would be practicing law against the law.

Said violation vanishes however into insignificance at the side of the momentous question
involved in the challenge against the validity of Executive Order No. 68. Said order is challenged
on several constitutional ground. To get a clear idea of the question raised it is necessary to
read the whole context of said order which is reproduced as follows:

EXECUTIVE ORDER NO. 68.

ESTABLISHING A NATIONAL WAR CRIMES OFFICE AND PRESCRIBING


RULES AND REGULATION GOVERNING THE TRIAL OF ACCUSED WAR
CRIMINAL.

I, Manuel Roxas president of the Philippines by virtue of the power vested in me by the
Constitution and laws of the Philippines do hereby establish a National War Crimes
Office charged with the responsibility of accomplishing the speedy trial of all Japanese
accused of war crimes committed in the Philippines and prescribe the rules and
regulation such trial.

The National War crimes office is established within the office of the Judge Advocate
General of the Army of the Philippines and shall function under the direction supervision
and control of the Judge Advocate General. It shall proceed to collect from all available
sources evidence of war crimes committed in the Philippines from the commencement of
hostilities by Japan in December 1941, maintain a record thereof and bring about the
prompt trial maintain a record thereof and bring about the prompt trial of the accused.

The National War Crimes Office shall maintain direct liaison with the Legal Section
General Headquarters, Supreme Commander for the Allied power and shall exchange
with the said Office information and evidence of war crimes.

The following rules and regulation shall govern the trial off person accused as war
criminals:

ESTABLISHMENT OF MILITARY COMMISSIONS

(a) General. person accused as war criminal shall be tried by military commission to
be convened by or under the authority of the Philippines.

II. JURISDICTION

(a) Over Person. Thee military commission appointed hereunder shall have
jurisdiction over all persons charged with war crimes who are in the custody of the
convening authority at the time of the trial.

(b) Over Offenses. The military commission established hereunder shall have
jurisdiction over all offenses including but not limited to the following:

(1) The planning preparation initiation or waging of a war of aggression or a war in


violation of international treaties agreement or assurance or participation in a common
plan or conspiracy for the accomplishment of any of the foregoing.

(2) Violation of the laws or customs of war. Such violation shall include but not be limited
to murder ill-treatment or deportation to slave labor or for other purpose of civilian
population of or in occupied territory; murder or ill-treatment of prisoners of war or
internees or person on the seas or elsewhere; improper treatment of hostage; plunder of
public or private property wanton destruction of cities towns or village; or devastation not
justified by military necessity.

(3) Murder extermination enslavement deportation and other inhuman acts committed
against civilian population before or during the war or persecution on political racial or
religion ground in executive of or in connection with any crime defined herein whether or
not in violation of the local laws.

III. MEMBERSHIP OF COMMISSIONS


(a) Appointment. The members of each military commission shall be appointed by the
President of the Philippines or under authority delegated by him. Alternates may be
appointed by the convening authority. Such shall attend all session of the commission,
and in case of illness or other incapacity of any principal member, an alternate shall take
the place of that member. Any vacancy among the members or alternates, occurring
after a trial has begun, may be filled by the convening authority but the substance of all
proceeding had evidence taken in that case shall be made known to the said new
member or alternate. This facts shall be announced by the president of the commission
in open court.

(b) Number of Members. Each commission shall consist of not less than three (3)
members.

(c) Qualifications. The convening authority shall appoint to the commission persons
whom he determines to be competent to perform the duties involved and not disqualified
by personal interest or prejudice, provided that no person shall be appointed to hear a
case in which he personally investigated or wherein his presence as a witness is
required. One specially qualified member whose ruling is final in so far as concerns the
commission on an objection to the admissibility of evidence offered during the trial.

(d) Voting. Except as to the admissibility of evidence all rulings and finding of the
Commission shall be by majority vote except that conviction and sentence shall be by
the affirmative vote of not less than conviction and sentence shall be by the affirmative
vote of not less than two-thirds (2\3) of the member present.

(e) Presiding Member. In the event that the convening authority does not name one of
the member as the presiding member, the senior officer among the member of the
Commission present shall preside.

IV. PROSECUTORS

(a) Appointment. The convening authority shall designate one or more person to
conduct the prosecution before each commission.

(b) Duties. The duties of the prosecutor are:

(1) To prepare and present charges and specifications for reference to a commission.

(2) To prepare cases for trial and to conduct the prosecution before the commission of
all cases referred for trial.

V. POWER AND PROCEDURE OF COMMISSION

(a) Conduct of the Trial. A Commission shall:

(1) Confine each trial strictly to fair and expeditious hearing on the issues raised by the
charges, excluding irrelevant issues or evidence and preventing any unnecessary delay
or interference.
(2) Deal summarily with any contumacy or contempt, imposing any appropriate
punishment therefor.

(3) Hold public session when otherwise decided by the commission.

(4) Hold each session at such time and place as it shall determine, or as may be
directed by the convening authority.

(b) Rights of the Accused. The accused shall be entitled:

(1) To have in advance of the trial a copy of the charges and specifications clearly
worded so as to apprise the accused of each offense charged.

(2) To be represented, prior to and during trial, by counsel appointed by the convening
authority or counsel of his own choice, or to conduct his own defense.

(3) To testify in his own behalf and have his counsel present relevant evidence at the
trial in support of his defense, and cross-examine each adverse witness who personally
appears before the commission.

(4) To have the substance of the charges and specifications, the proceedings and any
documentary evidence translated, when he is unable otherwise to understand them.

(c) Witnesses. The Commission shall have power:

(1) To summon witnesses and require their attendance and testimony; to administer
oaths or affirmations to witnesses and other persons and to question witnesses.

(2) To require the production of documents and other evidentiary material.

(3) To delegate the Prosecutors appointed by the convening authority the powers and
duties set forth in (1) and (2) above.

(4) To have evidence taken by a special commissioner appointed by the commission.

(d) Evidence.

(1) The commission shall admit such evidence as in its opinion shall be of assistance in
proving or disproving the charge, or such as in the commission's opinion would have
probative value in the mind of a reasonable man. The commission shall apply the rules
of evidence and pleading set forth herein with the greatest liberality to achieve
expeditious procedure. In particular, and without limiting in any way the scope of the
foregoing general rules, the following evidence may be admitted:

(a) Any document, irrespective of its classification, which appears to the commission to
have been signed or issued by any officer, department, agency or member of the armed
forces of any Government without proof of the signature or of the issuance of the
document.
(b) Any report which appears to the commission to have been signed or issued by the
International Red Cross or a member of any medical service personnel, or by any
investigator or intelligence officer, or by any other person whom commission considers
as possessing knowledge of the matters contained in the report.

(c) Affidavits, depositions or other signed statements.

(d) Any diary, letter to other document, including sworn statements, appearing to the
commission to contain information relating to the charge.

(e) A copy of any document or other secondary evidence of the contents, if the original is
not immediately available.

(2) The commission shall take judicial notice of facts of common knowledge, official
government documents of any nation, and the proceedings, records and findings of
military or other agencies of any of the United Nation.

(3) A commission may require the prosecution and the defense to make a preliminary
offer of proof whereupon the commission may rule in advance on the admissibility of
such evidence.

(4) The official position of the accused shall not absolve him from responsibility nor be
considered in mitigation of punishment. Further action pursuant to an order of the
accused's superior, or of his Government, shall not constitute a defense, but may be
considered in mitigation of punishment if the commission determines that justice so
requires.

(5) All purposed confessions or statements of the accused shall bee admissible in
evidence without any showing that they were voluntarily made. If it is shown that such
confession or statement was procured by mean which the commission believe to have
been of such a character that may have caused the accused to make a false statement
the commission may strike out or disregard any such portion thereof as was so
procured.

(e) Trial Procedure. The proceedings of each trial shall be conducted substantially as
follows unless modified by the commission to suit the particular circumstances:

(1) Each charge and specification shall be read or its substance stated in open court.

(2) The presiding member shall ask each accused whether he pleads "Guilty" or "Not
guilty."

(3) The prosecution shall make its opening statement."(4) The presiding member may at
this or any other time require the prosecutor to state what evidence he proposes to
submit to the commission and the commission thereupon may rule upon the admissibility
of such evidence.

(4) The witnesses and other evidence for the prosecution shall be heard or presented. At
the close of the case for the prosecution, the commission may, on motion of the defense
for a finding of not guilty, consider and rule whether he evidence before the commission
may defer action on any such motion and permit or require the prosecution to reopen its
case and produce any further available evidence.

(5) The defense may make an opening statement prior to presenting its case. The
presiding member may, at this any other time require the defense to state what evidence
it proposes to submit to the commission where upon the commission may rule upon the
admissibility of such evidence.

(6) The witnesses and other evidence for the defense shall be heard or presented.
Thereafter, the prosecution and defense may introduce such evidence in rebuttal as the
commission may rule as being admissible.

(7) The defense and thereafter the prosecution shall address the commission.

(8) The commission thereafter shall consider the case in closed session and unless
otherwise directed by the convening authority, announce in open court its judgment and
sentence if any. The commission may state the reason on which judgment is based.

( f ) Record of Proceedings. Each commission shall make a separate record of its


proceeding in the trial of each case brought before it. The record shall be prepared by
the prosecutor under the direction of the commission and submitted to the defense
counsel. The commission shall be responsible for its accuracy. Such record, certified by
the presiding member of the commission or his successor, shall be delivered to the
convening authority as soon as possible after the trial.

(g) Sentence. The commission may sentence an accused, upon conviction to death
by hanging or shooting, imprisonment for life or for any less term, fine or such other
punishment as the commission shall determine to be proper.

(h) Approval of Sentence. No. sentence of a military commission shall be carried into
effect until approved by the chief off Staff: Provided, That no sentence of death or life
imprisonment shall be carried into execution until confirmed by the President of the
Philippines. For the purpose of his review the Chief of Staff shall create a Board of
Review to be composed of not more than three officers none of whom shall be on duty
with or assigned to the Judge Advocate General's Office. The Chief of Staff shall have
authority to approve, mitigate remit in whole or in part, commute, suspend, reduce or
otherwise alter the sentence imposed, or (without prejudice to the accused) remand the
case for rehearing before a new military commission; but he shall not have authority to
increase the severity of the sentence. Except as herein otherwise provided the judgment
and sentence of a commission shall final and not subject to review by any other tribunal.

VI. RULE-MAKING POWER

Supplementary Rule and Forms. Each commission shall adopt rules and forms to
govern its procedure, not inconsistent with the provision of this Order, or such rules and
forms as may be prescribed by the convening authority]or by the President of the
Philippines.
VII. The amount of amount of seven hundred thousand pesos is hereby set aside out of
the appropriations for the Army of the Philippines for use by the National War Crimes
Office in the accomplishment of its mission as hereinabove set forth, and shall be
expended in accordance with the recommendation of the Judge Advocate General as
approved by the President. The buildings, fixtures, installations, messing, and billeting
equipment and other property herefore used by then Legal Section, Manila Branch, of
the General Headquarters, Supreme Commander for the Allied Power, which will be
turned over by the United States Army to the Philippines Government through the
Foreign Liquidation Commission and the Surplus Property Commission are hereby
specification reserved for use off the National War Crimes Office.

Executive Order No. 64, dated August 16, 1945, is hereby repealed.

Done in the City of Manila, this 29th day of July in the year of Our Lord, nineteen
hundred and forty-seven, and of the Independence of the Philippines, the second.

MANUEL ROXAS
President of the Philippines

By the President:

EMILIO ABELLO
Chief of the Executive Office

EXECUTIVE LEGISLATION

Executive Order No. 68 is a veritable piece of Legislative measure, without the benefit of
congressional enactment.

The first question that is trust at our face spearheading a group of other no less important
question, is whether or not the President of the Philippines may exercise the legislative power
expressly vested in Congress by the Constitution. .

The Constitution provides:

The Legislative powers shall be vested in a Congress of the Philippines which shall
consist of a Senate and House of Representatives. (Section 1, Article VI.)

While there is no express provision in the fundamental law prohibiting the exercise of legislative
power by agencies other than Congress, a reading of the whole context of the Constitution
would dispel any doubt as to the constitutional intent that the legislative power is to be exercised
exclusively by Congress, subject only to the veto power of the President of the President of the
Philippines, to the specific provision which allow the president of the Philippines to suspend the
privileges of the writ of habeas corpus and to place any part of the Philippines under martial law,
and to the rule-making power expressly vested by the Constitution in the Supreme Court.

There cannot be any question that the member of the Constitutional Convention were believers
in the tripartite system of government as originally enunciated by Aristotle, further elaborated by
Montequieu and accepted and practiced by modern democracies, especially the United State of
America, whose Constitution, after which ours has been patterned, has allocated the three
power of government legislative, executive, judicial to distinct and separate department of
government.

Because the power vested by our Constitution to the several department of the government are
in the nature of grants, not recognition of pre-existing power, no department of government may
exercise any power or authority not expressly granted by the Constitution or by law by virtue
express authority of the Constitution.

Executive Order No. 68 establishes a National War Crimes Office and the power to establish
government office is essentially legislative.

The order provides that person accused as war criminals shall be tried by military commissions.
Whether such a provision is substantive or adjective, it is clearly legislative in nature. It confers
upon military commissions jurisdiction to try all persons charge with war crimes. The power to
define and allocate jurisdiction for the prosecution of person accused of any crime is exclusively
vested by the Constitution in Congress. .

It provides rules of procedure for the conduct of trial of trial. This provision on procedural subject
constitutes a usurpation of the rule-making power vested by Constitution in the Supreme Court.

It authorized military commission to adopt additional rule of procedure. If the President of the
Philippines cannot exercise the rule -making power vested by the Constitution in the Supreme
Court, he cannot, with more reason, delegate that power to military commission.

It appropriates the sum of P7000,000 for the expenses of the National War Crimes office
established by the said Executive Order No. 68. This constitutes another usurpation of
legislative power as the power to vote appropriations belongs to Congress.

Executive Order No. 68., is, therefore, null and void, because, though it the President of the
Philippines usurped power expressly vested by the Constitution in Congress and in the
Supreme Court.

Challenged to show the constitutional or legal authority under which the President issued
Executive Order No. 68, respondent could not give any definite answer. They attempted,
however, to suggest that the President of the Philippines issued Executive Order No. 68 under
the emergency power granted to him by Commonwealth Act No. 600, as amended by
Commonwealth Act No. 620, and Commonwealth Act No. 671, both of which are transcribed
below:

COMMONWEALTH ACT NO. 600.

AN ACT DECLARING A STATE OF EMERGENCY AND AUTHORIZING THE


PRESIDENT TO PROMULGATE RULES AND REGULATION TO SAFEGUARD
THE INTEGRITY OF THE PHILIPPINES AND TO INSURE THE TRANQUILITY
OF ITS INHABITANTS.
Be it enacted by the National Assembly of the Philippines:

SECTION 1. The existence of war in many parts of the world has created a national
emergency which makes it necessary to invest the President of the Philippines with
extraordinary power in order to safeguard the integrity of the Philippines and to insure
the tranquility of its inhabitants, by suppressing espionage, lawlessness, and all
subversive to the people adequate shelter and clothing and sufficient food supply, and
by providing means for the speedy evacuation of the civilian population the
establishment of an air protective service and the organization of volunteer guard units,
and to adopt such other measures as he may deem necessary for the interest of the
public. To carry out this policy the President is authorized to promulgate rules and
regulations which shall have the force and effect off law until the date of adjournment of
the next regulation which shall have the force and effect of law until the date of
adjournment of the next regular session of the First Congress of the Philippines, unless
sooner amended or repealed by the Congress of Philippines. Such rules and regulation
may embrace the following objects: (1) to suppress espionage and other subversive
activities; (2) to require all able-bodied citizens (a) when not engaged in any lawful
occupation, to engage in farming or other productive activities or (b) to perform such
services as may bee necessary in the public interest; (3) to take over farm lands in order
to prevent or shortage of crops and hunger and destitution; (4) to take over industrial
establishment in order to insure adequate production, controlling wages and profits
therein; (5) to prohibit lockouts and strikes whenever necessary to prevent the
unwarranted suspension of work in productive enterprises or in the interest of national
security; (6) to regulate the normal hours of work for wage-earning and salaried
employees in industrial or business undertakings of all kinds; (7) to insure an even
distribution of labor among the productive enterprises; (8) to commandership and other
means of transportation in order to maintain, as much as possible, adequate and
continued transportation facilities; (9) to requisition and take over any public service or
enterprise for use or operation by the Government;(10) to regulate rents and the prices
of articles or commodities of prime necessity, both imported and locally produced or
manufactured; and (11) to prevent, locally or generally, scarcity, monopolization,
hoarding injurious speculations, and private control affecting the supply, distribution and
movement of foods, clothing, fuel, fertilizer, chemical, building, material, implements,
machinery, and equipment required in agriculture and industry, with power to requisition
these commodities subject to the payment of just compensation. (As amended by Com.
Act No. 620.)

SEC. 2. For the purpose of administering this Act and carrying out its objective, the
President may designate any officer, without additional compensation, or any
department, bureau, office, or instrumentality of the National Government.

SEC. 3. Any person, firm, or corporation found guilty of the violation of any provision of
this Act or of this Act or any of the rules or regulations promulgated by the President
under the authority of section one of this Act shall be punished by imprisonment of not
more than ten years or by a fine of not more than ten thousand pesos, or by both. If such
violation is committed by a firm or corporation, the manager, managing director, or
person charge with the management of the business of such firm, or corporation shall be
criminally responsible therefor.
SEC. 4. The President shall report to the national Assembly within the first ten days from
the date of the opening of its next regular session whatever action has been taken by
him under the authority herein granted.

SEC. 5. To carry out the purposed of this Act, the President is authorized to spend such
amounts as may be necessary from the sum appropriated under section five
Commonwealth Act Numbered four hundred and ninety-eight.

SEC. 6. If any province of this Act shall be declared by any court of competent
jurisdiction to be unconstitutional and void, such declaration shall not invalidate the
remainder of this Act.

SEC. 7. This Act shall take upon its approval.

Approved, August 19, 1940.

COMMONWEALTH ACT NO. 671

AN ACT DECLARING A STATE OF TOTAL EMERGENCY AS A RESULT OF


WAR INVOLVING THE PHILIPPINES AND AUTHORIZING THE PRESIDENT
TO PROMULGATE RULE AND REGULATIONS TO MEET SUCH
EMERGENCY.

Be it enacted the National Assembly of the Philippines;

SECTION 1. The existed of war between the United State and other countries of Europe
and Asia, which involves the Philippines, makes it necessary to invest the President with
extraordinary powers in order to meet the resulting emergency.

SEC. 2. Pursuant to the provision of Article VI, section 16, of the Constitution, the
President is hereby authorized, during the existence of the emergency, to promulgate
such rules and regulation as he may deem necessary to carry out the national policy
declared in section 1 hereof. Accordingly, he is, among other things, empowered (a) to
transfer the seat of the Government or any of its subdivisions, branches, department,
offices, agencies or instrumentalities; (b) to reorganize the Government of the
Commonwealth including the determination of the order of precedence of the heads of
the Executive Department; (c) to create new subdivision, branches, departments, offices,
agency or instrumentalities of government and to abolish any of those already existing;
(d) to continue in force laws and appropriation which would lapse or otherwise became
inoperative, and to modify or suspend the operation or application of those of an
administrative character; (e) to imposed new taxes or to increase, reduce, suspend, or
abolish those in existence; (f) to raise funds through the issuance of bonds or otherwise,
and to authorize the expensive of the proceeds thereof; (g) to authorize the National,
provincial, city or municipal governments to incur in overdrafts for purposes that he may
approve; (h) to declare the suspension of the collection of credits or the payment of
debts; and (i) to exercise such other power as he may deem necessary to enable the
Government to fulfill its responsibilities and to maintain and enforce its authority.
SEC. 3. The President of the Philippines report thereto all the rules and regulation
promulgated by him under the power herein granted.

SEC. 4. This Act shall take effect upon its approval and the rules and regulations.
promulgated hereunder shall be in force and effect until the Congress of the Philippines
shall otherwise provide.

Approved December 16, 1941.

The above Acts cannot validly be invoked, Executive Order No. 68 was issued on July 29, 1947.
Said Acts had elapsed upon the liberation of the Philippines form the Japanese forces or, at the
latest, when the surrender of Japan was signed in Tokyo on September 2, 1945.

When both Acts were enacted by the Second National Assembly, we happened to have taken
direct part in their consideration and passage, not only as one of the members of said legislative
body as chairman of the Committee on Third Reading population Known as the "Little Senate."
We are, therefore in a position to state that said measures were enacted by the second national
Assembly for the purpose of facing the emergency of impending war and of the Pacific War that
finally broke out with the attack of Pearl Harbor on December 7, 1941. We approved said
extraordinary measures, by which under the exceptional circumstances then prevailing
legislative power were delegated to the President of the Philippines, by virtue of the following
provisions of the Constitution:

In time of war or other national emergency, the Congress may by law authorize the
President, for a limited period and subject to such restrictions as it may prescribe to
promulgate rules and regulations to carry out declared national policy. (Article VI, section
26.)

It has never been the purpose of the National Assembly to extend the delegation beyond the
emergency created by the war as to extend it farther would be violative of the express provision
of the Constitution. We are of the opinion that there is no doubt on this question.; but if there
could still be any the same should be resolved in favor of the presumption that the National
Assembly did not intend to violate the fundamental law.

The absurdity of the contention that the emergency Acts continued in effect even after the
surrender of Japan can not be gainsaid. Only a few months after liberation and even before the
surrender of Japan, or since the middle of 1945, the Congress started to function normally. In
the hypothesis that the contention can prevail, then, since 1945, that is, four years ago, even
after the Commonwealth was already replaced by the Republic of the Philippines with the
proclamation of our Independence, two district, separate and independence legislative organs,
Congress and the President of the Philippines would have been and would continue
enacting laws, the former to enact laws of every nature including those of emergency character,
and the latter to enact laws, in the form of executive orders, under the so-called emergency
powers. The situation would be pregnant with dangers to peace and order to the rights and
liberties of the people and to Philippines democracy.

Should there be any disagreement between Congress and the President of the Philippines, a
possibility that no one can dispute the President of the Philippines may take advantage of he
long recess of Congress (two-thirds of every year ) to repeal and overrule legislative enactments
of Congress, and may set up a veritable system of dictatorship, absolutely repugnant to the
letter and spirit of the Constitution.

Executive Order No. 68 is equally offensive to the Constitution because it violates the
fundamental guarantees of the due process and equal protection of the law. It is especially so,
because it permit the admission of many kinds evidence by which no innocent person can afford
to get acquittal and by which it is impossible to determine whether an accused is guilty or not
beyond all reasonable doubt.

The rules of evidence adopted in Executive Order No. 68 are a reproduction of the regulation
governing the trial of twelve criminal, issued by General Douglas Mac Arthur, Commander in
Chief of the United State Armed Forces in Western Pacific, for the purpose of trying among
other, General Yamashita and Homma. What we said in our concurring and dissenting opinion
to the decision promulgated on December 19, 1945, in the Yamashita case, L-129, and in our
concurring and dissenting opinion to the resolution of January 23, 1946 in disposing the Homma
case, L-244, are perfectly applicable to the offensive rules of evidence in Executive Order No.
68. Said rules of evidence are repugnant to conscience as under them no justice can expected.

For all the foregoing, conformably with our position in the Yamashita and Homma cases, we
vote to declare Executive Order No. 68 null and void and to grant petition.
Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-129 December 19, 1945

TOMOYUKI YAMASHITA, petitioner,


vs.
WILHELM D. STYER, Commanding General, United States Army Forces, Western
Pacific, respondent.

Col. Harry E. Clarke and Lt. Col. Walter C. Hendrix for petitioner.
Maj. Robert M. Kerr for respondent.
Delgado, Dizon, Flores and Rodrigo appeared as amici curiae.

MORAN, C.J.:

Tomoyuki Yamashita, erstwhile commanding general of the 14th army group of the Japanese
Imperial Army in the Philippines, and now charged before an American Military Commission with
the most monstrous crimes ever committed against the American and Filipino peoples, comes
to this Court with a petition for habeas corpus and prohibition against Lt. Gen. Wilhelm D. Styer,
Commanding General of the United States Army Forces, Western Pacific. It is alleged therein
that petitioner after his surrender became a prisoner of war of the United States of America but
was later removed from such status and placed in confinement as an accused war criminal
charged before an American Military Commission constituted by respondent Lieutenant General
Styer; and he now asks that he be reinstated to his former status as prisoner of war, and that
the Military Commission be prohibited from further trying him, upon the following grounds:

(1) That the Military Commission was not duly constituted, and, therefore, it is without
jurisdiction;

(2) That the Philippines cannot be considered as an occupied territory, and the Military
Commission cannot exercise jurisdiction therein;

(3) That Spain, the "protecting power" of Japan, has not been given notice of the implementing
trial against petitioner, contrary to the provisions of the Geneva Convention of July 27, 1892,
and therefore, the Military Commission has no jurisdiction to try the petitioner;

(4) That there is against the petitioner no charge of an offense against the laws of war; and

(5) That the rules of procedure and evidence under which the Military Commission purports to
be acting denied the petitioner a fair trial.
We believe and so hold that the petition for habeas corpus is untenable. It seeks no discharge
of petitioner from confinement but merely his restoration to his former status as a prisoner of
war, to be interned, not confined. The relative difference as to the degree of confinement in such
cases is a matter of military measure, disciplinary in character, beyond the jurisdiction of civil
courts.

Neither may the petition for prohibition prosper against Lt. Gen. Wilhelm D. Styer. The military
Commission is not made party respondent in this case, and although it may be acting, as
alleged, without jurisdiction, no order may be issued in these case proceedings requiring it to
refrain from trying the petitioner.

Furthermore, this Court has no jurisdiction to entertain the petition even if the commission be
joined as respondent. As we have said in Raquiza vs. Bradford (pp. 50, 61, ante), ". . . an
attempt of our civil courts to exercise jurisdiction over the United States Army before such
period (state of war) expires, would be considered as a violation of this country's faith, which this
Court should not be the last to keep and uphold." (Emphasis supplied) We have said this in a
case where Filipino citizens were under confinement, and we can say no less in a case where
the person confined is an enemy charged with the most heinous atrocities committed against
the American and Filipino peoples.

True that the rule was made applicable in time of war, and there is a conflict of opinion as to
whether war has already terminated. War is not ended simply because hostilities have ceased.
After cessation of armed hostilities, incident of war may remain pending which should be
disposed of as in time of war. "An important incident to a conduct of a war is the adoption of
measure by the military command not only to repel and defeat the enemies but to seize and
subject to disciplinary measures those enemies who in their attempt to thwart or impede our
military effort to have violated the law of the war." (Ex parte Quirin, 317 US., 1; 63 Sup. Ct., 2.)
Indeed, the power to create a Military Commission for the trial and punishment of war criminals
is an aspect of waging war. And, in the language of a writer, a Military Commission "has
jurisdiction so long as a technical state of war continues. This includes the period of an
armistice, or military occupation, up to the effective date of a treaty agreement." (Cowles, Trial
of War Criminals by Military Tribunals, American Bar Association Journal, June, 1944.)

Upon the other hand, we have once said (Payomo vs. Floyd, 42 Phil., 788), and this
applicable in time of war as well as the time of peace that this Court has no power to review
upon habeas corpus the proceedings of a military or naval tribunal, an that, in such case, "the
single inquiry, the test, is jurisdiction. That being established, the habeas corpus must be denied
and the petitioner discharged." (In re Grimley, 137 U.S., 147; 11 Sup. Ct., 54; 34 La. ed., 636.)
Following this rule in the instant case, we find that the Military Commission has been validly
constituted and it has jurisdiction both over the person of the petitioner and over the offenses
with which he is charged.

The Commission has been validly constituted by Lieutenant General Styer duly issued by
General Douglas MacArthur, Commander in Chief, United States Army Force Pacific, in
accordance in authority vested in him and with radio communication from the Joint Chiefs of
Staff, as shown by Exhibits C, E, G, and H, attached by petition. Under paragraph 356 of the
Rules of the Land Welfare a Military Commission for the trial and punishment of the war
criminals must be designated by the belligerent. And the belligerent's representative in the
present case is none other than the Commander in Chief of the United States Army in the
Pacific. According to the Regulations Governing the Trial of the War Criminals in the Pacific,
attached as Exhibit F to the petition, the "trial of persons, units and organizations accused as a
war criminals will be the Military Commissions to be convened by or under the authority of the
Commander in Chief, United States Army Forces, Pacific." Articles of War Nos. 12 and 15
recognized the "Military Commission" appointed by military command as an appropriate tribunal
for the trial and punishment of offenses against the law of the war not ordinarily tried by court
martial. (Ex parte Quirin, supra.) And this has always been the United States military practice at
since the Mexican War of 1847 when General Winfield Scott took the position that, under the
laws of war, a military commander has an implied power to appoint and convene a Military
Commission. This is upon the theory that since the power to create a Military Commission is an
aspect of waging war, Military Commanders have that power unless expressly withdrawn from
them.

The Military Commission thus duly constituted has jurisdiction both over the person of the
petitioner and over the offenses with which he is charged. It has jurisdiction over the person of
the petitioner by reason of his having fallen into the hands of the United States Army Forces.
Under paragraph 347 of the Rules of the Land Warfare, "the commanders ordering the
commission of such acts, or under whose authority they are committed by their troops, may be
punished by the belligerent into whose hands they may fall."

As to the jurisdiction of the Military Commission over war crimes, the Supreme Court of the
United States said:

From the very beginning of its history this Court has recognized and applied the law of
war as including that part of the law of nations which prescribes, for the conduct of war,
the status rights and duties and of enemy nations as well as of enemy individuals. By the
Articles of War, and especially Article 15, Congress has explicitly provided, so far as it
may constitutionally do so, that military tribunals shall have jurisdiction to try offenders or
offenses against the law of war in appropriate cases. Congress, in addition to making
rules for the government of our Armed Forces, has thus exercised its authority to define
and punish offenses against the law of nations by sanctioning, within constitutional
limitations, the jurisdiction of military commissions to try persons and offenses which,
according to the rules and precepts of the law of nations, and more particularly the law of
war, are cognizable by such tribunals. (Ex parte Quirin, 317 U.S. 1, 27-28; 63 Sup. Ct.,
2.)

Petitioner is charged before the Military Commission sitting at Manila with having permitted
members of his command "to commit brutal atrocities and other high crimes against the people
of the United States and of its allies and dependencies, particularly the Philippines," crimes and
atrocities which in the bills of particulars, are described as massacre and extermination of
thousand and thousands of unarmed noncombatant civilians by cruel and brutal means,
including bayoneting of children and raping of young girls, as well as devastation and
destruction of public, or private, and religious property for no other motive than pillage and
hatred. These are offenses against the laws of the war as described in paragraph 347 of the
Rules of Land Warfare.

It is maintained, however, that, according to the Regulations Governing the Trial of War
Criminals in the Pacific. "the Military Commission . . . shall have jurisdiction over all of Japan
and other areas occupied by the armed forces commanded by the Commander in Chief, United
States Army Forces, Pacific" (emphasis supplied), and the Philippines is not an occupied
territory. The American Forces have occupied the Philippines for the purpose of liberating the
Filipino people from the shackles of Japanese tyranny, and the creation of a Military
Commission for the trial and punishment of Japanese war criminals is an incident of such war of
liberation.

It is maintained that Spain, the "protecting power" of Japan, has not been given notice before
trial was begun against petitioner, contrary to the provisions of the Geneva Convention of July
27, 1929. But there is nothing in that Convention showing that notice is a prerequisite to the
jurisdiction of Military Commissions appointed by victorious belligerent. Upon the other hand,
the unconditional surrender of Japan and her acceptance of the terms of the Potsdam
Ultimatum are a clear waiver of such a notice. It may be stated, furthermore, that Spain has
severed her diplomatic relation of Japan because of atrocities committed by the Japanese
troops against Spaniards in the Philippines. Apparently, therefore, Spain has ceased to be the
protecting power of Japan.

And, lastly, it is alleged that the rules of procedure and evidence being followed by the Military
Commission in the admission of allegedly immaterial or hearsay evidence, cannot divest the
commission of its jurisdiction and cannot be reviewed in a petition for the habeas corpus. (25
Am. Jur., 218; Collins vs. McDonald, 258 U. S. 416; 66 Law. ed., 692; 42 Sup. Ct., 326).

For all foregoing, petition is hereby dismissed without costs.lawphi1.net

Jaranilla, Feria, De Joya, Pablo, Hilado, Bengzon, and Briones, JJ., concur.
Paras, J., concurs in the result.

Separate Opinions

OZAETA, J., concurring and dissenting:

I concur in the dismissal of the petition for habeas corpus and prohibition on the ground that the
Military Commission trying the petitioner has been legally constituted, and that such tribunal has
jurisdiction to try and punish the petitioner for offenses against the law of war. (Ex parte Quirin,
317 U.S. 1; 63 Sup. Ct., 2.)

I dissent, however, from the portion of the opinion of the Court which cities and applies herein its
decision in the case Raquiza vs. Bradford (pp. 50, 61, ante ), to the effect that an attempt of our
civil court to exercise jurisdiction over the United States Army would considered as a violation of
this country's faith. The decision of Raquiza case, from which I dissented, was based mainly of
the case of Coleman vs. Tennessee (97 U. S., 509), in which was mentioned merely by way of
argument the rule of international law to effect that a foreign army, permitted to march through a
friendly country to be stationed in it, by permission of its government or sovereign, is exempt
from the civil and criminal jurisdiction of the place. After reviewing the facts and the ruling of the
court in the Coleman case, I said in my dissenting opinion in the Raquiza case the following:

. . . Thus it is clear that the rule of international law above mentioned formed no part of
the holding of the court in the said case.

Neither can such rule of international law of itself be applicable to the relation between
the Philippines and the United States, for the reason that the former is still under the
sovereign of the latter. The United States Army is not foreign to the Philippines. It is here
not by permission or invitation of the Philippine Government but by right of sovereignty of
the United States over the Philippines. It has the same right to be here as it has to be in
Hawaii or California. The United States has the same obligation to defend and protect
the Philippines, as it has to defend and protect Hawaii or California, from foreign
invasion. The citizens of the Philippines owe the same allegiance to the United States of
the America as the citizens of any territory or States of the Union.

That the case of Coleman vs. Tennessee was erroneously invoked and applied by this Court in
the case of Raquiza vs. Bradford, was admitted by Mr. Wolfson, the attorney for Lieutenant
Colonel Bradford, who, notwithstanding the judgment in favor of his client, moved this Court to
modify the majority opinion "by eliminating all reference to the case of Coleman vs. Tennessee
(97 U.S. 509). because, as well pointed out in both dissenting opinions, said case has no
application whatever to the case at bar." .

The rule of international law mentioned in the Coleman case and erroneously applied by
analogy in the Raquiza case, has likewise no application whatever to the case at bar. A mistake
when repeated only becomes a blunder.

PERFECTO, J., concurring and dissenting:

1. FACTS IN THIS CASE

Petitioner prays that a writ of habeas corpus be issued directed to respondent Lt. Gen. Wilhelm
D. Styer, Commanding General, United Army Forces, Western Pacific, commanding him to
produce the body of the petitioner before this Court and that "he be ordered returned to the
status of an internee as a prisoner of war in conformity with the provision of article 9 of the
Geneva Convention of July 27, 1929, relative to the treatment of prisoners of war and of
paragraph 82 of the Rules of Land Warfare, F. M. 27-10, United States War Department, and
that a writ of prohibition be issued by this Court prohibiting the respondent from proceeding with
the trial, and that the petitioner be discharged from the offenses and confinement aforesaid."

Prior to September 3, 1945, petitioner was the commanding general of the 14th Army Group of
the Imperial Japanese Army in the Philippines. On said date, he surrendered to the United
States and was interned in New Bilibid Prison, in Muntinlupa, in conformity with the provision of
article 9 of the Geneva Convention of July 27, 1929, relative to the treatment of prisoners of
war, and of paragraph 82 of the Rules of Land Warfare of the United States War Department.

On October 2, 1945, respondent caused to be served on petitioner a charge for violation of the
laws of war, signed by Colonel Alva C. Carpenter, wherein it is alleged that between 9 October,
1944, and 2 September, 1945, petitioner "while commander of the armed forces of Japan at war
with the United States and its allies, unlawfully disregarded and failed it discharge his duty as
commander to control the operations of the members of his command, permitting them to
commit brutal atrocities and other high crimes against the people of the United States and its
allies and dependencies, particularly the Philippines." Thereafter petitioner was removed from
the status of the prisoner of war and was placed in confinement as an accused war criminal and
is presently confined in the custody of respondent at the residence of the United States High
Commissioner of the Philippines in Manila.

On October 1, 1945, by command of respondent and pursuant to authority contained in a letter


from the General Headquarters, United States Army Force, Western Pacific, dated September
24, 1945, a Military Commission was appointed to try petitioner. At the same time several
officers were designated to conduct the prosecution and several others to act as defense
counsel.

The commission was instructed to follow the provisions of the letter of September 24, 1945, and
was empowered to "make such rules for the conduct of the proceedings as it shall deem
necessary for a full and fair trial of the person before it. Such evidence shall be admitted as
would, in the opinion of the president of the commission, have probative value to a reasonable
man and is relevant and material to the charges before the commission. The concurrence of at
least two-thirds of the members of the commission present shall be necessary for a conviction
or sentence."

Said letter (Exhibit G) addressed to respondent by Brigadier General B. M. Fitch, "by command
of General MacArthur," empowers respondent "to appoint Military Commissions for the trial of
such persons accused of war crimes as may hereafter be designated by this Headquarters,"
with the instructions that "all the records of trial including judgment or sentence and the action of
the appointing authority will be forwarded to this Headquarters. Unless otherwise directed, the
execution of judgment or sentence in all cases will be withheld pending the action of the
Commander in Chief.

On the same date "by Command of General MacArthur" (Exhibit H), respondent was instructed
to proceed immediately with the trial of General Tomoyuki Yamashita for the charge served on
petitioner on October 2, 1945 (Exhibit B).

Upon arraignment on October 8, 1945, by the above mentioned Military Commission, petitioner
entered a plea of not guilty. On the same date the prosecution filed a bill of particulars (Exhibit
1) with 64 items of crimes, and on October 29, 1945, a supplemental bill of particulars (Exhibit J)
with many other additional items, adding up to 123, of the specified crimes imputed to petitioner.

On October 19, 1945, petitioner's defense filed a motion to dismiss the case before the Military
Commission for the reasons that the charge, as supplemented by the bills of particulars, "fails to
state a violation of the laws of war by the accused, and that the commission has no jurisdiction
to try this cause." The motion was denied on October 29.

On said day, which was the first day of trial, the prosecution offered in evidence an affidavit of
Naukata Utsunomia (Exhibit M) executed on October 1, 1945, and subscribed and sworn to
before Captain Jerome Richard on October 22, 1945. The affidavit was made in Japanese
through interpreter Tadashi Yabi. The defense objected to the admission of said affidavit,
invoking to said effect article 25 of the Articles of War prohibiting the introduction of depositions
by the prosecution in a capital case in proceedings before a court martial or a Military
Commission. (Exhibit L and N.)
Again on the same first day of trial, hearsay evidence was offered, defense counsel objected,
but the objection was again overruled. (Exhibits O and P.) The defense counsel alleged then
that the admission of hearsay evidence was violative of Article of War 38, the manual for the
court-martial, and the rules of evidence in criminal cases in the district courts of the United
States. It is alleged by petitioner that violations of legal rules of evidence have continued and
are continuing during the trial.

At the opening of the trial, "the prosecution stated that no notice of impending trial had been
given the protecting power of the Japan by the United States," such notice being required by
article 60 of the Geneva Convention of July 27, 1929, and of paragraph 133 of the Rules of
Land Warfare, United States War Department.

2. REMEDIES PRAYED FOR

After alleging the above-mentioned facts, petitioner maintains that his confinement and trial as a
war criminal are illegal and in violation of articles 1 and 3 of the Constitution of the United States
and the Fifth Amendment thereto, and a certain other portions of said Constitution, and laws of
the United States, and article 3 of the Constitution of the Philippines and certain other portions
of said Constitution and laws of the Philippines Islands, and of certain provisions of the Geneva
Convention of July 27, 1929, in that:

(a) There being no martial law, no Military Government of occupied territory and no active
hostilities in the Philippines at the time of the appoint the same, the commission is without
jurisdiction.

(b) There being no charge of an offense against the laws of war by the petitioner, the
commission is without jurisdiction.

(c) The rules of procedure and evidence under which the Military Commission purports to be
acting deny the petitioner the fair trial guaranteed by the Constitution of the United States and
the Constitution of the Philippines, and are in violation of Articles of War 25 and 38 and of other
provisions of the laws of the United States and of the Philippines.

(d) The respondent was granted to authority by the Commander in Chief, United States Army
Forces, Western Pacific, to appoint a military commission and /or to try the petitioner in the
Philippine Islands, and the Commission is, therefore, without jurisdiction to try this case.

(e) The United, States, not having given notice of the impending trial to the protecting power of
Japan as made mandatory by the Geneva Convention of July 27, 1929, relative to the treatment
of prisoners of war, cannot properly and illegally try the petitioner on the charge.

3. RULES OF INTERNATIONAL LAW

In the Rules of Land Warfare, paragraph 133 (Exhibit Q), it is provided that "at the opening of a
judicial proceeding directed against a prisoner of war the detaining power shall advise the
representative of the protecting power thereof as soon as possible, and always before the date
set for the opening of the trial," and "at all events, at least three weeks before the opening of the
trial."
Article VIII of the Convention respecting the laws and customs of war on land, agreed in The
Hague on July 29, 1899, provides: "Prisoners of war shall be subject to the laws, regulations,
and orders in force in the army of the State into whose hands they have fallen.

Section 59 of General Orders No. 100, dated April 24, 1863, containing instructions for the
government of armies of the United States in the field provides: "A prisoner of war remains
answerable for his crimes committed against captor's army or people, committed before he was
captured, and for which he has not been punished by his own authorities."

Secretary of State Daniel Webster, in a communication addressed to Mr. Thompson, Minister to


Mexico, on April 5, 1842, said: "The law of the war forbids the wounding, killing, impressment
into the troops of the country or the enslaving or otherwise maltreating of prisoners of war,
unless they have been guilty of some grave crime; and from the obligation of this law no
civilized state can discharged itself."

4. IN ANCIENT GREECE AND ROME

Many of the basic ideas which prevail today in the customs and usages of nations and became
part of the international law emerged from the human mind centuries before the Christian Era.
Such is the idea that prisoners of war are entitled to humane treatment, that treasons of war
should be discountenanced, and that belligerents must abstain from causing harm to non-
combatants.

On his return to Peloponnesus in 427 B. C., Alcibiades touched at Mayonnesus and there slew
most of the captives taken on his voyage. According to Thucydides, the Samian exiles
remonstrated with him for putting to the death prisoners who have not been in open hostilities
against him.

The same historian narrates that the year before, the Mytileneans of Lesbos revolted from
Athens, but they were obliged to capitulate in the following year to Paches, who dispatched to
Athens over a thousand prisoners. Their disposal provoked discussion in the Athenian
assembly. At the instigation of Cleon, the demagogue and the former opponent of Pericles, an
order was issued to slaughter not only the men who arrived in Athens, but the entire made
population of Mytilene that was of military age, and to enslave the women and children. The
execution of the order was delayed, and another assembly was called. There an amendment of
Theodotus was carried, and the previous order countermanded.

The roman treatment of prisoners was less rigorous than the Greek. As stated by Virgilius, "the
Roman policy from the first was, on the one hand, debellare super bos, to subdue the proud and
arrogant peoples and, on the other,parcellare subiectes, to spare those who have submitted."

"Dionisius states that a rule existed in Rome as early as the time of Romulus, which prohibited
the putting to death or enslaving on men captured in the conquered cities, and also the
devastation of their territories; it provided, on the contrary, for the sending of inhabitants, either
to take possession by lot of the some part of the country, for making the conquered cities
Roman colonies, and even for conceding to them some of the privileges Roman citizenship."
(Philipps on the International Law and Custom of Ancient Greece and Rome, Vol. II, p. 254.)

In 407 B.C. the Spartan commander Callicraditas took the town of Methymna by storm. In spite
of the persuasion of his allies, according to Xenophon, he refused to the sell the Athenian
garrison and Methymnaean citizens as slaves, declaring that so long as he exercises the
command no Greek should ever be reduced to slavery. Grote in his History of Greece could not
refrain from praising this gesture of the Macedonian admiral by saying: "No one who has
familiarized himself with the details of Greecian warfare can feel the full grandeur and sublimity
of this proceeding . . . It is not merely that the prisoners were spared and set free . . . It is that
this particular act of generosity was performed in the name and for the recommendation of Pan-
Hellenic brotherhood and Pan-Hellenic independence for the foreigner . . . It is, lastly, that the
step was taken in resistance to the formal requisition on the part of his allies." (History of
Greece, Vol. VI p. 387.)

Philip, the Macedonian King, liberated Athenian prisoners without ransom after the taking of
Olynthus in 348 B.C. and ten years later after the Battle of Chaeronee, he dismissed the
prisoners with all their baggage.

Xenophon quotes Agesileus reminding his soldiers that "prisoners were meant to be kept, and
not criminals to be punished." And Pausanias narrates that when Epaminondas, the greatest
Theban general, had gathered together, he nominally assigned to each of the men he captured
there a different nationality, and set them all free, and there are cases where captives were
dismissed on parole to have chance of finding ransomers.

Among the Greeks much was done to humanize warfare, and to remove from it the atrocities
which prevailed amongst the most of the nations antiquity. The Oracle of Delfi refused to listen
to the Milesians as they had not duly expiated the excesses committed in their civil wars, though
it responded to all, others, even to barbarians, who consulted it. "C'etait comme
l'excommunication du paganisme", comments Leurent (Vol. II, p. 135).

Poets, philosophers, artist, and men of intellectual distinction in general, even though they
became invested with enemy character on the outbreak of war, were honored and respected. In
335 B.C. Alexander the Great destroyed Thebes, but he left Pindar's house uninjured and
honored the poet's descendants. In ancient Hellas was already known the practice of
neutralizing cities and protecting them from the ravages of war. Temples, priest, and embassies
were considered inviolable. The right sanctuary was universally recognized. Mercy was shown
to suppliant and helpless captives. Safe-conducts were granted and respected. Burial of dead
was permitted, and graves were unmolested. It was considered wrong to cut off or poison the
enemy's water supply, or to make use of poisonous weapons. Treacherous strategems of
whatever description were condemned as being contrary to civilized warfare. Poets and
philosophers, orators and historians proclaimed humane doctrines. Plato constructed his ideal
republic on the basis of what he conceived to be perfect justice. Aristotle condemned the
principle of retaliation as being antagonistic to true justice. Euripides speaks of excesses in war
not only as acts of intrinsic wickedness and transgression against universal law, but, indeed, as
a suicidal folly on the part of the offender. In one of his dramas he makes Poseidon declare:
"But foolish is the mortal who lays waste cities, temple, and tombs, the sanctuaries of the dead;
for having consigned them to solitude, he is the one himself to perish afterwards."

The mild and clement nature shown by Caesar to many belligerent peoples was recognized
even by his political enemy Cicero to whom he wrote: You are not mistaken about me . . . .
Nothing is far from my nature than cruelty . . . . I am told that some prisoners I set free seize the
first opportunity to take up arms against me; nevertheless, I shall not renounce my policy."
The Roman conduct Roman conduct far transcended in its civilized and humane character that
of the German leader Arminius, who is reported by Tacitus to have burned to death and
otherwise barbarously slain the centurions and tribunes of the Varian legions, and nailed the
skulls to trees. The sanction of Roman jurisprudence and the submission to the fundamental
principles of justice proved effective.

Livy narrates that in 393 B.C. a certain school master of Falerii, who was in charge of the sons
of the principal citizens of the town, took the opportunity to lead them to the Roman camp and
threw them into the power of the enemy. The roman general Camillus, indignant at this treason,
ordered the boys to drive their master back to the town, and flog him all the way. There were, he
pointed, laws of war as well as of peace, and the Romans had learn to put them into practice
not less justly than bravely "sunt et belli, sicut pacis, iura; iusteque, ea, non, minus, quam
fortiter, didicimus gerere."

When Adgantestrius made an offer to the Romans Senate to poison Arminius, according to
Tacitus, he was at once informed that it was not by secret treachery but openly by arms that the
Romans proceeded against their enemies. The same historian mentioned the fact that the
Romans generals rejected the scheme, suggested by the King's physician, of poisoning Pyrrhus
(280 B.C.) and even delivered up the traitor, Pyrrhus, in return for the Roman generosity,
allowed his prisoners to go to Rome on parole in order to celebrate the Saturnalia; after which,
they, faithfully returned.

5. UNQUENCHABLE THIRSTINESS OF PERFECTION. PETITIONER ENTITLED TO


LEGAL GUARANTEES

Impelled by irrepressible endeavors aimed towards the ideal, by the unconquerable natural urge
for improvement, by the unquechable thirstiness of perfection in all orders of life, humanity has
been struggling during the last two dozen centuries to develop an international law which could
answer more and more faithfully the demands of right and justice as expressed in principles
which, weakly enunciated at first in the rudimentary juristic sense of peoples of antiquity, by the
inherent power of their universal appeal to human conscience, at last, were accepted,
recognized, and consecrated by all the civilized nations of the world.

Under these principles, petitioner General Tomoyuki Yamashita is entitled to be accorded all the
guarantees, protections, and defenses that all prisoners should have according to the customs
and usages, convention and treaties, judicial decisions and executive pronouncements, and
generally accepted opinions of thinkers, legal philosophers and other expounders of just rules
and principles of international law. The seriousness or unfathomable gravity of a charges
against him, the unthinkable magnitude of the wholesale murders, rapes, and destructions for
which he is called to answer, the beastly massacres and horrors by which he was thrown from
the pedestal of military glory as the "Tiger of Malaya" into the bottom of perversity of a human
monster, must not be taken into consideration, must all be forgotten, in order that true justice
may be administered in this case.

6. WAR CRIMINALS

P ALIGN="JUSTIFY">"There is very little limitation on what a victorious nation can do with a


vanquished State at the close of a war. One shudders to think what Germany and Japan would
do if they were the victors! But the common law of nations probably requires a fair trial of
offenders against war law as a prerequisite to punishment for alleged offenses; and that Geneva
Convention so prescribed in the case of prisoners of war. But in the final analysis a decent
respect for the opinion of mankind and the judgment of history is, in effect, a victorious
belligerent's main limitation on its treatment of the surrendered at the close of a war; and this is
self-imposed. The United Nations are solemnly committed to the vindication and the rule of law
which has been ruthlessly destroyed by the Nazis and Japanese." (Sheldon Glueck, War
Criminals, p. 77.).

"Formalized vengeance can bring only ephemeral satisfaction, with every probability of ultimate
regret; but vindication of law through legal process may contribute substantially to the re-
establishment of order and decency in international relations." (Report of the Subcommittee on
the Trial and Punishment of War Crimes, 37 Am. J. Int. L. [1943], 663, 666.)

"Centuries of civilization stretched between the summary slaying of the defeated in a war, and
the employment of familiar process and protections of justice according to law to air the extent
and nature of individual guilt . . . and in the civilized administration of justice, even the most
loathsome criminal caught redhanded must be given his day in court and an opportunity to
interpose such defenses as he may have." (Sheldon Glueck, Id., p. 78.)

7. ALLIED PRONOUNCEMENTS

According to a number of official pronouncements by United Nations' statesmen, the vast


majority of offenders will be tried in the domestic criminal or military tribunals of the injured
nations. Thus on August 21, 1942, President Roosevelt, in condemning the crimes committed
against the civil population in occupied lands, solemnly announced that "the time will come
when the criminals will have stand in courts of law in the very countries which they are now
oppressing, and to answer for their acts."

On September 8, 1942, Mr. Churchill promised that "those who are guilty of the Nazi crimes will
have to stand up before tribunals in every land where the atrocities have been committed."

The Moscow Declaration of November 1, 1943, sternly warned that: "at the time of granting of
any armistice to any government which may set up in Germany, those German officers or men
and members of the Nazi party, who have been responsible for or have taken a part (in the
various) atrocities, massacres and executions will be sent back to the countries in which their
abominable deeds according to the laws of these liberated countries and of the free
governments which will be erected therein," and that "the Allied Powers will pursue them to the
utmost ends of the earth and will deliver them to the accusers in order that justice may be
done."

The American members of commission on responsibilities appointed at the close of World War
I, had strenuously opposed the trial of German war criminals in an international high tribunal on
the grounds that it was unprecedented and that there existed no international statute or
convention making violations of the laws and customs of warfare international statute or
convention making violations of the laws and customs of warfare international crimes defining
such offenses more specifically than the definitions to be found in the prohibitions of the
unwritten or written law of nations affixing a specific punishment to each crime, and giving
jurisdiction to a world court.

But Doctor Glueck is of opinion that "If the Germans were to try an American soldier for violating
German statutes implementing the laws and custom of warfare in a newly established type of
military tribunal, the accused would not be heard to complain that he had been set up Provided
the international tribunal affords as adequate a trial as the accused would have had in the court
of any injured belligerent he has no valid ground for complaint."(P. 116.).

"One of the arguments he continues advanced by the American participants on the


commission on responsibility at the close of World War I, against the establishment of an
international criminal tribunal was that it was unprecedented. The atrocities committed by Axis
powers led by Germany, even by comparison with their behavior in World War I, are
unprecedented. Can history show a better age than our own to initiate a series of much-needed
precedents? Few symbols of this new era which heralds the neighborly cooperation of civilized
people in the vindication of the laws of civilized nation would be more impressive than an
international criminal court, in which the plaintiff would be the world community. . . . The
international criminal court would be a more vivid symbol of the reign of justice of an
international plane than even the permanent court at The Hague has been. In domestic polity,
the administration of criminal justice of the strongest pillar of government. The doing of an
international plane under international auspices is even more important. It is indispensable to
the survival, in the intercourse of nations, of the very traditions of law and justice. The
besmirching of the prestige of international law is not the least of the evils perpetrated by the
Axis power led by Nazi Germany. The peerless and efficient administration of justice in the case
of Axis war criminals is today indispensable as a token to the peoples of the world, a sign that
crimes committed by one country's subject against the people of another member of the family
of nations will be relentlessly punished even though they run into huge numbers, were
committed by men in uniform, and are instigated by a Fuehrer endowed by himself and his
intoxicated followers with the attributes of a demigod." (Page 178.)

"Adequate law for use by an international court now exist; and its enforcement by such a
tribunal would violate no fundamental tenets of civilized nations. The law for an international
tribunal can be drawn from the rich reserviors of common and conventional law of nations and
the principles, doctrines and standards of criminal law that constitute the common denominator
of all civilized penal codes.

"The punishment to be applied by domestic military and civil courts depend upon local law and
practice. Those to be imposed by the international tribunal could be based either upon the
punishments permitted by the laws and customs or warfare or upon those provided for crimes of
similar nature and gravity by the law of the accusing State, taking into account, also, where
necessary individual instances, the law of the defendants States." (Page 181.)

8. NO SURPRISES TO PETITIONER

Petitioner in this case cannot allege ignorance of the fact that the criminal acts alleged in the
specified charges against him are punishable by law, not only in all civilized nations, but in his
own country.

Since January 1, 1882, the Japanese Government had been enforcing a Criminal Code based
on the Code of Napoleon of 1811, prepared by the French jurist M. Boissonade, said criminal
code having been superseded by a new one on October 1, 1908.

Under the last, arson may be punished with death (article 108); rape is heavily punished
(articles 176, 177 and 178); and murder or homicide may be punished with death or penal
servitude for life (article 109). These offenses and many others, punished by our Penal Code,
are known to the Japanese as crimes, which in Japanese is tsumi.

From the Lauterpacht edition (1944) of Oppenheim's International Law, Vol. II, pp. 450-458, we
quote:

SEC. 251. In contradistinction to hostile acts of soldiers by which the latter do not lose
their privilege of being treated as lawful members of armed forces, war crimes are such
hostile or other acts of soldiers or other individuals as may be punished by the enemy on
capture of the offenders. They include acts contrary to International Law perpetrated in
violation of the law of the criminal's own State, such as killing or plunder for satisfying
private lust and gain, as well as criminal acts contrary to the laws of war committed by
order and on behalf of the enemy State. To that extent the notion of war crimes is based
on the view that States and their organs are subject to criminal responsibility under
International Law.

SEC. 253. The fact that a rule of warfare has been violated in pursuance of an order of
the belligerent Government or of an individual belligerent commander does not deprive
the act in question of its character as a war crime; neither does it, in principle, confer
upon the perpetrator immunity from punishment by the injured belligerent. A different
view has occasionally been adopted in military manuals and by writers, but it is difficult
to regard it as expressing a sound legal principle. Undoubtedly, a Court confronted with
the plea of superior orders adduced in justification of a war crime is bound to take into
consideration the fact that obedience to military orders, not obviously unlawful, is the
duty of every member of the armed forces and that the latter cannot, in conditions of war
discipline, be expected to weigh scrupulously the legal merits of the order received; that
rules of warfare are often controversial; and that an act otherwise amounting to a war
crime may have been executed in obedience to orders conceived as a measure of
reprisals. Such circumstances are probably in themselves sufficient to divest the act of
the stigma of a crime. Also, the political authorities of the belligerent will frequently
incline to take into consideration the danger of reprisals against their own nation which
are likely to follow as a measure of retaliation for punishment of war crime durante bello.
However, subject to these qualifications, the question is governed by the major
principles that members of the armed forces are bound to obey lawful orders only and
that they cannot therefore escape liability if, in obedience to a command, they commit
acts both violate unchallenged rules of warfare and outrage the general sentiment of
humanity. To limit liability to the person responsible for the order may frequently amount,
in practice, to concentrating responsibility on the head of the State whose accountability,
from the point of view of both international and constitutional law, is controversial.

SEC. 257. All war crimes may be punished with death, but belligerents may, of course,
inflict a more lenient punishment, or commute a sentence of death into a more lenient
penalty. If this be done and imprisonment take the place of capital punishment, the
question arises whether persons so imprisoned must be released at the end of the war,
although their term of imprisonment has not yet expired. Some answer this question in
the affirmative, maintaining that it could never be lawful to inflict a penalty extending
beyond the duration of war. But is believed that the question has to be answered in the
negative. If a belligerent has a right to pronounce a sentence of a capital punishment, it
is obvious that he may select more lenient penalty and carry it out even beyond the
duration of the war. It would in no wise be in interest of humanity to deny this right, for
otherwise belligerents would be tempted always to pronounce and carry out a sentence
of capital punishment in the interest of self-preservation.

SEC. 257a. The right of belligerent to punish, during the war, such war criminals are fall
into his hands is a well-recognized principle of International Law. It is a right of which he
may effectively avail himself after he has occupied all or part of enemy territory, and is
thus in the position to seize war criminals who happen to be there. He may, as a
condition of the armistice, impose upon the authorities of the defeated State the duty to
hand over persons charged with having committed war crimes, regardless of whether
such persons are present in the territory actually occupied by him or in the territory
which, at the successful end of hostilities, he is the position to occupy. For in both cases
the accused are, in effect, in his power. And although normally the Treaty of Peace
brings to an end the right to prosecute war criminals, no rule of International Law
prevents the victorious belligerent from imposing upon the defeated State the duly, as
one of the provisions of the armistice or the Peace Treaty, to surrender for trial persons
accused of war crimes. In this, as in other matters, the will of the victor is the law of the
Treaty. It is not to be expected that he will concede to the defeated State the
corresponding right to punish any war criminals of the victorious belligerent. The
resulting inequality is the unavoidable concomitant of the existing imperfections of
international organization and of the institution of war itself. But the victorious belligerent
may achieve a substantial approximation to justice by making full provision for a fair trial
of the surrender enemy nationals, and by offering to try before his tribunals such
members of his own armed forces are accused of war crimes. Such conduct may go a
long way towards reducing substantially the inequality of treatment as between the victor
and the vanquished.

The permissible acts of warfare are, by the authority of long and common usage, strictly limited.
The treaties entered into between members of the family of nation are but specific definitions
and reinforcements of the general common law nations, the "unwritten" rules of warfare, which
for centuries have limited the method and manner of conducting wars. The common law of
nations, by which all states are and must be bound, dictates that warfare shall be carried on
only in accordance with basic considerations of humanity and chivalry.

These matters are of course well known to the German and Japanese warlords and statement,
as well as to their henchmen. They will also believe the brutal pronouncements of German
military philosophy in such cynical handbooks for the guidance of officers as the Kriegsbrauch
im Lambkrege in which, although Germany had to observe the provisions of the Hague
Convention regulating warfare, their human tenets of international law are referred to as
expressed generally "sentimentalism and flabby emotionalism " and are declared to be "in
fundamental contradiction with the nature of war and its objects"; and in which the German
officer is sternly warned to "guard himself against exaggerated humanitarian ideas."

From Doctor Glueck's book we quote:

If there was a domain to which Mr. Justice Holmes' illuminating dictum about a page of
history being worth a volume of logic is applicable, it is that concern the war criminal's
problem (P. 12.) The law of nations has a long way to go before it can claim to be
coherent and fixed system. Its relevant tenets were develop under the presupposition
the members of the community of nations are governed by self-imposed restraints in
accordance with international law; but the emergence of states with a national policy of
deliberate lawlessness and with their invasion of 'total war in the service of a program of
world enslavement, compels a realistic modification of inadequate doctrines and
principles of the law (P.13). Nobody who has made a thorough study of the status of the
branch of law of nations involved can adhere to the view that it is anywhere near as well
developed or subject to the same techniques of "rigorous legal logic" as the more
sophisticated branches of private law. (P14). On September 18, 1942, Churchill assured
the House of Commons that "those who are guilty of the nazi crimes will have to stand
up before tribunals in very land where their atrocities have been committed, in order that
an indelible warning men given to future ages and that successive generations of men
may say, "so perish all who do the like again."

On January 25, 1919, the preliminary peace conference of World War No. I set upon a
commission of fifteen to inquire into and report upon violations of international law chargeable to
Germany and her allies. This commission recommended the setting up of a high tribunals which
was to apply "the principles of the law of nation as the result from the usages established
among civilized peoples, from the laws of humanity and from the dictates of public conscience."
Upon a finding of guilty, the court could sentence to such punishment as could be imposed foe
the offense in question "by any court in any country represented on the tribunal or in the country
of the convicted persons." The recommendation was not adopted. They were opposed by
American and Japanese members. The Japanese members raised the basic question, among
others, "whether international law recognizes a penal law as applicable to those who are guilty."
And it seemed to them "important to consider the consequences which would be created in the
history of international law the prosecution for breaches of the or customs of war enemy states
before a tribunal constituted by the opposite party," an argument rejected at the treaty.

In the Treaty of Versailles there were inserted the punitive articles 228, 229 and 230. By the
article 288 the German Government recognized "the right of the allied and associated powers to
bring before the military tribunals persons accused of having committed acts in violation of the
laws to "punishments laid down by law." Article 299 provided for the trial of accused in military
tribunals of the power against whose the nationals the alleged crimes were committed and the
specified that "in every case the accused will be entitled to name his own counsel."

9. SOME CONCLUSIONS

From all the foregoing, with regards to the petition for a writ of habeas corpus, we conclude:

(1) That petitioner Yamashita, if he is responsible for the acts imputed to him in the charges filed
before the Military Commission can properly and justly be prosecuted and punished for them.

(2) That the fact that he has the Commander in Chief of a belligerent army does not exempt him
from criminal liability either for violations of international law or for the commission of crimes
defined and punishable under the laws of the country where committed.

(3) That his rights and privileges as a prisoners of war, under the Geneva Convention, are not
incompatible with nor are violated by his prosecution for the international and domestic crimes
committed by him.

(4) That under the principles of natural law, all persons guilty of such crimes are amenable to be
arraigned before a court of the justice and, after a fair trial, if found guilty, should bear the full
weight of the law.
(5) That petitioner Yamashita can be prosecuted before the Philippine civil courts in the like
manner as a common criminal and the punished under the provisions of the Philippine Penal
Code.

(6) That the military Commission set up to try him possesses a jurisdiction which is concurrent
with that of the Philippine civil courts, and the choice of the competent tribunal where he should
be tried, which a mere procedural technically, is left to the wise discretion of the officials in
charge of the prosecution.

(7) That in violation of the law of nations, the offended party is the people of the whole world,
and the case against petitioner could be properly entitled as Humanity versus Tomoyuki
Yamashita," and no person in position to prosecute the violators can honesty shirk the
responsibility of relentlessly prosecuting them, lest he be branded with the stigma of complicity.

(8) That the absence of a codified International Penal Code or of a criminal law adopted by the
comity of nations with specific penalties for specific and well-defined international crimes, is not
a bar to the prosecution of war criminals, as all civilized nations have provided in their laws the
necessary punishment for war crimes which, for their very nature, cease to be lawful acts of
war, and become ordinary crimes with the extraordinary character of having been committed in
connection with war, which should be considered as an aggravating circumstance.

10. THE SUPREME COURT'S JURISDICTION

Whether this Court has jurisdiction or not to take cognizance of this case is the first question
raised herein.

We believe that no doubt should be entertained that it has.

The petition pertains to a judicial case, to a case wherein justice is to be administered. It is a


criminal case initiated for the prosecution and punishment of Tomoyuki Yamashita, Commander
Chief of the Japanese Army in the Philippines, alleged as the greatest war criminal in the Pacific
and in the Whole eastern hemisphere.

The case calls for the exercise of the judicial power, one of the three government powers, firstly
defined by Aristotle and upon which Montesquieu elaborated later in his "Spirit of the Laws."

The judicial power shall be vested in one Supreme Court and in such inferior courts as
may be established by law. (Art. VIII, sec. 1, Constitution of the Philippines.)

By this provision, the judicial power is primarily vested in the Supreme Court, which exclusively
exercise the whole power. But it also authorizes the enactment of laws sharing the power to
inferior courts, which include all other courts and tribunals of all description, whether ordinary or
extraordinary, whether civil or criminal, whether industrial or military, whether designated as
"courts" or simply as "commissions."

The Congress shall the power to define, prescribe, and apportion the jurisdiction of the
various courts, but may not deprive the Supreme Court of its original jurisdiction over
cases affecting ambassadors, other public ministers, and consuls, nor of its jurisdiction
to review, revise, reverse, modify, or affirm on appeal, certiorari, or writ of error, as the
law or the law of the rules of court may provide, final judgments and decrees of inferior
courts in

(1) All cases in which the constitutionality or validity of any treaty, law, ordinance, or
executive order or regulation is in question.

(2) All cases involving the legality of any tax, impost, assessment, or toll, or any penalty
imposed in relation thereto.

(3) All cases in which the jurisdiction in which of any trial court is in issue.

(4) All criminal cases in which the penalty imposed is death or life imprisonment.

(5) All cases in which an error or question of law in involved.

(Art. VIII, sec. 2, Constitution of the Philippines.)

From the foregoing it is evident that this Supreme Court has jurisdiction, which Congress is
powerless to abolish, to review, revise, reverse, modify, or affirm any and all actuations of
judicial nature of the party respondent and the Military Commission before whom petitioner
Yamashita tried is for his life. In facts, this Supreme Court's jurisdiction extends, not only to
courts and judicial institutions, but to all persons, and agencies which form part of the whole
machinery of the administration of the justice, in so far as is necessary to the administration of
the justice.

We have jurisdiction over the person of respondent Lt. Gen. Wilhelm D. Styer, not as to the
discharge of his military functions and duties, but in regards to his official acts in connection with
the administration of justice in the criminal case against Tomoyuki Yamashita, and that
jurisdiction became effective since November 13, 1945, his refusal to sign receipt for the
summons and the refusal of the subordinate officers in his officers in his office to accept said
and the summoning of said military commission.

No one questions our jurisdiction over the person of petitioner, he having voluntarily submitted
himself to it by his petition.

With respect to the military commission trying him, under the questions raised in the petition, it
is a proper party respondent and the petitioner should have included it as among the party
respondents. But petitioner's omission is just a technical error of no vital consequence, because
under the judicial rules, we can order the inclusion and the summoning of said military
commission.

The amici curiae want to us to be cautious and slow in exercising jurisdiction in this case, in
view of the possibility that our orders might be disregarded by the military officers concerned.
The fear entertained by the amici curiaemight find some ground in the attitude of respondent
General Styer, when the latter refused to sign receipt for the summons or to receive the papers
thereof.

The same warning has been made in a case decided by this Supreme Court several weeks ago.
In answer to the warning, we can do no better than to repeat what we said therein.
It has been argued with energy by those who oppose our issuing the order for the
release of the petitioners, that if we decide to issue it, the United States Army might
refuse to set them at liberty, with the result that the order of release will become a mere
scrap of paper and the Supreme Court of the Philippines will be placed in the unenviable
position of utter ridicule. We have to answer in the most definite way that we can not
agree with such a narrow point of view.

But suppose the most unexpected should happen, that there might be members of the
United States Armed Forces who will be blind enough to ignore the order of this
Supreme Court, to make a mockery of the administration of justice, shall that unthinkable
hypothesis deter us from doing our duty? Our answer is a simple. No. No one and
nothing in the whole world, neither the all-powerful army which humbled Germany and
forced the surrender of the "invincible" Japanese Army, nor weapons more dreadful than
the atomic bomb, the menace of an imminent catastrophe, shall be powerful enough to
make us flinch from complying with our plain duty as Justices of the Supreme Court. We
must do our duty as our conscience dictates, without fear nor favor. It is our duty to
make reason and right supreme regardless of consequences. Law and justice might
suffer setbacks, endure eclipses, but at the end they shall reign with all the splendors of
the real majesty. (Raquiza vs. Bradford, G.R. No. L-44, pp. 76, 88, ante, dissenting.)

We recognized no one to be above the law. Mere military might cannot change and nullify the
course of justice. In the long run, everybody must have to bow and prostrate himself before the
supreme majesty of the law.

11. HABEAS CORPUS

In praying for a writ of habeas corpus, petitioner wants us to order that he be returned from the
status of an accused war criminal to that of a prisoner of war.

He is not seeking release from confinement.

We are of opinion that the petition for a a writ of habeas corpus must be denied. The purpose of
said writ is to restore liberty to a person who is being deprived of it without due process of law.
Such is not the case of petitioner. He does not complain of any illegal detention or deprivation of
personal freedom.

He is deprived of his liberty because he is, according to his own allegation, a prisoners of war.
Whether or not he should be accused as a war criminal, is not a proper question to be raised
in habeas corpus proceeding.

The fact that petitioner is an accused war criminal does not change his status as a war prisoner.
He remains to be so, whether he is prosecuted as a war prisoner because he was placed and
regarded as war criminal or not.

Not having lost his status as a war prisoners because he was placed and regarded as a war
criminal, there is no reason for ordering his reversion to a status which he did not cease to
retain since his surrender or capture on September 2, 1945.

For these reasons we voted for the denial of the writ of habeas corpus.
12. JURISDICTION OF THE MILITARY COMMISSION

We are opinion that the Military Commission conducting the trial of petitioner has jurisdiction to
try him for the crimes alleged in the 123 items in the specified charges filed against him.

From the very allegations and exhibits of petitioner it appears that said Military Commission was
created and organized by orders of General Douglas MacArthur, Commandeer in Chief of the
United States Army Forces in Western Pacific.

We are of opinion that said Commander in Chief has authority to convene said Military
Commission.

Petitioner contends that "there being no marital law, active hostilities in the Philippine Islands at
the time of the appointment of the commission, there was no authority to appoint the
commission, and the commission in without jurisdiction.

We do not agree with the contention. Neither martial law, nor the existence of Military
Government, nor the waging of active hostilities is a prerequisite for exercising the power of
appointing a Military Commission.

In the absence of pre-established tribunals clothed with authority to try war criminals, Military
Commission may be established for said purpose, and unless organized by the Chief Executive
himself they may be organized by the military Commander in Chief, representing said Chief
Executive.

The American Representatives (Lansing and Scott) in the Allied commission of 15 organized
after the first World War, although opposed, with the Japanese Representatives, the creation of
an international criminal court, which became abortive, were of opinion that war criminals may
be tried by Military Commission of the offended countries.

13. COLLECTIVE RESPONSIBILITY

Although we maintain that the Military Commission here in question has jurisdiction to try the
case for war crimes against petitioner Yamashita, in the regulations governing the trial of war
criminals, Exhibit F, there are several features which should not be left unchallenged. Section 4-
b, under the title of "Jurisdiction" of Exhibit F, provides: "Any military or naval unit or any official
or unofficial group or organization whether or not still in existence, may be charged with criminal
acts or complicity therein and tried by a Military Commission."

This provision, undoubtedly, advances the principle of collective responsibility in


contradistinction to the principle of individual criminal responsibility.

Under the principle of individualized criminal responsibility, no person may be convicted of any
offense without due process of law and without proving in said process in which he should also
enjoy the guarantee of equal protection of the laws, that the he is personally guilty of the
offense.
Under the principle of collective criminal responsibility, any member of any social group or
organization may be convicted without any hearing if, in a process where he did not have his
day in court, the social group or any other member thereof is found guilty of an offense.

During the Japanese regime, when a member of a family was found by the military police, with
or without ground, as responsible for an alleged offense or being a member of a guerrilla unit,
the remaining members of his family were also made to suffer.

When a town or barrio was suspected of harboring guerrilleros, the Japanese would punish the
whole town or barrio by mowing down all the inhabitants, or burning all the houses, or, at least,
subjecting all the male inhabitants thereof to brutal zonings. The ruins of Manila are graphic
illustrations of how the principle worked.

It is unnecessary to elaborate more to show the grave iniquities to which the principle of
collective criminal responsibility leads.

We are of opinion that said principle violates the constitutional guarantee of due process of law
and therefore, we should have issued a writ of prohibition enjoining the Military Commission
from exercising the unconstitutional jurisdiction granted in section 4-b of Exhibit F.

14. EVIDENCE

Section 16 (1), under the title of "Evidence," provides what may be admitted as evidence as
follows: "Any document which appears to the commission to have been signed or issued
officially by any officer, department, agency, or member of the armed forces of any government,
without proof of the signature or of the issuance of the document."

The following may also be admitted as evidence according to section 16 (3): "Affidavits
depositions, or other statements taken by an officer detailed for that purpose by military
authority."

We are of opinion that the admission of documents as evidence, "without proof of the signature
or of the issuance of the document," is a denial of the due process of law constitutionally
guaranteed to all persons before he could be deprived of his life, liberty, or property. The
authenticity or genuiness of a document is an essential element in order that it may acquire the
nature of an evidence. Proof of signature of the issuance of the document is essential to show
its genuiness.

The admission of affidavits "or other statements taken by an officer detailed for that purpose by
military authority" is clear violation of the constitutional guarantee that in all criminal prosecution
that accused shall enjoy the right" to meet the witness face to face." (Art. III, sec. 1 [17],
Constitution of the Philippines.) The Military Commission accepted as evidence against accused
Yamashita the affidavits of Naokata Utsunomiya (Exhibits L and M), denying said Yamashita the
constitutional right "to meet face to face affiant Naokata Utsunomiya.

According to section 16 (4) of the regulations (Exhibit F); "Any diary, letter or other document
appearing to the to the commission to contain information relating to the charge," may also be
admitted as evidence. This provision denies also to the accused the constitutional guarantee of
meeting a witness face and, therefore, of cross-examining him.
We are of opinion that the admission of evidence above-mentioned must be prohibited, and that
a writ of prohibition issued by the Court is a proper remedy.

15. HEARSAY

The regulations (Exhibit F) authorizes also the admission of hearsay as evidence.

Section 16-d of said regulation provides: "If the accused is charged with an offense involving
concerted criminal action upon the part of a military of naval unit, or any group or organization,
evidence which has been given previously at a trial of any member of that unit, group or
organization, relative to that concerted offense, may be received as prima facie evidence that
the accused likewise is guilty of that offense."

In section 16-e, the objectionable feature of a hearsay evidence is aggravated by the adherence
to the principles of collective criminal responsibility. It provides: "The findings and judgment of a
commission in any trial of sa unit, group or organization with respect to the criminal character,
purpose or activities thereof shall given full faith and credit in any subsequent trial by that or any
other commission of an individual person charged with criminal responsibility through
membership in such unit, group or organization convicted by the commission, the burden of the
proof shall shift to the accused to establish any mitigating circumstances relating to his
membership or participation therein."

We are opinion, too, that the Military Commission should be prohibited to follow the unjust
procedures delineated in the above-quoted provisions, the objectionable character of which was
explicitly admitted even by the amicus curiae who appeared to argue in this case in opposition
to the granting of remedies sought by petitioner.

16. FUNDAMENTAL RIGHTS GUARANTEED TO EVERYBODY

No matter who the petitioner is, we are of opinion that he is entitled to all the safeguard of a fair
trial.

The fundamental rights freedoms guaranteed in the Charter of the United Nations are
guaranteed to all human beings, without exception.

In his annual proclamation setting November 22, 1945, as Thanksgiving Day, President
Truman, among other things, said: "Liberty knows no race, creed or class in our country or in
the world. In unity we found our first weapon, for without it, both here and abroad, we were
doomed. None have known this better than our very gallant dead, none better than their
comrade Franklin Delano Roosevelt. Our Thanksgiving has the humility of our deep mourning
for them, our vast gratitude for them.

"Triumph over the enemy has not dispelled very difficulty. Many vital and far-reaching decisions
await us as we strive for a just and enduring peace. We will not fail if we preserve, in our own
land and throughout the world, the same devotion to the essential freedoms and rights of
mankind which sustained us throughout the war and brought us final victory."

And Prime Minister Attlee, in the face of the potential destructiveness of the atom bomb, said
before the English Parliament: "It is well that we should make up our minds that in a war on the
scale to that which we have just emerged every weapon will be used. We may confidently
expect the fullest destruction of great cities, death of millions and the setting back of civilization
to an unimaginable extent.

"No system of safeguards which could be devised will of itself I emphasized of itself
provide an effective guarantee against production of automatic weapons by a nation or nations
bent on aggression.

"With the terrible march of the science of destruction, every nation will realize more urgently the
overwhelming need to maintain the rule of the law among nations and to banish the scourage of
war from the earth.

"We have in prospect the meeting of United Nations Organization and there is an instrument
which, if all are resolved to use it, could establish the rule of the law and prevent war I
resolved."

In the eternal struggle between the principles of right and wrong, there no choice if humanity
must survive. Lincoln said: "That is the real issue that will continue in this country when these
poor tongues of Judge Douglas and myself shall be silent. It is the eternal struggle between
these two principles, right and wrong, throughout the world. They are the two principles that
have stood face to face from the beginning of time."

When we voted for the granting of the writ of prohibition, we did it out of consistency, as the
vibrant words of Jefferson must no cease ringing ours in ours ears when he said: "What a
stupendous, what an incomprehensible machine is man! who can endure toil, famine, stripes,
imprisonment, and death itself, in vindication of his own liberty, and, the next moment be deaf to
all those motives whose power supported him through his trial, and inflict on his fellowmen a
bandage, one our of which is fraught with more misery than ages of that which he rose in
rebellion to oppose."

17. NEEDED SERVICE TO THE MORAL AND CULTURAL PURPOSES OF HUMANITY

If petitioner is tried and convicted under a process in which some of the recognized essential
guarantees for a fair trial are violated, it would produce a result opposite that expected by those
who are following up the trials of all war criminals; the arousing of a deep-rooted universal
conviction that law must be supreme and that justice should be equally administered to each
and very member of humanity.

The peoples of all nations who are keenly watching the prosecution of Yamashita should be
convicted, by conclusive evidence, that said prosecution is not a mere parody of the
administration of justice, devised to disguise the primitive impulses of vengeance and retaliation,
the instinctive urge to crush at all costs, no matter what the means, hated fallen enemy.

The prosecution, trial, and conviction of Yamashita must impress all the peoples of the world
that the principle of law is paramount, and supersedes and wipes out all other considerations in
dealing with war or common criminals. Otherwise, their faith in the supremacy of law as the
invulnerable bulwark of all fundamental human rights will be shaken, and the moral position of
the victorious United Nations, the ethical value of the grandiose pronouncements of their
leaders, and the profound significance of the lofty ideals for which millions of their soldiers have
fought and died, will be weakened and diminished to such an extent as to make barren all the
tremendous sacrifices made by so many countries and so many peoples in the last global
hecatomb.

It was Ihering who, in his " LAW AS A MEANS TO AN END ," said that: "There is no human life
which exist merely for itself, every one is at the same time for the same of the world: every man
in his place, however limited it may be, is a collaborator in the cultural purposes of humanity . . .
. I cannot imagine a human life so poor, so devoid of content, so narrow, so miserable, that it is
not of some good to some other life; even such a life has not seldom borne the world the richest
fruit." (Page 60.)

So even the shameful exploits in the Philippines with which Yamashita ingloriously crowned his
military career, at its peak when he conquered Malaya and Singapore, and descended from the
pedestal of the greatest Nippon military hero in all her history to the moral abyss of that
abominable monstrous figure, the greatest war criminal in Asia and in the Pacific, cannot put
render some service to the cultural purposes of humanity if, by his due trial in accordance with
the elemental rules in the criminal procedure, the sense of law and justice is further developed
in the conscience of the present and future generations.

18. OUR VOTE

From all foregoing, when the resolution to dispose of this case was put to a vote, we concurred
in the denial of the petition for a writ of habeas corpus, and we voted for the granting of the writ
of prohibition in order that the objectionable features in the trial before the Military Commission
may be eliminated, so that petitioner Yamashita may be given the full justice due to all human
beings.
U.S. Supreme Court

The Paquete Habana, 175 U.S. 677 (1900)

The Paquete Habana

Nos. 895-896

Argued November 7-8, 1899

Decided January 8, 1900

175 U.S. 677 (1900)

APPEALS FROM THE DISTRICT COURT OF THE UNITED

STATES FOR THE SOUTHERN DISTRICT OF FLORIDA

Syllabus

Under the Act of Congress of March 3, 1891, c. 517, this Court has jurisdiction of appeals from
all final sentences and decrees in prize causes, without regard to the amount in dispute and
without any certificate of the district judge as to the importance of the particular case.

International law is part of our law, and must be ascertained and administered by the courts of
justice of appropriate jurisdiction as often as questions of right depending upon it are duly
presented for their determination. For this purpose, where there is no treaty and no controlling
executive or legislative act or judicial decision, resort must be had to the customs and usages of
civilized nations, and, as evidence of these, to the works of jurists and commentators, not for the
speculations of their authors concerning what the law ought to be, but for trustworthy evidence
of what the law really is.

At the present day, by the general consent of the civilized nations of the world and
independently of any express treaty or other public act, it is an established rule of international
law that coast fishing vessels, with their implements and supplies, cargoes and crews, unarmed
and honestly pursuing their peaceful calling of catching and bringing in fresh fish, are exempt
from capture as prize of war. And this rule is one which prize courts, administering the law of
nations, are bound to take judicial notice of, and to give effect to, in the absence of any treaty or
other public act of their own government in relation to the matter.

At the breaking out of the recent war with Spain, two fishing smacks -- the one a sloop, 43 feet
long on the keel and of 25 tons burden, and with a crew of three men, and the other a schooner,
51 feet long on the keel and of 35 tons burden, and with a crew of six men -- were regularly
engaged in fishing on the coast of Cuba, sailing under the Spanish flag, and each owned by a
Spanish subject, residing in Havana; her crew, who also resided there, had no interest in the
vessel, but were entitled to shares, amounting in all to two thirds, of her catch, the other third
belonging to her owner, and her cargo consisted of fresh fish, caught by her crew from the sea,
put on board as they were caught, and kept and sold alive. Each vessel left Havana on a coast
fishing voyage, and sailed along the coast of Cuba about two hundred miles to the west end of
the island; the sloop there fished for twenty-five days in the territorial waters of Spain, and the
schooner extended her fishing trip a hundred

Page 175 U. S. 678

miles farther across the Yucatan Channel, and fished for eight days on the coast of Yucatan. On
her return, with her cargo of live fish, along the coast of Cuba, and when near Havana, each
was captured by one of the United States blockading squadron. Neither fishing vessel had any
arms or ammunition on board, had any knowledge of the blockade, or even of the war, until she
was stopped by a blockading vessel, made any attempt to run the blockade, or any resistance
at the time of her capture, nor was there any evidence that she, or her crew, was likely to aid the
enemy. Held that both captures were unlawful, and without probable cause.

The cases are stated in the opinion of the Court.

MR. JUSTICE GRAY delivered the opinion of the Court.

These are two appeals from decrees of the District Court of the United States for the Southern
District of Florida condemning two fishing vessels and their cargoes as prize of war.

Each vessel was a fishing smack, running in and out of Havana, and regularly engaged in
fishing on the coast of Cuba; sailed under the Spanish flag; was owned by a Spanish subject of
Cuban birth, living in the City of Havana; was commanded by a subject of Spain, also residing in
Havana, and her master and crew had no interest in the vessel, but were entitled to shares,
amounting in all to two-thirds, of her catch, the other third belonging to her owner. Her cargo
consisted of fresh fish, caught by her crew from the sea, put on board as they were caught, and
kept and sold alive. Until stopped by the blockading squadron, she had no knowledge of the
existence of the war or of any blockade. She had no arms or ammunition on board, and made
no attempt to run the blockade after she knew of its existence, nor any resistance at the time of
the capture.

The Paquete Habana was a sloop, 43 feet long on the keel,

Page 175 U. S. 679

and of 25 tons burden, and had a crew of three Cubans, including the master, who had a fishing
license from the Spanish government, and no other commission or license. She left Havana
March 25, 1898, sailed along the coast of Cuba to Cape San Antonio at the western end of the
island, and there fished for twenty-five days, lying between the reefs off the cape, within the
territorial waters of Spain, and then started back for Havana, with a cargo of about 40 quintals of
live fish. On April 25, 1898, about two miles off Mariel, and eleven miles from Havana, she was
captured by the United States gunboat Castine.

The Lola was a schooner, 51 feet long on the keel, and of 35 tons burden, and had a crew of six
Cubans, including the master, and no commission or license. She left Havana April 11, 1898,
and proceeded to Campeachy Sound, off Yucatan, fished there eight days, and started back for
Havana with a cargo of about 10,000 pounds of live fish. On April 26, 1898, near Havana, she
was stopped by the United States steamship Cincinnati, and was warned not to go into Havana,
but was told that she would be allowed to land at Bahia Honda. She then changed her course,
and put for Bahia Honda, but on the next morning, when near that port, was captured by the
United States steamship Dolphin.

Both the fishing vessels were brought by their captors into Key West. A libel for the
condemnation of each vessel and her cargo as prize of war was there filed on April 27, 1898; a
claim was interposed by her master on behalf of himself and the other members of the crew,
and of her owner; evidence was taken, showing the facts above stated, and on May 30, 1898, a
final decree of condemnation and sale was entered,

"the court not being satisfied that as a matter of law, without any ordinance, treaty, or
proclamation, fishing vessels of this class are exempt from seizure."

Each vessel was thereupon sold by auction; the Paquete Habana for the sum of $490 and
the Lola for the sum of $800. There was no other evidence in the record of the value of either
vessel or of her cargo.

It has been suggested in behalf of the United States that

Page 175 U. S. 680

this Court has no jurisdiction to hear and determine these appeals because the matter in dispute
in either case does not exceed the sum or value of $2,000, and the district judge has not
certified that the adjudication involves a question of general importance.

The suggestion is founded on 695 of the Revised Statutes, which provides that

"an appeal shall be allowed to the Supreme Court from all final decrees of any district court in
prize causes, where the matter in dispute, exclusive of costs, exceeds the sum or value of two
thousand dollars, and shall be allowed, without reference to the value of the matter in dispute,
on the certificate of the district judge that the adjudication involves a question of general
importance."

The Judiciary Acts of the United States, for a century after the organization of the government
under the Constitution, did impose pecuniary limits upon appellate jurisdiction.

In actions at law and suits in equity the pecuniary limit of the appellate jurisdiction of this Court
from the circuit courts of the United States was for a long time fixed at $2000. Acts of
September 24, 1789, c. 20, 22; 1 Stat. 84; March 3, 1803, c. 40; 2 Stat. 244; Gordon v.
Ogden, 3 Pet. 33; Rev.Stat. 691, 692. In 1875, it was raised to $5,000. Act of February 16,
1875, c. 77, 3; 18 Stat. 316. And in 1889 this was modified by providing that, where the
judgment or decree did not exceed the sum of $5,000, this Court should have appellate
jurisdiction upon the question of the jurisdiction of the circuit court, and upon that question only.
Act of February 25, 1889, c. 236, 1; 25 Stat. 693; Parker v. Ormsby, 141 U. S. 81.

As to cases of admiralty and maritime jurisdiction, including prize causes, the Judiciary Act of
1789, in 9, vested the original jurisdiction in the district courts, without regard to the sum or
value in controversy, and in 21 permitted an appeal from them to the circuit courts where the
matter in dispute exceeded the sum or value of $300. 1 Stat. 77, 83, c. 20; The Betsey, 3 Dall.
6, 3 U. S. 16; The Amiable Nancy, 3 Wheat. 546; Stratton v. Jarvis, 8 Pet. 4, 33 U. S. 11. By the
Act of March 3, 1803, c. 40, appeals to the circuit court were permitted from all final decrees of a
district court where

Page 175 U. S. 681

the matter in dispute exceeded the sum or value of $50, and from the circuit courts to this Court
in all cases "of admiralty and maritime jurisdiction, and of prize or no prize" in which the matter
in dispute exceeded the sum or value of $2,000. 2 Stat. 244; Jenks v. Lewis, 3 Mason
503; Stratton v. Jarvis, above cited; The Admiral, 3 Wall. 603, 70 U. S. 612. The acts of March
3, 1863, c. 86, 7, and June 30, 1864, c. 174, 13, provided that appeals from the district
courts in prize causes should lie directly to this Court, where the amount in controversy
exceeded $2,000, or "on the certificate of the district judge that the adjudication involves a
question of difficulty and general importance." 12 Stat. 760; 13 Stat. 310. The provision of the
act of 1803, omitting the words "and of prize or no prize," was reenacted in 692 of the Revised
Statutes, and the provision of the act of 1864, concerning prize causes, was substantially
reenacted in 695 of the Revised Statutes, already quoted.

But all this has been changed by the Act of March 3, 1891, c. 517, establishing the circuit courts
of appeals and creating a new and complete scheme of appellate jurisdiction, depending upon
the nature of the different cases, rather than upon the pecuniary amount involved. 26 Stat. 826.

By that act, as this Court has declared, the entire appellate jurisdiction from the circuit and
district courts of the United States was distributed, "according to the scheme of the act,"
between this Court and the circuit courts of appeals thereby established, "by designating the
classes of cases" of which each of these courts was to have final jurisdiction. McLish v.
Roff, 141 U. S. 661, 141 U. S. 666; American Construction Co. v. Jacksonville Railway, 148 U.
S. 372, 148 U. S. 382; Carey v. Houston & Texas Railway, 150 U. S. 170, 150 U. S. 179.

The intention of Congress, by the act of 1891, to make the nature of the case, and not the
amount in dispute, the test of the appellate jurisdiction of this Court from the district and circuit
courts clearly appears upon examination of the leading provisions of the act.

Section 4 provides that no appeal, whether by writ of error or otherwise, shall hereafter be taken
from a district court

Page 175 U. S. 682

to a circuit court, but that all appeals, by writ of error or otherwise, from the district courts "shall
only be subject to review" in this Court or in the circuit court of appeal "as is hereinafter
provided," and "the review by appeal, by writ of error, or otherwise" from the circuit courts, "shall
be had only" in this Court or in the circuit court of appeals, "according to the provisions of this
act regulating the same."

Section 5 provides that "appeals or writs of error may be taken from the district courts, or from
the existing circuit courts, direct to the Supreme Court, in the following cases:"

First.

"In any case in which the jurisdiction of the court is in issue; in such cases, the question of
jurisdiction alone shall be certified to the Supreme Court from the court below for decision."
This clause includes "any case," without regard to amount, in which the jurisdiction of the court
below is in issue, and differs in this respect from the act of 1889, above cited.

Second. "From the final sentences and decrees in prize causes." This clause includes the whole
class of "the final sentences and decrees in prize causes," and omits all provisions of former
acts regarding amount in controversy, or certificate of a district judge.

Third. "In cases of conviction of a capital or otherwise infamous crime." This clause looks to the
nature of the crime, and not to the extent of the punishment actually imposed. A crime which
might have been punished by imprisonment in a penitentiary is an infamous crime, even if the
sentence actually pronounced is of a small fine only. Ex Parte Wilson, 114 U. S. 417, 114 U. S.
426. Consequently, such a sentence for such a crime was subject to the appellate jurisdiction of
this Court, under this clause, until this jurisdiction, so far as regards infamous crimes, was
transferred to the circuit court of appeals by the Act of January 20, 1897, c. 68. 29 Stat. 492.

Fourth. "In any case, that involves the construction or application of the Constitution of the
United States."

Fifth.

"In any case in which the constitutionality of any law of the United States, or the validity or
construction of any treaty made under its authority, is drawn in question. "

Page 175 U. S. 683

Sixth. "In any case in which the Constitution or law of a state is claimed to be in contravention of
the Constitution of the United States."

Each of these last three clauses, again, includes "any case" of the class mentioned. They all
relate to what are commonly called federal questions, and cannot reasonably be construed to
have intended that the appellate jurisdiction of this Court over such questions should be
restricted by any pecuniary limit -- especially in their connection with the succeeding sentence of
the same section:

"Nothing in this act shall affect the jurisdiction of the Supreme Court in cases appealed from the
highest court of a state, nor the construction of the statute providing for review of such cases."

Writs of error from this Court to review the judgments of the highest court of a state upon such
questions have never been subject to any pecuniary limit. Act of September 24, 1789, c. 20,
25; 1 Stat. 85; Buel v. Van Ness, 8 Wheat. 312; Act of February 5, 1867, c. 28, 2; 14 Stat.
386; Rev.Stat. 709.

By section 6 of the act of 1891, this Court is relieved of much of the appellate jurisdiction that it
had before; the appellate jurisdiction from the district and circuit courts "in all cases other than
those provided for in the preceding section of this act, unless otherwise provided by law," is
vested in the circuit court of appeals, and its decisions in admiralty cases, as well as in cases
arising under the criminal laws, and in certain other classes of cases, are made final, except that
that court may certify to this Court questions of law, and that this Court may order up the whole
case by writ of certiorari. It is settled that the words "unless otherwise provided by law," in this
section, refer only to provisions of the same act, or of contemporaneous or subsequent acts,
and do not include provisions of earlier statutes. Lau Ow Bew v. United States, 144 U. S.
47, 144 U. S. 57; Hubbard v. Soby, 146 U. S. 56; American Construction Co. v. Jacksonville
Railway, 148 U. S. 372, 148 U. S. 383.

The act of 1891 nowhere imposes a pecuniary limit upon the appellate jurisdiction, either of this
Court or of the circuit court of appeals, from a district or circuit court of the United States. The
only pecuniary limit imposed is one of

Page 175 U. S. 684

$1,000 upon the appeal to this Court of a case which has been once decided on appeal in the
circuit court of appeals, and in which the judgment of that court is not made final by section 6 of
the act.

Section 14 of the act of 1891, after specifically repealing section 691 of the Revised Statutes
and section 3 of the act of February 16, 1875, further provides that

"all acts and parts of acts relating to appeals or writs of error, inconsistent with the provisions for
review by appeals or writs of error in the preceding sections 5 and 6 of this act, are hereby
repealed."

26 Stat. 829, 830. The object of the specific repeal, as this Court has declared, was to get rid of
the pecuniary limit in the acts referred to. McLish v. Roff, 141 U. S. 661, 141 U. S. 667. And,
although neither section 692 nor section 695 of the Revised Statutes is repealed by name, yet,
taking into consideration the general repealing clause, together with the affirmative provisions of
the act, the case comes within the reason of the decision in an analogous case, in which this
Court said:

"The provisions relating to the subject matter under consideration are, however, so
comprehensive, as well as so variant from those of former acts, that we think the intention to
substitute the one for the other is necessarily to be inferred, and must prevail."

Fisk v. Henarie, 142 U. S. 459, 142 U. S. 468.

The decision in this Court in the recent case of United States v. Rider, 163 U. S. 132, affords an
important, if not controlling, precedent. From the beginning of this century until the passage of
the act of 1891, both in civil and in criminal cases, questions of law upon which two judges of
the circuit court were divided in opinion might be certified by them to this Court for decision. Act
of April 29, 1802, c. 31, 6; 2 Stat. 159; June 1, 1872, c. 255, 1; 17 Stat.196; Rev.Stat.
650-652, 693, 697; Insurance Co. v. Dunham, 11 Wall. 1, 78 U. S. 21; United States v.
Sanges, 144 U. S. 310, 144 U. S. 320. But in United States v. Rider, it was adjudged by this
Court that the act of 1891 had superseded and repealed the earlier acts authorizing questions of
law to be certified from the circuit court to this Court, and the grounds of that adjudication
sufficiently appear by

Page 175 U. S. 685

the statement of the effect of the act of 1891 in two passages of that opinion:
"Appellate jurisdiction was given in all criminal cases by writ of error either from this Court or
from the circuit courts of appeals, and in all civil cases by appeal or error, without regard to the
amount in controversy, except as to appeals or writs of error to or from the circuit courts of
appeals in cases not made final as specified in 6. . . . It is true that repeals by implication are
not favored, but we cannot escape the conclusion that, tested by its scope, its obvious purpose,
and its terms, the Act of March 3, 1891, covers the whole subject matter under consideration,
and furnishes the exclusive rule in respect of appellate jurisdiction on appeal, writ of error, or
certificate."

163 U. S. 163 U.S. 138, 163 U. S. 140.

That judgment was thus rested upon two successive propositions: first, that the act of 1891
gives appellate jurisdiction, either to this Court or to the circuit court of appeals, in all criminal
cases, and in all civil cases "without regard to the amount in controversy;" second, that the act,
by its terms, its scope, and its obvious purpose, "furnishes the exclusive rule in respect of
appellate jurisdiction on appeal, writ of error, or certificate."

As was long ago said by Chief Justice Marshall,

"the spirit as well as the letter of a statute must be respected, and where the whole context of
the law demonstrates a particular intent in the legislature to effect a certain object, some degree
of implication may be called in to aid that intent."

Durousseau v. United States, 6 Cranch 307, 10 U. S. 314. And it is a well settled rule in the
construction of statutes, often affirmed and applied by this Court, that,

"even where two acts are not in express terms repugnant, yet if the latter act covers the whole
subject of the first, and embraces new provisions, plainly showing that it was intended as a
substitute for the first act, it will operate as a repeal of that act."

United States v. Tynen, 11 Wall. 88, 78 U. S. 92; King v. Cornell, 106 U. S. 395, 106 U. S.
396; Tracy v. Tuffly, 134 U. S. 206, 134 U. S. 223; Fisk v. Henarie, 142 U. S. 459, 142 U. S.
468; District of Columbia v. Hutton, 143 U. S. 18, 143 U. S. 27; United States v. Healey, 160 U.
S. 136, 160 U. S. 147.

We are of opinion that the act of 1891, upon its face, read

Page 175 U. S. 686

in the light of settled rules of statutory construction and of the decisions of this Court, clearly
manifests the intention of Congress to cover the whole subject of the appellate jurisdiction from
the district and circuit courts of the United States, so far as regards in what cases, as well as to
what courts, appeals may be taken, and to supersede and repeal, to this extent, all the
provisions of earlier acts of Congress, including those that imposed pecuniary limits upon such
jurisdiction, and, as part of the new scheme, to confer upon this Court jurisdiction of appeals
from all final sentences and decrees in prize causes, without regard to the amount in dispute,
and without any certificate of the district judge as to the importance of the particular case.
We are then brought to the consideration of the question whether, upon the facts appearing in
these records, the fishing smacks were subject to capture by the armed vessels of the United
States during the recent war with Spain.

By an ancient usage among civilized nations, beginning centuries ago and gradually ripening
into a rule of international law, coast fishing vessels pursuing their vocation of catching and
bringing in fresh fish have been recognized as exempt, with their cargoes and crews, from
capture as prize of war.

This doctrine, however, has been earnestly contested at the bar, and no complete collection of
the instances illustrating it is to be found, so far as we are aware, in a single published work,
although many are referred to and discussed by the writers on international law, notable in 2
Ortolan, Regles Internationales et Diplomatie de la Mer (4th ed.) lib. 3, c. 2, pp. 51-56; in 4
Calvo, Droit International (5th ed.) 2367-2373; in De Boeck, Propriete Privee Ennemie sous
Pavillon Ennemi, 191-196, and in Hall, International Law (4th ed.) 148. It is therefore worth
the while to trace the history of the rule from the earliest accessible sources through the
increasing recognition of it, with occasional setbacks, to what we may now justly consider as its
final establishment in our own country and generally throughout the civilized world.

The earliest acts of any government on the subject mentioned

Page 175 U. S. 687

in the books either emanated from, or were approved by, a King of England.

In 1403 and 1406, Henry IV issued orders to his admirals and other officers, entitled
"Concerning Safety for Fishermen -- De Securitate pro Piscatoribus." By an order of October 26,
1403, reciting that it was made pursuant to a treaty between himself and the King of France,
and for the greater safety of the fishermen of either country, and so that they could be, and carry
on their industry, the more safely on the sea, and deal with each other in peace, and that the
French King had consented that English fishermen should be treated likewise, it was ordained
that French fishermen might, during the then pending season for the herring fishery, safely fish
for herrings and all other fish from the harbor of Gravelines and the Island of Thanet to the
mouth of the Seine and the harbor of Hautoune. And by an order of October 5, 1406, he took
into his safe conduct and under his special protection, guardianship, and defense all and
singular the fishermen of France, Flanders, and Brittany, with their fishing vessels and boats,
everywhere on the sea, through and within his dominions, jurisdictions, and territories, in regard
to their fishery, while sailing, coming, and going, and at their pleasure, freely and lawfully
fishing, delaying, or proceeding, and returning homeward with their catch of fish, without any
molestation or hindrance whatever, and also their fish, nets, and other property and goods
soever, and it was therefore ordered that such fishermen should not be interfered with, provided
they should comport themselves well and properly, and should not, by color of these presents,
do or attempt, or presume to do or attempt, anything that could prejudice the King, or his
Kingdom of England, or his subjects. 8 Rymer's Foedera 336, 451.

The treaty made October 2, 1521, between the Emperor Charles V and Francis I of France,
through their ambassadors, recited that a great and fierce war had arisen between them,
because of which there had been, both by land and by sea, frequent depredations and
incursions on either side, to the grave detriment and intolerable injury of the innocent
Page 175 U. S. 688

subjects of each, and that a suitable time for the herring fishery was at hand, and, by reason of
the sea being beset by the enemy, the fishermen did not dare to go out, whereby the subject of
their industry, bestowed by heaven to allay the hunger of the poor, would wholly fail for the year
unless it were otherwise provided -- quo fit, ut piscaturae commoditas, ad pauperum levandam
famen a coelesti numine concessa, cessare hoc anno omnino debeat, nisi aliter
provideatur. And it was therefore agreed that the subjects of each sovereign, fishing in the sea
or exercising the calling of fishermen, could and might, until the end of the next January, without
incurring any attack, depredation, molestation, trouble, or hindrance soever, safely and freely,
everywhere in the sea, take herrings and every other kind of fish, the existing war by land and
sea notwithstanding; and, further, that, during the time aforesaid, no subject of either sovereign
should commit, or attempt or presume to commit, any depredation, force, violence, molestation,
or vexation to or upon such fishermen or their vessels, supplies, equipments, nets, and fish, or
other goods soever truly appertaining to fishing. The treaty was made at Calais, then an English
possession. It recites that the ambassadors of the two sovereigns met there at the earnest
request of Henry VIII and with his countenance and in the presence of Cardinal Wolsey, his
chancellor and representative. And towards the end of the treaty, it is agreed that the said King
and his said representative, "by whose means the treaty stands concluded, shall be
conservators of the agreements therein, as if thereto by both parties elected and chosen." 4
Dumont, Corps Diplomatique, pt. 1, pp. 352, 353.

The herring fishery was permitted, in time of war, by French and Dutch edicts in 1536.
Bynkershoek, Quaestiones Juris Publicae, lib. 1, c. 3; 1 Emerigon des Assurances, c. 4, section
9; c. 12, section 19, section 8.

France, from remote times, set the example of alleviating the evils of war in favor of all coast
fishermen. In the compilation entitled "Us et Coutumes de la Mer," published by Cleirac in 1661,
and in the third part thereof, containing "Maritime or Admiralty Jurisdiction -- la Jurisdiction de la

Page 175 U. S. 689

Marine ou d'Admiraute -- as well in time of peace as in time of war," article 80 is as follows:

"The admiral may in time of war accord fishing truces -- tresves pescheresses -- to the enemy
and to his subjects, provided that the enemy will likewise accord them to Frenchmen."

Cleirac 544. Under this article, reference is made to articles 49 and 79, respectively, of the
French ordinances concerning the admiralty in 1543 and 1584, of which it is but a reproduction.
4 Pardessus, Collection de Lois Maritimes 319; 2 Ortolan, 51. And Cleirac adds, in a note, this
quotation from Froissart's Chronicles:

"Fishermen on the sea, whatever war there were in France and England, never did harm to one
another; so they are friends, and help one another at need -- Pescheurs sur mer, quelque
guerre qui soit en France et Angleterre, jamais ne se firent mal l'un a l'autre; aincois sont amis,
et s'aydent l'un a l'autre au besoin."

The same custom would seem to have prevailed in France until towards the end of the
seventeenth century. For example, in 1675, Louis XIV and the States General of Holland, by
mutual agreement, granted to Dutch and French fishermen the liberty, undisturbed by their
vessels of war, of fishing along the coasts of France, Holland, and England. D'Hauterive et De
Cussy, Traites de Commerce, pt. 1, vol. 2, p. 278. But by the ordinances of 1681 and 1692, the
practice was discontinued, because, Valin says, of the faithless conduct of the enemies of
France, who, abusing the good faith with which she had always observed the treaties, habitually
carried off her fishermen, while their own fished in safety. 2 Valin sur l'Ordonnance de la Marine
(1776) 689, 690; 2 Ortolan 52; De Boeck, 192.

The doctrine which exempts coast fishermen, with their vessels and cargoes, from capture as
prize of war, has been familiar to the United States from the time of the War of Independence.

On June 5, 1779, Louis XVI., our ally in that war, addressed a letter to his admiral, informing him
that the wish he had always had of alleviating, as far as he could, the hardships of war, had
directed his attention to that class of his subjects

Page 175 U. S. 690

which devoted itself to the trade of fishing, and had no other means of livelihood; that he had
thought that the example which he should give to his enemies, and which could have no other
source than the sentiments of humanity which inspired him, would determine them to allow to
fishermen the same facilities which he should consent to grant, and that he had therefore given
orders to the commanders of all his ships not to disturb English fishermen, nor to arrest their
vessels laden with fresh fish, even if not caught by those vessels; provided they had no
offensive arms, and were not proved to have made any signals creating a suspicion of
intelligence with the enemy, and the admiral was directed to communicate the King's intentions
to all officers under his control. By a royal order in council of November 6, 1780, the former
orders were confirmed, and the capture and ransom, by a French cruiser, of The John and
Sarah, an English vessel, coming from Holland, laden with fresh fish, were pronounced to be
illegal. 2 Code des Prises (ed. 1784) 721, 901, 903.

Among the standing orders made by Sir James Marriott, Judge of the English High Court of
Admiralty, was one of April 11, 1780, by which it was

"ordered that all causes of prize of fishing boats or vessels taken from the enemy may be
consolidated in one monition, and one sentence or interlocutory, if under fifty tons burthen, and
not more than six in number."

Marriott's Formulary 4. But by the statements of his successor, and of both French and English
writers, it appears that England, as well as France, during the American Revolutionary War,
abstained from interfering with the coast fisheries.The Young Jacob and Johanna, 1 C. Rob. 20;
2 Ortolan 53; Hall, 148.

In the treaty of 1785 between the United States and Prussia, article 23 (which was proposed by
the American Commissioners, John Adams, Benjamin Franklin, and Thomas Jefferson, and is
said to have been drawn up by Franklin), provided that if war should arise between the
contracting parties,

"all women and children, scholars of every faculty, cultivators of the earth, artisans,
manufacturers, and fishermen,

Page 175 U. S. 691


unarmed and inhabiting unfortified towns, villages, or places, and in general all others whose
occupations are for the common subsistence and benefit of mankind, shall be allowed to
continue their respective employments, and shall not be molested in their persons, nor shall
their houses or goods be burnt or otherwise destroyed, nor their fields wasted by the armed
force of the enemy, into whose power, by the events of war, they may happen to fall; but if
anything is necessary to be taken from them for the use of such armed force, the same shall be
paid for at a reasonable price."

8 Stat. 96; 1 Kent Com. 91, note; Wheaton, History of the Law of Nations, 306, 308. Here was
the clearest exemption from hostile molestation or seizure of the persons, occupations, houses,
and goods of unarmed fishermen inhabiting unfortified places. The article was repeated in the
later treaties between the United States and Prussia of 1799 and 1828. 8 Stat. 174, 384. And
Dana, in a note to his edition of Wheaton's International Laws, says:

"In many treaties and decrees, fishermen catching fish as an article of food are added to the
class of persons whose occupation is not to be disturbed in war."

Wheaton, International Law (8th ed.) 345, note 168.

Since the United States became a nation, the only serious interruptions, so far as we are
informed, of the general recognition of the exemption of coast fishing vessels from hostile
capture, arose out of the mutual suspicions and recriminations of England and France during
the wars of the French Revolution.

In the first years of those wars, England having authorized the capture of French fishermen, a
decree of the French National Convention of October 2, 1793, directed the executive power "to
protest against this conduct, theretofore without example; to reclaim the fishing boats seized;
and, in case of refusal, to resort to reprisals." But in July, 1796, the Committee of Public Safety
ordered the release of English fishermen seized under the former decree, "not considering them
as prisoners of war." La Nostra Segnora de la Piedad (1801) cited below; 2 De Cussy, Droit
Maritime, 164, 165; 1 Masse, Droit Commercial (2d ed.) 266, 267.

Page 175 U. S. 692

On January 24, 1798, the English government by express order instructed the commanders of
its ships to seize French and Dutch fishermen with their boats. 6 Martens, Recueil des Traites
(2d ed.) 505; 6 Schoell, Histoire des Traites, 119; 2 Ortolan, 53. After the promulgation of that
order, Lord Stowell (then Sir William Scott) in the High Court of Admiralty of England
condemned small Dutch fishing vessels as prize of war. In one case, the capture was in April,
1798, and the decree was made November 13, 1798. The Young Jacob and Johanna, 1 C.
Rob. 20. In another case, the decree was made August 23, 1799. The Noydt Gedacht, 2 C.
Rob. 137, note.

For the year 1800, the orders of the English and French governments and the correspondence
between them may be found in books already referred to. 6 Martens 503-512; 6 Schoell, 118-
120; 2 Ortolan 53, 54. The doings for that year may be summed up as follows: on March 27,
1800, the French government, unwilling to resort to reprisals, reenacted the orders given by
Louis XVI in 1780, above mentioned, prohibiting any seizure by the French ships of English
fishermen, unless armed or proved to have made signals to the enemy. On May 30, 1800, the
English government, having received notice of that action of the French government, revoked its
order of January 24, 1798. But soon afterward, the English government complained that French
fishing boats had been made into fireboats at Flushing, as well as that the French government
had impressed and had sent to Brest, to serve in its flotilla, French fishermen and their boats,
even those whom the English had released on condition of their not serving, and on January 21,
1801, summarily revoked its last order, and again put in force its order of January 24, 1798. On
February 16, 1801, Napoleon Bonaparte, then First Consul, directed the French commissioner
at London to return at once to France, first declaring to the English government that its conduct,

"contrary to all the usages of civilized nations, and to the common law which governs them,
even in time of war, gave to the existing war a character of rage and bitterness which destroyed
even the relations usual in a loyal war, "

Page 175 U. S. 693

and "tended only to exasperate the two nations, and to put off the term of peace," and that the
French government, having always made it

"a maxim to alleviate as much as possible the evils of war, could not think, on its part, of
rendering wretched fishermen victims of a prolongation of hostilities, and would abstain from all
reprisals."

On March 16, 1801, the Addington Ministry, having come into power in England, revoked the
orders of its predecessors against the French fishermen, maintaining, however, that "the
freedom of fishing was nowise founded upon an agreement, but upon a simple concession,"
that "this concession would be always subordinate to the convenience of the moment," and that
"it was never extended to the great fishery, or to commerce in oysters or in fish." And the
freedom of the coast fisheries was again allowed on both sides. 6 Martens 514; 6 Schoell 121; 2
Ortolan, 54; Manning, Law of Nations (Amos' ed.) 206.

Lord Stowell's judgment in The Young Jacob and Johanna, 1 C. Rob. 20, above cited, was
much relied on by the counsel for the United States, and deserves careful consideration.

The vessel there condemned is described in the report as "a small Dutch fishing vessel taken
April, 1798, on her return from the Dogger bank to Holland," and Lord Stowell, in delivering
judgment, said:

"In former wars, it has not been usual to make captures of these small fishing vessels; but this
rule was a rule of comity only, and not of legal decision; it has prevailed from views of mutual
accommodation between neighboring countries, and from tenderness to a poor and industrious
order of people. In the present war, there has, I presume, been sufficient reason for changing
this mode of treatment, and as they are brought before me for my judgment, they must be
referred to the general principles of this Court; they fall under the character and description of
the last class of cases -- that is, of ships constantly and exclusively employed in the enemy's
trade."

And he added: "It is a further satisfaction to me in giving this judgment to observe that the facts
also bear strong marks of a false and fraudulent transaction."

Page 175 U. S. 694


Both the capture and the condemnation were within a year after the order of the English
government of January 24, 1798, instructing the commanders of its ships to seize French and
Dutch fishing vessels, and before any revocation of that order. Lord Stowell's judgment shows
that his decision was based upon the order of 1798, as well as upon strong evidence of fraud.
Nothing more was adjudged in the case.

But some expressions in his opinion have been given so much weight by English writers that it
may be well to examine them particularly. The opinion begins by admitting the known custom in
former wars not to capture such vessels, adding, however, "but this was a rule of comity only,
and not of legal decision." Assuming the phrase "legal decision" to have been there used, in the
sense in which courts are accustomed to use it, as equivalent to "judicial decision," it is true
that, so far as appears, there had been no such decision on the point in England. The word
"comity" was apparently used by Lord Stowell as synonymous with courtesy or goodwill. But the
period of a hundred years which has since elapsed is amply sufficient to have enabled what
originally may have rested in custom or comity, courtesy or concession, to grow, by the general
assent of civilized nations, into a settled rule of international law. As well said by Sir James
Mackintosh:

"In the present century, a slow and silent, but very substantial, mitigation has taken place in the
practice of war, and in proportion as that mitigated practice has received the sanction of time, it
is raised from the rank of mere usage and becomes part of the law of nations."

Discourse on the Law of Nations 38; 1 Miscellaneous Works, 360.

The French prize tribunals, both before and after Lord Stowell's decision, took a wholly different
view of the general question. In 1780, as already mentioned, an order in council of Louis XVI
had declared illegal the capture by a French cruiser of The John and Sarah, an English vessel
coming from Holland, laden with fresh fish. And on May 17, 1801, where a Portuguese fishing
vessel, with her cargo of fish, having no more crew than was needed for her management and
for serving the nets, on a trip of several days, had been captured

Page 175 U. S. 695

in April, 1801, by a French cruiser, three leagues off the coast of Portugal, the Council of Prizes
held that the capture was contrary to "the principles of humanity and the maxims of international
law," and decreed that the vessel, with the fish on board, or the net proceeds of any that had
been sold, should be restored to her master. La Nostra Segnora de la Piedad, 25 Merlin,
Jurisprudence, Prise Maritime, 3, arts. 1, 3; S.C. 1 Pistoye et Duverdy, Prises Maritimes 331;
2 De Cussy, Droit Maritime 166.

The English government, soon afterwards, more than once unqualifiedly prohibited the
molestation of fishing vessels employed in catching and bringing to market fresh fish. On May
23, 1806, it was

"ordered in council that all fishing vessels under Prussian and other colors, and engaged for the
purpose of catching fish and conveying them fresh to market, with their crews, cargoes, and
stores, shall not be molested on their fishing voyages and bringing the same to market, and that
no fishing vessels of this description shall hereafter be molested. And the Right Honorable the
Lords Commissioners of His Majesty's Treasury, the Lords Commissioners of the Admiralty, and
the Judge of the High Court of Admiralty, are to give the necessary directions herein as to them
may respectively appertain."

5 C. Rob. 408. Again, in the order in council of May 2, 1810, which directed that

"all vessels which shall have cleared out from any port so far under the control of France or her
allies as that British vessels may not freely trade thereat, and which are employed in the whale
fishery, or other fishery of any description, save as hereinafter excepted, and are returning, or
destined to return either to the port from whence they cleared, or to any other port or place at
which the British flag may not freely trade, shall be captured and condemned together with their
stores and cargoes, as prize to the captors,"

there were excepted "vessels employed in catching and conveying fish fresh to market, such
vessels not being fitted or provided for the curing of fish." Edw.Adm. appx. L.

Wheaton, in his Digest of the Law of Maritime Captures and Prizes, published in 1815, wrote:

"It has been usual

Page 175 U. S. 696

in maritime wars to exempt from capture fishing boats and their cargoes, both from views of
mutual accommodation between neighboring countries, and from tenderness to a poor and
industrious order of people. This custom, so honorable to the humanity of civilized nations, has
fallen into disuse, and it is remarkable that both France and England mutually reproach each
other with that breach of good faith which has finally abolished it."

Wheaton, Captures, c. 2, 18.

This statement clearly exhibits Wheaton's opinion that the custom had been a general one, as
well as that it ought to remain so. His assumption that it had been abolished by the differences
between France and England at the close of the last century was hardly justified by the state of
things when he wrote, and has not since been borne out.

During the wars of the French Empire, as both French and English writers agree, the coast
fisheries were left in peace. 2 Ortolan 54; De Boeck 193; Hall 148. De Boeck quaintly and
truly adds, "and the incidents of 1800 and of 1801 had no morrow -- n'eurent pas de lendemain."

In the war with Mexico, in 1846, the United States recognized the exemption of coast fishing
boats from capture. In proof of this, counsel have referred to records of the Navy Department,
which this Court is clearly authorized to consult upon such a question. Jones v. United
States, 137 U. S. 202; Underhill v. Hernandez, 168 U. S. 250, 168 U. S. 253.

By those records, it appears that Commodore Conner, commanding the Home Squadron
blockading the east coast of Mexico, on May 14, 1846, wrote a letter from the
ship Cumberland, off Brazos Santiago, near the southern point of Texas, to Mr. Bancroft, the
Secretary of the Navy, enclosing a copy of the commodore's "instructions to the commanders of
the vessels of the Home Squadron, showing the principles to be observed in the blockade of the
Mexican ports," one of which was that "Mexican boats engaged in fishing on any part of the
coast will be allowed to pursue their labors unmolested," and that, on June 10, 1846, those
instructions were approved by the Navy Department, of which Mr. Bancroft was still the head,
and continued to be until he was appointed Minister to

Page 175 U. S. 697

England in September following. Although Commodore Conner's instructions and the


Department's approval thereof do not appear in any contemporary publication of the
government, they evidently became generally known at the time, or soon after, for it is stated in
several treatises on international law (beginning with Ortolan's second edition, published in
1853) that the United States in the Mexican war permitted the coast fishermen of the enemy to
continue the free exercise of their industry. 2 Ortolan (2d ed.) 49, note; (4th ed.) 55; 4 Calvo (5th
ed.) 2372; De Boeck 194; Hall (4th ed.) 148.

As qualifying the effect of those statements, the counsel for the United States relied on a
proclamation of Commodore Stockton, commanding the Pacific Squadron, dated August 20,
1846, directing officers under his command to proceed immediately to blockade the ports of
Mazatlan and San Blas, on the west coast of Mexico, and saying to them,

"All neutral vessels that you may find there you will allow twenty days to depart, and you will
make the blockade absolute against all vessels, except armed vessels of neutral nations. You
will capture all vessels under the Mexican flag that you may be able to take."

Navy Reports of 1846, pp. 673, 674. But there is nothing to show that Commodore Stockton
intended, or that the government approved, the capture of coast fishing vessels.

On the contrary, General Halleck, in the preface to his work on International Law, or Rules
Regulating the Intercourse of states in Peace and War, published in 1861, says that he began
that work during the war between the United States and Mexico "while serving on the staff of the
commander of the Pacific Squadron," and "often required to give opinions on questions of
international law growing out of the operations of the war." Had the practice of the blockading
squadron on the west coast of Mexico during that war, in regard to fishing vessels, differed from
that approved by the Navy Department on the east coast, General Halleck could hardly have
failed to mention it when stating the prevailing doctrine upon the subject as follows:

Page 175 U. S. 698

"Fishing boats have also, as a general rule, been exempted from the effects of hostilities. As
early as 1521, while war was raging between Charles V and Francis, ambassadors from these
two sovereigns met at Calais, then English, and agreed that, whereas the herring fishery was
about to commence, the subjects of both belligerents engaged in this pursuit should be safe and
unmolested by the other party, and should have leave to fish as in time of peace. In the war of
1800, the British and French governments issued formal instructions exempting the fishing
boats of each other's subjects from seizure. This order was subsequently rescinded by the
British government on the alleged ground that some French fishing boats were equipped as
gunboats, and that some French fishermen who had been prisoners in England had violated
their parole not to serve, and had gone to join the French fleet at Brest. Such excuses were
evidently mere pretexts, and after some angry discussions had taken place on the subject, the
British restriction was withdrawn and the freedom of fishing was again allowed on both sides.
French writers consider this exemption as an established principle of the modern law of war,
and it has been so recognized in the French courts, which have restored such vessels when
captured by French cruisers."

Halleck (1st ed.) c. 20, 23.

That edition was the only one sent out under the author's own auspices except an abridgment,
entitled "Elements of International Law and the Law of War," which he published in 1866, as he
said in the preface, to supply a suitable textbook for instruction upon the subject, "not only in our
colleges, but also in our two great national schools -- the Military and Naval Academies." In that
abridgment, the statement as to fishing boats was condensed as follows:

"Fishing boats have also, as a general rule, been exempted from the effects of hostilities.
French writers consider this exemption as an established principle of the modern law of war,
and it has been so recognized in the French courts, which have restored such vessels when
captured by French cruisers."

Halleck's Elements, c. 20, 21.

In the treaty of peace between the United States and Mexico,

Page 175 U. S. 699

in 1848, were inserted the very words of the earlier treaties with Prussia, already quoted,
forbidding the hostile molestation or seizure in time of war of the persons, occupations, houses,
or goods of fishermen. 9 Stat. 939, 940.

Wharton's Digest of the International Law of the United States, published by authority of
Congress in 1886 and 1887, embodies General Halleck's fuller statement, above quoted, and
contains nothing else upon the subject. 3 Whart. Int.Law Dig. 345, p. 315; 2 Halleck (Eng. eds.
1873 and 1878) p. 151.

France in the Crimean war in 1854, and in her wars with Italy in 1859 and with Germany in
1870, by general orders, forbade her cruisers to trouble the coast fisheries or to seize any
vessel or boat engaged therein unless naval or military operations should make it necessary.
Calvo, 2372; Hall, 148; 2 Ortolan (4th ed.) 449; 10 Revue de Droit Internationale (1878) 399.

Calvo says that, in the Crimean War,

"notwithstanding her alliance with France and Italy, England did not follow the same line of
conduct, and her cruisers in the Sea of Azof destroyed the fisheries, nets, fishing implements,
provisions, boats, and even the cabins of the inhabitants of the coast."

Calvo 2372. And a Russian writer on prize law remarks that those depredations,

"having brought ruin on poor fishermen and inoffensive traders, could not but leave a painful
impression on the minds of the population, without impairing in the least the resources of the
Russian government."
Katchenovsky (Pratt's ed.) 148. But the contemporaneous reports of the English naval officers
put a different face on the matter by stating that the destruction in question was part of a military
measure, conducted with the cooperation of the French ships, and pursuant to instructions of
the English admiral

"to clear the seaboard of all fish stores, all fisheries and mills, on a scale beyond the wants of
the neighboring population, and indeed of all things destined to contribute to the maintenance of
the enemy's army in the Crimea,"

and that the property destroyed consisted of large fishing establishments and storehouses of
the Russian government, numbers of heavy launches, and enormous quantities of nets and
gear, salted fish, corn,

Page 175 U. S. 700

and other provisions intended for the supply of the Russian army. United Service Journal of
1855, pt. 3, pp. 108-112.

Since the English orders in council of 1806 and 1810, before quoted, in favor of fishing vessels
employed in catching and bringing to market fresh fish, no instance has been found in which the
exemption from capture of private coast fishing vessels honestly pursuing their peaceful industry
has been denied by England or by any other nation. And the Empire of Japan (the last state
admitted into the rank of civilized nations), by an ordinance promulgated at the beginning of its
war with China in August, 1894, established prize courts and ordained that "the following
enemy's vessels are exempt from detention," including in the exemption "boats engaged in
coast fisheries," as well as "ships engaged exclusively on a voyage of scientific discovery,
philanthrophy, or religious mission." Takahashi, International Law 11, 178.

International law is part of our law, and must be ascertained and administered by the courts of
justice of appropriate jurisdiction as often as questions of right depending upon it are duly
presented for their determination. For this purpose, where there is no treaty and no controlling
executive or legislative act or judicial decision, resort must be had to the customs and usages of
civilized nations, and, as evidence of these, to the works of jurists and commentators who by
years of labor, research, and experience have made themselves peculiarly well acquainted with
the subjects of which they treat. Such works are resorted to by judicial tribunals not for the
speculations of their authors concerning what the law ought to be, but for trustworthy evidence
of what the law really is. Hilton v. Guyot, 159 U. S. 113, 159 U. S. 163-164, 159 U. S. 214-215.

Wheaton places among the principal sources international law

"text writers of authority, showing what is the approved usage of nations, or the general opinion
respecting their mutual conduct, with the definitions and modifications introduced by general
consent."

As to these, he forcibly observes:

"Without wishing to exaggerate the importance of these writers or to substitute, in any case,
their authority for the principles of reason, it may be affirmed that they are generally

Page 175 U. S. 701


impartial in their judgment. They are witnesses of the sentiments and usages of civilized
nations, and the weight of their testimony increases every time that their authority is invoked by
statesmen, and every year that passes without the rules laid down in their works being
impugned by the avowal of contrary principles."

Wheaton, International Law (8th ed.), 15.

Chancellor Kent says:

"In the absence of higher and more authoritative sanctions, the ordinances of foreign states, the
opinions of eminent statesmen, and the writings of distinguished jurists are regarded as of great
consideration on questions not settled by conventional law. In cases where the principal jurists
agree, the presumption will be very great in favor of the solidity of their maxims, and no civilized
nation that does not arrogantly set all ordinary law and justice at defiance will venture to
disregard the uniform sense of the established writers on international law."

1 Kent, Com. 18.

It will be convenient, in the first place, to refer to some leading French treatises on international
law, which deal with the question now before us, not as one of the law of France only, but as
one determined by the general consent of civilized nations.

"Enemy ships," say Pistoye and Duverdy, in their Treatise on Maritime Prizes, published in
1855,

"are good prize. Not all, however, for it results from the unanimous accord of the maritime
powers that an exception should be made in favor of coast fishermen. Such fishermen are
respected by the enemy so long as they devote themselves exclusively to fishing."

1 Pistoye et Duverdy, Tit. 6, c. 1, p. 314.

De Cussy, in his work on the Phases and Leading cases of the Maritime Law of Nations --
Phases et Causes Celebres du Droit Maritime des Nations -- published in 1856, affirms in the
clearest language the exemption from capture of fishing boats, saying, in lib. 1, Tit. 3, 36, that

"in time of war, the freedom of fishing is respected by belligerents; fishing boats are considered
as neutral; in law, as in principle, they are not subject either to capture or to confiscation,"

and that in lib. 2, c. 20, he will state "several facts and several decisions

Page 175 U. S. 702

which prove that the perfect freedom and neutrality of fishing boats are not illusory." 1 De
Cussy, p. 291. And in the chapter so referred to, entitled De la Liberte et de la Neutralite
Parfaite de la Peche, besides references to the edicts and decisions in France during the
French Revolution, is this general statement:

"If one consulted only positive international law -- 1e droit des gens positif -- [by which is
evidently meant international law expressed in treaties, decrees, or other public acts, as
distinguished from what may be implied from custom or usage], fishing boats would be subject,
like all other trading vessels, to the law of prize; a sort of tacit agreement among all European
nations frees them from it, and several official declarations have confirmed this privilege in favor
of 'a class of men whose hard and ill rewarded labor, commonly performed by feeble and aged
hands, is so foreign to the operations of war.'"

2 De Cussy 164, 165.

Ortolan, in the fourth edition of his Regles Internationales et Diplomatie de la Mer, published in
1864, after stating the general rule that the vessels and cargoes of subjects of the enemy are
lawful prize, says:

"Nevertheless, custom admits an exception in favor of boats engaged in the coast fishery; these
boats, as well as their crews, are free from capture and exempt from all hostilities. The coast-
fishing industry is, in truth, wholly pacific, and of much less importance in regard to the national
wealth that it may produce than maritime commerce or the great fisheries. Peaceful and wholly
inoffensive, those who carry it on, among whom women are often seen, may be called the
harvesters of the territorial seas, since they confine themselves to gathering in the products
thereof; they are for the most part poor families who seek in this calling hardly more than the
means of gaining their livelihood."

2 Ortolan 51. Again, after observing that there are very few solemn public treaties which make
mention of the immunity of fishing boats in time of war, he says:

"From another point of view, the custom which sanctions this immunity is not so general that it
can be considered as making an absolute international rule; but it has been so often put in
practice, and, besides, it accords so well with the rule in use in wars on

Page 175 U. S. 703

land, in regard to peasants and husbandmen, to whom coast fishermen may be likened, that it
will doubtless continue to be followed in maritime wars to come."

2 Ortolan 55.

No international jurist of the present day has a wider or more deserved reputation than Calvo,
who, though writing in French, is a citizen of the Argentine Republic employed in its diplomatic
service abroad. In the fifth edition of his great work on international law, published in 1896, he
observes, in 2366, that the international authority of decisions in particular cases by the prize
courts of France, of England, and of the United States is lessened by the fact that the principles
on which they are based are largely derived from the internal legislation of each country, and yet
the peculiar character of maritime wars, with other considerations, gives to prize jurisprudence a
force and importance reaching beyond the limits of the country in which it has prevailed. He
therefore proposes here to group together a number of particular cases proper to serve as
precedents for the solution of grave questions of maritime law in regard to the capture of private
property as prize of war. Immediately, in 2367, he goes on to say:

"Notwithstanding the hardships to which maritime wars subject private property, notwithstanding
the extent of the recognized rights of belligerents, there are generally exempted, from seizure
and capture, fishing vessels."
In the next section, he adds: "This exception is perfectly justiciable -- Cette exception est
parfaitement justiciable" -- that is to say, belonging to judicial jurisdiction or cognizance. Littre,
Dist. voc. Justiciable; Hans v. Louisiana, 134 U. S. 1, 134 U. S. 15. Calvo then quotes Ortolan's
description, above cited, of the nature of the coast-fishing industry, and proceeds to refer in
detail to some of the French precedents, to the acts of the French and English governments in
the times of Louis XVI and of the French Revolution, to the position of the United States in the
war with Mexico, and of France in later wars, and to the action of British cruisers in the Crimean
war. And he concludes his discussion of the subject, in 2373, by affirming the exemption of
the coast fishery and pointing out the distinction in this regard between the coast fishery and

Page 175 U. S. 704

what he calls the great fishery, for cod, whales, or seals, as follows:

"The privilege of exemption from capture, which is generally acquired by fishing vessels plying
their industry near the coasts, is not extended in any country to ships employed on the high sea
in what is called the great fishery, such as that for the cod, for the whale or the sperm whale, or
for the seal or sea calf. These ships are, in effect, considered as devoted to operations which
are at once commercial and industrial -- Ces navires sont en effect consideres comme adonnes
a des operations a la fois commerciales et industrielles."

The distinction is generally recognized. 2 Ortolan 54; De Boeck 196; Hall, 148. See also The
Susa, 2 C. Rob. 251; The Johan, Edw.Adm. 275, and appx. L.

The modern German books on international law, cited by the counsel for the appellants, treat
the custom by which the vessels and implements of coast fishermen are exempt from seizure
and capture as well established by the practice of nations. Heffter 137; 2 Kalterborn 237, p.
480; Bluntschli 667; Perels 37, p. 217.

De Boeck, in his work on Enemy Private Property under Enemy's Flag -- De la Propriete Privee
Ennemie sous Pavillon Ennemi-- published in 1882, and the only continental treatise cited by
the counsel for the United States, says in 191:

"A usage very ancient, if not universal, withdraws from the right of capture enemy vessels
engaged in the coast fishery. The reason of this exception is evident; it would have been too
hard to snatch from poor fishermen the means of earning their bread. . . . The exemption
includes the boats, the fishing implements, and the cargo of fish."

Again, in 195:

"It is to be observed that very few treatises sanction in due form this immunity of the coast
fishery. . . . There is, then, only a custom. But what is its character? Is it so fixed and general
that it can be raised to the rank of a positive and formal rule of international law?"

After discussing the statements of other writers, he approves the opinion of Ortolan (as
expressed in the last sentence above quoted from his work) and says that, at bottom, it differs
by a shade only from that formulated by Calvo and by some of the German jurists, and that

"it is more exact,


Page 175 U. S. 705

without ignoring the imperative character of the humane rule in question -- elle est plus exacte,
sans meconnaitre le caractere imperatif de la regle d'humanite dont il s'agit."

And in 196 he defines the limits of the rule as follows:

"But the immunity of the coast fishery must be limited by the reasons which justify it. The
reasons of humanity and of harmlessness -- les raisons d'humanite et d'innocuite -- which
militate in its favor do not exist in the great fishery, such as the cod fishery; ships engaged in
that fishery devote themselves to truly commercial operations, which employ a large number of
seamen. And these same reasons cease to be applicable to fishing vessels employed for a
warlike purpose, to those which conceal arms, or which exchange signals of intelligence with
ships of war; but only those taken in the fact can be rigorously treated; to allow seizure by way
of preventive would open the door to every abuse, and would be equivalent to a suppression of
the immunity."

Two recent English text writers cited at the bar (influenced by what Lord Stowell said a century
since) hesitate to recognize that the exemption of coast fishing vessels from capture has now
become a settled rule of international law. Yet they both admit that there is little real difference
in the views, or in the practice, of England and of other maritime nations, and that no civilized
nation at the present day would molest coast fishing vessels so long as they were peaceably
pursuing their calling and there was no danger that they or their crews might be of military use
to the enemy. Hall, in 148 of the fourth edition of his Treatise on International Law, after briefly
sketching the history of the positions occupied by France and England at different periods, and
by the United States in the Mexican war, goes on to say:

"In the foregoing facts there is nothing to show that much real difference has existed in the
practice of the maritime countries. England does not seem to have been unwilling to spare
fishing vessels so long as they are harmless, and it does not appear that any state has
accorded them immunity under circumstances of inconvenience to itself. It is likely that all
nations would now refrain from molesting them as a general rule, and would capture

Page 175 U. S. 706

them so soon as any danger arose that they or their crews might be of military use to the
enemy, and it is also likely that it is impossible to grant them a more distinct exemption."

So, T. J.Lawrence, in 206 of his Principles of International Law, says:

"The difference between the English and the French view is more apparent than real, for no
civilized belligerent would now capture the boats of fishermen plying their avocation peaceably
in the territorial waters of their own state, and no jurist would seriously argue that their immunity
must be respected if they were used for warlike purposes, as were the smacks belonging to the
northern ports of France when Great Britain gave the order to capture them in 1800."

But there are writers of various maritime countries not yet cited too important to be passed by
without notice.
Jan Helenus Ferguson, Netherlands Minister to China, and previously in the naval and in the
colonial service of his country, in his Manual of International Law for the Use of Navies,
Colonies, and Consulates, published in 1882, writes:

"An exception to the usage of capturing enemy's private vessels at sea is the coast fishery. . . .
This principle of immunity from capture of fishing boats is generally adopted by all maritime
powers, and in actual warfare they are universally spared so long as they remain harmless."

2 Ferguson 212.

Ferdinand Attlmayr, captain in the Austrian Navy, in his Manual for Naval Officers, published at
Vienna in 1872 under the auspices of Admiral Tegetthoff, says:

"Regarding the capture of enemy property, an exception must be mentioned, which is a


universal custom. Fishing vessels which belong to the adjacent coast, and whose business
yields only a necessary livelihood, are, from considerations of humanity, universally excluded
from capture."

1 Attlmayr 61.

Ignacio de Megrin, First Official of the Spanish Board of Admiralty, in his Elementary Treatise on
Maritime International Law, adopted by royal order as a textbook in the naval schools of Spain
and published at Madrid in 1873, concludes his chapter "Of the lawfulness of prizes" with these
words:

"It remains to be added that the custom of all civilized peoples excludes from capture and from
all kind of hostility the

Page 175 U. S. 707

fishing vessels of the enemy's coasts, considering this industry as absolutely inoffensive, and
deserving, from its hardships and usefulness, of this favorable exception. It has been thus
expressed in very many international conventions, so that it can be deemed an incontestable
principle of law at least among enlightened nations."

Negrin, Tit. 3, c. 1, 310.

Carlos Testa, captain in the Portuguese Navy and professor in the naval school at Lisbon, in his
work on Public International Law, published in French at Paris in 1886, when discussing the
general right of capturing enemy ships, says:

"Nevertheless, in this, customary law establishes an exception of immunity in favor of coast


fishing vessels. Fishing is so peaceful an industry, and is generally carried on by so poor and so
hardworking a class of men, that it is likened, in the territorial waters of the enemy's country, to
the class of husbandmen who gather the fruits of the earth for their livelihood. The examples
and practice generally followed establish this humane and beneficent exception as an
international rule, and this rule may be considered as adopted by customary law and by all
civilized nations."
Testa, pt. 3, c. 2, in 18 Bibliotheque International et Diplomatique, pp. 152, 153.

No less clearly and decisively speaks the distinguished Italian jurist, Pasquale Fiore, in the
enlarged edition of his exhaustive work on Public International Law, published at Paris in 1885-
1886, saying:

"The vessels of fishermen have been generally declared exempt from confiscation because of
the eminently peaceful object of their humble industry and of the principles of equity and
humanity. The exemption includes the vessel, the implements of fishing, and the cargo resulting
from the fishery. This usage, eminently humane, goes back to very ancient times, and although
the immunity of the fishery along the coasts may not have been sanctioned by treaties, yet it is
considered today as so definitely established that the inviolability of vessels devoted to that
fishery is proclaimed by the publicists as a positive rule of international law, and is generally
respected by the nations. Consequently we shall lay down the following rule: (a) vessels
belonging to citizens of the enemy state, and devoted to fishing

Page 175 U. S. 708

along the coasts, cannot be subject to capture; (b) such vessels, however, will lose all right of
exemption when employed for a warlike purpose; (c) there may nevertheless be subjected to
capture vessels devoted to the great fishery in the ocean, such as those employed in the whale
fishery, or in that for seals or sea calves."

3 Fiore 1421.

This review of the precedents and authorities on the subject appears to us abundantly to
demonstrate that, at the present day, by the general consent of the civilized nations of the world,
and independently of any express treaty or other public act, it is an established rule of
international law, founded on considerations of humanity to a poor and industrious order of men,
and of the mutual convenience of belligerent states, that coast fishing vessels, with their
implements and supplies, cargoes and crews, unarmed and honestly pursuing their peaceful
calling of catching and bringing in fresh fish, are exempt from capture as prize of war.

The exemption, of course, does not apply to coast fishermen or their vessels if employed for a
warlike purpose, or in such a way as to give aid or information to the enemy, nor when military
or naval operations create a necessity to which all private interests must give way.

Nor has the exemption been extended to ships or vessels employed on the high sea in taking
whales or seals or cod or other fish which are not brought fresh to market, but are salted or
otherwise cured and made a regular article of commerce.

This rule of international law is one which prize courts administering the law of nations are
bound to take judicial notice of, and to give effect to, in the absence of any treaty or other public
act of their own government in relation to the matter.

Calvo, in a passage already quoted, distinctly affirms that the exemption of coast fishing vessels
from capture is perfectly justiciable, or, in other words, of judicial jurisdiction or cognizance.
Calvo 2368. Nor are judicial precedents wanting in support of the view that this exemption, or
a somewhat analogous one, should be recognized and declared by a prize court.
Page 175 U. S. 709

By the practice of all civilized nations, vessels employed only for the purposes of discovery or
science are considered as exempt from the contingencies of war, and therefore not subject to
capture. It has been usual for the government sending out such an expedition to give notice to
other powers, but it is not essential. 1 Kent, Com. 91, note; Halleck, c. 20, 22; Calvo 2376;
Hall 138.

In 1813, while the United States were at war with England, an American vessel on her voyage
from Italy to the United States was captured by an English ship, and brought into Halifax, in
Nova Scotia, and, with her cargo, condemned as lawful prize by the court of vice admiralty
there. But a petition for the restitution of a case of paintings and engravings which had been
presented to and were owned by the Academy of Arts in Philadelphia was granted by Dr. Croke,
the judge of that court, who said:

"The same law of nations which prescribes that all property belonging to the enemy shall be
liable to confiscation has likewise its modifications and relaxations of that rule. The arts and
sciences are admitted amongst all civilized nations as forming an exception to the severe rights
of warfare, and as entitled to favor and protection. They are considered not as the peculium of
this or of that nation, but as the property of mankind at large, and as belonging to the common
interests of the whole species."

And he added that there had been "innumerable cases of the mutual exercise of this courtesy
between nations in former wars." The Marquis de Somerueles, Stewart Adm. (Nova Scotia) 445,
482.

In 1861, during the war of the Rebellion, a similar decision was made in the District Court of the
United States for the Eastern District of Pennsylvania in regard to two cases of books belonging
and consigned to a university in North Carolina. Judge Cadwalader, in ordering these books to
be liberated from the custody of the marshal and restored to the agent of the university, said:

"Though this claimant, as the resident of a hostile district, would not be entitled to restitution of
the subject of a commercial adventure in books, the purpose of the shipment in question gives
to it a different

Page 175 U. S. 710

character. The United States, in prosecuting hostilities for the restoration of their constitutional
authority, are compelled incidentally to confiscate property captured at sea, of which the
proceeds would otherwise increase the wealth of that district. But the United States are not at
war with literature in that part of their territory."

He then referred to the decision in Nova Scotia, and to the French decisions upon cases of
fishing vessels, as precedents for the decree which he was about to pronounce, and he added
that, without any such precedents, he should have had no difficulty in liberating these
books. The Amelia, 4 Philadelphia 417.

In Brown v. United States, 8 Cranch 110, there are expressions of Chief Justice Marshall which,
taken by themselves, might seem inconsistent with the position above maintained, of the duty of
a prize court to take judicial notice of a rule of international law, established by the general
usage of civilized nations, as to the kind of property subject to capture. But the actual decision in
that case, and the leading reasons on which it was based, appear to us rather to confirm our
position. The principal question there was whether personal property of a British subject, found
on land in the United States at the beginning of the last war with Great Britain, could lawfully be
condemned as enemy's property on a libel filed by the attorney of the United States, without a
positive act of Congress. The conclusion of the Court was

"that the power of confiscating enemy property is in the legislature, and that the legislature has
not yet declared its will to confiscate property which was within our territory at the declaration of
war."

8 Cranch 12 U. S. 129. In showing that the declaration of war did not, of itself, vest the
Executive with authority to order such property to be confiscated, the Chief Justice relied on the
modern usages of nations, saying:

"The universal practice of forbearing to seize and confiscate debts and credits, the principle
universally received that the right to them revives on the restoration of peace, would seem to
prove that war is not an absolute confiscation of this property, but simply confers the right of
confiscation,"

and again:

"The modern rule, then, would seem to be that tangible property

Page 175 U. S. 711

belonging to an enemy, and found in the country at the commencement of war, ought not to be
immediately confiscated, and in almost every commercial treaty, an article is inserted stipulating
for the right to withdraw such property."

8 Cranch 12 U. S. 123-125. The decision that enemy property on land, which by the modern
usage of nations is not subject to capture as prize of war, cannot be condemned by a prize
court, even by direction of the Executive, without express authority from Congress appears to us
to repel any inference that coast fishing vessels, which are exempt by the general consent of
civilized nations from capture and which no act of Congress or order of the President has
expressly authorized to be taken and confiscated, must be condemned by a prize court for want
of a distinct exemption in a treaty or other public act of the government.

To this subject in more than one aspect are singularly applicable the words uttered by Mr.
Justice Strong, speaking for this Court:

"Undoubtedly no single nation can change the law of the sea. The law is of universal obligation,
and no statute of one or two nations can create obligations for the world. Like all the laws of
nations, it rests upon the common consent of civilized communities. It is of force not because it
was prescribed by any superior power, but because it has been generally accepted as a rule of
conduct. Whatever may have been its origin, whether in the usages of navigation, or in the
ordinances of maritime states, or in both, it has become the law of the sea only by the
concurrent sanction of those nations who may be said to constitute the commercial world. Many
of the usages which prevail, and which have the force of law, doubtless originated in the positive
prescriptions of some single state, which were at first of limited effect, but which, when generally
accepted, became of universal obligation."

"This is not giving to the statutes of any nation extraterritorial effect. It is not treating them as
general maritime laws, but it is recognition of the historical fact that, by common consent of
mankind these rules have been acquiesced in as of general obligation. Of that fact we think we
may take judicial notice. Foreign municipal laws

Page 175 U. S. 712

must indeed be proved as facts, but it is not so with the law of nations."

The Scotia, 14 Wall. 170, 81 U. S. 187-188.

The position taken by the United States during the recent war with Spain was quite in accord
with the rule of international law, now generally recognized by civilized nations, in regard to
coast fishing vessels.

On April 21, 1898, the Secretary of the Navy gave instructions to Admiral Sampson,
commanding the North Atlantic Squadron, to "immediately institute a blockade of the north coast
of Cuba, extending from Cardenas on the east to Bahia Honda on the west." Bureau of
Navigation Report of 1898, appx. 175. The blockade was immediately instituted accordingly. On
April 22, the President issued a proclamation declaring that the United States had instituted and
would maintain that blockade "in pursuance of the laws of the United States, and the law of
nations applicable to such cases." 30 Stat. 1769. And by the act of Congress of April 25, 1898,
c. 189, it was declared that the war between the United States and Spain existed on that day,
and had existed since and including April 21, 30 Stat. 364.

On April 26, 1898, the President issued another proclamation which, after reciting the existence
of the war as declared by Congress, contained this further recital:

"It being desirable that such war should be conducted upon principles in harmony with the
present views of nations and sanctioned by their recent practice."

This recital was followed by specific declarations of certain rules for the conduct of the war by
sea, making no mention of fishing vessels. 30 Stat. 1770. But the proclamation clearly manifests
the general policy of the government to conduct the war in accordance with the principles of
international law sanctioned by the recent practice of nations.

On April 28, 1898 (after the capture of the two fishing vessels now in question), Admiral
Sampson telegraphed to the Secretary of the Navy as follows:

"I find that a large number of fishing schooners are attempting to get into Havana from their
fishing grounds near the Florida reefs and coasts. They are generally manned by excellent
seamen, belonging

Page 175 U. S. 713


to the maritime inscription of Spain, who have already served in the Spanish navy, and who are
liable to further service. As these trained men are naval reserves, most valuable to the
Spaniards as artillerymen, either afloat or ashore, I recommend that they should be detained
prisoners of war, and that I should be authorized to deliver them to the commanding officer of
the army at Key West."

To that communication the Secretary of the Navy, on April 30, 1898, guardedly answered:

"Spanish fishing vessels attempting to violate blockade are subject, with crew, to capture, and
any such vessel or crew considered likely to aid enemy may be detained."

Bureau of Navigation Report of 1898, appx. 178. The admiral's dispatch assumed that he was
not authorized, without express order, to arrest coast fishermen peaceably pursuing their
calling, and the necessary implication and evident intent of the response of the Navy
Department were that Spanish coast fishing vessels and their crews should not be interfered
with so long as they neither attempted to violate the blockade nor were considered likely to aid
the enemy.

The Paquete Habana, as the record shows, was a fishing sloop of 25 tons burden, sailing under
the Spanish flag, running in and out of Havana, and regularly engaged in fishing on the coast of
Cuba. Her crew consisted of but three men, including the master, and, according to a common
usage in coast fisheries, had no interest in the vessel, but were entitled to two-thirds of her
catch, the other third belonging to her Spanish owner, who, as well as the crew, resided in
Havana. On her last voyage, she sailed from Havana along the coast of Cuba, about two
hundred miles, and fished for twenty-five days off the cape at the west end of the island, within
the territorial waters of Spain, and was going back to Havana with her cargo of live fish when
she was captured by one of the blockading squadron on April 25, 1898. She had no arms or
ammunition on board; she had no knowledge of the blockade, or even of the war, until she was
stopped by a blockading vessel; she made no attempt to run the blockade, and no resistance at
the time of the capture; nor was there any evidence

Page 175 U. S. 714

whatever of likelihood that she or her crew would aid the enemy.

In the case of the Lola, the only differences in the facts were that she was a schooner of 35 tons
burden, and had a crew of six men, including the master; that, after leaving Havana and
proceeding some two hundred miles along the coast of Cuba, she went on, about one hundred
miles farther, to the coast of Yucatan, and there fished for eight days, and that, on her return,
when near Bahia Honda on the coast of Cuba, she was captured, with her cargo of live fish, on
April 27, 1898. These differences afford no ground for distinguishing the two cases.

Each vessel was of a moderate size, such as is not unusual in coast fishing smacks, and was
regularly engaged in fishing on the coast of Cuba. The crew of each were few in number, had
no interest in the vessel, and received, in return for their toil and enterprise, two-thirds of her
catch, the other third going to her owner by way of compensation for her use. Each vessel went
out from Havana to her fishing ground and was captured when returning along the coast of
Cuba. The cargo of each consisted of fresh fish, caught by her crew from the sea and kept alive
on board. Although one of the vessels extended her fishing trip across the Yucatan channel and
fished on the coast of Yucatan, we cannot doubt that each was engaged in the coast fishery,
and not in a commercial adventure, within the rule of international law.

The two vessels and their cargoes were condemned by the district court as prize of war; the
vessels were sold under its decrees, and it does not appear what became of the fresh fish of
which their cargoes consisted.

Upon the facts proved in either case, it is the duty of this Court, sitting as the highest prize court
of the United States and administering the law of nations, to declare and adjudge that the
capture was unlawful and without probable cause, and it is therefore, in each case

Ordered, that the decree of the district court be reversed, and the proceeds of the sale of the
vessel, together with the proceeds of any sale of her cargo, be restored to the claimant, with
damages and costs.

Page 175 U. S. 715

MR. CHIEF JUSTICE FULLER, with whom concurred MR. JUSTICE HARLAN and MR.
JUSTICE McKENNA, dissenting:

The district court held these vessels and their cargoes liable because not "satisfied that, as a
matter of law, without any ordinance, treaty, or proclamation, fishing vessels of this class are
exempt from seizure."

This Court holds otherwise not because such exemption is to be found in any treaty, legislation,
proclamation, or instruction granting it, but on the ground that the vessels were exempt by
reason of an established rule of international law applicable to them which it is the duty of the
court to enforce.

I am unable to conclude that there is any such established international rule, or that this Court
can properly revise action which must be treated as having been taken in the ordinary exercise
of discretion in the conduct of war.

In cannot be maintained "that modern usage constitutes a rule which acts directly upon the thing
itself by its own force, and not through the sovereign power." That position was disallowed
in Brown v. United States, 8 Cranch 110, 12 U. S. 128, and Chief Justice Marshall said:

"This usage is a guide which the sovereign follows or abandons at his will. The rule, like other
precepts of morality, of humanity, and even of wisdom, is addressed to the judgment of the
sovereign, and although it cannot be disregarded by him without obloquy, yet it may be
disregarded. The rule is in its nature flexible. It is subject to infinite modification. It is not an
immutable rule of law, but depends on political considerations which may continually vary."

The question in that case related to the confiscation of the property of the enemy on land within
our own territory, and it was held that property so situated could not be confiscated without an
act of Congress. The Chief Justice continued:
"Commercial nations in the situation of the United States have always a considerable quantity of
property in the possession of their neighbors. When war breaks out, the question what shall be
done with enemy property in our country is a

Page 175 U. S. 716

question rather of policy than of law. The rule which we apply to the property of our enemy will
be applied by him to the property of our citizens. Like all other questions of policy, it is proper for
the consideration of a department which can modify it at will, not for the consideration of a
department which can pursue only the law as it is written. It is proper for the consideration of the
legislature, not of the executive or judiciary."

This case involves the capture of enemy's property on the sea, and executive action, and if the
position that the alleged rule ex proprio vigore limits the sovereign power in war be rejected,
then I understand the contention to be that by reason of the existence of the rule, the
proclamation of April 26 must be read as if it contained the exemption in terms, or the exemption
must be allowed because the capture of fishing vessels of this class was not specifically
authorized.

The preamble to the proclamation stated, it is true, that it was desirable that the war "should be
conducted upon principles in harmony with the present views of nations and sanctioned by their
recent practice," but the reference was to the intention of the government "not to resort to
privateering, but to adhere to the rules of the Declaration of Paris," and the proclamation spoke
for itself. The language of the preamble did not carry the exemption in terms, and the real
question is whether it must be allowed because not affirmatively withheld -- or, in other words,
because such captures were not in terms directed.

These records show that the Spanish sloop Paquete Habana "was captured as a prize of war by
the U.S.S. Castine" on April 25, and "was delivered" by the Castine's commander "to Rear
Admiral Wm. T. Sampson (commanding the North Atlantic Squadron)," and thereupon "turned
over" to a prize master with instructions to proceed to Key West.

And that the Spanish schooner Lola "was captured as a prize of war by the U.S.S. Dolphin,"
April 27, and "was delivered" by the Dolphin's commander "to Rear Admiral Wm. T. Sampson
(commanding the North Atlantic Squadron)," and thereupon "turned over" to a prize master with
instructions to proceed to Key West.

Page 175 U. S. 717

That the vessels were accordingly taken to Key West and there libeled, and that the decrees of
condemnation were entered against them May 30.

It is impossible to concede that the Admiral ratified these captures in disregard of established
international law and the proclamation, or that the President, if he had been of opinion that there
was any infraction of law or proclamation, would not have intervened prior to condemnation.

The correspondence of April 28, 30, between the Admiral and the Secretary of the Navy, quoted
from in the principal opinion, was entirely consistent with the validity of the captures.
The question put by the Admiral related to the detention as prisoners of war of the persons
manning the fishing schooners "attempting to get into Havana." Noncombatants are not so
detained except for special reasons. Sailors on board enemy's trading vessels are made
prisoners because of their fitness for immediate use on ships of war. Therefore the Admiral
pointed out the value of these fishing seamen to the enemy, and advised their detention. The
Secretary replied that if the vessels referred to were "attempting to violate blockade," they were
subject "with crew" to capture, and also that they might be detained if "considered likely to aid
enemy." The point was whether these crews should be made prisoners of war. Of course, they
would be liable to be if involved in the guilt of blockade running, and the Secretary agreed that
they might be on the other ground in the Admiral's discretion.

All this was in accordance with the rules and usages of international law, with which, whether in
peace or war, the naval service has always been necessarily familiar.

I come then to examine the proposition

"that at the present day, by the general consent of the civilized nations of the world and
independently of any express treaty or other public act, it is an established rule of international
law, founded on considerations of humanity to a poor and industrious order of men, and of the
mutual convenience of belligerent states, that coast fishing vessels, with their implements and
supplies,

Page 175 U. S. 718

cargoes, and crews, unarmed, and honestly pursuing their peaceful calling of catching and
bringing in of fresh fish, are exempt from capture as prize of war."

This, it is said, is a rule

"which prize courts, administering the law of nations, are bound to take judicial notice of, and to
give effect to, in the absence of treaty or other public act of their own government."

At the same time, it is admitted that the alleged exemption does not apply

"to coast fishermen or their vessels if employed for a warlike purpose or in such a way as to give
aid or information to the enemy, nor when military or naval operations create a necessity to
which all private interests must give way,"

and further that the exemption has not

"been extended to ships or vessels employed on the high sea in taking whales or seals, or cod
or other fish which are not brought fresh to market, but are salted or otherwise cured and made
a regular article of commerce."

It will be perceived that the exceptions reduce the supposed rule to very narrow limits, requiring
a careful examination of the facts in order to ascertain its applicability, and the decision appears
to me to go altogether too far in respect of dealing with captures directed or ratified by the officer
in command.
But were these two vessels within the alleged exemption? They were of twenty-five and thirty-
five tons burden, respectively. They carried large tanks in which the fish taken were kept alive.
They were owned by citizens of Havana, and the owners and the masters and crew were to be
compensated by shares of the catch. One of them had been two hundred miles from Havana,
off Cape San Antonio, for twenty-five days, and the other for eight days off the coast of Yucatan.
They belonged, in short, to the class of fishing or coasting vessels of from five to twenty tons
burden, and from twenty tons upwards, which, when licensed or enrolled as prescribed by the
Revised Statutes, are declared to be vessels of the United States, and the shares of whose
men, when the vessels are employed in fishing, are regulated by statute. They were engaged in
what were substantially commercial ventures, and the mere fact that the fish were kept alive by
contrivances

Page 175 U. S. 719

for that purpose -- a practice of considerable antiquity -- did not render them any the less an
article of trade than if they had been brought in cured.

I do not think that, under the circumstances, the considerations which have operated to mitigate
the evils of war in respect of individual harvesters of the soil can properly be invoked on behalf
of these hired vessels as being the implements of like harvesters of the sea. Not only so as to
the owners, but as to the masters and crews. The principle which exempts the husbandman and
his instruments of labor exempts the industry in which he is engaged, and is not applicable in
protection of the continuance of transactions of such character and extent as these.

In truth, the exemption of fishing craft is essentially an act of grace, and not a matter of right,
and it is extended or denied as the exigency is believed to demand.

It is, said Sir William Scott, "a rule of comity only, and not of legal decision."

The modern view is thus expressed by Mr. Hall:

"England does not seem to have been unwilling to spare fishing vessels so long as they are
harmless, and it does not appear that any state has accorded them immunity under
circumstances of inconvenience to itself. It is likely that all nations would now refrain from
molesting them as a general rule, and would capture them so soon as any danger arose that
they or their crews might be of military use to the enemy, and it is also likely that it is impossible
to grant them a more distinct exemption."

In the Crimean war, 1854-55, none of the orders in council, in terms, either exempted or
included fishing vessels, yet the allied squadrons swept the Sea of Azof of all craft capable of
furnishing the means of transportation, and the English admiral in the Gulf of Finland directed
the destruction of all Russian coasting vessels not of sufficient value to be detained as prizes
except "boats or small craft which may be found empty at anchor, and not trafficking."

It is difficult to conceive of a law of the sea of universal obligation to which Great Britain has not
acceded. And I

Page 175 U. S. 720


am not aware of adequate foundation for imputing to this country the adoption of any other than
the English rule.

In his lectures on International Law at the Naval Law College, the late Dr. Freeman Snow laid it
down that the exemption could not be asserted as a rule of international law. These lectures
were edited by Commodore Stockton and published under the direction of the Secretary of the
Navy in 1895, and, by that department, in a second edition, in 1898, so that in addition to the
well known merits of their author, they possess the weight to be attributed to the official
imprimatur. Neither our treaties nor settled practice are opposed to that conclusion.

In view of the circumstances surrounding the breaking out of the Mexican war, Commodore
Conner, commanding the Home Squadron, on May 14, 1846, directed his officers, in respect of
blockade, not to molest "Mexican boats engaged exclusively in fishing on any part of the coast,"
presumably small boats in proximity to the shore, while on the Pacific coast, Commodore
Stockton, in the succeeding August, ordered the capture of "all vessels under the Mexican flag."

The treaties with Prussia of 1785, 1799, and 1828, and of 1848 with Mexico, in exempting
fishermen, "unarmed and inhabiting unfortified towns, villages, or places," did not exempt fishing
vessels from seizure as prize, and these captures evidence the convictions entertained and
acted on in the late war with Spain.

In is needless to review the speculations and repetitions of the writers on international law.
Ortolan, De Boeck, and others admit that the custom relied on as consecrating the immunity is
not so general as to create an absolute international rule; Heffter, Calvo, and others are to the
contrary. Their lucubrations may be persuasive, but not authoritative.

In my judgment, the rule is that exemption from the rigors of war is in the control of the
Executive. He is bound by no immutable rule on the subject. It is for him to apply, or to modify,
or to deny altogether such immunity as may have been usually extended.

Page 175 U. S. 721

Exemptions may be designated in advance or granted according to circumstances, but carrying


on war involves the infliction of the hardships of war, at least to the extent that the seizure or
destruction of enemy's property on sea need not be specifically authorized in order to be
accomplished.

Being of opinion that these vessels were not exempt as matter of law, I am constrained to
dissent from the opinion and judgment of the Court, and my brothers HARLAN and McKENNA
concur in this dissent.

-----

On January 29, 1900, the Court in each case, on motion of the Solicitor General in behalf of the
United States, and after argument of counsel thereon, and to secure the carrying out of the
opinion and decree of this Court according to their true meaning and intent, ordered that the
decree be so modified as to direct that the damages to be allowed shall be compensatory only,
and not punitive.
Citation. I.C.J. 1970 I.C.J. 3.

Brief Fact Summary. Belgium (P) claimed Spain (D) should be held accountable for the injury
to a Canadian corporation operating in Spain.

Synopsis of Rule of Law. A state assumes an obligation concerning the treatment of foreign
investments based on general international law, once the state admits foreign investments or
foreign nationals into its territory.

Facts. On behalf of Belgian nationals (P) who had invested in a Canadian corporation, Belgium
(P) sued Spain (D) on the premise that Spain (D) was responsible for acts in violation of
international law that had caused injury to the Canadian corporation and its Belgian
shareholders (P).

Issue. Does a state assumes an obligation concerning the treatment of foreign investments
based on general international law, once the state admits foreign investments or foreign
nationals into its territory?

Held. Yes. A state assumes an obligation concerning the treatment of foreign investments
based on general international law, once the state admits foreign investments or foreign
nationals into its territory. It is highly imperative to draw a distinction between those obligations
of a state toward the international community as a whole and those arising from the field of
diplomatic protection. It is only the party to whom an international obligation is due can bring a
claim if a breach of an obligation that is the subject of diplomatic protection occurs.

Discussion. The basic right of all human persons was mentioned by the Court to be protected
against slavery and racial discrimination as deriving from basic general international law. Such
rights may derive from international instruments of a universal or quasi-universal character.
Such obligations are obligations erga omnes, that is, all states have a legal interest in their
protection.