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Dworkins Interpretative Theory A. Rules and Principles: The Idea of Fit Legal interpretation, when properly carried out, will require the making of moral judgments o Morality is intertwined with and will have a great influence on the interpretation of laws Laws are rules not just confined to the written codes, judicial decisions and official documents or a mere product of power struggles and politics. Rather, they are a reflection of an underlying government philosophy. o Govt philosophy = moral principles on the purpose of government + relations of the govt and the individual Moral principles behind the laws then serve as the basis in finding answers for hard cases, if the direct solution cannot be found in the written laws themselves. How does one determine the moral principles behind the laws being adopted by a community/group of people? o By looking at the DEGREE OF FIT between the moral principles and laws/rules DEGREE OF FIT is measured by looking at: 1. Logical consistency total consistency is impossible, expression (through the rules/laws) is the outcome of consistency 2. Power to help provide a rationale can explain why most of the rules being followed and adopted are the good ones th Fitting the 4 Amendment (of the USA) : PRIVACY th US Constitution, 4 amendment: Right of people to be secure in their persons, homes, papers, and effects against unreasonable searches and seizures o Search for evidence in ones home requires the officers to have a search warrant for the officers to get one, they have to pursue the judge that they have probable cause that the person to be searched did commit the

OVERVIEW OF THE COURSE (Powerpoint Presentation) THE CONCEPT OF LAW

Positive laws are those that may be promulgated, passed, adopted, or otherwise posited by an official or entity vested with authority by the government to prescribe the rules and regulations for a particular community or otherwise they are the written rules and regulations enacted by government. Natural law is purportedly based on universally accepted moral principles, "God's law," and/or derived from nature and reason. It is the unwritten body of universal moral principles that underlie the ethical and legal norms by which human conduct is sometimes evaluated and governed Divine natural law represents the system of principles believed to have been revealed or inspired by God or some other supreme and supernatural being. These divine principles are typically reflected by authoritative religious writings such as Scripture. Human law emanates from human reason provided that it has the following requisites: The law must be a measure of things, and such measure must be certain. Also, a persons participation in eternal law is not perfect. It involves a certain level of mode and individuality. This imperfection is mitigated by human reason, such as providing legal sanctions

LEGAL PROCESS

Municipal law is the national, domestic, or internal law of a sovereign state defined in opposition to international law. Municipal law includes not only law at the national level, but law at the state, provincial, territorial, regional or local levels. International law is the body of legal rules governing interaction between sovereign states (Public International Law) and the rights and duties of the citizens of sovereign states towards the citizens of other sovereign states (Private International Law).

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crime. If no search warrant was obtained, the evidence collected will be treated to be inadmissible in court. th The protection of privacy fits the 4 Amendment o It is a moral principle which places restrictions on the government in implementing anti-criminal measures o Privacy others may not intrude (the homes, papers, person/body) without the owners consent; right to non-disclosure of information that may be used to harm the person o Restrictions may not be absolute, it should find a balance between effective implementation of the law and respect for the rights of the people by the government and the other citizens Case in point: Olmsted v United States This case involved the wiretapping of a suspected criminals phone by the government without a search warrant Because technology was not yet apparent to th those who wrote the 4 amendment, they only imagined physical intrusion as an invasion of privacy The court decided that this was not a violation because it only served the government a gathering of information, not a direct physical invasion of the criminals person or any of his property. o BUT, in using the fit theory of Dworkin, we can conclude that this th is a violation of the 4 Amendment o Because, again, there are 2 aspects to privacy: physical and informational o More correct conclusion: wiretapping without a search th warrant is a VIOLATION of the 4 Amendment

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As a support for the 4 amendment, the right to privacy can still be interpreted in different ways. Some may actually think that wiretapping is a violation, but the random drug testing for employees isnt. While others think that privacy stretches to most, or almost all the intimate choices we make, such as using contraceptives or not. Although they are all varying perspectives on the concept, they are still logically consistent, they are th still fit to give the 4 amendment a rationale. But, if we are to make a choice among all, how are we to choose? At this point, MORALITY steps in. The Role of Morality In choosing among the fit principles, one has to choose which is the best morally. For example, a more restricted privacy principle (right to choose to use contraceptives or get an abortion) may not be morally upright, then the broader principle (right against intrusion), which is moral, can be treated as part of the law. Again, by having these principles, which provide a rationale to the written laws, we can actually consult these principles if we are to resolve hard cases whose answers cant be found directly in the written laws. To decide which one is moral is an individual choice. Although a case has been decided incorrectly, it still bears the good faith of the judge who went through the process of picking out which is moral or not, consulting his own values at that. It is morality, which gives the law more authority and integrity, moral laws are not just a product of coercion, authoritarianism or rather, dictatorship. It is a set of laws, which has been adopted by a community because they believe that those laws stand for their personal values. The Challenge of Skepticism Moral laws are those which have the most room for disagreements and second-guessing, and this invites a deep skepticism in the law o

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Although disagreement may weaken the fit principle of Dworkin (that tells us that written laws are backed up by principles), by leading to point that really there are no right answers on which everyone can agree on (because again, moral choices are to be made individually) o BUT Dworkin tells us that, it doesnt mean that we argue so much, that we cant arrive at a correct answer, there is no correct answer at all. 2 kinds of skepticism: o External skepticism holds that there is nothing objective in the world which can make a statement about our moral obligations true or false It poses the possibility that everyone has their own biases, so not one can say that his view is more apt than the other, because their standards are not the same. Simply put, there is no standard ruler for moral questions as compared to the determination of someones height (which uses the metric/English system) BUT, Dworkin counters this questioning by saying that making moral choices are far from the methods of the objective realm, one does not use a rigid ruler. Instead, moral questions and answers are as varied as those individuals who pose them Making moral decisions does not have to be based on facts which are perceivable by the senses It is an exercise of REASON rather than empirical judgments BUT, BUT the author tells us that Dworkins view still has loopholes, better to put it in a way that instead of moral decisions not having a standard rule, it is the mode of argument (or mode of arriving at the answer) which is varying o Internal skepticism this view actually trashes the whole fit theory of Dworkin, it tells us that there are no principles, which back up the laws. Laws are just a product of a leaders

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whims and will, mere exercise of power by the one who controls the government That politics is unjust and oppressive, that the laws coming from the government favor those who rule it (the wealthy and the powerful) Assessing Dworkin Unlike Aquinas, Dworkin that does not hold that unjust rules are invalid laws Unlike Fuller, Dworkin believes that legality of the laws does not oblige the people to actually follow o Locates the foundation of laws in the integrity of it His views, although it seems like, does not give the judges the authority to just whimsically decide the cases (because how they will resolve it will depend entirely on their moral beliefs) rather, these judges are highly encouraged to look at the other decisions, because these decisions, especially if they decide as a majority, reflects the morality of a bigger population, the morality of a society. Critics assert that it is faulty to look at morality as the source of authority of the law, rather there is a superior theory, Legal positivism which poses a more apt explanation

LEGAL POSITIVISM This view rejects the traditional natural law theory that genuine laws are necessarily just laws. This view also rejects the necessary links between morality and laws (rejects Dworkin) A. John Austins Theory of Law Law as a Command o Laws are laid down by the rulers (or a sovereign independent political society), to be followed by those who are under them. Sovereignty can only be defined by power, not by any other standard such as morality or justice

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Though might does not make right, it can be implied that (for Austin) might makes sovereignty, and so, might makes positive laws No need to think of the common good, not at all These laws impose obligations to the followers, and if they fail to abide by it, they will face undesirable consequences (sanctions) Laws are considered general commands They dont stop at telling you to do a specific thing at a specific time, but it tells you to act in a certain way all the time, continuously Divine laws: God creatures; Positive law: rulers followers, constituents Positive morality those rules accepted informally by a group of people (i.e. club, organization) Though, not all the violations of these laws may not amount to punishment, they may just receive a lowly treatment from the other members of the group or the society Austins theory answers the question What is law? as distinguished from What ought the law be? For our legal obligations, we owe allegiance not to the higher being beyond the empirical world, but to the ruler of the territory we occupy in this world. Condemns the natural law theory that if a law goes against the Divine law, it is not binding It is an abuse of language, because this is all nonsense If a person obliged by some positive law and violated some of it goes by this reasoning, judges should treat this as an inconclusiveness of reasoning and should be punished May also lead to anarchy, tyranny and hostilities because traditional natural law is too ideal and preachy Morality is not entirely set aside, because the decision of the rulers in adopting the laws is still a reflection of his own morality and the morality of the society he belongs to. Its just that the theory

tells us that no individual can exempt himself from the rule of law just because he believes that it does not go with the Divine Law. Because again, in obeying the laws of the sovereignty of the territory you occupy is different from obeying the Divine, which is the source of all sovereignty. B. Assessing Austin Clear cut explanation in approaching the natural law theory Although it says yes and gives reasons to its answers to the question If a law enforced by the courts is contrary to morality and Divine laws, is it still valid law?, these reasons are not strong enough to convince someone who says no. That the adoption of just traditional law may invite anarchy is also questionable, because the application of a law to a society may be too practical; it can be rejected by some theorists. o Moral progress through the rejection of unjust laws may be achieved, but what Austin asserts is that there may be a lot of moral standards, which could inevitably amount to confusion. o Take note that Aquinas lived in a medieval world dominated by just one Church, while Austin lived in a modern world with competing creeds and beliefs. o But then again, moral argumentation may actually lead to genuine moral progress.

H.L.A. Hart: Law as Primary and Secondary Rules Hart is considered as one of the most prominent positivist critics of Austin A. Types of Legal Rules For Hart, Austin provides for a good start for the positivist theorists but his theory is not adequate enough to cover all kinds of laws o It may be good to cover criminal laws and tax laws (because these laws prohibit or command someone to act) but NOT

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for contract law (which empowers the people, asserts rights and obliges those who have an established duty) Laws like the contract law are called power- conferring laws Although these rules can also be likened to a command: they are written to alter something in the world rather than describe it. It empowers the person to do something that they may not be able to do without the law. While command laws change the world by requiring that person to do something, otherwise he will face undesirable consequences. Declarations of the sovereign (power-conferring) :: Commands of the sovereign (Command laws) Legal obligation: Government and Gunman Hart critics the analogy of Austin that for the people to follow, to have a sense of moral obligation, they should be informed of the possibility of a punishment, of a negative consequence which can happen if they failed to abide. And this approach, as Hart tells us does not distinguish the government from a gunman. For a victim of a gunman, the obligation that arises from the command does not source from any moral conviction that if the victim follows, he is doing what is good for himself, for the gunman and for everyone else. But, he is abiding by the commands just because of the possibility of a negative consequence or a punishment (i.e., torture, death). Hart asserts that governments should differentiate itself from a gunman because a threatened following does not create any obligation at all (moral, legal etc). To do that, Hart explains the idea of an obligation through the idea of a rule. o A rule exists if generally: People act in a certain way, AND People regard deviations from the way as something to be criticized o Condition is: External if it involves outward behavior

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Internal if it involves the attitude people take Hart thinks that the attitude present in the people (that deviation from the rule is a reason to criticize a violator) in following the rule is essential because without it, it is as if these people are just following regularities/routines which they can perceive, thus there is no rule at all. o There is a rule if there is a social obligation exerting pressure on the individual to actually abide by it. That would imprint value and importance to the rule, to the point that the follower may set aside self-interest to give priority to it o Not all societies impose legal obligations because not all of them have legal systems. Primary and Secondary Rules o Primary Rules: Rules that imposes obligations. Secondary Rules: Not considered as unimportant but rather in the sense that they could not exist unless there were other kinds of rules, namely, rules that impose obligations. 1 rule- Rule of Recognition: A society with legal system that has a rule that singles out the rules that impose obligations in the society. The rule helps people recognize the existing rules under which they will be held officially accountable. nd 2 rule- A society must have rules that specify how legally valid rules can be changed. This could help the society adopt to the changing conditions by making it possible to eliminate old rules and enact new ones rd 3 rule- A society must have rules that empower specific individuals to enforce and apply societys legally valid rules. This helps society ensure more effectively the obligations it imposes on its members are met. Legal system A system that brings together both primary and secondary rules. In any functioning system, the people must generally comply with the legally valid primary rules, and public officials must accept the secondary rules and the primary rules identified by the rule of recognition.
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A union of primary and secondary rules makes it questionable whether international law, at least at the time the Nuremberg defendants committed their atrocities, constituted a genuine legal system. Harts View of Legal System People comply to rules from fear of punishment that might be inflicted on them. People generally perceive valid primary rules as command backed up by threats. Existence of a legal system is a matter of degree, not an all-or-nothing affair. But the absence of secondary rules covering the enforcement of the primary rules seems to be a rather large gap. Trial of the Nuremberg defendants was the best feasible way to promote the establishment of International rule of Law. Assessing Hart Idea of legal Obligation: To draw a line that has governments operating by secondary rules on the one side, and both gunmen and arbitrary governments on the other. Harts secondary rules are very much like Fullers inner morality of law: both Hart and Fuller are providing accounts of what is for a government to operate under the rule of law. However, Fuller goes on to contend that a government abiding by his inner morality creates a prima facie moral obligation to obey laws, while Harts resists the conclusion that a government ruling through a system of primary and secondary rules necessarily creates any such obligation.

simple form of social structure, consisting only of primary rules of obligation, which, when we find it among societies of individuals, we are accustomed to contrast with a developed legal system. International law not only lacks the secondary rules of change and adjudication which provide for legislature and courts, but also a unifying rule of recognition specifying 'sources' of law and providing general criteria for the identification of its rules. Two principle sources of doubt concerning the legal character of international law: Both arise from an adverse comparison of international law with municipal law, which is taken as the clear standard of what law is. o First. Law as fundamentally a matter of orders backed by threats and contrasts the character of the rules of international law with those of municipal law. o Second. States are fundamentally incapable of being subjects of legal obligation, and contrast the character of the subjects of international law with those of municipal law.

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Obligations and Sanctions What is meant by saying of a whole system of law that is 'binding'? The rule in question is a valid rule, and under it the person in question has some obligation or duty. Whether one legal system or another applies to a particular person. How can international law be binding? A question like this expresses doubt about the general legal status of international law. 'Can such rules as these be meaningfully and truthfully said ever to give rise to obligations?' One source of doubt on this point is simply the absence from the system of centrally organized sanctions. This is one point of adverse comparison with municipal law, the rules of which are taken to be unquestionably 'binding' and to be paradigms of legal obligation. To argue that international law is not binding because of its lack of organized sanctions is tacitly to accept the analysis of obligation contained in the theory that law is essentially a matter of orders backed by threats. This identification distorts the role played in all legal thought and discourse of the ideas of obligation and duty It is true that not all rules give rise to obligations or duties; and it is also true that the rules, which do so generally call for some, sacrifice of private interests, and are generally supported by serious demands for conformity and instant criticism

Harts International Law I. Sources of Doubt Is International law really law? The absence of an international legislature, courts with compulsory jurisdiction, and centrally organized sanctions have inspired misgivings, at any rate in the breasts of legal theorists. The absence of these institutions means that the rules for states resemble that

of deviations. Yet once we free ourselves from the predictive analysis and its parent conception of law as essentially an order back by threats, there seems no good reason for limiting the normative idea of obligation to rules supported by organized sanctions The sceptic may point out that there are in a municipal system, certain provisions which are justifiably called necessary; among these are primary rules of obligation, prohibiting the free use of violence, and rules providing for the official use of force as a sanction for these and other rules. If such rules and organized sanctions supporting them are in this sense necessary for municipal law, are they not equally so for international law? The answer to the argument in this form is to be found in those elementary truths about human beings and their environment, which constitute the enduring psychological and physical setting of municipal law. In societies of individuals, approximately equal in physical strength and vulnerability, physical sanctions are both necessary and possible. Aggression between states is very unlike that between individuals. The use of violence between states must be public, and though there is no international police force, there can be very little certainty that it will remain a matter between aggressor and victim, as a murder or theft, in the absence of a police force, might. To initiate a war is, even for the strongest power, to risk much for an outcome, which is rarely predictable with reasonable confidence. On the other hand, because of the inequality of states, there can be no standing assurance that the combined strength of those on the side of international order is likely to preponderate over the powers tempted to aggression. Hence the organization and use of sanctions may involve fearful risks and the threat of them add little to the natural deterrents. Against this very different background of fact, international law has developed in a form different from that of municipal law.

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Obligation and the Sovereignty of States One of the most persistent sources of perplexity about the obligatory character of international law has been the difficulty felt in accepting or explaining the fact that a state which is sovereign may also be 'bound' by, or have an obligation under, international law. The expression 'a state' is not the name of some person or thing inherently or 'by nature' outside the law; it is a way of referring to two facts: first, that a

population inhabiting a territory lives under that form of ordered government provided by a legal system with its characteristic structure of legislature, courts, and primary rules; and secondly, that the government enjoys a vaguely defined degree of independence. It is possible to imagine many different forms of international authority and correspondingly many different limitations on the independence of states. To recognize that there are many possible forms and degrees of dependence and independence, is a step towards answering the claim that because states are sovereign they 'cannot' be subject to or bound by international law or 'can' only be bound by some specific form of international law. The rules of international law are indeed vague and conflicting on many points, so that doubt about the area of independence left to states is far greater than that concerning the extent of a citizen's freedom under municipal law. The question for municipal law is: what is the extent of the supreme legislative authority recognized in this system? For international law it is: what is the maximum area of autonomy, which the rules allow to states? There is no way of knowing what sovereignty states have, till we know what the forms of international law are and whether or not they are mere empty forms. Should consider theories of international law known as 'voluntarist' or theories of 'auto-limitation. These attempted to reconcile the (absolute) sovereignty of states with the existence of binding rules of international law, by treating all international obligations as self-imposed like the obligation, which arises from a promise. Such theories are the counterpart in international law of the social contract theories of political science. The latter sought to explain the facts that individuals, 'naturally' free and independent, were vet bound by municipal law, by treating the obligation to obey the law as one arising from a contract which those bound had made with each other, and in some cases with their rulers. Threefold argument against the voluntarist theories of international law. 1. These theories fail completely to explain how it is known that states 'can' only be bound by self-imposed obligations, or why this view of their sovereignty should be accepted, in advance of any examination of the actual character of international law. There is something incoherent in the argument designed to show that states, because of their sovereignty, can only be subject to or bound by rules, which they have imposed upon themselves.

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A state may impose obligations on itself by promise, agreement, or treaty is not, however, consistent with the theory that states are subject only to rules which they have thus imposed on themselves. In any society, whether composed of individuals or states, what is necessary and sufficient, in order that the words of a promise, agreement, or treaty should give rise to obligations, is that rules providing for this and specifying a procedure for these self-binding operat1ons should be generally, though they need not be universally, acknowledged. This most voluntary form of social obligation involves some rules, which are binding independently of the choice of the party bound by them, and this, in the case of states, is inconsistent with the supposition that their sovereignty demands freedom from all such rules.

3. There are the facts. We must distinguish the a priori claim just criticized, that states can only be bound by self imposed obligations, from the claim that though they could be bound in other ways under a different system, in fact no other form of obligation for states exists under the present rules of international law. A detailed scrutiny of the claim that all international obligation arises from the consent of the party bound, cannot be undertaken here but two clear and important exceptions to this doctrine must be noticed. The first is the case of a new state. When a new, independent state emerges into existence, it is bound by the general obligations of international law including, among others, the rules that give binding force to treaties. Here the attempt to rest the new states' international obligations on a 'tacit' or 'inferred' consent seems wholly threadbare. The second case is that of a state acquiring territory or undergoing some other change, which brings with it, for the first time, the incidence of obligations under rules which previously it had no opportunity either to observe or break, and to which it had no occasion to give or withhold consent.

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International Law and Morality Sometimes insistence that the rules governing the relations between states are only moral rules, is inspired by the old dogmatism, that any form of social structure that is not reducible to orders backed by threats can only be a form of

morality. In the particular case of international law, there are a number of different reasons for resisting the classification of its rules as 'morality'. The first is that states often reproach each other for immoral conduct or praise themselves or others for living up to the standard of international morality. Characteristics of social morality: one was the distinctive form of moral pressure by which moral rules are primarily supported. This consists not of appeals to fear or threats of retaliation or demands for compensation, but of appeals to conscience, made in the expectation that once the person addressed is reminded of the moral principle at stake, he may be led by guilt or shame to respect it and make amends. Claims under international law are not couched in such terms though of course, as in municipal law, they may be joined with a moral appeal. No doubt in the relations between states there are halfway houses between what is clearly law and what is clearly morality, analogous to the standards of politeness and courtesy recognized in private life. A more important ground of distinction is the following. The rules of international law, like those of municipal law, are often morally quite indifferent. A rule may exist because it is convenient or necessary to have some clear fixed rule about the subjects with which it is concerned, but not because any moral importance is attached to the particular rule. We conceive of morality as the ultimate standard by which human actions (legislative Or otherwise) are evaluated. The contrast with international law is clear. There is nothing in the nature or function of international law, which is similarly inconsistent with the idea that the rules might be subject to legislative change; the lack of a legislature is just a lack, which many think of as a defect one day to be repaired. Certain rules are regularly respected even at the cost of certain sacrifices; claims are formulated by reference to them; breaches of the rules expose the offender to serious criticism and are held to justify claims for compensation or retaliation. These, surely, are all the elements required to support the statement that there exist among states rules imposing obligations upon them.

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Analogies of Form and Content The formal structure of International law, lacking a legislature, judiciary, and officially organized sanctions appears very different from that of municipal law. It resembles, in form and not at all in content, a simple regime of primary or customary law. Yet some theorists, in their anxiety to defend against the sceptic the title of international law to be called a law, have minimized these formal differences, and to exaggerate the analogies with can be found in international law to legislation or other desirable formal features of municipal law. Some analogies: o War, ending with a treaty whereby the defeated power cedes territory, or assumes obligation, or accepts some diminished form of independence, is essentially a legislative act; for, like legislation, it is an imposed legal change. o The fact that in almost all cases the judgment of the International Court and its predecessor, the Permanent Court of International Justice, have been duly carried out by the parties, has been emphasized as if this somehow offset the fact that, in contrast with municipal courts, no state can be brought before these international tribunals without its prior consent. o The use of force, legally regulated and officially administered, as a sanction in municipal law and decentralized sanctions, i.e. the resort to war of forceful retaliation by a state which claims that its rights under international law have been violated by another. Some of these analogies are considered strengthened by the obligations, which states have assumed under the United Nations Charter. But the strength of the Charter is admirable only on paper, since its enforcement may be vetoed by the divisions and alliances of the great powers. There is, however, one suggested formal analogy between international and municipal law, which deserves some scrutiny. Kelsen and many modern theorists insist that, like municipal law, international law possesses and indeed must possess a basic norm, or what we have termed a rule of recognition, by reference to which the validity of the other rules of the system is assessed, and in virtue of which the rules constitute a single system. The opposed view is that this analogy of structure is false: international law simply consists of a set of separate primary rules of obligation which are not united in this manner. It is, in the usual terminology of international lawyers, a set of customary rules of which the rule giving binding force to treaties is one.

In formulating the basic norm, the principle of pacta sunt servanda has been abandoned and has been replaced by something less familiar: the rule that States should behave as they customarily behave. We shall question the assumption why the basic norm must contain such an element. (Why should we make this a priori assumption (for what is what it is) and so prejudge the actual character of the rules of international law? It is surely inconceivable that a society may live by rules imposing obligations on its members as binding, even though they are regarded simply as a set of separate rules, not unified by or deriving their validity from any more basic rule. HOWEVER, the mere existence of rules does not involve the existence of such a basic rule. Yet if rules are in fact accepted as standards of conduct, and supported with appropriate forms of social pressure distinctive of obligatory rules, nothing more is required to show that they are binding rules, even though, in this simple form of social structure, we have not something which we do have in municipal law: namely a way of demonstrating the validity of individual rules by reference to some ultimate rule of the system. In the simpler form of society, we must wait and see whether a rule gets accepted as a rule or not; in a system with a basic rule of recognition we can say before a rule is actually made, that it will be valid if it conforms to the requirements of the rule of recognition. The same point may be presented in a different form. When such a rule of recognition is added to the simple set of separate rules, it not only brings with it the advantages of system and case of identification, but it makes possible for the first time a new form of statement. We may be persuaded to treat as a basic rule, something which is an empty repetition of the mere fact that the society concerned (whether of individuals or states) observes certain standards of conduct as obligatory rules. This is surely the status of the strange basic norm, which has been suggested for international law: States should behave as they customarily behave. For it says nothing more than that those who accept certain rules must also observe a rule that the rules ought to be observed. It is submitted that there is no basic rule providing general criteria of validity for the rules of international law, and that the rules which are in fact operative constitute not a system but a set of rules, among which are the rules providing for the binding force of treaties.

CASES:

DAY 2

PHILIPPINE LEGAL HISTORY: RELEVANT JURISPRUDENCE

(Colonial Setting) Rubi v. Provincial Board of Mindoro [39 PHIL 660]

Facts: This is an application for habeas corpus, in favor of Rubi and the other Manguianes, who were allegedly deprived of their liberty by the provincial officials of Mindoro. Rubi and his companions were held on the reservation established at Tigbao against their will, and Dabalos was held under the custody of the provincial sheriff in Calapan for having run away from the reservation. They were held following the adoption of Resolution number 25 of the Provincial Board, authorizing the provincial governor to direct non-Christian inhabitants to take up their habitation on unoccupied sites selected by him in the interest of law and order. Following the Board Resolution, Governor Morente issued an order specifying the areas where the Manguianes should stay. Any Manguian who shall refuse to comply will be imprisoned. The basis of the Board Resolution is Sec 2145 of the Administrative Code which provides that provincial governors, with the approval of the department head, may direct the non- Christian inhabitants to take up their habitation in unoccupied public lands to be selected by him and approved by the provincial board. This resolution was passed to protect the public and the forests where they roamed and teach non-Christians civilized ways. Issues: 1. Whether or not the resolution was a valid delegation of legislative power 2. Whether or not the resolution amounted to religious discrimination 3. Whether or not there was denial of equal protection of the laws 4. Whether or not the resolution was reasonable Held/Ratio:

Petitioners are not unlawfully imprisoned or restrained of their liberty. Habeas corpus can, therefore, not issue. 1. YES. Sec 2145 of the Admin Code merely confers discretionary authority (to the local officials) as to the execution of the law. An exception to the general rule, sanctioned by immemorial practice, permits the central legislative body to delegate legislative powers to local authorities. The Philippine Legislature has here conferred authority upon the Province of Mindoro, to be exercised by the provincial governor and the provincial board. As officials charged with the administration of the province, and the protection of its inhabitants, who but they are better fitted to select sites which have the conditions most favorable for improving the people who have the misfortune of being in a backward state? 2. NO. There is no discrimination, merely a classification of inhabitants according to religious belief. The term "non-Christian" refers to natives of the Philippine Islands of a low grade of civilization. 3. NO. The pledge that no person shall be denied the equal protection of the laws is not infringed by a statute, which is applicable to all of a class. The classification must have a reasonable basis and cannot be purely arbitrary in nature. 4. The Manguianes, are not free, as civilized men are free, and they are not the equals of their more fortunate brothers. True, they are citizens, with many but not all the rights which citizenship implies. But just as surely, the Manguianes are citizens of a low degree of intelligence, and Filipinos who are a drag upon the progress of the State. In so far as the relation of the Manguianes to the State is concerned, the purposes of the Legislature in enacting the law, and of the executive branch in enforcing it, are again plain. Settlers in Mindoro must have their crops and persons protected from predatory men, or they will leave the country. It is no argument to say that such crimes are punished by the Penal Code, because these penalties are imposed after commission of the offense and not before. If immigrants are to be encouraged to develop the resources of the great Island of Mindoro, and its, as yet, unproductive regions, the Government must be in a position to guarantee peace and order. Waste lands do not produce wealth. Waste people do not advance the interest of the State. Illiteracy and thriftlessness are not conducive to homogeneity. The State to protect itself from destruction must prod on the laggard and the sluggard. The great law of overwhelming necessity is all convincing. When only the validity of the law is

generally challenged and no particular case of oppression is called to the attention of the courts, the Judiciary should not unnecessarily hamper the Government in the accomplishment of its laudable purpose.

(War Period) Co Kim Cham v. Valdez Tan Keh [75 PHIL 113]
Facts: Petition of MANDAMUS of which petitioner prays that the RESPONDENT JUDGE, DIZON of the lower court be ordered to continue the proceedings in civil case no. 3012 of said court, which were initiated under the regime of the so-called Republic of the Philippines established during the Japanese Military occupation. Reasons of Dizon for REFUSAL to take COGNIZANCE of and CONTINUE the proceedings in said case: That the PROCLAMATION issued on October 23, 1944 by Gen. Douglas MacArthur had the effect of invalidating and nullifying the JUDICIAL PROCEEDINGS and JUDGMENTS of the courts of the Philippines established during the Japanese Military Occupation and that the LOWER COURTS have no jurisdiction to take cognizance of and continue judicial proceedings pending in the courts of the DEFUNCT REPUBLIC OF THE PHILIPPINES. Also, Judge Dizon claims that the GOVERNMENTS during the Japanese occupation were NOT DE FACTO GOVERNMENT. History On January 2, 1942, the Imperial Japanese Forces occupied the City of Manila and the next day, their Commander-In-Chief proclaimed: the Military Administration under Martial Law over the districts occupied by the Army. So far as the Military Administration permits, all the laws now in force of the Commonwealth, as well, as the executive and judicial institutions, shall continue to be effective for the time being as in the past. all public officials shall remain in their present posts and carry on faithfully their duties as before. The Philippine Executive Commission, which is a civil government, was formed with Jorge B. Vargas as the Chairman. He issued Orders no. 1 and no. 4 ordering SC, CA, Courts of First Instance and other justices to continue with their same jurisdiction in conformity with the proclamation of the Commander-In-Chief of the Japanese.

October 24, 1944, General Douglas MacArthur released a proclamation that people of the Philippines are free from enemy occupation and control; Existing laws and Statutes are binding and THAT ALL LAWS, REGULATIONS AND PROCESSES OF ANY OTHER GOVERNMENT IN THE PHILIPPINES THAN THAT OF THE SAID COMMONWEALTH ARE NULL AND VOID AND WITHOUT LEGAL EFFECT IN AREAS OF THE PHILIPPINES FREE OF ENEMY OCCUPATION AND CONTROL Issues: 1. Whether or not the judicial acts and proceedings of the courts existing in the Philippines under the Philippine Executive Commission and the Republic of the Philippines were good and valid and remained so even after the liberation of the reoccupation of the Philippines by the United States and Filipino Forces Whether or not the proclamation issued on October 23, 1944 by General Douglas MacArthur has invalidated all judicial acts and proceedings pending of the said court If the said judicial acts and proceedings have not been invalidated by said proclamation, whether or not the present courts of the Commonwealth may continue those proceedings pending in said courts at the time Philippines were reoccupied and liberated by the US and Filipino forces, and the Commonwealth of the Philippines was reestablished in the islands

2.

3.

Held/Ratio: With the foregoing Conclusions below it follows that the COURTS OF FIRST INSTANCE of MANILA has JURISDICTION to CONTINUE TO FINAL JUDGMENT THE PROCEEDINGS IN THE CASES, AND THAT THE RESPONDENT JUDGE OF THAT COURT, HAVING REFUSED TO ACT AND CONTINUE THE SAID PROCEEDINGS, WHICH THE LAW SPECIFICALLY ENJOINS HIM TO DO AS DUTY RESULTING FROM HIS OFFICE AS PRESIDING JUDGE OF THAT COURT, MANDAMUS IS THE SPEEDY AND ADEQUATE REMEDY IN THE ORDINARY COURSE OF LAW, SPECIFICALLY TAKING INTO CONSIDERATION HEREIN INVOLVED DOES AFFECT NOT ONLY HIS PARTICULAR CASE BUT MANY OTHER CASES. ORDERING HIM TO TAKE CONGNIZANCE OF AND CONTINUE TO FINAL JUDGMENT THE PROCEEDINGS IN CIVIL CASE No. 3012.

1.

YES. It is a legal truism in political and international law that ALL ACTS and PROCEEDINGS of the LEGISLATIVE and EXECUTIVE and JUDICIAL departments of a DE FACTO GOVERNMENT are GOOD and VALID. Three Kinds of DE FACTO GOVERNMENT: Government de facto in LEGAL SENSE, is that the government that gets possession and control of the rightful legal government and maintains itself against the will of the latter. Government de facto ESTABLISHED and MAINTAINED BY MILITARY FORCES who invade and occupy a territory of the enemy in the course of war and which is denominated a government paramount force. Government de facto that is ESTABLISHED as INDEPENDENT Government by inhabitants of a country who rise in insurrection against the parent state. PHILIPPINES at the time of the JAPANESE OCCUPATION fall under the SECOND KIND of de facto government. The powers and duties of de facto government of this description are regulated in SEC III of the Hague Convention 1907. The authority of the legitimate power having actually passed into the hands of the occupant, the latter shall take all steps in his power to reestablish and insure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force of the country. They can suspend all laws, make new ones, amend others as long as it will still respect the municipal laws but the right to ASSEMBLY, BEAR ARMS, FREEDOM OF THE PRESS and others are suspended. In practice, the local ordinary tribunals are authorized to continue administering justice and the judges and other judicial officers are kept in their post. In view of the foregoing, it is evident that the Philippine Executive Commission, which was organized by Orders No. 1, issued on January 23, 2942, by the Commander of the Japanese force, was a CIVIL GOVERNMENT ESTABLISHED BY THE MILITARY FORCES OF OCCUPATION AND THEREFORE A DE FACTO GOVERNMENT OF THE SECOND KIND. The governments by the Philippine Executive Commission and the Republic of the Philippines during the Japanese Military occupation being a DE FACTO GOVERNMENT, it necessarily follows that the JUDICIAL ACTS and PROCEEDINGS

of the courts of JUSTICE of those governments, which are not of a POLITICAL COMPLEXION, were GOOD and VALID and by virtue of the well-know principles of postliminy, remained GOOD and VALID. 2. NO. The second question hinges upon the interpretation of the phrase PROCESSES OF ANY OTHER GOVERNMENT as used in the above proclamation of General Arthur MacArthur. Whether it is the intention of the general to annul and avoid thereby all judgments and judicial proceedings of the courts established in the Philippines during the Japanese occupation. The phrase processes of any other government is broad and may refer not only to judicial processes, but also to administrative or legislative as well as the constitutional processes of the Republic of the Philippines or other governmental agencies established in the islands during the occupation. Taking into consideration the fact that according to the well-known principles of international law all judgments and judicial proceedings of the de facto government are GOOD and VALID before and remained so after the occupied territory had come again into the power of the titular sovereign, it should be presumed that IT WAS NOT and COULD NOT HAVE BEEN the INTENTION of the General to refer to judicial processes, in violation of said principles of international law. The only reasonable construction of the said phrase is that IT REFERS TO GOVERNMENTAL PROCESSES OTHER THAN JUDICIAL PROCESSES OR COUR PROCEEDINGS for according to a well-known rule of STATUTORY CONSTRUCTION, a statute ought never to be construed to violate the law of nations if any other possible construction remains. LOGIC: from a contrary construction, great inconvenience and public hardship would result for disputes or suits already adjudged would have to be again settled. 3. YES. Although in theory, the authority of the local civil and judicial administration is suspended as a matter of course as soon as military occupation takes place in practice, the INVADER does not usually take the administration of justice into his own hands, but CONTINUES the ordinary courts or tribunals to be administered by the ordinary tribunals substantially as they were before the occupation.

The commander in chief of the Japanese military, at the time they were occupying the Philippines, declared that all laws now in force in the Commonwealth as well as the executive and the legislative institutions, shall continue to be effective for the time being as in the past and all publics officials shall remain in their present posts and carry faithfully their duties as before and when the Philippines was inaugurated, the same courts continued with no substantial change in the organization and jurisdiction thereof. Taylor: A state or other governmental entity, upon the removal of a foreign military force, resumes its old place with its right and duties substantially unimpaired. Legal Maxim: Law once established continues until unchanged by someby some competent legislative power. It is not changed merely by change of sovereignty.

The Board then concluded with a recommendation that Ramas be prosecuted for violation of R.A. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act and R.A. 1379, otherwise known as the Act for the Forfeiture of Unlawfully Acquired Property. Accordingly, Solicitor General Francisco I. Chavez, in behalf of the Republic of the Philippines (the Republic or Petitioner) filed a Complaint against Ramas and Dimaano. On 18 November 1991, the Sandiganbayan dismissed the complaint on the grounds that (1) the PCGG has no jurisdiction to investigate the private respondents and (2) the search and seizure conducted was illegal. Issues: 1. 2. 3. Whether or not the PCGG has the jurisdiction to investigate and cause the filing of a forfeiture petition against Ramas and Dimaano for unexplained wealth under RA No. 1379. Whether or not Sandiganbayan erred in dismissing the case before completion of the presentation of petitioners evidence. Whether or not the properties confiscated are illegally seized and inadmissible in evidence. a. Whether the revolutionary government was bound by the Bill of Rights of the 1973 Constitution during the interregnum,(after the actual and effective take-over of power by the revolutionary government). b. Whether or not the protection accorded to individuals under the International Covenant on Civil and Political Rights (Covenant) and the Universal Declaration of Human Rights (Declaration) remained in effect during the interregnum.

(People Power Revolution) Republic v. Sandiganbayan, Josephus [GR 104768, July 21, 2003]
Facts: The Presidential Commission on Good Government (the PCGG), through the AFP Anti- Graft Board (the Board), investigated reports of unexplained wealth involving Major General Josephus Ramas (Ramas), the Commanding General of the Philippine Army during the time of former President Ferdinand Marcos. Pursuant to said investigation, the Constabulary raiding team served a search and seizure warrant on the premises of Ramas alleged mistress Elizabeth Dimaano. Aside from the military equipment stated in the warrant, items not included in the warrant, particularly, communications equipment, land titles, jewelry, and several thousands of cash in pesos and US dollars, were also seized. In its Resolution, the AFP Board reported that (1) Dimaano could not have used the said equipment without Ramas consent; and (2) Dimaano could not be the owner of the money because she has no visible source of income.

Held/Ratio: 1. NO. PCGG has no such jurisdiction.

The PCGG created the AFP Board to investigate the unexplained wealth and corrupt practices of AFP personnel, whether in the active service or retired. It tasked the AFP Board to make the necessary recommendations to appropriate government agencies on the action to be taken based on its findings. The PCGG gave this task to the AFP Board pursuant to the PCGGs power under Section 3 of EO No. 1 to conduct investigation as may be necessary in order to accomplish and to carry out the purposes of this order.

The PCGG, through the AFP Board, can only investigate the unexplained wealth and corrupt practices of AFP personnel who fall under either of the two categories mentioned in Section 2 of EO No. 1. These are: (1) AFP personnel who have accumulated ill-gotten wealth during the administration of former President Marcos by being the latters immediate family, relative, subordinate or close associate, taking undue advantage of their public office or using their powers, influence or (2) AFP personnel involved in other cases of graft and corruption provided the President assigns their cases to the PCGG. Petitioner argues that Ramas was undoubtedly a subordinate of former President Marcos because of his position as the Commanding General of the Philippine Army and claims that Ramas position enabled him to receive orders directly from his commander-in-chief, undeniably making him a subordinate of former President Marcos. We hold that Ramas was not a subordinate of former President Marcos in the sense contemplated under EO No. 1 and its amendments. Mere position held by a military officer does not automatically make him a subordinate as this term is used in EO Nos. 1, 2, 14 and 14-A absent a showing that he enjoyed close association with former President Marcos. It does not suffice, as in this case, that the respondent is or was a government official or employee during the administration of former President Marcos. There must be a prima facie showing that the respondent unlawfully accumulated wealth by virtue of his close association or relation with former Pres. Marcos and/or his wife. Ramas position alone as Commanding General of the Philippine Army with the rank of Major General does not suffice to make him a subordinate of former President Marcos for purposes of EO No. 1 and its amendments. The PCGG has to provide a prima facie showing that Ramas was a close associate of former President Marcos, in the same manner that business associates, dummies, agents or nominees of former President Marcos were close to him. This, the PCGG failed to do. Petitioner asserts that there is a presumption that the PCGG was acting within its jurisdiction of investigating crony-related cases of graft and corruption and that Ramas was truly a subordinate of the former President. However, the same AFP Board Resolution belies this contention. Although the Resolution begins with such statement, it ends with the recommendation that Ramas be prosecuted for violation

of RA 3019. Thus, although the PCGG sought to investigate and prosecute private respondents under EO Nos. 1, 2, 14 and 14-A, the result yielded a finding of violation of Republic Acts Nos. 3019 and 1379 without any relation to EO Nos. 1, 2, 14 and 14- A. This absence of relation to EO No. 1 and its amendments proves fatal to petitioners case. EO No. 1 created the PCGG for a specific and limited purpose, and necessarily its powers must be construed to address such specific and limited purpose. Moreover, the resolution of the AFP Board and even the Amended Complaint do not show that the properties Ramas allegedly owned were accumulated by him in his capacity as a subordinate of his commander-in-chief. Petitioner merely enumerated the properties Ramas allegedly owned and suggested that these properties were disproportionate to his salary and other legitimate income without showing that Ramas amassed them because of his close association with former President Marcos. The PCGG still pursued this case despite the absence of a prima facie finding that Ramas was a subordinate of former President Marcos. The petition for forfeiture filed with the Sandiganbayan should be dismissed for lack of authority by the PCGG to investigate respondents since there is no prima facie showing that EO No. 1 and its amendments apply to respondents. Thus, the PCGG should have recommended Ramas case to the Ombudsman who has jurisdiction to conduct the preliminary investigation of ordinary unexplained wealth and graft cases. 2. NO. Petitioner has only itself to blame for non-completion of the presentation of its evidence.

First, this case has been pending for four years before the Sandiganbayan dismissed it. Petitioner had almost two years to prepare its evidence. However, despite this sufficient time, petitioner still delayed the presentation of the rest of its evidence by filing numerous motions for postponements and extensions. The Sandiganbayan gave petitioner more than sufficient time to finish the presentation of its evidence. The Sandiganbayan overlooked petitioners delays and yet petitioner ended the long- string of delays with the filing of a Re-Amended Complaint, which would only prolong even more the disposition of the case.

3.

YES. The seizure of these items was void. The search and seizure warrant could not be used as basis to seize and withhold these items from the possessor. The items should be returned immediately to Dimaano. a. NO. An individual is not bound by the Bill of Rights during this time. However, the protection accorded to individuals under the Covenant and the Declaration remained in effect during the interregnum. During the interregnum, the directives and orders of the revolutionary government were the supreme law because no constitution limited the extent and scope of such directives and orders. With the abrogation of the 1973 Constitution by the successful revolution, there was no municipal law higher than the directives and orders of the revolutionary government. Thus, during the interregnum, a person could not invoke any exclusionary right under a Bill of Rights because there was neither a constitution nor a Bill of Rights during the interregnum. As the Court explained in Letter of Associate Justice Reynato S. Puno: A revolution has been defined as the complete overthrow of the established government in any country or state by those who were previously subject to it or as a sudden, radical and fundamental change in the government or political system, usually effected with violence or at least some acts of violence. In Kelsen's book, General Theory of Law and State, it is defined as that which occurs whenever the legal order of a community is nullified and replaced by a new order . . . a way not prescribed by the first order itself. It was through the February 1986 revolution, a relatively peaceful one, and more popularly known as the people power revolution that the Filipino people tore themselves away from an existing regime. This revolution also saw the unprecedented rise to power of the Aquino government. From the natural law point of view, the right of revolution has been defined as an inherent right of a people to cast out their rulers, change their policy or effect radical reforms in their system of government or institutions by force or a general uprising when the legal and constitutional methods of making such change have proved inadequate or are so obstructed as to be unavailable.

During the interregnum, the government in power was concededly a revolutionary government bound by no constitution. No one could validly question the sequestration orders as violative of the Bill of Rights because there was no Bill of Rights during the interregnum. However, upon the adoption of the Freedom Constitution, the sequestered companies assailed the sequestration orders as contrary to the Bill of Rights of the Freedom Constitution. The framers of both the Freedom Constitution and the 1987 Constitution were fully aware that the sequestration orders would clash with the Bill of Rights. Thus, the framers of both constitutions had to include specific language recognizing the validity of the sequestration orders. Despite the impassioned plea by Commissioner Bernas against the amendment excepting sequestration orders from the Bill of Rights, the Constitutional Commission still adopted the amendment as Section 26,Article XVIII of the 1987 Constitution. The framers of the Constitution were fully aware that absent Section 26, sequestration orders would not stand the test of due process under the Bill of Rights. Thus, to rule that the Bill of Rights of the 1973 Constitution remained in force during the interregnum, absent a constitutional provision excepting sequestration orders from such Bill of Rights, would clearly render all sequestration orders void during the interregnum. Nevertheless, even during the interregnum the Filipino people continued to enjoy, under the Covenant and the Declaration, almost the same rights found in the Bill of Rights of the 1973 Constitution. The revolutionary government, after installing itself as the de jure government, assumed responsibility for the States good faith compliance with the Covenant to which the Philippines is a signatory. Under Article 17(1) of the Covenant, the revolutionary government had the duty to insure that [n]o one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence. The Declaration, to which the Philippines is also a signatory, provides in its Article 17(2) that [n]o one shall be arbitrarily deprived of his property. Although the signatories to the Declaration did not intend it as a legally binding document, being only a declaration, the Court has

interpreted the Declaration as part of the generally accepted principles of international law and binding on the State. Thus, the revolutionary government was also obligated under international law to observe the rights of individuals under the Declaration. During the interregnum when no constitution or Bill of Rights existed, directives and orders issued by government officers were valid so long as these officers did not exceed the authority granted them by the revolutionary government. The directives and orders should not have also violated the Covenant or the Declaration. In this case, the revolutionary government presumptively sanctioned the warrant since the revolutionary government did not repudiate it. The warrant, issued by a judge upon proper application, specified the items to be searched and seized. The warrant is thus valid with respect to the items specifically described in the warrant. However, the Constabulary raiding team seized items not included in the warrant. As admitted by petitioners witnesses, the raiding team confiscated items not included in the warrant. It is obvious from the testimony of Captain Sebastian that the warrant did not include the monies, communications equipment, jewelry and land titles that the raiding team confiscated. The search warrant did not particularly describe these items and the raiding team confiscated them on its own authority. The raiding team had no legal basis to seize these items without showing that these items could be the subject of warrantless search and seizure. Clearly, the raiding team exceeded its authority when it seized these items. Decision of the Court: WHEREFORE, the petition for certiorari is DISMISSED. The questioned Resolutions of the Sandiganbayan are AFFIRMED. SEPARATE OPINIONS J. VITUG (CONCUR) A revolution is defined by Western political scholars as being a rapid fundamental and violent domestic change in the dominant values and myths of a society in its political institutions, social structure, leadership, and government activity and policies. A revolution

results in a complete overthrow of established government and of the existing legal order. Notable examples would be the French, Chinese, Mexican, Russian, and Cuban revolutions. Revolution, it is pointed out, is to be distinguished from rebellion, insurrection, revolt, coup, and war of independence. A rebellion or insurrection may change policies, leadership, and the political institution, but not the social structure and prevailing values. A coup d etat in itself changes leadership and perhaps policies but not necessarily more extensive and intensive than that. A war of independence is a struggle of one community against the rule by an alien community and does not have to involve changes in the social structure of either community. The effects of the revolution may not be compared in good substance with those of the great revolutions. While a revolution may be accomplished by peaceful means, it is essential, however, that there be an accompanying basic transformation in political and social structures. The revolution at EDSA has not resulted in such radical change though it concededly could have. The offices of the executive branch have been retained, the judiciary has been allowed to function, the military, as well as the constitutional commissions and local governments, have remained intact. It is observed by some analysts that there has only been a change of personalities in the government but not a change of structures that can imply the consequent abrogation of the fundamental law. The efficacy of a legal order must be distinguished from the question of its existence for it may be that the efficacy of a legal order comes to a low point which may, nevertheless, continue to be operative and functioning. The proclamations issued, as well as the Provisional Constitution enacted by the Aquino administration shortly after being installed, have revealed the new governments recognition of and its intention to preserve the provisions of the 1973 Constitution on individual rights. Proclamation No. 1, dated 25 February 1986, has maintained that sovereignty resides in the people and all government authority emanates from them. It has expressed that the government would be dedicated to uphold justice, morality and decency in government, freedom and democracy. Through Proclamation 2 of March 1986, the suspension of the writ of habeas corpus was lifted. Aquino issued Proclamation No. 3 as an acknowledgment of the continued existence, subject to its exclusions, of the 1973 Charter. At bottom, the Bill of Rights (under the 1973Constitution), during the interregnum from 26 February to24 March 1986 remained in force and effect not only because it was so recognized by the 1986 People Power but also because the new government was bound by international law to respect the Universal Declaration of Human Rights (proclaiming that

basic rights and freedoms are inherent and inalienable to every member of the human family. One of these rights is the right against arbitrary deprivation of ones property.) In numerous cases, the Supreme Court has adverted to the enumeration in the Universal Declaration in upholding various fundamental rights and freedoms. J. TINGA (CONCUR) Apparently, the majority adheres to the legal positivist theory championed by nineteenth century philosopher John Austin, who defined the essence of law as a distinct branch of morality or justice. He and the English positivists believed that the essence of law is the simple idea of an order backed by threats. On the other side is Justice Punos espousal of the natural law doctrine, which, despite its numerous forms and varied disguises, is still relevant in modern times as an important tool in political and legal thinking. Essentially, it has afforded a potent justification of the existing legal order and the social and economic system it embodies, for by regarding positive law as based on a higher law ordained by divine or natural reason, the actual legal system thus acquires stability or even sanctity it would not otherwise possess. While the two philosophies are poles apart in content, yet they are somehow cognate. To illustrate, the Bill of Rights in the Constitution has its origins from natural law. Likewise a natural law document is the Universal Declaration. In the case at bar, in the ultimate analysis both jurisprudential doctrines have found application in the denouement of the case. The Bill of Rights in the Constitution, the Universal Declaration and the International Covenant, great documents of liberty and human rights all, are founded on natural law. It was the unmistakable thrust of the Freedom Constitution to bestow uninterrupted operability to the Bill of Rights in the 1973 Constitution. For one thing, the title itself of Proclamation No.3 which ordained the Freedom Constitution, as well as one of the vital premises or whereas clause thereof, adverts to the protection of the basic rights of the people. For another, the Freedom Constitution in Article 1, Section 1 mandates that the Bill of Rights and other provisions of the Freedom Constitution specified therein remain in force and effect and are hereby adopted in toto as part of this Provisional Constitution. Of course, even if it is supposed that the Freedom Constitution had no retroactive effect or it did not extend the effectivity of the Bill of Rights in the 1973 Constitution, still there would be no void in the municipal or domestic law at the time as far as the observance of fundamental rights is concerned. The Bill of Rights in the 1973 Constitution would still be

in force, independently of the Freedom Constitution, or at least the provisions thereof proscribing unreasonable search and seizure and excluding evidence in violation of the proscription. Markedly departing from the typical, the revolutionary government installed by President Aquino was a benign government. It had chosen to observe prevailing constitutional restraints. An eloquent proof was the fact that through the defunct Philippine Constabulary, it applied for a search warrant and conducted the questioned search and seizure only after obtaining the warrant. Furthermore, President Aquino definitely pledged in her oath of office to uphold and defend the Constitution, which undoubtedly was the 1973 Constitution, including the Bill of Rights thereof.

DAY 3

LAW IN CONTEXT

domains, and the right to enter into agreements with nonindigenous peoples for the development and utilization of natural resources therein for a period not exceeding 25 years, renewable for not more than 25 years; and (7) Section 58 which gives the indigenous peoples the responsibility to maintain, develop, protect and conserve the ancestral domains and portions thereof which are found to be necessary for critical watersheds, mangroves, wildlife sanctuaries, wilderness, protected areas, forest cover or reforestation. Further, the petitioners contend that by providing for an all-encompassing definition of ancestral domains and ancestral lands which might even include private lands found within said areas, Sections 3(a) and 3(b) of IPRA violate the rights of private landowners. Issue: 1. Whether or not the relevant portions of the IPRA law being contested are unconstitutional

Self-determination: Challenges to Existing Legal Regimes

Indigenous Peoples, Ancestral Domain and the Environment

Cruz v. Sec of DENR, [GR 135385, Dec. 6, 2000]

Facts: Isagani Cruz and Cesar Europa (the petitioners) assail the constitutionality of the following provisions of Republic Act 8371, otherwise known as the Indigenous Peoples Rights Act of 1997 (IPRA), and its Implementing Rules, on the ground that they amount to an unlawful deprivation of the States ownership over lands of the public domain as well as minerals and other natural resources therein, in violation of the Regalian doctrine embodied in Section 2, Article XII of the Constitution: (1) Section 3(a) which defines the extent and coverage of ancestral domains, and Section 3(b) which, in turn, defines ancestral lands; (2) Section 5, in relation to section 3(a), which provides that ancestral domains including inalienable public lands, bodies of water, mineral and other resources found within ancestral domains are private but community property of the indigenous peoples; (3) Section 6 in relation to section 3(a) and 3(b) which defines the composition of ancestral domains and ancestral lands; (4) Section 7 which recognizes and enumerates the rights of the indigenous peoples over the ancestral domains; (5) Section 8 which recognizes and enumerates the rights of the indigenous peoples over the ancestral lands; (6) Section 57 which provides for priority rights of the indigenous peoples in the harvesting, extraction, development or exploration of minerals and other natural resources within the areas claimed to be their ancestral

Held/Ratio: 1. NO. The constitutionality of the IPRA Law was sustained by the court. The SC deliberated upon the matter, and after the first deliberations, they voted and reached a 7-7 vote. They conducted a second deliberation and the voting again resulted in a 7-7 vote. As there was no majority vote, Cruzs petition was dismissed. Ancestral domains may thus include natural resources, which is in a way a violation the Regalian doctrine.

SALIENT POINTS OF THE SEPARATE OPINIONS: VITUG, J: The petition seeks a declaration by the Court of unconstitutionality of certain provisions of Republic Act No. 8371, a law that obviously is yet incapable of exact equation in its significance to the nation and its people now and in the generations yet to come. Republic Act No. 8371, (the Indigenous Peoples Rights Act of 1997 ("IPRA"), is apparently intended to be a legislative response to the 1987 Constitution which recognizes the rights of indigenous cultural communities "within the framework of national unity and

development" and commands the State, "subject to the provisions of this Constitution and national development policies and programs," to protect the rights of indigenous cultural communities to their ancestral lands in order to ensure their economic, social, and cultural well-being. Among the assailed provisions in IPRA is its Section 3(a) which defines "ancestral domains" to embrace "all areas generally belonging to ICCs/IPs comprising lands, inland waters, coastal areas, and natural resources " including "ancestral lands, forests, pasture, residential, agricultural, and other lands individually owned whether alienable and disposable or otherwise," over which indigenous cultural communities/indigenous peoples ("ICCs/IPs") could exercise virtual ownership and control. IPRA effectively withdraws from the public domain the so-called ancestral domains covering literally millions of hectares. The notion of community property would comprehend not only matters of proprietary interest but also some forms of self- governance over the curved-out territory. This concept is elaborated in Section 7 of the law which states that the "rights of ownership and possession of ICCs/IPs to their ancestral domains shall be recognized and protected," subsumed under which would encompass the right of ownership (paragraph a); the right to develop, control and use lands and natural resources, including "the right to negotiate the terms and conditions for the exploration of natural resources in the areas for the purpose of ensuring ecological, environmental protection and the conservation measures, pursuant to national and customary laws;"(par. b); the right to stay in the territories (par. c); the right to return to their abandoned lands in case of displacement(par. d); the right to regulate entry of migrants (par. e); the right to claim parts of ancestral domains previously reserved (par. g); and the right to resolve land conflicts in accordance primarily with customary law (par. h). Concurrently, Section 57 states that ICCs/IPs shall be given "priority rights in the harvesting, extraction, development or exploitation of any natural resources within the ancestral domains." These provisions of IPRA, in their totality, are, in my view, beyond the context of the fundamental law and virtually amount to an undue delegation, if not an unacceptable abdication, of State authority over a significant area of the country and its patrimony. Article XII of the 1987 Constitution expresses that all "lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other natural resources are owned by the State," and, with the exception of agricultural lands, shall not be alienated." It ordains that

the "exploration, development, and utilization of natural resources shall be under the full control and supervision of the State." The decision of the United States Supreme Court in Cario vs. Insular Government, holding that a parcel of land held since time immemorial by individuals under a claim of private ownership is presumed never to have been public land and cited to downgrade the application of the Regalian doctrine, cannot override the collective will of the people expressed in the Constitution. It is in them that sovereignty resides and from them that all government authority emanates. It is not then for a court ruling or any piece of legislation to be conformed to by the fundamental law, but it is for the former to adapt to the latter, and it is the sovereign act that must, between them, stand inviolate. KAPUNAN, J.: Petitioners, as citizens, possess the "public right" to ensure that the national patrimony is not alienated and diminished in violation of the Constitution. Since the government, as the guardian of the national patrimony, holds it for the benefit of all Filipinos without distinction as to ethnicity, it follows that a citizen has sufficient interest to maintain a suit to ensure that any grant of concessions covering the national economy and patrimony strictly complies with constitutional requirements. Thus, the preservation of the integrity and inviolability of the national patrimony is a proper subject of a citizen's suit. Under IPRA, indigenous peoples may obtain the recognition of their right of ownership over ancestral lands and ancestral domains by virtue of native title. The term "ancestral lands" under the statute refers to lands occupied by individuals, families and clans who are members of indigenous cultural communities, including residential lots, rice terraces or paddies, private forests, swidden farms and tree lots. These lands are required to have been "occupied, possessed and utilized" by them or through their ancestors "since time immemorial, continuously to the present." On the other hand, "ancestral domains" is defined as areas generally belonging to indigenous cultural communities, including ancestral lands, forests, pasture, residential and agricultural lands, hunting grounds, worship areas, and lands no longer occupied exclusively by indigenous cultural communities but to which they had traditional access, particularly the home ranges of indigenous cultural communities who are still nomadic or shifting cultivators. Ancestral domains also include inland waters, coastal areas and natural resources therein. Again, the same are required to have been "held under a claim of ownership, occupied or possessed by ICCs/IPs, by themselves or through their ancestors, communally or individually since time immemorial, continuously to the present." Under Section 56, property rights within

the ancestral domains already existing and/or vested upon effectivity of said law "shall be recognized and respected." Ownership is the crux of the issue of whether the provisions of IPRA pertaining to ancestral lands, ancestral domains, and natural resources are unconstitutional. The fundamental question is, who, between the State and the indigenous peoples, are the rightful owners of these properties? A proper reading of Cario would show that the doctrine enunciated therein applies only to lands which have always been considered as private, and not to lands of the public domain, whether alienable or otherwise. A distinction must be made between ownership of land under native title and ownership by acquisitive prescription against the State. Ownership by virtue of native title presupposes that the land has been held by its possessor and his predecessors-in-interest in the concept of an owner since time immemorial. The land is not acquired from the State, that is, Spain or its successors-in- interest, the United States and the Philippine Government. There has been no transfer of title from the State as the land has been regarded as private in character as far back as memory goes. In contrast, ownership of land by acquisitive prescription against the State involves a conversion of the character of the property from alienable public land to private land, which presupposes a transfer of title from the State to a private person. Since native title assumes that the property covered by it is private land and is deemed never to have been part of the public domain, the Solicitor General's thesis that native title under Cario applies only to lands of the public domain is erroneous. Consequently, the classification of lands of the public domain into agricultural, forest or timber, mineral lands, and national parks under the Constitution is irrelevant to the application of the Cario doctrine because the Regalian doctrine which vests in the State ownership of lands of the public domain does not cover ancestral lands and ancestral domains. The IPRA provides that indigenous peoples shall have the right to manage and conserve the natural resources found on the ancestral domains, to benefit from and share in the profits from the allocation and utilization of these resources, and to negotiate the terms and conditions for the exploration of such natural resources. The statute also grants them priority rights in the harvesting, extraction, development or exploitation of any natural resources within the ancestral domains. Before the NCIP can issue a certification for the renewal, or grant of any concession, license or lease, or for the perfection of any production-sharing agreement the prior informed written consent of the indigenous peoples concerned must be obtained. In return, the indigenous peoples are given the responsibility to maintain, develop, protect and conserve the ancestral domains

or portions thereof which are found to be necessary for critical watersheds, mangroves, wildlife sanctuaries, wilderness, protected areas, forest cover, or reforestation. In addition to the means of exploration, development and utilization of the country's natural resources stated in paragraph 1, Section 2 of Article XII, the Constitution itself states in the third paragraph of the same section that Congress may, by law, allow small-scale utilization of natural resources by its citizens. Further, Section 6, Article XIII, directs the State, in the disposition and utilization of natural resources, to apply the principles of agrarian reform or stewardship. Similarly, Section 7, Article XIII mandates the State to protect the rights of subsistence fishermen to the preferential use of marine and fishing resources. C learly, Section 2, Article XII, when interpreted in view of the pro- Filipino, pro-poor philosophy of our fundamental law, and in harmony with the other provisions of the Constitution rather as a sequestered pronouncement, cannot be construed as a prohibition against any and all forms of utilization of natural resources without the State's direct participation. The challenged provisions of the IPRA must be construed in view of such presumption of constitutionality. Further, the interpretation of these provisions should take into account the purpose of the law, which is to give life to the constitutional mandate that the rights of the indigenous peoples be recognized and protected. MENDOZA, J.: This suit was instituted to determine the constitutionality of certain provisions of R.A. No. 8371, otherwise known as the Indigenous Peoples Rights Act. Petitioners do not complain of any injury as a result of the application of the statute to them. They assert a right to seek an adjudication of constitutional questions as citizens and taxpayers, upon the plea that the questions raised are of "transcendental importance." The only instance where a facial challenge to a statute is allowed is when it operates in the area of freedom of expression. In such instance, the overbreadth doctrine permits a party to challenge the validity of a statute even though as applied to him it is not unconstitutional but it might be if applied to others not before the Court whose activities are constitutionally protected. Invalidation of the statute "on its face" rather than "as applied" is permitted in the interest of preventing a "chilling" effect on freedom of expression. But in other cases, even if it is found that a provision of a statute is unconstitutional, courts will decree only partial invalidity unless the invalid portion is so far

inseparable from the rest of the statute that a declaration of partial invalidity is not possible. For the Court to exercise its power of review when there is no case or controversy is not only to act without jurisdiction but also to run the risk that, in adjudicating abstract or hypothetical questions, its decision will be based on speculation rather than experience. Deprived of the opportunity to observe the impact of the law, the Court is likely to equate questions of constitutionality with questions of wisdom and is thus likely to intrude into the domain of legislation. Constitutional adjudication, it cannot be too often repeated, cannot take place in a vacuum. To decline, therefore, the exercise of jurisdiction where there is no genuine controversy is not to show timidity but respect for the judgment of a coequal department of government whose acts, unless shown to be clearly repugnant to the fundamental law, are presumed to be valid. The polestar of constitutional adjudication was set forth by Justice Laurel in the Angara case when he said that "this power of judicial review is limited to actual cases and controversies to be exercised after full opportunity of argument by the parties, and limited further to the constitutional question raised or the very lis mota, presented." For the exercise of this power is legitimate only in the last resort, and as a necessity in the determination of real, earnest, and vital controversy between individuals. Until, therefore, an actual case is brought to test the constitutionality of the IPRA, the presumption of constitutionality, which inheres in every statute, must be accorded to it. PANGANIBAN, J: Our fundamental law mandates the protection of the indigenous cultural communities' right to their ancestral lands, but such mandate is "subject to the provisions of this Constitution." I concede that indigenous cultural communities and indigenous peoples (ICCs/IPs) may be accorded preferential rights to the beneficial use of public domains, as well as priority in the exploration, development and utilization of natural resources. Such privileges, however, must be subject to the fundamental law. Consistent with the social justice principle of giving more in law to those who have less in life, Congress in its wisdom may grant preferences and prerogatives to our marginalized brothers and sisters, subject to the irreducible caveat that the Constitution must be respected. I personally believe in according every benefit to the poor, the oppressed and the disadvantaged, in order to empower them to equally enjoy the blessings of nationhood. I cannot, however, agree to legitimize perpetual inequality of access to the

nation's wealth or to stamp the Court's imprimatur on a law that offends and degrades the repository of the very authority of this Court the constitution of the Philippines. RA 8371, which defines the rights of indigenous cultural communities and indigenous peoples, admittedly professes a laudable intent. It was primarily enacted pursuant to the state policy enshrined in our Constitution to "recognize and promote the rights of indigenous cultural communities within the framework of national unity and development." Though laudable and well-meaning, this statute, however, has provisions that run directly afoul of our fundamental law from which it claims origin and authority. More specifically, Sections 3(a) and (b), 5, 6, 7(a) and (b), 8 and other related provisions contravene the Regalian Doctrine the basic foundation of the State's property regime. Verily, as petitioners undauntedly point out, four hundred years of Philippine political history cannot be set aside or ignored by IPRA, however well-intentioned it may be. The perceived lack of understanding of the cultural minorities cannot be remedied by conceding the nation's resources to their exclusive advantage. They cannot be more privileged simply because they have chosen to ignore state laws. For having chosen not to be enfolded by statutes on perfecting land titles, ICCs/IPs cannot now maintain their ownership of lands and domains by insisting on their concept of "native title" thereto. It would be plain injustice to the majority of Filipinos who have abided by the law and, consequently, deserve equal opportunity to enjoy the country's resources. Respondent NCIP claims that IPRA does not violate the Constitution, because it does not grant ownership of public domains and natural resources to ICCs/IPs. "Rather, it recognizes and mandates respect for the rights of indigenous peoples over their ancestral lands and domains that had never been lands of the public domain." I say, however, that such claim finds no legal support. Nowhere in the Constitution is there a provision that exempts such lands and domains from its coverage. Quite the contrary, it declares that all lands of the public domain and natural resources "are owned by the State"; and "with the exception of agricultural lands, all their natural resources shall not be alienated." In other words, the "owner" is not an individual. Rather, it is a tribal community that preserves the property for the common but nonetheless exclusive and perpetual benefit of its members, without the attributes of alienation or disposition. This concept, however, still perpetually withdraws such property from the control of the State and from its enjoyment by other citizens of the Republic. The perpetual and exclusive character of private respondents' claims simply makes them repugnant to basic fairness and equality.

Private respondents and intervenors trace their "ownership" of ancestral domains and lands to the pre-Spanish conquest. I should say that, at the time, their claims to such lands and domains were limited to the surfaces thereof since their ancestors were agriculture- based. This must be the continuing scope of the indigenous groups' ownership claims: limited to land, excluding the natural resources found within. Section 5, Article XII of the Constitution, provides: "SEC. 5.The State, subject to the provisions of this Constitution and national development policies and programs, shall protect the rights of indigenous cultural communities to their ancestral lands to ensure their economic, social, and cultural well being. "The Congress may provide for the applicability of customary laws governing property rights and relations in determining the ownership and extent of ancestral domain." Clearly, there are two parameters that must be observed in the protection of the rights of ICCs/IPs: (1) the provisions of the 1987 Constitution and (2) national development policies and programs. Indigenous peoples may have long been marginalized in Philippine politics and society. This does not, however, give Congress any license to accord them rights that the Constitution withholds from the rest of the Filipino people. I would concede giving them priority in the use, the enjoyment and the preservation of their ancestral lands and domains. But to grant perpetual ownership and control of the nation's substantial wealth to them, to the exclusion of other Filipino citizens who have chosen to live and abide by our previous and present Constitutions, would be not only unjust but also subversive of the rule of law. In giving ICCs/IPs rights in derogation of our fundamental law, Congress is effectively mandating "reverse discrimination." In seeking to improve their lot, it would be doing so at the expense of the majority of the Filipino people. Such short-sighted and misplaced generosity will spread the roots of discontent and, in the long term, fan the fires of turmoil to a conflagration of national proportions. Peace cannot be attained by brazenly and permanently depriving the many in order to coddle the few, however disadvantaged they may have been. Neither can a just society be approximated by maiming the healthy to place them at par with the injured. Nor can the nation survive by enclaving its wealth for the exclusive benefit of favored minorities.

Rather, the law must help the powerless by enabling them to take advantage of opportunities and privileges that are open to all and by preventing the powerful from exploiting and oppressing them. This is the essence of social justice empowering and enabling the poor to be able to compete with the rich and, thus, equally enjoy the blessings of prosperity, freedom and dignity. PUNO, J.: Indigenous Cultural Communities or Indigenous Peoples refer to a group of people or homogeneous societies who have continuously lived as an organized community on communally bounded and defined territory. These groups of people have actually occupied, possessed and utilized their territories under claim of ownership since time immemorial. They share common bonds of language, customs, traditions and other distinctive cultural traits, or, they, by their resistance to political, social and cultural inroads of colonization, non-indigenous religions and cultures, became historically differentiated from the Filipino majority. ICCs/IPs also include descendants of ICCs/IPs who inhabited the country at the time of conquest or colonization, who retain some or all of their own social, economic, cultural and political institutions but who may have been displaced from their traditional territories or who may have resettled outside their ancestral domains. The IPRA grants to ICCs/IPs a distinct kind of ownership over ancestral domains and ancestral lands. However, it should be noted that ancestral lands are not the same as ancestral domains. Ancestral domains are all areas belonging to ICCs/IPs held under a claim of ownership, occupied or possessed by ICCs/IPs by themselves or through their ancestors, communally or individually since time immemorial, continuously until the present, except when interrupted by war, force majeure or displacement by force, deceit, stealth or as a consequence of government projects or any other voluntary dealings with government and/or private individuals or corporations. Ancestral domains comprise lands, inland waters, coastal areas, and natural resources therein and includes ancestral lands, forests, pasture, residential, agricultural, and other lands individually owned whether alienable or not, hunting grounds, burial grounds, worship areas, bodies of water, mineral and other natural resources. They also include lands which may no longer be exclusively occupied by ICCs/IPs but from which they traditionally had access to for their subsistence and traditional activities, particularly the home ranges of ICCs/IPs who are still nomadic and/or shifting cultivators.

Ancestral lands are lands held by the ICCs/IPs under the same conditions as ancestral domains except that these are limited to lands and that these lands are not merely occupied and possessed but are also utilized by the ICCs/IPs under claims of individual or traditional group ownership. These lands include but are not limited to residential lots, rice terraces or paddies, private forests, swidden farms and tree lots. Ownership over the natural resources in the ancestral domains remains with the State and the ICCs/IPs are merely granted the right to manage and conserve them for future generations, benefit and share the profits from their allocation and utilization, and negotiate the terms and conditions for their exploration for the purpose of ensuring ecological and environmental protection and conservation measures. Simply stated, the ICCs/IPs rights over the natural resources take the form of management or stewardship. For the ICCs/IPs may use these resources and share in the profits of their utilization or negotiate the terms for their exploration. At the same time, however, the ICCs/IPs must ensure that the natural resources within their ancestral domains are conserved for future generations and that the utilization of these resources must not harm the ecology and environment pursuant to national and customary laws. Ownership of ancestral domains by native title does not entitle the ICC/IP to a Torrens title but to a Certificate of Ancestral Title (CADT). The CADT formally recognizes the indigenous concept of ownership of the ICCs/IPS over their ancestral domain. But the CADT is only a formality as the ownership of the IP of ancestral lands is recognized under customary law and can co-exist with the civil law concept. The rights of the ICCs/IPs to their ancestral domains and ancestral lands may be acquired in two modes: (1) by native title over both ancestral lands and domains; or (2) by Torrens title under the Public Land Act and the Land Registration Act with respect to ancestral lands only. Bangsamoro People

the Ancestral Domain (MOA-AD) Aspect of the GRP MILF Tripoli Agreement on Peace (2001). The signing of the MOA-AD did not materialize upon the motion of herein petitioners before the Supreme Court (SC) who then issue a Temporary Restraining Order (TRO) enjoining the GRP from signing. The negotiations for the signing of the MOA-AD began in1996 when the GRP-MILF peace negotiation started. However, during the term of President Joseph Estrada, he declared an all-out war against the MILF which stalled the negotiaions. When President Gloria Macapagal-Arroyo assumed office, the military offensive against the MILF was suspended and the government sought a resumption of peace talks. The parties met in Kuala Lumpur on March 24, 2001 to start negotiations facilitated by the Malaysian government where the parties signed the Agreement on the General Framework for the Resumption of Peace Talks. Formal peace talks between the parties were held in Tripoli, Libya the outcome of which was the GRP-MILF Tripoli Agreement on Peace (Tripoli Agreement of 2001), which contained the basic principles and agenda: Security aspect Rehabilitation aspect Ancestral aspect In spite of the on-going negotiations, there were many incidence of violence between the government forces and the MILF. In 2005, several exploratory talks were held which led to the drafting of the MOA-AD in its final form. The Solicitor General (SolGen) which represents the respondent in this case, states that the MOA-AD contains the commitment of the parties to pursue peace negotiations, protect and respect human right, negotiate with sincerity in the resolution and pacific settlement of 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. Statement of the Proceedings: GR No. 183591 for mandamus and prohibition with prayer for issuance of writ preliminary injunction and TRO. 1. 2. 3.

Province of North Cotabato v. GRP Peace Panel, [564 SCRA 402]

Facts: On August 5, 2008 the Government of the Republic of the Philippines (GRP) and the Moro- Islamic Liberation Front (MILF) were scheduled to sign a Memorandum of Agreement on

The Province of North Cotabato and Vice-Governor Emmanuel Piol invoked the right to information on matters of public concern and seek to compel respondents to disclose and furnish them the complete and official copies of the MOA-AD and prohibit the signing of the MO-AD pending the disclosure of contents of the MOA-AD and holding of a public consultation. In addition, they sought to have the MOA-AD declared unconstitutional. GR No. 183752 for Mandamus and Prohibition Filed by the City of Zamboanga, Mayor Celso Lobregat, Rep. Ma. Isabelle Climaco and Rep. Erico Basilio Fabian prayed for similar injunctive reliefs and that the City of Zamboanga be excluded from the Bangsamoro Homeland and/or Juridical Entity. In the alternative, they prayed that the MOA-AD be declared null and void. As earlier mentioned, a TRO was issued by the SC on August 4, 2008 commanding and directing the public respondents and their agents to cease and desist from formally signing the MOA-AD. GR No. 183893 for Injunction and/or Declaratory Relief Filed by the City of Iligan to enjoin respondents be enjoining from signing (or implementing) the MOA-AD and that it be declared unconstitutional. GR No. 183951 for Certiorari, Mandamus and Prohibition Filed by the Province of Zamboanga del Norte, Governor Rolando Yebes, Vice-Governor Francis Olvis, Rep. Cecilia Jalosjos-Carreon, Rep. Cesar Jalosjos, and the members of the Sangguniang Panlalawigan of Zamboanga del Norte. They prayed that the MOA-AD be declared null and void and without operative effect. GR No. 183962 for Prohibition Filed by Ernesto Maceda, Jejomar Binay and Aquilino Pimentel III praying for a judgment prohibiting and permanently enjoining respondents from formally signing and executing the MOA-AD and or any other agreement derived therefrom and nullifying the MOA-AD for being unconstitutional and illegal. Various parties intervened and were granted leave of court to file petitions-/comments-in- intervention.

The Court then ordered the consolidation of the petitions. Respondents filed Comments on petitions, while some of petitioners submitted their respective Replies. Respondents, by Manifestation and Motion 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. The issues were established and the Court thereafter ordered the parties to submit their respective Memoranda. Overview of the MOA-AD: The MOA-AD identifies the Parties to it as the GRP and the MILF. The Terms of Reference of the MOA-AD includes not only 4 earlier agreements between the GRP and MILF but also the 2 agreements between the GRP and MILF (1976 Tripoli Agreement and the Final Peace Agreement) The MOA-AD also identifies as TOR 2 local statutes (organic act for ARMM and the Indigenous People Rights Act) and several international law instruments and several international law instruments. Also included as final TOR are the generic categories of compact rights entrenchment emanating from the regime of dar-ul-muahada (or territory under compact) and dar-ul- sulh (or territory under peace agreement) that partakes the nature of a treaty device. Historically, Ii the height of the Muslim Empire, early Muslim jurists tended to see the world through a simple dichotomy: (1) dar-ul-Islam (the Abode of Islam) (2) dar-ul-harb (the Abode of War). The first referred to those lands where Islamic laws held sway, while the second pertain to those lands where Muslims were persecuted or where Muslims law were outlawed or ineffective. As Muslim States entered into treaties with their neighbors, even with distant States and inter-governmental organizations the original division eventually lost their meaning and new terms were drawn up to describe novel ways of perceiving non-Muslin territories. It thus appears that the compact rights entrenchment emanating from the regime of dar- ul-muahada and dar-ul- sulh simply refers to all other agreements between the MILF and the Philippine government that partake of the nature of a treaty device 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]. The main body of the MOA-AD is divided into 4 strands a. Concepts and Principles The birthright of all Moros and all Indigenous peoples of Mindanao to identify themselves and be accepted as Bangsamoros Bangsamoro people are defined as the natives or original inhabitants of Mindanao and its adjacent islands including Palawan and the Sulu archipelago at the time of conquest or colonization, and their descendants whether mixed or of full blood, including their spouses. Thus, Bangsamoro as defined in the MOA-AD, also includes indigenous peoples of Mindanao and its adjacent islands. The MOA-AD adds the freedom of choice of indigenous peoples shall be respected. The MOA-AD proceeds to refer to the Bangsamoro homeland, the ownership of which is vested exclusively in the Bangsamoro people by virtue of their prior rights of occupation. Both parties to the MOA-AD acknowledge that ancestral- domain does not form part of the public domain. The Bangsamoro people are acknowledged as having the right to self-governance, which is rooted on ancestral territoriality exercised originally under the suzerain authority of their sultanates and the Pat a Pangampong ku Ranaw. The MOA-AD then went 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. Further, the MOA-AD 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. Territory 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.

The core of the BJE is defined as the present geographic area of the ARMM including the areas of Lanao del Sur, Maguindanao, Sulu, Tawi- Tawi, Basilan, and Marawi City. This includes certain municipalities of Lanao del Norte that voted for inclusion in the ARMM in the 2001 plebiscite. Outside the core of BJE, other provinces, cities, municipalities and barangays which were grouped into Category A and Category B were to be subjected to a plebiscite to be held on different dates, years apart from each other. The parties stipulated in the MOA-AD that the BJE shall have jurisdiction over-all natural resources within its: - - Internal waters- 15 km from the coastline of the BJE area Territorial waters stretch beyond the BJE internal waters up to the baseline of the Republic of the Philippines (RP) south east and south west of mainland Mindanao.

Within the so-called territorial waters, the BJE and the RP shall have joint jurisdiction, authority and management over all natural resources. Note that the joint jurisdiction does not apply to the internal waters of the BJE. In addition to the territory itself, the MOA-AD further provides for the sharing of minerals on the territorial waters between the RP and the BJE, in favor of the BJE through production sharing and cooperation agreement. Note also that there is no similar provision of sharing minerals and allowed activities with respect to the internal waters of the BJE. c. Resources The MOA-AD provides 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. The external defense of the BJE is to remain the duty and obligation of the RP. 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

b.

d.

involving the bodies of water adjacent to or between the islands forming part of the ancestral domain. With regard to the right of exploring for, producing, and obtaining all potential sources of energy, petroleum, fossil fuel, mineral oil and natural gas, the jurisdiction and control thereon is to be vested in the BJE, as the party having control within its territorial jurisdiction. The sharing between the Central Government and the BJE of total production pertaining to natural resources is to be 75:25 in favor of the BJE. Furthermore, 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 RP, including those issued by the present ARMM. Governance rd The MOA-AD binds the Parties to invite multinational 3 -party to observe and monitor the implementation of the Comprehensive Compact.

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. Issues: 1. 2. 3. 4. (Procedural) Whether or not the case is ripe for adjudication (Procedural) Whether or not the petitioners have locus standi (Procedural) Whether or not the case is moot (Substantive) Whether or not respondents violated the peoples right to information on matter of public concern under a state policy of full disclosure of all its transactions involving public interest, including public consultation under RA No. 7160 (Local Government Code of 1991) (Substantive) Whether or not contents of the MOA-AD violate the constitution and the law

5.

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. It provides 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 further granted the power to build, develop and maintain its own institutions inclusive of civil service, electoral, financial and banking, education, legislation, legal,

Held/Ratio: PROCEDURAL ISSUES: 1. YES. Courts only act upon suits which present actual cases or controversies. If there is no actual case or controversy, the courts may decline to issue advisory opinions or to resolve hypothetical or feigned problems, or mere academic questions. 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. 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 direct adverse effect on the individual challenging it. For a case to be considered ripe for adjudication, it is a prerequisite that something had then been accomplished or performed by either branch before a court may come into the picture, and the petitioner must allege the existence of an immediate or threatened injury to itself as a result of the challenged action. In the case at bar, the Solicitor General argues that there is no justiciable controversy that is ripe for judicial review because the MOA-AD is simply a proposal that does not automatically create legally demandable rights and obligations until the list of operative acts required have been duly complied with. In short, no concrete acts under the MOA-AD have been made.

The SC ruled that concrete acts under the MOA-AD are not necessary to render the present controversy ripe. In Pimentel, Jr. v. Aguirre, the SC held that by 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. Furthermore, in the US case of Santa Fe Independent School District v. Doe, the US Supreme Court held that the challenge to the constitutionality of the schools 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. 2. YES. 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. Because constitutional case 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 raise. When suing 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. When the issue concerns a public right, it is sufficient that the petition is a citizen and has an interest in the execution of the laws. 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 vs. Macapagal-Arroyo, where the 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. The Courts forbearing stance on locus standi on issues involving constitutional issues has for its purpose the protection of fundamental rights.

3.

In the petitions at bar, Petitioners Province of North Cotabato, Province of Zamboanga del Norte, City of Iligan and City of Zamboanga 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 without doubt. Has Legal Standing: Franklin Drilon and Adel Tamano (as intervenors and standing as taxpayers); Senator Manuel Roxas (intervenor and standing as member of Senate and a citizen to enforce compliance); and Muslim Multi- Sectoral Movement for Peace and Development and Muslim Legal Assistance Foundation Inc. (based on allegation that they stand to be benefited or prejudiced with grounds). No Legal Standing: Ernesto Maceda, Jejomar Binay and Aquilino Pimentel (failure to specify their standing); and Ruy Elias Lopez, Carlo B. Gomez, Marino Ridao and Kisin Buxani (failure to allege proper legal interest). NO. 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 no matter what the Supreme Court ultimately decides, the government will not sign the MOA. In David vs. Macapagal-Arroyo, this court held that the moot and academic principle not being a magical formula that automatically dissuades court in resolving a case, It will decide cases, otherwise moot and academic, if it finds that (a) there is grave violation of the Constitution; (b) the situation is of exceptional character and paramount public interest is involved; (c) the constitutional issue raised requires formulation of controlling principles to guide the bench, the bar and the public; and (d) the case is capable of repetition yet evading review. 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 Courts issuance of a Temporary Restraining Order.

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 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, the manifestation that it will not be signed as well as the disbanding of the GRP Panel notwithstanding. Petitions are imbued with paramount public interest. The assertion that the MOA-AD is subject to further legal enhancements 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. The MOA-AD is 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. SUMMARY: 1. Moot Case- initialed GRP 1. We will not sign in any form 2. Panel Disbanded RULING TESTS: Oppositors 1. Initialed Already 2. Future Negotiations

2. Justiciability GRP Mere consensus points Mere proposals Oppositors Guaranteed acts

o o o o o

Grave violation Exceptional Character Need for controlling principles Capable of repetition Voluntary Cessation of activity not sufficient

Internationally binding Subject to legislative or constitutional Executory processes Not self-executing RULING No binding treaty or unilateral international legal obligation to grant concessions But, Panel guaranteed amendments to the legal framework (which includes Constitution) constituting grave abuse of discretion

SUBSTANTIVE ISSUES: 4. YES. Respondents violated several legal provisions which include the following: Article III, Section 7 provides, 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 right of access to public documents, as provided in both the 1973 Constitution and the 1987 Constitution, has been recognized as a self-executory constitutional right. In Baldoza v. Honorable Judge Dimaano, the Court ruled that the access to public records is predicted on the right of the people to acquire information on matters of public concern since, undoubtedly, in a democracy,

the public has a legitimate interest in the matters of social and political significance. Respondents themselves admit that the MOA-AD is indeed a public concern. Clearly, it involves 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 a contract. However, 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 it one is consummated, it may be too late for the public to expose its defects. Article II, Section 28 provides, 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. 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. the effectivity of the policy of public disclosure need not await the passing of a statute. EXECUTIVE ORDER NO. 3 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. 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 peoples participation. E.O. No. 3 contemplates the conduct of continuing consultations on both national and local levels to build consensus for a peace agenda and process, and mobilization and facilitation of peoples participation in the peace process. 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 as well as to render appropriate and timely reports on the progress of the comprehensive peace process. 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. 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. 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 The LGC chapter on intergovernmental relations provides: Prior Consultations Required. No project or program shall be implemented by government authorities unless the consultations mentioned in Sections 2 (c) and 26 hereof are complied with, and prior approval of the sanggunian concerned is obtained. In Lina, Jr. v. Hon. Pano, 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. The MOA-AD is one peculiar program that unequivocally and unilaterally vests ownership of a vast territory to the Bangsamoro people, which could pervasively and drastically result to the diaspora or displacement of a great number of inhabitants from their total environment. With respect to the indigenous cultural communities/indigenous people

5.

(ICCs/IPs), they 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. The MOA-AD, an instrument recognizing ancestral domain, failed to justify its non- compliance with the clear-cut mechanisms ordained in IPRA, which entails, among other things, the observance of the free and prior informed consent of the ICCs/IPs. 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. 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. YES. The MOA-AD is inconsistent with the Constitution and laws as presently worded. First, the concept of association is not recognized under the present Constitution. 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. An association is formed when two states of unequal power voluntarily establish durable links. In the basic model, one state, the associate, delegates certain responsibilities to the other, the principal, while maintaining its international status as a state. Free associations represent a middle ground between integration and independence. The MOA-AD 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. 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. 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. Second, the BJE is a far more powerful entity than the autonomous region recognized in the Constitution. Indeed, BJE is a state in all but name as it meets the criteria of a state laid down in the Montevideo Convention, namely, a permanent population, a defined territory, a government, and a capacity to enter into relations with other states. Third, the MOA-AD, moreover, would not comply with Article X, Section 20 of the Constitution, which provides for the definition of the powers of an autonomous region. 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. Fourth, 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." 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. Fifth, besides being irreconcilable with the Constitution, the MOA-AD is also inconsistent with prevailing statutory law, among which are the Organic Act of the ARMM, and the IPRA. Lastly, Article II, Section 2 of the Constitution states that the Philippines "adopts the generally accepted principles of international law as part of the law of the land." Assuming that the UN DRIP which state the rights of the indigenous people, like the Universal Declaration on Human Rights, must now be regarded

as embodying customary international law - a question which the Court need not definitively resolve here - the obligations enumerated therein do not strictly require the Republic to grant the Bangsamoro people, through the instrumentality of the BJE, the particular rights and powers provided for in the MOA-AD. 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. 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. While the word "Constitution" is not mentioned in the provision now under consideration or anywhere else in the MOA-AD, the term "legal framework" is certainly broad enough to include the Constitution. Notwithstanding the suspensive clause, however, respondents, by their mere act of incorporating in the MOA-AD the provisions thereof regarding the associative relationship between the BJE and the Central Government, have already violated the Memorandum of Instructions From The President dated March 1, 2001,

which states that the "negotiations shall be conducted in accordance with x x x the principles of the sovereignty and territorial integrity f the Republic of the Philippines." 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. 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. Moreover, the MOA-AD 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's power to conduct peace negotiations is implicitly included in her powers as Chief Executive and Commander-in-Chief. As Chief Executive, the President has the general responsibility to promote public peace, and as Commander-in-Chief, she has the more specific duty to prevent and suppress rebellion and lawless violence. The 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 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. Given the limited nature of the President's authority to propose constitutional amendments, she cannot guarantee to any third party that the required amendments will eventually be put in place, nor even be submitted to a plebiscite. The most she could do is submit these proposals as recommendations either to Congress or the people, in whom constituent powers are vested. Paragraph 7 on Governance of the MOA-AD states, however, that all provisions thereof which cannot be reconciled with the present Constitution and laws "shall come into force upon signing of a Comprehensive Compact and upon effecting the necessary changes to the legal framework." This stipulation does not bear the marks of a suspensive condition - defined in civil law as a future and uncertain event - but of a term. It is not a question of whether the necessary changes to the legal framework will be effected, but when. That there is no uncertainty being contemplated is plain from what follows, for the paragraph goes on to state that the contemplated changes shall be "with due regard to non derogation of prior agreements and within the stipulated timeframe to be contained in the Comprehensive Compact." 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. SUMMARY: Consultation Process GRP 112 + consultations made Character of peace negotiations Some level of confidentiality at certain stages Plebiscite will be necessary Congressional action needed Amendment of Constitution RULING Right to information on matters of public concern Akin to steps and negotiations leading to consummation of contract Oppositors No consultation

Creation of a State (including its consequences) - International Law GRP Oppositors Associative character is related to a MOA-AD recognizes a Central Government Bangsamoro State RULING Internal Self-determination excludes secession (citing Candaian Court Decision against secession of Quebec Province) Associative relationship violated Memorandum of Instructions from President that negotiations shall be conducted in accordance with the principles of sovereignty and territorial integrity of Republic

CONCLUDING OBSERVATIONS SC Decision Premised on the following: o o o MOA-AD is akin to ordinary contract in civil law. Executive Order and Memorandum of Instructions are valid. Inference that a State has been created by MOA History

o Labor relations o Banking o Currency Islamic Law (in some parts)

Comment: a. Contract Theory does not necessarily apply to peace agreements as experienced in most peace negotiations. Christine Bell argues a lex pacificatoria (law of peace) Peace agreement is sui generis a class by itself Proposals to amend existing laws and the Constitution can be made arising out of peace negotiations. Creation of a State is governed by international law.

Muslim Malays in the 14 Century Colonization by Spain and US

th

Categories Pre-Spanish period (pre 1521) o Filipinos lived in independent barangays o Native, customary, unwritten rules Family relations Inheritance Divorce Usury Partnerships Loans Property rights Barter and sale Crime and punishment o Maragtas Code by Datu Sumakwel of Panay Island o Penal Code of Kalantiao Felonies vs. Misdemeanors Principal vs. Accomplice Qualifying and mitigating circumstances Recidivism as an aggravating circumstance o Trial by ordeal Spanish Regime (1521-1898) o Codigo Penal de 1870 Extended to the Phils. in 1887 o Ley provisional para la Aplicaciones de las Disposiciones del Codigo Penal en las Islas Filipinas in 1888

b. c.

The Judicial Mind: Social Context, Vulnerable Sectors & Judiciary

Philippine Legal System Customary usage Roman (civil law) o Family relations o Property o Succession o Contract law o Criminal law Anglo-American (common law) o Constitutional law o Procedure o Corporation law o Negotiable instruments o Taxation o Insurance

Ley de Enjuiciamiento Criminal (Code of Crim. Procedure of 1872, extended in 1888) o Ley de Enjuiciamiento Civil (Code o Civ. Procedure of 1856) o Codigo de Comercio (Code of Commerce of 1886) o Codigo Civil de 1889 (except part on marriage) o Marriage Law of 1870 o Ley Hipotecaria (Mortgage Law of 1861, extended in 18889) o Ley de Minas (Mining Law of 1859) o Ley Notarial de 1862 o Railway Law of 1877 o Law of Foreigners for Ultramarine Provinces of 1870 o Code of Military Justice Philippine Republic of 1898 o June 12, 1898, independence was proclaimed by Aguinaldo o Revolutionary Congress on Sept. 15 1898 o Malolos Constitution on Jan. 20, 1899 Proclaimed popular sovereignty Fundamental civil and political rights of individuals De facto authority Ended when Americans came Treaty of Paris American Regime (1898-1935) o Existing political laws were abrogated o Those inconsistent with the US Constitution and customs were superseded o Organic Laws nd Pres. MacKinleys Instructions to the 2 Phil. Comm. In 1900 Spooner Amendment of 1901 Phil. Bill of 1902 Jones Law of 1916 Tydings-MacDuffie Law of 1934 Granted Filipinos to make own Constitution o Approved by Roosevelt and ratified at a plebiscite Commonwealth (1935-1946) o

o Transitional period of 10 years Japanese Occupation (1941-1944) o 1943 Constitution was drafted and ratified by Kaisanan sa Paglilingkod ng Bagong Pilipinas (KALIBAPI) o Commonwealth in exile in Washington DC Period of the Republic (1946-1972) o July 4, 1946 inauguration of Phil. Independence o Republic means a government by the people and sovereignty resides in the people o 1935 Constitution o Three co-equal branches of government; separation of powers Executive President Legislative two Houses of Congress Judicial Supreme Court Martial Law (1972-1986) o Congress abolished o 1973 Constitution o Parliamentary Government Executive and legislative merged Chief Executive was Prime Minister elected by the National Assembly Power to advise President President is symbolic head of state Never implemented o Military tribunals established o Power of President and Prime Minister were merged into Marcos o Allowed Marcos to exercise legislative powers o Barangays smallest political subdivision o 1981 amendment modified the system President elected by the people for 6-year term Prime Minister elected by Parliament upon nomination by Pres. o Proclamation No. 2045 lifted Martial Law and abolished Military tribunals o Marcos re-elected in 1981

Constitution amended in 1984 Impeachment resolution dismissed Snap Election was called and although Cory was ahead by over a million, Marcos was declared winner People Power Revolution The continuation of the Republic o Freedom Constitution 1986 o o o

Pro-environment Pro-Filipino Pro-person Pro-democracy Pro-accountability Anti-dictatorship Anti-abuse

Sources of Philippine Law Constitution o Fundamental law of the land o Authority of the highest order Statutes o Supply details not provided for by the Constitution Treaties and conventions o Treaty compact made between two or mode nations Judicial decisions o Civil Code provides that decisions shall form part of the legal system o Only SC decisions establish jurisprudence and are binding on all courts Customs o Form part of Filipino legal heritage o Can only be applied in the absence of any statute governing the point in controversy

Philippine Government Republican and democratic o Sovereignty resides in the people and all governmental authority emanates from them Separation of powers three co-equal branches Presidential type Bicameral legislature Independent judiciary Local government decentralized and autonomous Constitutional commissions Special offices

The Justice System and the Legal Profession Multi-tiered court system o Municipal trial courts/Municipal Circuit trial courts/Metropolitan trial courts o Regional trial courts o Court of appeals o Supreme court Special tribunals/quasi-judicial agencies o Court of tax appeals o National labor relations commission Criminal procedure o Local prosecutors office/Dept. of Justice o MTCs or MCTCs o RTCs o CA

Filipinos Idea of Law Normative guide for conduct Reflection of morality Duty-oriented Strongly-oriented towards the Supernatural

1987 Constitution Pro-life Pro-family Pro-people Pro-poor

o SC Graft Cases o Ombudsman o Sandiganbayan o SC Muslim Court and Muslim Bar Trial courts with special jurisdiction o RTCs as commercial and family courts aldo as courts for heinous crimes o MTCs criminal negligence and bouncing check cases Small claims courts Barangay justice system Alternative Dispute Resolution Requirements for practice set by SC Legal Educations set by Rules of Court, Legal Educ. Reform Act o Post-graduate (Juris Doctor or Bachelor of Laws) Clinical Legal Education o Integrates into law school curriculum Bar reform o MCQs and Practical Exercises Constitutionally-established integrated bar: Integrated Bar of the Philippines o Handles development and discipline Mandatory Continuing Legal Education (MCLE) Proposed Mandatory Legal Aid

Alternative Dispute Resolution (barangay justice, conciliation, mediation and arbitration)

RA 9285 Alternative Dispute Resolution Act of 2004 Promote party autonomy in the resolution of disputes Freedom of party to make own arrangements to resolve disputes For speedy and impartial justice and declog court dockets

Alternative Dispute Resolution any process or procedure used to resolve a dispute of controversy, other than by adjudication of a judge or officer of an agency; a neutral third party assists the resolution

Arbitration - voluntary dispute resolution process in which one or more arbitrators (appointed by agreement of parties or according to Rules) resolve a dispute by rendering an award o ADR Provider institutions or persons accredited or any person exercising similar functions, without prejudice to the rights of the parties to choose non-accredited individuals Arbitrator appointed to render award Award any partial or final decision Convention Award foreign arbitral award made in Convention State Convention State member of New York Convention New York Convention UN Convention on the Recognition and Enforcement of Foreign Arbitral Awards approved and ratified by the Phil. Senate Commercial Arbitration covers matters arising from commercial relationships; contractual or not o Confidential Information expressly intended by the source to be such or information obtained under circumstances that would create a reasonable expectation on behalf of the source not to be disclosed General Rule: any information obtained through mediation and arbitration proceedings shall be privileged and confidential Communication made in proceedings Statements made in proceedings Pleadings, manifestations, motions, witness statements, reports Exception: when waived or expressly excepted Mediation voluntary process in which a mediator, selected by parties, facilitates communication and negotiation and assist parties in reaching a voluntary agreement o Court-Annexed Mediation mediation conducted under the auspices of court with jurisdiction o Court-Referred Mediation mediation ordered by court to be conducted in accordance with the parties agreement when an action is prematurely commenced in violation of such agreement o Non-Party Participant person, other than party or mediator, who participates as witness, resource person or expert

A party, mediator or non-party participant may refuse to disclose information and may prevent another from disclosing a mediation communication Confidential Information shall not be subject to discovery and is inadmissible in any adversarial proceeding Except: evidence and information otherwise admissible or subject to discovery In adversarial proceedings, the following people cannot be compelled to disclose confidential information: Parties Mediator/s Counsel Non-party participants Persons hired or engaged in connection with mediation Other persons who obtain information by profession Mediator may not report on matters regarding a mediation to a court or agency that may make a ruling, except: Mediation has terminated or settlement is reached When permitted Waiver of Confidentiality General Rule: Can be done in record or orally during a proceeding by the mediator and the parties; may also be done by non-party participant with regard to information provided by him Exceptions: No privilege against disclosure if communication is: In an agreement Public Threat Intentionally used to plan a crime Offered to prove abuse, neglect, abandonment or exploitation in which a public agency is protecting the interest of an individual protected by law Offered to prove a claim or complaint of professional misconduct or malpractice of mediator Offered to prove a claim of professional misconduct or malpractice against a party, non-party participant or representative

No privilege if court or administrative agency finds, after a hearing in camera, that the party seeking discovery has shown the evidence is not otherwise available, there is a need for evidence that outweigh the interest in protecting confidentiality Court proceeding involving crime or felony Proceeding to prove a claim or defense that is sufficient to reform or avoid a liability on contract arising out of mediation o Enforcement of Mediated Settlement Agreements Settlement agreement shall be prepared by the partied Parties and counsels shall sign; mediator certifies Parties may deposit the agreement to Clerk of RTC Parties may agree that the mediator shall be the sole arbitrator Conciliation adjustment and settlement of dispute in a friendly and unantagonistic manner (Used in courts before trial with a view to avoid trial) Early neutral evaluation parties and their lawyers are brought together in pre- trial to present summaries and receive non-binding assessment Mini-trial structured dispute resolution method in which the merits of a case are argued before a panel of senior decision makers, with or without the presence of a neutral third person Any combination thereof Mediation-Arbitration

This Act does not apply to: Labor disputes (PD 442 Labor Code) Civil Status of persons Validity of marriage Legal separation Jurisdiction of courts Future legitime Criminal liability Those which by law cannot be compromise